UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


HAND  BOOK 

ON  THE 

LAW  OF  EVIDENCE 

A  CONCISE  STATEMENT   OF  THE  RULES 

IN  CIVIL  AND  CRIMINAL  TRIALS 

i 

BASED  UPON 
THE  MODERN  LAW  OF  EVIDENCE 

5  VOLUMES 

BY  CHARLES  FREDERIC  CHAMBERLAYNE 

*\ 

EDITOR  OF  AMERICAN   EDITION   OF   BEST  S  PRINCIPLES  OF  THE  LAW  OF  EVIDENCE, 
AMERICAN   EDITION   OF  TAYLOR  ON   EVIDENCE 


EDITED  BY 

ARTHUR  W.  BLAKEMORE 

Of  the  Boston  Bar,  Editor  of  Blakemore  and  Bancroft 
on  Inheritance  Taxes,  etc. 

AND 

DEWITT  C.  MOORE 

Author  of  "The  Law  of  Carriers,"  "Fraudulent  Conveyances," 
and  Editor  of  "Wood  on  Limitations,"  4th  Edition 


ALBANY,  N.   Y. 

MATTHEW  BENDER  &  COMPANY 

INCORPORATED 
1919 


v 


r 


COPTHIOHT,   1919 

BT  MATTHEW  BENDER  &  COMPANY 
INCORPORATED 

8 


PREFACE 

This  Handbook  on  the  Law  of  Evidence  is  designed  to  present  to  the  Bench 
and  the  Bar  in  compact  form  the  important  rules  and  principles  of  evidence 
as  applied  in  both  civil  and  criminal  trials  and  proceedings,  with  a  treatment 
in  clear  and  succinct  style  of  all  the  leading  questions  involved  in  a  considera- 
tion of  the  subject. 

.The  work  is  based  on  Mr.  Chamberlayne's  exhaustive  and  comprehensive 
work,  "  The  Modern  Law  of  Evidence,"  which  has  been  published  in  five  large 
volumes. 

The  editors  have  attempted  to  include  all  topics  and  propositions  covered 
by  that  great  work. 

Mr.  Chamberlayne's  text,  like  that  of  all  comprehensive  treatises  of  law 
subjects,  contains  much  that  is  technical,  historical  and  explanatory,  with  a 
great  number  of  pertinent  illustrations  showing  the  application  of  the  prin- 
ciples discussed.  Much  of  this  material  has  been  eliminated  in  preparing 
this  handbook,  to  the  end  that  the  principles  that  control  the  disposition  of  a 
concrete  question  may  be  readily  available. 

It  is  obvious  that  the  active  practitioner  is  required  very  frequently  to  refer 
quickly,  without  loss  of  time,  to  definite,  clearly  expressed  rules  of  evidence. 
For  this  purpose  he  needs  the  rules  themselves  with  citation  of  leading  author- 
ities, but  without  elaborate  discussion  or  extended  illustrative  matter.  Multi- 
plication of  cited  precedents  is  not  always  essential.  It  is  confidently  expected 
that  this  handbook  will  prove  of  great  value  to  the  profession  as  a  practical 
manual  for  constant  use  in  trials  of  litigated  cases  and  in  the  preparation  for 
such  trials. 

In  carrying  out  the  intention  of  basing  this  handbook  upon  Chamberlayne's 
elaborate  work,  references  are  made  under  each  section  to  the  corresponding 
sections  of  such  work.  By  referring  to  the  sections  of  Chamberlayne's  Avork 
thus  cited,  a  discussion  and  full  treatment  of  all  the  principles  laid  down  in 
the  handbook  will  be  found. 

Many  important  cases  which  have  been  decided  by  the  courts  since  the  pub- 
lication of  Chamberlayne's  Modern  Law  of  Evidence  have  been  inserted  in 
their  proper  places  in  this  handbook,  and  much  new  matter  covering  questions 
which  are  now  of  present  importance,  but  which  were  not  of  so  much  impor- 
tance when  Chamberlayne's  work  was  published,  has  been  added. 

The  editorial  work  was  partially  done  by  the  late  DeWitt  C.  Moore  of  the 
New  York  Bar.  Upon  his  death  the  work  was  revised  and  completed  by 
Arthur  W.  Blakemore,  Esq.,  of  the  Boston  Bar. 

Februarv.  1919. 


CONTENTS 


CHAPTER  I. 
Law  of  Evidence.  SECTION 

Definitions   in   general 1 

J.aw    of    evidence 2 

Scope  of  the  law  of  evidence 3 

Evidence  defined    4 

Extra  judicial  evidence   5 

Judicial    evidence    6 

'•  Proof  "    and    '•  evidence  " -. 7 

"  Testimony  ' '   and   "  evidence  " 8 

Subdivisions  of  evidence 9 

admissible  evidence 10 

best   and   secondary  evidence    _  11 

competent  evidence    12 

conclusive  evidence    13 

direct  and  circumstantial  evidence    14 

material   evidence    15 

oral  and  documentary  evidence:  document  defined 16 

difficulty   of   removal    •  17 

symbolical    representations   of   thought 18 

proper  scope  of  documentary  evidence 19 

positive  and  negative  evidence   20 

real  and  personal  evidence 21 

Secondary  meanings  of  the  term  •'  evidence  " 22 

CHAPTER  II. 

Facts. 

Fact  defined    23 

Matter  of  fact   24 

Matter  of  law    25 

Matter   of   opinion    26 

Classification  of  facts :   physical  or  psychological 27 

simple   and   compound 28 

component  facts  29 

component  and  probative  30 

res   yestw   and   constituent 31 

compound,  component  and  constituent 32 

positive  and  negative 33 

principal   and   probative    34 

states  and  events  35 

Relevancy       .    36 

Constitutionality  of  statute  declaring  effect  of  certain  facts 37 

CHAPTER  III. 

Law  and  Fact. 

Law  defined    38 

A  divided  tribunal   39 

ix 


CONTENTS.  x 

SECTION 

Who  should  apply  the  law 40 

judge  authoritatively  announces  rule  of   law 41 

jury  ascertain  constituent  facts 42 

application  of  law  to  constituent  facts 43 

Coke's  maxim   considered 44 

General   verdicts    45 

More  rational  expedients 4G 

agreed  statements  of  fact 47 

advantages  to  be  expected 48 

special    verdicts ;    statutory 49 

special  interrogatories ;   common  law   50 

special  interrogatories ;   statutory 51 

administration  by  the  court   52 

Matters  of  argument,  opinion  or  judgment 53 

Matter  of  la\v    54 

Meaning   of   words    .' 55 

The  use  of  reason    56 

Construction  of  documents 57 

Construction  of  oral  contracts 58 

Demurrers  to  evidence 59 

Certainty  of  law  :  rulings  on  facts   ^ 60 

Trial   by   inspection    61 

CHAPTER  IV. 

Court  and  Jury:     Court. 

Court  and  jury :  court 62 

Function*  of  the  judicial  office 63 

judicial    64 

procedure   denned    65 

rights  relating  to  matters  of  procedure 66 

substantive  law  may  prescribe  the  remedy 67 

verbal    metabolism     68 

distinction  not  important   69 

promote  justice    70 

apply    practice 71 

administrative     • 72 

field  of  administration   73 

reason   characteristic   of   administration 74 

discretion     75 

range  of  application  ;  abscence  of  judge  from  courtroom     76 

adjournments    77 

compelling  consistency  in  parties   78 

exclusion  of  persons  from  the  courtroom   79 

grounds  for  admitting  public    80 

persistence  of  conditions   81 

furnish  proof  or  contradiction   82 

grounds  for  exclusion   83 

adjournments  to  avoid  unwise  publicity   .  .  . 84 

separation  of  witnesses    85 

order  not  matter  of  right 86 

vhat  constitutes  violation  of  order 87 

time  of  motion  for  order 88 

by  whom  motion  is. made 89 

whom  the  order  applies 90 


xi  CONTENTS. 

Functions  of  the  judicial  office  —  Continued, 
administrative  —  Continued. 

separation  of  witnesses  —  Continued.  SECTION 

enforcement  of  the  order    91 

consequences  of  disobedience  92 

party's   relation   to  violation 93 

proceedings  against  offending  witness 94 

swearing  of   witnesses    95 

method  of  inquiry    96 

children  as  witnesses ;  insane  persons 97 

form  of  oath    98 

executi  ve    99 

require  order  and  decorum   100 

compel  obedience  to  directions;   administrative  orders 101 

attorneys     102 

others  subject  to  directions 103 

protect  the  course  of  justice   104 

attorneys    105 

court    officers 106 

newspapers;   embarrassing  the  administration  of  justice 107 

service  of  process 108 

witnesses    .' 109 

enforcement  by  contempt  proceedings 110 

civil  and  criminal  cases Ill 

direct  and  constructive    112 

constructive  presence  of  judge   113 

Judge  sitting  as  a  jury  ; 114 

rulings  of   law    115 

administrative    questions    x  .  116 

Evidence  as  a  matter  of  administration  • 1 17 

Stare  decisis  as  applied  to  <the  law  of  evidence 118 

Recapitulation    4 119 

CHAPTER  V. 
Court  and  Jury:     Jury. 

The  growth  of  the  jury  system 120 

Function  of  the  jury ;  jury  confined  to  the  issue 121 

Comment   on   facts    122 

English  and  federal  courts  123 

the  American  minority    124 

American  majority   125 

assumption  of  facts 126 

refusal  of  assumptive  instructions   127 

uncontroverted    facts    128 

weight  and  credibility   129 

when  comment  is  permitted   130 

customary    cautions    131 

Subordination  of  judge  to  jury   132 

Granting  of  new  trials:  verdicts  against  reason  or  weight  of  evidence 133 

action  of  appellate  courts :   palpable  confusion   134 

technica  1  errors  as  to  evidence 135 

substantive  law    136 

English  rule :  harmless  error   137 

American  majority   138 

federal  courts  139 

criminal  cases  •'. .  140 


CONTENTS.  xii 

Granting  of  new  trials  —  Continued. 

action  of  appellate  courts  —  Continued. 

American  majority  —  Continued.  SECTION 

a  purely  voluntary  situation   141 

futile   legislation    142 

technical  inerrancy  required 143 

American  minority    144 

prejudice  from  error    145 

Taking  jury's  opinion    146 

CHAPTER  VI. 
Principles  of  Administration.     A.  Protect  Substantive  Rights. 

Principles  of   administration   147 

protection   of  substantive  rights 148 

right  to  prove  one's  case 149 

right  to  use  secondary  evidence 150 

documents    151 

probative    documents    152 

means  of  communication . .    153 

interpreters      154 

deaf  mutes,  etc 155 

Scope  of   right 156 

limited  to  proof  of  res  yestce 157 

order  of  stages 158 

right  to  open  and  close 159 

plaintiff  as  actor 160 

defendant   as   actor 161 

code  and  common  law  pleading :   admissions 162 

proceedings    in    rem 103 

variations  in  order  of  evidence 164 

evidence  in  chief 165 

actor   166 

nonactor 167 

order  of  topics 168 

conditional   relevancy;    bearing   apparent 169 

bearing    not    apparent 170 

right  to  test  adversary's  case 171 

cross-examination     172 

rebuttal    173 

actor     174 

use    of    experts 175 

anticipatory  rebuttal    176 

non-actor    177 

subsequent   rebuttal    178 

right  to  use  of  reason 179 

should  prevent  jury  from  being  misled 180 

guessing  not  permitted    181 

striking  out  prejudicial   evidence 182 

withdrawal    of   jury 183 

preventing   irrational   verdicts 184 

directing   verdicts    •    185 

relation  to  grant  of  new  trial 180 

relation  to  motion  in  arrest  of  judgment 187 

a  matter  of  law 188 

general   rules 189 


Xlll 


CONTENTS. 


Principles  of  administration  —  Continued. 

protection  of  substantive  rights  —  Continued, 
right  to  use  of  reason  —  Continued. 

directing  verdicts  — Continued.  SECTION 

scintilla   of  evidence  not  sufficient 190 

motion  equivalent  to  a  demurrer  to  evidence 191 

direction  against  the  actor 

direction  in  favor  of  actor 

time  for  making  motion 

direction   on   opening 

party  moving  may  be  required  to  rest 

nominal   or   actual   verdicts • 

effect  of  waiver ,. 

action   of   appellate   courts 

effect  of  rulings  on  evidence 200 

901 

judge  sitting  as  jury 

right  to  judgment  of  court  or  jury 

performance  of  functions  by  judge 2°3 

904. 
waiver    

general  right  to  jury  trial;  witnesses  not  permitted  to  reason 205 

a  strongly  entrenched  right 20* 

federal   constitution    

state    constitution     2^ 

scope   of   common   law ••» 

judicial  powers  reserved "** 

statutory  construction  ;  criminal  cases 211 

waiver  forbidden    

incidental  hearings   

special   proceedings   *" 

statutory  proceedings   2^c 

in  what  courts  right  can  be  claimed 

who  may  claim  right 

reasonable  limitations  permitted ;  demand 

minor  criminal  offences 

payment  of  jury  fees 2-0 

restricted   appeals    

unreasonable   limitations   unconstitutional 

waiver  and  estoppel 2-3 

004 
right  to  confrontation 

waiver    "° 

CHAPTER  VII. 
Principles  of  Administration.     B.  Furtherance  of  Justice. 

09A 

Furtherance  of  justice 

primary  evidence  required 

eradins:  of  nrimarv  evidence 

,.  99Q 

evidence  by  perceptions - 

written  and  oral  evidence 

not  a  question  of  probative  force 

extent  of  administrative  action — *- 

»?  OO 

necessity  for  using  secondary  evidence 

orounds  of  necessitv  :   witnesses  or  documents 234 

OO  K 

degrees  of  secondary  evidence 

how  objection  is  taken 

"  best  evidence  "  as  a  rule  of  procedure 

"  best  evidence  "  rule  at  the  present  time 238 


CONTENTS.  xiv 

Furtherance  of  justice  —  Continued. 

primary  evidence  required  —  Continued. 

"best  evidence"  rule  at  the  present  time — Continued.  SECTIO* 

present  scope  of  rule 239 

a  sole  survival 240 

a  vanishing  rule 241 

hearsay     242 

attesting   witnesses 243 

completeness  demanded    244 

oral   statements;    proponent 245 

admissions  and  confessions 246 

oral 247 

confessions     248 

independent   relevancy    249 

res  i/est(F  an  exception 250 

oral   statements  opponent 251 

probative   effect    252 

right  of  initiative 253 

former   evidence 254 

independent   relevancy    255 

documents:    proponent;    independent  relevancy 256 

judgment 257 

general  practice   258 

depositions     259 

admissions     260 

public   records    261 

executive    262 

legislative    263 

judicial     264 

pleadings  at  law 265 

pleadings  in  chancery 266 

statutory  interrogatories   267 

judgments    268 

verdicts    269 

executions    270 

wills   and   probate  papers 271  t 

private  records  272 

opponent :    independent   relevancy 273 

incorporation   by   reference 274 

obligation  to  introduce  into  evidence  resulting  from  demand  and  inspection  275 

prevent   surprise    276 

new  trial  for  newly  discovered  evidence 277 

action  of  appellate  courts   278 

amendment  of  pleadings 279 

decisions  on  dilatory  pleas   ( 280 

testimony     281 

production  of  documents   282 

time  and  place  of  hearing  283 

surprise  must  be  prejudicial  284 

protection  against  unfair  treatment 285 

unfair  comment    286 

incidental  comment  permitted    287 

unreasonable  comment 288 

comments  on  law 289 

influence  of  spectators 290 

misquoting  evidence 291 


xv  CONTEXTS. 

Furtherance  of  justice  —  Continued, 
prevent  surprise  —  Continued. 

protection  against  unfair  treatment  —  Continued.  SECTION 

reprimanding    counsel 292 

reprimanding  a  party  or  his  witnesses 293 

effect  of  waiver    294 

protect  witnesses  from  annoyance   295 

cross-examination     296 

a  reasonable  limitation    297 

judge   may  interrogate   witnesses 298 

in  order  to  elicit  material  facts   299 

range  of  inquiry 300 

judge  may  call  additional  witnesses 301 

judge  should  hold  balance  of  indulgence  even 302 

judge  should  require  full  disclosure   303 

expedite  trials 304 

judge  should  aim  to  give  certainty  to  substantive  law 305 

action  of  appellate  court;  judicial  function  of  trial  judge:   substantive  law....  306 

findings  of  fact 307 

facts  conditioning  admissibility   308 

competency  of  witnesses 309 

administrative  function  of  trial  judge   310 

executive  function  of  trial  judge   311 

all  iutendments  made  in  favor  of  trial  judge 312 

powers  of  an  appellate  court  313 

modification  of  action    314 

CHAPTER  VIII. 

Judicial  Knowledge. 

Knowledge     315 

Knowledge  of  law ;  in  general 316 

Common  and  judicial  knowledge   317 

Judicial  vs    personal  knowledge ;  judge 318 

judge   as    witness    319 

jury 320 

Scope  of  judicial  knowledge  of  law 321 

Judicial  knowledge  of  common  law :  national  courts   322 

state  and  provincial  courts   323 

Judicial  knowledge  of  international  law .....  324 

Judicial  knowledge  of  law  merchant    325 

Judicial  knowledge  of  written  law ;  extension  and  intension 326 

treat  ies     . 327 

national   courts 328 

state  and  provincial  courts   329 

local  courts   330 

amendment  and  repeal   . .  331 

what  statutes  are  public   332 

How  judicial  knowledge  of  law  is  acquired 333 

Judicial  knowledge  of  the  results  of  law 334 

official   proceedings    335 

executive  department :  nation   336 

state   337 

public   surveys    338 

rules  and  regulations :   nation    339 

signatures  and   seals :   national    340 

legislative  department :    general   facts 341 


CONTENTS.  xvi 

Judicial  knowledge  of  the  results  of  law  —  Continued.  SECTION 

judicial   department ;    general   facts 342 

attorneys  and  counsel    343 

court  records,  papers,  etc 344 

CHAPTER  IX. 
Knowledge;   Common. 

Common    knowledge 345 

administrative   advantages    346 

What  knowledge  is  common 347 

knowledge  as  affected  by  jurisdiction ." 348 

restricted    communities    349 

potential   knowledge 350 

General  notoriety;  classes  of  facts  so  established;  res  gestce 351 

What  facts  are  covered  by  thr  rule 352 

nature     •. 353 

science    354 

facts  of  geography    355 

facts  of  human  experience 356 

standards  of  reasonable  conduct   357 

facts  of  social  life  358 

facts  of  history 359 

facts  of  business 360 

evidence  of  skilled  witness  not  required 361 

various  matters  covered  , 362 

How  actual  knowledge  may  be  acquired 363 

judge  may  decline  to  know  fact  364 

may  require  aid  of  parties   365 

examination  by  judge : 366 

function  of  the  jury   367 

books  not  evidence 368 

standard  treatises    369 

testimony  of  skilled  witnesses   370 

How  far  knowledge  is  binding  37 1 

matter  of  fact 372 

matter   of   law    373 

Cognizance  as  affected  by  action  of  the  parties :  waiver 374 

CHAPTER  X. 
Knowledge:    Special. 

Special  knowledge   375 

reason  for  excluding  knowledge  in  general 376 

administrative  action  of  judge    377 

necessity  of  relevancy    378 

adequate  knowledge    370 

_  echnical  or  scientific  facts    380 

administrative  considerations 381 

scope     382 

properties  of  matter 383 

business  affairs    384 

various  matters   385 

interstate,  or  foreign   law    386 

maritime   affairs    387 

nechanic   arts    388 

i 


XV11 


CONTENTS. 


Technical  or  scientific  facts  —  Continued.  SECTION 

mining ;   natural  history   389 

professional  facts ;  medicine 390 

railroad  facts ;  rules 391 


CHAPTER  XI. 
Burden  of  Proof. 

Preliminaries  to  a  trial  by  jury 

Burden  of  proof  has  a  double  meaning 

Position  of  burden  of  proof;  who  would  fail  if  no  further  evidence  were  introduced. 

never  shifts  t 

common   law   pleading    

equity   pleading 

statutory   pleading 

actions  in  rem,  etc 

criminal  cases :  burden  on  prosecution   

affirmative   defences    . 


392 
393 
394 
395 
396 
397 
398 
399 
400 
401 


CHAPTER  XII. 
Burden  of  Evidence. 

Burden  of  evidence   

Position  of  burden  of  evidence   

criminal   cases    

facts  known  to  adverse  party   

negative    facts    

Scope  of  burden  of  evidence // 

quantum  of  proof  required ;  number  of  witnesses   

prima   faeie  case    '. 

special  inertia  of  the  court;  civil  cases 

documents    _.  .  .  . 

criminal  oases I 

Effect   of  presumptions 

CHAPTER  XIII. 
Presumptions;   Inferences   of   Fact. 

Presumptions ;   classification  of    j 

Inferences  of  fact :  res  i/tso  loquitur 

inference  of  continuance    

nature  of  subject  matter 

legal  results    

legal  status  and  standing 

life    

mental   conditions    

personal  or  business  relations 

inferences  of  regularity;  human  attributes;   physical 

mental  or  moral 

business   affairs 

official   business:    mail   service 

rebuttal  of  inference  of  receipt  from  mailing L>g 

inference    rebuttable    

telegrams  —  statutes     

Omnia  contra  spolintorem .on 

spoliation  a  deliberative  fact   .32 

spoliation  as  an  insult  to  the  court .33 

fabrication :    witnesses    I        .34 

writings    

suppression ;  witnesses :  failure  to  call  


Z6 


CONTENTS.  xviii 
Omnia  contra  spoliatorem  —  Continued. 

suppression  —  Continued.  SECTION 

failure  to  testify    .  . 43(» 

removal  or  concealment   437 

probative  force  of  inference   438 

writings ;    destruction     439 

failure  or  refusal  to  produce   440 

refusal  to  produce  on  demand 441 

mutilation,  alteration,  etc 442 

real   evidence    443 

CHAPTER  XIV. 

Presumptions  of  Law. 

Assumptions  of   procedure    444 

Presumptions  of  law , 445 

Presumption    of    legitimacy  —  marriage    446 

proof   of  access    447 

rebuttal   of  presumption 448 

limitation  upon  scope  of  evidence 449 

inferences  of   fact    450 

presumption  of  death  ;  continuance  of  life 451 

an  inference  of  varying  probative  force 452 

adoption  of  rule  in  America   : .  .  453 

statutory  modifications 454 

proof  of  death  by  inferences  of  fact 455 

failure  to  hear 456 

subjective   facts    .- 457 

unavailing   search    458 

computation  of  the  seven  year  period 459 

time  of  actual  death;   no  presumption  of  life  during  seven  years 460 

presumption  rebuttable    461 

criminal    cases    462 

capacity   for  crime    463 

presumption  of  larceny  from  recent  unexplained  possession  of  stolen  goods  464 

explanation     405 

place  and  cause  of  rinding  466 

proof  of  possession   467 

presumption  of  malice  in  homicide  468 

CHAPTER  XV. 

Pseudo-Presumptions. 

Pseudo-presumptions     469 

conclusive   presumptions    470 

scope  of  presumptions  of  this  class-fictions 471 

lost   grant 472 

presumption  of  malice  in  libel 473 

death  of  attesting  witness  in  case  of  ancient  writings 474 

consequences  of   conduct    47-"> 

good  character    476 

knowledge   of    law    477 

presumption   of    innocence 47* 

an    overstated    rule     47') 

meaning  of  phrase    4*0 

valueless  as  affirmative  proof   48  i 

treatment  of   prisoners    in   judicial    administration    4*2 

weighing  the  presumption  of  innocence   4»3 


xix  CONTENTS. 

Pseudo-presumptions  —  Continued. 

presumption  of  innocence  —  Continued.  SECTION 

other  views 484 

presumption  of  survivorship  485 

CHAPTER  XVI. 

Administrative  Assumptions. 

,     Administrative  assumptions   486 

presumptions  of  law  contrasted  487 

identity  of  person  from  similarity  of  name 488 

property    from   possession 489 

regularity    490 

order  of  events 49 1 

judicial   proceedings    402 

public  officers   493 

relation  between  foreign  and  domestic  law   494 

wrongdoing  not  assumed   495 

Conflict  of  presumptions:   civil  cases 496 

criminal  cases ;  knowledge  of  law 497 

presumption  of  innocence    498 

CHAPTER  XVII. 
Admissions :     Judicial. 

Admissions  defined    499 

Probative   force , .  500 

Formal  judicial  admissions 501 

form  of  admissions   , . 502 

pleadings :  in  same  case   503 

constituting  the   issue    504 

deliberative    facts    505 

use  as  admissions   506 

in  other  cases :   formation  of  issue   507 

use  as  admissions    508 

code    pleading     509 

law  and  equity 510 

equity   pleadings   answe'r 51 1 

state  and  federal  courts 512 

superseded  or  abandoned :    evidence   rejected 513 

stipulations     514 

Informal  judicial  admissions 515 

form  of  admissions:  oral :  testimony  by  party 516 

writings     517 

affidavits     518 

answers   to   interrogatories 519 

depositions     520 

Judicial  admissions  ;  by  whom  made ; 52 1 

attorneys    522 

probative  force :   same  case   523 

formal   judicial  admissions  conclusive 524 

informal  judicial  admissions  constitute  prima  facie  case 525 

CHAPTER  XVIII. 

Admissions:     Extra- Judicial. 

Extra-judicial  admissions :  definition 526 

use  a  general  one 527 


CONTENTS.  xx 

SECTION 

Conditions  of  admissibility ;  statement  must  be  one  of  fact 528 

statement  must  be  voluntary  529 

statement  must  be  certain 530 

statement  must  be  complete 531 

statement  must  be  relevant 532 

Extra- Judicial  admissions ;  by  whom  made ;  parties 533 

parties  to  the  record 534 

co-parties ;  declarant  affected  as  if  sole  party 535 

co-party   not   affected 536 

nominal  parties 537 

persons  beneficially  interested   538 

admissions  by  privies   539 

admissions  by  agents    540 

evidence  is  primary    541 

res  gestfe  in  this  connection   542 

independent  relevancy  distinguished 543 

Form  of  extra-judicial  admissions ;  adoption 544 

references  to  another 545 

writing     , 540 

book-entries     547 

business  documents   548 

commercial   paper 549 

letters 550 

obituary  notices   551 

official  papers   552 

professional  memoranda 553 

tax  lists 554 

temporary  or  ephemeral  forms  of  writing 555 

Transmission  by  telephone    556 

Scope   of    extra-judicial    admissions 557 

Probative  force  of  extra-judicial  admissions 558 

CHAPTER  XIX. 
Admissions;   By  Conduct. 

Admissions  by  conduct ;  "inconsistent  conduct • 559 

silence     560 

failure  to  object  to  written  statements 561 

probative  force  562 

scop^e  of  inference ;  book  entries 5;);; 

independent   relevancy    ........    5(54 

falsehood    •. 565 

silence  as  proof  of  acquiescence   566 

conditions  of  admissibility 567 

statement  must  have  been  understood 568 

denial  must  be  natural 569 

adequate   knowledge    570 

party  must  be  physically  and  mentally  capable  of  reply -.  . .  571 

probative  force  and  effect 572 

Statement  and  other  facts   573 

CHAPTER  XX. 
Offers  of  Compromise. 

)ffers  of  compromise :  rule  of  exclusion   574 

Toncessions  of  liability  received ;  accepted  offers 575 


xxi  CONTENTS. 

SECTION 

By  whom  compromise  offer  may  be  made ;  plaintiff 576 

Independent    relevancy    577 

Specific  admissions 578 

What  offers  are  for  peace 579 

Without  prejudice ;  English  practice 580 

Reasons  for  the  rule ;  value  of  peace 581 

CHAPTER  XZI. 

Confessions. 

Confessions    582 

Requisites  of  admissibility   583 

Misleading  inducements  584 

hope  and  fear;  how  mental  state  is  established 

subjective  considerations   585 

objective  considerations ;   hope   586 

assumption  of  continuance 587 

physical  or  mental  discomfort   588 

pain    589 

threats    590 

moral  or  religious   591 

who  are  persons  in  authority 592 

effect  of  arrest 593 

effect  of  suspicion   594 

deception    595 

illegality    596 

Self-incrimination ;    history   of   doctrine 597 

•'  \erno  tenet  ur  se  ipsum  accusare;"  present  rule  stated 598 

procedure  and  reason   599 

knowledge    and    waiver 600 

preliminary    hearings     601 

Duress    602 

Form  of  confessions   603 

Independent  relevancy    604 

introduction  of  confession  into  evidence;  hearing  on  voir  dire  605 

hearing  of  the  jury    606 

leaving  question  to  the  jury 607 

Probative  force :   infirmative  considerations 608 

judicial    confessions 609 

corroboration  required    610 

a  question  for  the  jury 611 

judicial    views    612 

Specific  admissions    613 

To  whom  extrajudicial  confession  is  made 614 

Administrative  detail   615 

The  evolution  of  reason   616 

CHAPTER  XXII. 

Former  Evidence. 

Former    evidence 617 

Administrative  attitude  of  the  court 618 

Adequate  necessity    619 

absence  from  jurisdiction  620 

claim  of  privilege  against  self-incrimination 621 

death    .  622 


CONTENTS.  xxii 

Adequate  necessity  —  Continued.  SECTION 

imprisonment    623 

inability   to  find    624 

infamy    625 

interest 626 

mental  incapacity    627 

official   duty    628 

physical  incapacity   629 

Former    trial 630 

The  hearsay  rule 631 

Identity  of  the  issue 632 

Identity  of  the  parties 633 

Scope  of  proof ;   extension 634 

intension ;  precision  in  recollection   635 

Media  of  proof;  official  documents .  . 630 

unofficial  documents;   memoranda 637 

stenographers     638 

witnesses ;  independent  relevancy 639 

CHAPTER  XXIII. 
Relevancy. 

Relevancy     640 

Stephen's   definition    641 

Stephen's   definition    considered 642 

CHAPTER  XXIV. 
Incorporation  of  Logic. 

Incorporation  of  logic 643 

logic    defined 644 

propositions 645 

mental  operations 646 

intuitions     647 

deductive  operations   648 

inductive  reasoning   049 

inference  from  experience   650 

deduction  the  basis  of  induction 651 

mental  certainty    652 

hypothesis 653 

CHAPTER  XXV. 
Probative  Relevancy. 

Canons  of  relaxation ;  claim  of  the  crux 654 

direct  and  circumstantial  evidence   655 

inherent  difficulty  of  proof   656 

Canons  of  requirement;  must  accord  equal  privileges 057 

definitencss   demanded    658 

time  must  be  economix.ed   -. 659 

jury  must  lit-  protected    660 

fact  must  not  be  remote   661 

time    662 

proving  tli<>  res  vestrr   663 

optional    admissibility    664 

consistent   and   inconsistent   facts 665 

explanatory  or  supplementary  facts 666 

negative    facts    667 

preliminary   facts    668 


xxiii  CONTENTS. 

SECTION 

Probative  relevancy ;  objective  and  subjective 609 

objective ;   ancillary  facts    670 

subjective    67 1 

CHAPTER  XXVI. 
Reasoning  by  Witnesses. 

"  Matters  of  opinion  " ;  an  ambiguous  phrase 672 

irrelevancy  as  true  ground  for  rejection 673 

Inference  by  witnesses;  use  of  reason  a  matter  of  right 674 

Entire  elimination  of  inference  impossible  675 

Involution  of  reasoning 676 

conditions  of  admissibility    677 

necessity:  inability  of  witness  to  state  precise  mental  effect  of  observation..  678 

inability  of  jury  to  coordinate  the  sense  impressions  of  the  observers. .  .  679 

functions  of  the  judge 680 

relevancy :   objective  and  subjective   681 

adequate   knowledge 682 

ordinary   observer    683 

skilled  witness    684 

conclusions  and  judgment  of  skilled  witness 685 

judge  as  tribunal  of  fact 686 

action  of  appellate  courts   687 

s 

CHAPTER  XXVII. 

Inference  from  Sensation;    Ordinary  Observer. 

Inference  from  sensation;  ordinary  observer;  familiar  physical  objects 688 

Negative  inferences   689 

Instinctive   inferences 690 

Reasoned    inferences    691 

Conditions  of  admissibility  of  inferences  from  observation 692 

Physical  inferences ;   body 693 

conduct 694 

identities  and  correspondences   695 

how  far  reasoned  inference  is  essential   696 

circumstantial   evidence 697 

intoxication 698 

physicial  condition  of  inanimate  objects 699 

Physiological    inferences 700 

Psychological    inferences    . 701 

insanity:   ordinary  observer  rejected;   Massachusetts  rule 702 

rule  in  New  York   703 

ordinary  observer  admitted    704 

qualification  of  ability  to  state  details  of  phenomena 705 

qualification  of  suitable  opportunities  for  observation 706 

qualification  of  ability  to  coordinate  phenomena 707 

judicial  estimates  as  to  probative  force 708 

skilled   observer    709 

subscribing  witness   710 

objective  mental  states 711 

inference   rejected    ." 712 

CHAPTER  XXVIII. 

Inference  from  Sensation;   Skilled  Observer. 

General  position  of  skilled  witness 713 


CONTENTS.  xxiv 

SECTION 

Ordinary  and  skilled  observers;   differentiation  by  subject-matter;   what  topics  are 

technical    714 

necessity  and  relevancy  715 

Architects  and  builders   710 

Business  affairs 717 

Technical  matters   718 

Mechanic  arts    7 19 

Finger  prints  and  tracks 720 

Title  to  real  estate  72 1 

Medical  inferences   722 

qualifications  of  witnesses 723 

detail  of  constituting  facts 724 

who  is  qualified   .' 725 

probative  weight    726 

results  of  autopsy  727 

Military  affairs   728 

Mining  matters 729 

Photographic    art    730 

Railroad  matters;  qualifications   731 

Street   railways    732 

Telegraphing    733 

CHAPTER  XXIX. 

Estimates. 

Estimates    „ 734 

Administrative  requirements 735 

Age    ' 730 

Capabilities :  animate  objects 737 

mechanical 738 

causation 739 

Dimensions,  speed,  weight,  etc 740 

CHAPTER  XXX. 
Value. 

Value 741 

various  methods  of  proof 742 

Market  value    743 

hearsay    744 

individual    745 

qualifications    740 

The  proper  market   747 

Proof  by  estimate.     Time  of  estimate  748 

Change  in  value  749 

Relative   value 750 

Administrative  requirements :  necessity 751 

relevancy  demanded    752 

qualifications  of  witness;   adequate  knowledge 753 

claim  of  knowledge   754, 

action  of  appellate  courts   755 

preliminary  statement  of  fact 756 

Ordinary  observer ;  personal  property,  real  estate  and  services 757 

Owner  as  witness    758" 

Skilled  observer  as  witness  759 

Skilled  witness  testifying  as  an  expert 760 


xxv  CONTENTS. 

Skilled  witness  testifying  as  an  expert  —  Continued.  SEcnour 

probative  force  of  the  judgment ;  how  tested  761 

function  of  the  jury  702 

Constituents  for  the  expert's  judgment;  factors  controlling  it 763 

CHAPTER  XXXI. 
Handwriting. 

Proof  by  direct  evidence 764 

Proof  by  secondary  evidence ;  circumstantial   765 

characteristics   of   handwriting    766 

phenomena  of  documents   767 

who  are  qualified  as  witnesses 768 

age  or  alterations   769 

inference  from  observation   ' 770 

Ordinary  observer :  qualifications;  seeing  person  write 771 

adoption  in  course  of  business 772 

special  experience    773 

Skilled  observer ;  qualifications  required 774 

Comparison  of  hands    775 

qualifications  must  be  affirmatively  proved 776 

requirements 777 

English   rule    778 

American   rule 779 

witness  to  comparison  rejected ." .  780 

witness  to  comparison  accepted  781 

statutory  modifications    782 

proof  of  standard 783 

proof     784 

testing  on  cross-examination   785 

proof  in  criminal  cases 786 

standardi/ing  document   787 

Probative  weight  of  the  inference  788 

function  of  the  court   789 

inference  a  reasoned  one   790 

tests  furnished  by  cross-examination 791 

CHAPTER  XXXII. 
Conclusion  from  Observation;  Fact. 

Conclusions  from  observation '    792 

administrative  requirements :   necessity   793 

relevancy ;  preliminary  detail  of  facts 794 

Conclusions  of  fact ;  when  admitted 795 

sufficiency 796 

bloodhounds   tracking   criminal 797 

utility    798 

voluminous   data    799 

When  rejected ;  conducted  800 

inferences     801 

suppositions    802 

CHAPTER  XXXIH. 

Conclusions  from  Observation;  law. 

Conclusions  of  law 803 

legal   reasoning 804 

when  admitted  805 


CONTENTS.  xxvi 

Conclusions  of  law  —  Continued.  SECTION 

intrusion  upon  the  function  of  the  court 806 

when  conclusion  is  received. 807 

CHAPTER  XXXIV. 

Judgments  of  Experts. 

Judgments     808 

an  obvious  administrative  danger  —  field  of  the  expert 809 

admissibility  a  question  of  administration 810 

illustrative  instances  of  judgments   811 

medicine     812 

mining  matters    813 

railroad  matters    814 

trolley  and  street  railways 815 

CHAPTER  XXXV. 
Hypothetical  Questions. 

The  hypothetical  question   816 

Conclusion   and  judgment    817 

Form  of  question 818 

must  include  all  facts  essential  to  some  relevant  hypothesis 819 

must  include  all  undisputed  material  facts 820 

facts  must  be  plausibly  proved 821 

general  assumptions    822 

administrative  details    823 

CHAPTER  XXXVI. 
Probative    Force    of   Reasoning. 

Element  of  observation 824 

how  weight  is  tested ;  detail  of  preliminary  facts 825 

qualifications  of  witness   826 

Inferences  tested ;  when  tests  are  applied   827 

Probative  force  of  inferences  from  observation ;  stage  of  rebuttal 828 

Probative  force  of  judgments ;  how  enhanced ;  use  of  text-books 829 

how  tested  on  cross-examination 830 

stage  of  rebuttal 831 

Use  of  standard  treatises;   deliberative  effect 832 

Weight  of  inferences;  a  question  for  the  jury 833 

reason  essential  and  sufficient 834 

comparison  between  inferences  from  observation  and  reasoning  from  assumptions  835 

Weight  of  judgments ;  a  field  of  conjecture 836 

CHAPTER  XXXVII. 
Unsworn  Statements;   Independent  Relevancy. 

Hearsay  rule  as  a  distinctive  anomaly:  scope  of  the  anomaly 837 

Independent  relevancy  of  unsworn  statements;  meaning  of  the  res  gestce 838 

distinct  criminal  offences 839 

Extra-judicial  statements  part  of  the  res  gestce 840 

existence  of  the  statement  itself  841 

evidence  is  primary 842 

forms  of  statements    843 

Extra-judicial  statements  as  probative  facts 844 

bodily  sensation   845 

identification 846 

mental  condition   ....  847 


xxvii  CONTEXTS. 

Extra-judicial  statements  as  probative  facts — .  Continued.  SECTION 

intent  and   intention , 848 

illustrative   instances ...... 849 

knowledge    850 

illustrations 851 

Extra-judicial  statements  as  deliberative  facts  852 

Form  of  statement ;  oral  .. 853 

reputations    854 

libel,  etc 855 

Administrative  details   856 

CHAPTER  XXXVin. 
Unsworn  Statements;   Hearsay. 

Unsworn  statements ;  hearsay   857 

antiquity  of  rule   858 

Hearsay  rule  stated 859 

a  controlling  rule ;  an  absolute  bar   \ 860 

statutory  exceptions   861 

hearsay  memoranda  refreshing  memory   862 

implied  hearsay   863 

knowledge  based  on  reputation    864 

testimony  based  on  hearsay   865 

Reasons  for  hearsay  rule ;  inherent  weakness 866 

distrust  of  the  jury ;   hearsay  in  other  judicial  systems 867 

Scope  of  hearsay  rule 868 

Relevancy  of  hearsay 869 

objective  relevancy    870 

subjective  relevancy    871 

Form  of  hearsay   872 

composite    hearsay 873 

reputation     874 

rumor    875 

tradition 876 

printed 877 

written    878 

official  statements ;  admissions 879 

I 

CHAPTER  XXXIX. 
Hearsay  as  Secondary  Evidence;    Declarations  Against  Interest. 

Hearsay  as  secondary  evidence     880 

Declarations  against  interest;  rule  stated 881 

distinguished  from  admissions   882 

administrative  requirements ;  necessity 883 

subjective  relevancy    884 

nature  of  interest ;  pecuniary   885 

proprietary    886 

interest  other  than  pecuniary  or  proprietary 887 

general   requirements    888 

CHAPTER  XL. 
Hearsay  as  Secondary  Evidence;  Declarations  as  to  Matters  of  Public  or  General  Interest. 

Declarations  as  to  matters  of  public  and  general  interest 889 

Administrative  requirements;    necessity    .  •. .  800 

subjective   relevancy ;   adequate  knowledge    891 

absence  of  controlling  motive  to  misrepresent 892 


CONTENTS.  xxviii 

SECTION 

Form  of  declaration 893 

Scope  of  rule ;  boundaries,  etc. 894 

CHAPTER  XLI. 
Hearsay  as  Secondary  Evidence;  Dying  Declarations. 

Hearsay  as  secondary  evidence ;  dying  declarations 895 

Administrative  requirements :    necessity    896 

relevancy    897 

subjective  relevancy    80S? 

completeness  demanded  899 

rule  strictly  construed   900 

who  are  competent  as  declarants 901 

functions  of  the  court 902 

Expectation  of  death 903 

modes   of   proof    904 

Form  of  declaration 905 

Number  of  dying  declarations   906 

Privilege  of  husband  and  wife 907 

Scope  of  declaration   908 

Weight  for  the  jury   909 

a  discredited  rule    910 

impeachment   911 

mental  state  of  declarant 912 

Rule  constitutional    913 

CHAPTER  XIII. 
Hearsay  as  Secondary  Evidence;   Entries  in  Course  of  Business. 

Declarations  in  course  of  business 914 

English  rule ! 915 

American   rule 916 

Administrative  requirements :    necessity 917 

subjective  relevancy :  adequate  knowledge  918 

absence  of  controlling  motive  to  misrepresent 919 

contemporaneousness   required    920 

regularity 921 

Form  of  statement 922 

written 923 

Nature  of  occupation   924 

CHAPTER  XLIII. 
Hearsay  as  Secondary  Evidence;  Declarations  Concerning  Pedigree. 

The  pedigree  exception 925 

Rule  stated :  unsworn  statements  as  to  pedigree 926 

Administrative  requirements:  necessity:  general  and  special 927 

relevancy    928 

validity  of  document  not  demanded 929 

issue  must  be  one  of  genealogy 930 

Scope  of  rule :  facts  directly  asserted 931 

facts   incidentally   asserted ;    relationship 932 

Form  of  statement    933 

composite ;    reputation    934 

tradition     935 

individual    936 

Circumstantial  proof  of  pedigree 937 


xxix  CONTENTS. 

SECTION 

Proof  by  acquiescence  in  case  of  pedigree 938 

Animal   pedigree    939 

Scope  of  circumstantial  evidence  in  case  of  pedigree 940 

birth     941 

death     942 

marriage    943 

names     944 

race   945 

relationship     946 

residence    947 

status    948 

CHAPTER  XLIV. 
Hearsay   as   Primary  Evidence;    Spontaneity. 

Hearsay  as  primary  evidence   949 

Relevancy  of  spontaneity ' 950 

Declarations  part  of  a  fact  in  the  res  gestce 951 

relevancy  to  fact  asserted   952 

statement  must  be  contemporaneous 963 

The  principle  of  the  res  (jestce 954 

relation  to  the  rule  against  hearsay 955 

The  modern  view   956 

considerations  determining  spontaneity 957 

elapsed  time   958 

form  of  statement   959 

consciousness  and  lack  of  motive  to  misstate , 960 

permanence  of  impression    961 

physical  state  or  condition   962 

Narrative  excluded :  admissions   963 

spontaneous  statements  by  agents   964 

remoteness   965 

Range  of  spontaneous  statements:  probative  facts  preceding  the  res  gestce 966 

probative  facts  subsequent  to  the  res  gestae 967 

accusation  in  travail    968 

declarations  of  complainant  in  rape 969 

American   rule    970 

independent   relevancy :    failure    to   complain 971 

the  element  of  time :   independent  relevancy 972 

declarations  of  owner  on  discovering  larceny,  etc 973 

personal  injuries   -,.... 974 

Probative  weight  of  spontaneous  statements   975 

Who  are  competent  declarants  976 

CHAPTER  XIV. 

Hearsay  as  Primary  Evidence;   Relevancy  of  Regularity. 

Shop  book  rule    : 977 

Administrative  requirements :    necessity    978 

relevancy :   adequate  knowledge    979 

absence  of  controlling  motive  to  misrepresent 980 

suppletory  oath    '.  981 

books  must  be  those  of  original  entry   982 

corroboration  aliunrie   983 

entry  must  be  intelligible   984 

entry  on  book  account  must  have  been  a  routine  one 985 

facts  creating  suspicion   986 


CONTENTS.  xxx 

Administrative  requirements  —  Continued.  SECTION 

identity  of  book  must  be  established 987 

material  used 988 

original    must    be    produced 989 

Scope  of  evidence 990 

nature  of  charges ;   special  contract   99 1 

other  matters   992 

nature  of  occupation    993 

who  may  be  charged 994 

Weight     995 

CHAPTER  XLVI. 
Relevancy  of  Similarity;    Uniformity   of  Nature. 

Relevancy  of  similar  occurrences;  uniformity  of  nature 996 

Preliminary   observations;    rule   an    assignment   of   irrelevancy;    true  ground   of   re- 
jection        997 

Rule  stated   998 

Administrative  requirements ;  necessity   999 

relevancy 1 000 

relevancy  of  similarity   1001 

essentially  similar  occurrences '.  .  . 1002 

experiments     1003 

varying  phenomena    1 004 

relevancy  of  dissimilarity    • 1005 

Inferences  other  than   similar  occurrences 100(5 

Other  uniformities  than  that  of  physical  nature:  regularity  of  law  or  business;  habits  1007 

CHAPTER  XLVII. 
Relevancy  of  Similarity:  Moral  Uniformity. 

Res  inter  alias   I 1008 

Administrative   requirements    1009 

relevancy  of  similarity   1010 

proof  of  mental   state    101 1 

knowledge 1012 

malice 1013 

other  mental  states  1 014 

motive     1015 

unity  of  design    lOHi 

relevancy   of   dissimilarity    1017 

psychological   induction    . 1018 

Inferences  other  than  conduct   1019 

constituent   facts    1020 

contradiction 1021 

corroboration  or  explanation  1022 

identification  of  doer  of  act;  essential  conditions  for  conduct 1023 

probative  facts 1024 

CHAPTER  XLVIII. 
Moral   Uniformity:    Character. 

Inference  of  conduct  from  character   1025 

Necessity 1026 

Relevancy     1027 

Rule  stated :  civil  cases   1 028 

criminal   cases    1029 

quasi-criminal  cases 1030 


xxxi  CONTENTS. 

Rule  stated  —  Continued.  SECTION 

administrative  details 1031 

physical  or  mental  impairment   * 1032 

trait  must  be  relevant   .• 1033 

Inferences  other  than  conduct ;  independent  relevancy 1034 

character  a  constituent  fact   1035 

character  a  probative  fact 1036 

Proof  of  character ;  reputation  is  character 1037 

what  witnesses  are  qualified ;  adequate  knowledge 1038 

knowledge  of  the  community 1039 

remoteness   in  time 1040 

absence  of  controlling  motive^  to  misrepresent 1041 

animals    1042 

probative  force ;  reputation   1043 

Proof  other  than  by  reputation   1044 

particular  facts    1045 

animals;    illustrative   occurrences 1046 

Weight    .' 1047 

CHAPTER  XLIX. 
Public   Documents. 

Public  documents ;    definition   of 1048 

principle  controlling  admissibility    1049 

objection  that  they  should  not  be  removed 1050 

equally  admissible  as  copies   , 1051 

where  not  kept  in  strict  conformity  to  statutory  requirements 1052 

authentication ;    necessity   of 1053 

mode  of 1054 

legislative  acts:   domestic 1055 

ordinances 1056 

papers  and  documents  relating  to  affairs  of  state 1057 

compelling   production   of 1058 

CHAPTER  L. 
Judicial    Records. 

Judicial    records ;    administrative    requirements 1059 

In  same  court  and  in  another  court 1060 

Minutes  or  memoranda;   when  admissible   1061   • 

Judicial  records ;   effect  when  perfected     1062 

extent  to  which  admissible 1063 

justices  of  the  peace 1064 

probate  courts    1065 

CHAPTER  LI. 
Copies  and  Transcripts:  Judicial  Records. 

Copies  and  transcripts;   judicial  records   1066 

exemplifications x 10(57 

examined  or  sworn  copies   1068 

office  or  certified  copies   1069 

justices'    courts    , 1070 

probate  courts   1 07 1 

federal    courts    1072 

of  other  states  1073 

attestation  of  the  clerk  1074 

certificate  of  the  judge 1075 


CONTENTS.  xxxii 
Copies  and  transcripts  —  Continued. 

of  other  states  —  Continued.  SECTION 

Justices   of   the   peace 1076 

probate  courts 1077 

state  courts  in  federal  courts 1078 

foreign   courts    1079 

CHAPTER  in. 
Public  Documents;  Official  Registers,  Papers  and  Writings. 

Public  documents;  official  registers,  papers  and  writings 1080 

certificates  by  public  officers    1081 

particular  documents 1082 

same 1083 

private  writings  of  record ;  conveyances 1084 

CHAPTER  LIII. 

Copies  and  Transcripts;    Official  Registers,  Papers  and  Writings. 

Copies  and  transcripts;  official  registers,  papers  and  writings 1085 

mode  of  proof ;  certified  copies 1086 

land  office  records   t 1087 

ordinances 1088 

records  of  private  writings 1089 

records  of  other  states  1090 

foreign  records   , 1091 

CHAPTER  LIV. 
Private   Documents   and   Writings. 

Private  documents  and  writings;  corporation  records -.  photographs 1092 

commercial  agencies'  records , 1093 

ecclesiastical   records    .  .    1094 

nautical  records 10J)5 

secret  society  records    10!)6 

compelling  adversary  to  produce 1097 

CHAPTER  IV. 

Private   Documents   and    Writings;    Memoranda. 

Private  documents  and  writings :  memoranda 1098 

CHAPTER  LVI. 

Private  Documents  and  Writings;   Proof  of  Original. 

Private,  documents  and  writings :  proof  of  original  1099 

attested  writings:  general  rule . .  1 100 

instrument?  executed  under  a  power 1101 

exceptions  to  rule 1 1 02 

CHAPTER  IVII. 
Ancient  Documents. 

Ancient  documents:  admissible  without  proof  of  execution 1  103 

writings  within  rule:  copies   1 1<H 

private  writings 1 105 

deeds     1 106 

public   documents ,  1 107 


xxxiii  CONTENTS. 


CHAPTER  LVIII. 

Farol  Evidence  Rule.  SECTION 

Parol  evidence  rule ;  general  statement  of 1 108 

private  documents   1 109 

exceptions;   collateral  agreements ;   instrument  incomplete 1110 

delivery  incomplete  or  conditional 1111 

duress  fraud  or  fraudulent  representations 1112 

illegality    1113 

incapacity     1114 

interpretation  and  explanation;  evidence  admissible  for  purposes  of..  ..  1115 

modification  or  rescission  subsequent  to  execution 1116 

mistake    '  1117 

parties ;  identification  of  %. 1118 

unauthorized  signing    1119 

public   records 1120 

CHAPTER  LIX. 
Best    Evidence    Rule. 

Best  evidence  rule;  application  to  documents 1121 

writings  executed  in  duplicate   1122 

when  proof  other  than  by  original  allowed:  administrative  requirements 1123 

loss  or  destruction  of  original   1 124 

diligence  required  in  search    1 125 

public  records;  official  and  judicial 1126 

voluminous  facts  in  different  writings 1127 

writing  collateral  to  issues   1128 

writing  in  control  of  adverse  party  . .  .  .' 1 129 

writing  in  possession  or  control  of  third  party ;  out  of  jurisdiction 1130 

CHAPTER  LX. 
Evidence  By  Perception. 

Evidence  by  perception ;  meaning  of  term  «. 1131 

Administrative  power  of  court 1132 

Subjects  of;  animals  1133 

persons :  facts  to  be  proved :  age u 1 1 34 

resemblance,  paternity,  etc 1135 

things :   in  civil  actions   1 1 36 

Tn  criminal  cases   1137 

Experiments    1138 

View    1 139 

CHAPTER  LXI. 
Witnesses;   Attendance  of. 

Attendance  of  witnesses ;  power  of  court  as  to 1140 

mode  of  procuring :   subpoena   1141 

subpoena  duces  tecvm    1 1 42 

habeas  corpus  ad  testificandum   1 143 

recognizance    1 144 

'•rvivmlsory  process;  not  a  taking  of  property;  duty  to  testify 1145 

payment  for  attendance  1 146 

punishment  for  contempt    1147 


CONTENTS.  xxxiv 

CHAPTER  LXII. 
Incompetency  of  Witnesses;  Mental  Incompetency.  SECTION 

Incompetency  of  witnesses ;  nature  of  an  oath 1 148 

immaturity  of  children's  minds   1 149 

insanity,  idiocy,  etc 1 150 

intoxication     1 151 

victims  of  drug  habits 1 152 

CHAPTER  LXIII. 

Incompetency  of  Witnesses;  Policy  of  the  Law. 

Incompetency  of  witnesses;  policy  of  the  law;  atheism  and  other  disbelief  in  God.  .  .  .  1153 

attorneys     1 154 

husband  and  wife ;  general  rule 1 1 55 

infamous  crimes ;  common  law  rule 1156 

interest,  etc : 1157 

judge  and  jurors  1158 

CHAPTER  LXIV. 

Incompetency    of    Witnesses;     Race. 

Incompetency  of  witnesses ;  race   •  1 159 

CHAPTER  IXV. 

Privileged  Communications. 

Privileged  communications 1160 

attorney  and  client ;  general  rule 1161 

when  applied    1 162 

exceptions 1163 

waiver  by  client  of  privilege 1 164 

clergymen     x 1165 

husband  and  wife ;   general  rule   1 166 

physician  and  patient :  privilege  is  of  statutory  origin 1 167 

public  justice:  grand  jurors '     1 168 

petty  or  traverse  jurors 1 1 69 

secrets  of  state    1170 

CHAPTER  LXVI. 
Examination  of  Witnesses. 

Examination  of  witnesses   1171 

direct  examination  :   leading  questions 1172 

use  of  memoranda  to  refresh  memory   1 173 

cross-examination     1174 

scope  of 1175 

redirect  examination 1176 

examination   subsequent  to  redirect    1 177 

recalling  of  witnesses   1 1 78 

privilege  aa  to  self-incrimination   1 179 

CHAPTER  LXVII. 
Impeachment  of  Witnesses. 
Impeachment  of  witnesses;  application  of  maxim  "falso  in  uno  falsus  in  omnibus".  . 

right  to  impeach   

one's  own  witness   

opponent's  witness :   character    

bias  or   interest    

contradictory  statements   


LAW  OF  EVIDENCE. 


CHAPTER  I. 

LAW  OF  EVIDENCE. 

Definitions  in  general,  1. 

Law  of  evidence,  2. 

Scone  of  the  law  of  evidence,  3. 

Evidence  defined,  4. 

Extra  judicial  evidence,  5. 

Judicial  evidence,  6. 

"  Proof  ''  and  "  evidence"  1. 

"  Testimony  "  and  "  evidence,"  8. 

Subdivisions  of  evidence,  9. 

admissible  evidence,  10. 

best  and  secondary  evidence,  11. 

competent  evidence,  12. 

conclusive  evidence,  13. 

direct  and  circumstantial  evidence,  14. 

material  evidence,  15. 

oral  and  documentary  evidence:  document  defined,  16. 
difficulty  of  removal,  17. 
symbolical  representations  of  thought,  18. 
proper  scope  of  documentary  evidence,  19. 

positive  and  negative  evidence,  20. 

real  and  personal  evidence,  21. 
Secondary  meanings  of  the  term  "  evidence,"  22. 

§  1.  Definitions  in  General.1 —  Whatever  may  be  true  of  the  ancient  maxim, 
"  Omnis  definitio  in  jure  periculosa  est,"  in  other  connections,  one  who,  like 
]\Ir.  Justice  Stephen,  is  seeking  to  render  the  law  of  evidence  intelligible, 
cannot  well  refrain  from  incurring  the  danger  of  violating  it.  The  constant 
necessity  of  adapting  familiar  technical  terms  to  the  apprehension  of  a  popular, 
ever-changing,  tribunal  like  the  jury,  and  the  careless,  inexact  —  sufficiently 
accurate  for  immediate  purposes  —  action  of  the  courts  in  their  use  of  terms 
have  a  constant  tendency  to  break  down  any  remnants  of  scientific  precision 
in  the  use  of  terminology,  and  to  develop  numerous  connotations  for  each 
term  or  phrase  commonly  employed  in  connection  with  the  subject.  That  any 

1.  1    Chamberlayne.    Evidence,   §    1. 


|§  2-4  LAW  OF  EVIDENCE.  2 

treatise  on  evidence  should  be  understandable,  tbis  confusion  must,  so  far  as 
practicable,  be  eliminated  by  a  careful  definition  of  the  terms  about  to  be 
employed.  It  has,  however,  been  deemed  advisable  not  to  attempt  incumbering 
the  subject  with  the  additional  complication  of  a  new  terminology.  The 
only  course,  therefore,  would  seem  to  be  the  selection  of  one  among  several  con- 
notations of  the  multifold-meaning  terms.  This  has,  wherever  possible,  been 
done. 

§  2.  Law  of  Evidence.2 —  The  u  rules  of  evidence  "  are  such  precepts  in  the 
general  subject  of  judicial  administration  as  determine  the  manner  in  which  a 
designated  fact  submitted  to  judicial  decision  may  be  proved ;  3  whether  such 
a  fact  may  be  proved  at  all ;  if  so,  who  are  competent  to  prove  it  and  under  what 
conditions.  In  the  aggregate,  these  rules  constitute  the  "  law  of  evidence." 

§  3.  Scope  of  the  Law  of  Evidence.4 — "  The  law  of  evidence  has  to  do  with 
the  furnishing  to  a  court  of  matter  of  fact,  for  use  in  a  judicial  investigation. 
(1)  It  prescribes  the  manner  of  presenting  evidence;  as  by  requiring  that  it 
shall  be  given  in  open  court,  by  one  who  personally  knows  the  thing,  appearing 
in  person,  subject  to  cross-examination,  or  by  allowing  it  to  be  given  by  depo- 
sition, taken  in  such  and  such  a  way;  and  the  like.  (2)  It  fixes  the  qualifica- 
tions and  the  privilege  of  witnesses,  and  the  mode  of  examining  them.  (3 ')  And 
chiefly,  it  determines,  as  among  probative  matters,  matters  in  their  nature 
evidential, —  ^hat  classes  of  things  shall  not  be  received.  This  excluding 
function  is  the  characteristic  one  in  our  law  of  evidence.''  5 

§  4.  Evidence  Defined.0 —  In  its  original  sense,  the  term  "  evidence  "  is  that 
which  causes  the  state  of  being  evident  or  plain.  As  at  present  employed,  the 
term  '*  evidence,"  in  general,  covers  all  facts  from  which  an  inference  may 
logically  be  drawn  as  to  the  existence  of  a  fact  under  investigation.  For  ju- 
dicial purposes,  evidence  may  be  conveniently  divided,  in  the  order  in  which 
a  fact  may  present  itself  to  observation,  into  e:rfrn  judicial  and  jucficinl.  "  Ju- 
dicial evidence  is  that  which  is  produced  to  the  court;  it  comprise?  all  evidential 
facts  that  are  actually  brought  to  the  personal  knowledge  and  observation  of 
the  tribunals.  Extrajudicial  evidence  is  that  which  does  not  come  directly 
under  judicial  cognizance  but  nevertheless  constitutes  an  intermediate  link 
between  judicial  evidence  and  the  fact  requiring  proof."  ~ 

2.   1  Chamberlayne.  Evidence.  §  2.  3.  T.apham   v.   Marshall.   5]    Hun    (N.   Y.) 

Mr.    Chamberlayne's    treatise    concerns    it-  361,  3  X.  V.   Supp.   601    (1889). 

self  primarily  with  evidence,  neither   as   de-  4.   1    fhamberlayne.    Evidence.    §    3. 

noting   the   science   of   proof   nor   the   art   of  5.  Thayer,    Prelim.    Treat..    '264. 

proof,   but   "  as  covering  the  physical  means  6.    1    Chamberlayne,    Evidence,   §   4. 

by  which  the  art  of  producing  belief  in  the  7.  Salmond.    Jurisp.    (2nd   ed.),   447.     For 

truth  of  a   given  proposition  or  of  verifying  other    definitions    of    evidence,    see    Chamb., 

a  fact  by  the  use  of  reason,  is  carried  on."  Ev.,  §§  4  and  5,  and  notes  thereto. 

This   aspect   of   the   term   "  evidence "   is   the 

special    subject   of   his   treatise. 


3  SUBDIVISIONS  OF  EVIDENCE.  §§  5-9 

§  5.  Extrajudicial  evidence. ^ — "  Extrajudicial  evidence  includes  all  evidential 
facts  which  are  known  to  the  court  only  by  way  of  inference  from  some  form 
of  judicial  evidenced  9  Extrajudicial  evidence  is  part  of  the  order  of  nature 
—  as  distinguished  from  the  art  of  investigating  reports  of  the  natural  occur- 
rences. It  is  the  field  of  objective  relevancy. 

,  §  6.  Judicial  evidence. —  Judicial  evidence  includes  all  testimony  given  by 
witnesses  in  court,  all  documents  produced  to  and  read  by  the  court,  and  all 
things  personally  examined  by  the  court  for  the  purposes  of  proof. lu  Judicial 
evidence  is  the  domain  of  subjective  relevancy;11  of  the  use  of  deliberative 
facts:  la  of  the  balancing  in  mental  scales,  of  the  weight  —  the  true  probative 
force  —  of  the  statements  of  witnesses  or  of  the  declarations  of  documents.13 

§  7.  "  Proof  "  and  "  Evidence."—  The  terms  "  evidence  "  and  "  proof  "  have 
be«n  used  as  synonyms  —  that  is,  as  indicating  the  means  by  which  mental  cer- 
tainty on  the  part  of  a  tribunal  is  created.14  But  when  properly  employed, 
"  proof  '?  sustains  to  "  evidence  "  the  relation  of  an  end  to  the  means  used  in 
attaining  it.  Proof  is  the  state  of  mind  which  it  is  the  object  of  evidence  to 
produce.1"1  The  most  pernicious  effect  of  using  the  word  "  proof  "  as  meaning 
either  (1)  the  end  of  mental  certitude,  or  (2)  the  means  by  which  a  party 
seeks  to  attain  that  end  lies  in  connection  with  the  phrase  "  burden  of  proof," 
where  the  two  senses  of  the  term  proof  are  interchangeably  employed  in  a  be- 
wildering way.16 

§  8.  "Testimony"  and  "  Evidence."— «  Evidence "  and  "testimony"  have 
been  used  frequently  by  the  courts  as  conveying  the  same  meaning.  More  prop- 
erly, "  testimony  "  is  that  part  of  judicial  evidence  which  comes  to  the  tribunal 
through  the  medium  of  witnesses  —  i.e.,  by  means  of  their  verbal  statements.17 

§  9.  Subdivisions  of  Evidence. —  No  general  system  of  classification  has  been 
adopted  by  those  who  have  sought  to  create  classifications  in  the  generic  term 

8.  1   Chamberlayne,  Evidence.  §§  6,  55.  Albany  County  Savings  Bk.  v.  McCarty.  149 

9.  Salmond.   Jurisp.    (2nd   ed.),   417.  X.  Y.  71,  83.  43  X.  E    427    (1896). 

10.  1    Chamberlayne,    Evidence,    §    7;    Sal-  15.  1  Chamberlayne.  Evidence,  §  8:  Schloss 
mond,  Jurisp.    (2nd  ed.,  417.  v.  Creditors.   31    Cal.  201    i!866):   Powell  v. 

11.  1    Chamberlayne,  Evidence,  §§   7.  56.  State.   101    Ga    9.  21,  29   S.   E    309,   65  Am 

12.  1  (hamberlayne.  Evidence.  §§  7.  47,  52.  St.  Rep.  277    (18971  :   Perry  r.  Dubuque.  etc  , 

13.  1    Chamberlayne.   Evidence,   §   7.  R.  Co.  36  Towa,  102  (1872)  :  Miles  v.  Edelen. 

14.  1       Chamberlayne,      Evidence.      §      8:  1    Duv     (Ky.)    270    (1864):    .lastrzembski   v. 
O'Kfiliy    v.   Guardian,    etc.,    Life   Ins.    Co..   6  Marxhausen.    120   Mich.   677.   683.   79   X     W 
X.    Y     169,    172;    19   Am.    Rep     151     (1875):  935   (1 899 ):  Buffalo,  etc  ,  R   Co   v.  Reynolds. 
Hill  v.  Watson.  10  S.  C.  268,  273   (1878)  6   How    Pr     (X.  Y.)    96-9S    (1851):    Hill   v. 

Reverse  confusion.— Under  a  Xew  York  Watson.  10  S.  C.  268.  273  (1S78)  <;  Evi- 
statute  a  certain  certificate  was  declared  to  dence  is  the  medium  of  proof:  proof  is  the 
be  "  evidence  without  further  proof."  These  effect  of  evidence."  People  v  Beckwith.  108 
words  were  construed  to  mean  that  the  cer-  X.  Y*  67.  73  ilSSS). 

tificate   was   proof   without   further  evidence  16.  1   Chamberlayne.  Evidence.  §§  8,  936. 

17.  1  Chamberlayne,  Evidence,  §  9. 


§g  10-13  LAW  OF  EVIDENCE.  4 

"  evidence.''  In  most  cases  the  classification  is,  as  it  were,  modal,  i.e.,  the 
classes  are  differentiated  according  to  the  mode  or  method  by  which  the  evidence 
operates  in  creating  belief  in  the  existence  of  a  given  fact,  e.g..  direct  and 
circumstantial  evidence;  or  probative,  i.e.,  as  indicating  the  evidentiary  force 
-  belief-generating  effect  —  of  the  facts  in  question  as  related  to  the  facts 
involved  in  the  inquiry  —  as  material  evidence,  competent  evidence  and  the 
like.18 

§  10.  [Subdivisions  of  Evidence] ;  Admissible  Evidence. —  Evidence  which  the 
court  receives  in  the  course  of  a  trial,  or  might  properly  receive,  is  admissible 
evidence.  Admissible  evidence  relates  to  proof  of  three  classes  or  species  of 
facts:  (1)  Constituent,  or  res  gestae  facts;  (2)  probative  or  evidentiary  facts; 
(3)  deliberative  facts.19 

§  11.  [Subdivisions  of  Evidence] ;  Best  and  Secondary  Evidence. —  The  im- 
portant subject  of  "  best  and  secondary  "  evidence  indicates  no  absolute  division 
between  facts  of  one  class  and  facts  of  another.  The  classification,  in  any 
particular  case,  is  conditioned  upon  a  number  of  variables,  e.g.,  the  evidence 
which  it  is  fairly  within  the  power  of  a  proponent  to  produce,  the  nature  of 
the  case  or  investigation,  the  stage  of  the  trial,  the  state  of  the  evidence,  and 
the  like.  It,  therefore,  indicates  a  relative  rather  than  an  absolute  line  of  de- 
markation.  Such  division  of  relation  is  obviously  not  a  rule  of  law  or  even  a 
rule  of  procedure.  It  is  rather  a  guide  to  the  discretion  of  the  court  in  admit- 
ting testimony,  i.e.,  a  canon  of  judicial  administration.20 

§  12.  [Subdivisions  of  Evidence] ;  Competent  Evidence. —  Facts  which,  under 
these  rules  of  procedure  or  the  canons  of  administration,  will  be  considered  by  a 
judicial  tribunal,  have  been  designated  as  "  competent."  21  though  the  term  has 
been  used  as  equivalent  to  sufficient  to  warrant  action  by  the  tribunal.22 

§  13.  [Subdivisions  of  Evidence] :  Conclusive  Evidence.23 —  Where  the  evidence 
of  a  probative  fact  or  set  of  facts  amounts  to  a  demonstration  of  the  fartvm  pro- 
bandum  to  which  it  is  directed,  where  the  evidence  is  uncoritrovertible,  it  is 
said  tc  be  conclusive.24  This  conclusive  evidence  has  been  spoken  of  as 
"  either  a  presumption  of  law.  or  else  evidence  so  strong  as  to  overbear  all  other 
in  the  case  to  the  contrary."  25  Such  a  statement  would  be  appropriate,  in 
reality,  only  of  a  mathematical  demonstration,  the  ultimate  basis  of  which  is 

18.  1    Chamberlayne,  Evidence,   §   10.  22.   1   Chamberlayne.  Evidence.  §   13:  Xiles 

19.  1   Chamberlayne.   Evidence.   §    11  v    Spra<nie.   13  Town.   198,  204    M862) 

20.  1   Chamberlayne,  Evidence.  §§   12,  339.  23.  1    Chamberlaynp.   Evidence.   §    14 

21.  1   Chamberlayne,  Evidence.  §  13:   Evan  24.  Wood    v     Chapin,    13    X.    Y     509.    515, 
v.    Bristol.    63    Conn.    26,    36     27    Atl.    360  67  Am    Doc.  62.  per  Denio.   C -T     (1856) 
(18931:   State  v.  Johnson.  12  Minn.  476,  93  25.  Haupt  v   Pohlnaan,  1  Rob    (N   Y.)   121, 
Am.  Dec  241  (1867)  :  Porter  v  Valentine.  18  127,  per  Robertson,  J.    (1863). 

Misc.    (X.  Y.)    213-215,  41  N.  Y.  Supp    507 
and  cases  cited    (1896). 


SUBDIVISIONS  OF  EVIDENCE. 


14 


where  the  existence  of  the  thing  observed  as  distinguished  from  the  inferences 
to  be  drawn  from  it  —  being  a  state  of  consciousness,  cannot  admit  of  doubt.26 

§  14.  [Subdivisions  of  Evidence] ;  Direct  and  Circumstantial  Evidence.27 —  As 
commonly  used,  direct  evidence  is  the  immediate  perception  of  the  tribunal  or 
the  statement  of  a  witness  as  to  the  existence  of  a  constituent  fact.  Circum- 
stantial evidence  is  the  statement  of  a  witness  as  to  the  existence  of  a  fact  in 
some  degree  probative  as  to  the  existence  of  a  constituent  fact.  The  distinction 
is  generally  regarded  as  important.  Where  a  witness  testifies  to  the  existence 
of  a  res  gestae  fact  his  testimony  is  direct.  Where,  on  the  contrary,  he 
testifies  to  a'  probative  fact,  i.e.,  to  a  fact  which,  either  alone  or  in  connection 
with  other  facts,  renders  probable  the  existence  of  a  res  gestae  fact,  the  evidence 
is  circumstantial.  "Evidence  is  of  two  kinds:  That  which,  if  true,  directly 
proves  the  fact  in  issue;  and  that  which  proves  another  fact  from  which  the 
fact  in  issue  may  be  inferred."  28  Tlie  distinction  seems  confusing  and  mislead- 
ing rather  than  helpful.  It  is  an  attempt  to  turn  a  difference  in  degree  of  im- 
mediateness  in  proving  a  res  gestae  fact  into  a  difference  in  kind  or  nature  of 
evidence  itself.29  The -value  of  the  distinction  does  not  apparently  compensate 
for  the  danger  involved  in  emphasizing  it,  and  it  might  readily  be  abandoned 
without  injury  to  any  interests  of  judicial  administration.30 


26.  1   Chamberlayne,   Evidence,  §    14.     The 
phrase,  conclusive  evidence,   may   be   used   to 
etate  a  proposition  as  to  which   the   law   of 
evidence  has  nothing  whatever  to  do,  though 
couched    in    the    appropriate    phraseology    of 
the   subject; — the   equivalence   between    two 
things    prescribed    by    the    substantive    law. 
Thus,  the  rule  of  substantive   law   that  pre- 
scriptive   user    of    a    non-corporeal    heredita- 
ment for  a  period  of  twenty  years  bars  the 
right   of   action,   may   be   announced    by   say- 
ing that   proof  of   such  a   user   is   conclusive 
evidence  of  a   lost  grant,   or   by   the   equiva- 
lent expression   that  a   lost  grant  is   conclu- 
sively  presumed   from  the  fact  of  such  user. 
See  Wallace  r.  Fletcher.  30  X    H   434   (1855). 

27.  1   Chamberlavne.    Evidence,   §    15. 

28.  Hart    v.    New-land,    10    N.    C     122,    123 
(1824);    West   r.   State,   76  Ala    98    (1884); 
Terr.    r.    Fagan.   3   Dak.    119,    13   X     W.   568 
(1882)  -,  Keed's  Case,  1  Cen.  L.  J    (Me)   219 
(1874):    Com.    v.   Webster,   5   Cush     (Mass.) 
295,  310,  52  Am.  Dec.   711    (1850):    McCann 
r.     State,     13     Smedes     &     M.      (Miss.)     471 
(1850):    State    r.    Avery,    113    Mo     475.    21 
X     W.    193    '18021:    Curran    >•     Percival.   21 
Xeb.    434,    32    X.    W     213       1887 »:    State    r. 
Slingerland.  10  Nev.   135,  7  Pac    280    'ISv'il: 
Pease   v.  Smith.  61   X.   Y.  477    '1875):    Bash 
v.  Bash,  9  Pa.  St.  260    (1848);  Lancaster  v. 


State,  91  Tenn.  267,  18  S.  W.  777  (1891); 
U.  S.  v.  Cole,  5  McLean  ( U.  S.)  513,  Fed. 
Cas.  Xo.  14,832  (1853):  U.  S.  v.  Gilbert,  2 
Sumn.  (U.  S)  19,  Fed.  Cas.  Xo.  15,204 
(1834) 

"  Direct  or  positive  evidence  is  when  a 
witness  can  be  called  to  testify  to  the  pre- 
cise fact  which  is  the  subject  of  the  issue  on 
trial."  Com.  r.  Webster,  supra,  per  Shaw, 
C.J. 

Circumstantial  not  cumulative  as  regads 
direct  evidence. —  Evidence  tending,  circum- 
stantially, to  establish  a  fact  in  issue  is  not 
cumulative  as  regards  direct  evidence  as  to 
the  same  fact.  Vardeman  v.  Byrne,  7  How. 
(Miss)  865  (1843). 

29.  1    Chamb.,   Ev.,    §    15.     A    fact    proved 
by   a   legitimate   inference   is   proved   no   less 
fhan  when  it  is  directly  sworn  to.     Doyle  v. 
Boston,  etc..   Ry.  Co.,   145  Mass.  386    (1888). 

30.  See  discussion  in   1   Chamb  ,  Ev.,  §   15. 
This    has    been    done    by    Stephen.     See    Dig. 
Law  of   Ev..  art.    1. 

Circumstantial  evidence  is  not  of  second- 
ary importance  to  direct  or  positive  evi- 
dence All  evidence  is  largely  circumstan- 
tial and  even  when  most  direct  it  depends 
upon  circumstances  for  its  credibility,  weight 
and  effect.  Xo  human  testimony  is  superior 
to  doubt  even  in  cases  of  the  most  direct 


§§  15-17  LAW  OF  EVIDENCE.  6 

§  15.  [Subdivisions  of  Evidence];  Material  Evidence.31 — Where  a  fact  of- 
fered in  evidence  is  not  merely  relevant,  in  the  logical  sense,  but  presents  the 
cogency  of  probative  force  required  for  affirmative  action  on  the  part  of  the 
tribunal,32  it  is  ki  material  evidence."  33 

§  16.  [Subdivisions  of  Evidence];  Oral  and  Documentary  Evidence;  Docu- 
ment Defined.34 —  By  "  document  "  is  denoted  the  union  of  a  material  sub- 
stance and  the  written  language  carried  by  it.  A  document  is  a  physical 
thing  —  a  piece  of  paper,  parchment,  any  material  substance,  and  this  physi- 
cal, material  thing  is  a  vehicle,  instrument  or  means  by  which  thought  is  pre- 
sented to  the  mind.  Both  of  these  ideas  are  essential  to  the  conception  of  the 
term  "  document."  A  blank  sheet  of  paper  would  not  be  a  document.  The 
oral  testimony  of  a  witness  —  though  it  convey  thought,  is  not  a  document. 
The  stenographic  notes  by  which  the  testimony  of  the  witness  has  been  placed 
upon  paper  would  probably  constitute  the  paper  containing  them  a  document. 
When  these  notes  are  transcribed  into  the  ordinary  written,  typewritten  or 
printed  characters  of  language,  the  material  substance  carrying  the  thoughts  so 
represented  is  clearly  one.  It  is  this  combination  of  a  material  substance  and 
its  conveyance  of  thought  which  constitutes  the  essential  feature  of  a  document. 
In  other  words,  the  term  "  document  "  will  be  limited  to  writings  in  the  present 
treatise.35  No  restriction  exists  as  to  the  material  substance  which  may  thus 
convey  thought.36 

§  17.  [Subdivisions  of  Evidence] ;  Difficulty  of  Removal.37 —  Practical  con- 
proof.  It  is  always  possible  that  witnesses  facts  into  those  which  are  the  material,  i.e., 
may  err  unintentionally  or  may  corruptly  constituent,  and  those  which  are  not.  1 
falsify  their  testimony  for  reasons  which  are  Chamb.,  Ev.,  §  16. 

at   the   time   not   apparent   and    not    known.  34.    1  Chauiberlayne,  Evidence,  §   17. 

If   the   law   required   mathematical   certainty  35.   1  Chamber layne,  Evidence,  §  17.     Such 

either  as  to  matters  of  fact  or  as  to  the  con-  a  limitation  of  the  characters  on  a  document 

elusions  drawn  by  the  courts  and  juries  the  to  language  —  which  conveys  thought,  rather 

enforcement  of  law  would  be  impossible.     Ex  than    to    marks    or    symbols    which    merely 

parte   Jeffries,   7   Okla.   Crim.    Hep.   544,    124  sugyest    it,    from   the   existence   of   which    it 

Pac.   924,  41   L.   R.  A.   X.  S    749    (1912).  may  reasonably  be  inferred  —  seems  to  be  in 

31.  1   Chamberlayne,   Evidence,   §    16  the   direction    of   clearness   and    precision    in 

32.  2   Chamberlayne,   Evidence,   §   903.  terminology.     Unless      this      limitation      be 

33.  1    Chamberlayne,   Evidence.  §    16:    For-  adopted,    the    whole    definition    of    document 
ter   v.    Valentine,    IS   Misc     (N.   Y. )    213,   41  at   once   becomes    involved    in    a    fog  —  as   is 
N    Y.   Supp.   507    (1896)  abundantly   shown   by   the   interesting  specu- 

While  "  material  "  implies  an  additional  lations  of  Bentham  and  Mr.  Gulson's  corn- 
logical  persuasiveness  to  that  necessarily  mentaries  upon  them.  (See  1  Chamb.,  Ev., 
carried  by  the  term  relevant,  '•immaterial"  §§  23,  27.)  The  limitation  to  language  is 
and  "  irrelevant."  as  generally  used,  are  also  in  the  interest  of  symmetry  and  bar- 
practical  !y  synonymous.  What  facts  are  mony  in  the  subject  itself.  1  Chamb.,  Ev., 
material  to  any  inquiry  will  be  fou».d  to  be  §  17 

determined    by    the    nature    of    the    right    or  36.   1   Chamberlayne,  Evidence,  §   17;    Row- 
liability   asserted,   i.e.,   so   far  as   this   is   ex-  land  v.   Burton,  2   Harr.    (Del.)    288    (1837), 
pressed   in   terms   of   fact,   by   the  component  wood:    Kendall   r.    Field,    14   Me.   30    (1836), 
facts    of    the    case      The    existence    of    these  wood, 
component  facts  differentiates  the  res  gestae          37.  1  Chamberlayne,   Evidence,   §   19. 


7  SUBDIVISIONS  OF  EVIDENCE.  §§  18,19 

siderations  of  convenience  may,  as  a  matter  of  administration,  excuse  the  physi- 
cal production  of  a  document  where  its  size,  weight  or  immobility  are  such  as 
to  render  it  difficult,  if  not  impossible,  to  afford  the  court  and  jury  actual 
personal  inspection  of  it.  In  such  cases,  as  is  more  fully  stated  elsewhere,38 
the  court  may  take  a  view  or  permit  the  jury  to  take  one  if  this  seems  the  more 
satisfactory  course;  or,  witnesses  may  be  permitted  to  testify  as  to  the  con- 
tents,39 or  a  copy,40  by  photographic  or  other  means,  may,  upon  proper  identi- 
fication, be  introduced  in  evidence.  But  this  inconvenience  of  production  in 
no  way  affects  the  fact  that,  whatever  may  be  the  material  substance,  it  is,  so 
long  as  it  conveys  thought,  a  document.  Up  to  this  point,  harmony  exists 
among  the  authorities. 

§  18.  [Subdivisions  of  Evidence] ;  Symbolical  Representation   of  Thought. — 

For  practical  purposes  the  sole  method  by  which  thought  may  properly  be  said 
to  be  conveyed  with  a  reasonable  approximation  to  clearness  and  accuracy  from 
one  mind  to  another,  is  by  the  use  of  language.  It  would  seem  appropriate 
therefore  that  the  use  of  written  language  should  be  the  sole  means  of  conveying 
thought  which,  when  joined  with  a  material  substance, -shall  be  deemed  to  con- 
stitute a  document.41 

§  19.  [Subdivisions  of  Evidence] ;  Proper  Scope  of  Documentary  Evidence.— 
To  sum  up  the  results  of  examination  into  the  proper  scope  of  "  documentary 
evidence,"  42  and  state  the  conclusions  reached,  it  may  be  taken  (1)  that  as  a 
species  of  evidence,  a  classification  into  oral  evidence  and  documentary  evidence 
would  be  of  little  or  no  value.  (2)  That  as  a  medium  of  proof,  documents  have 
a  recognized  and  valuable  place,  sharing  with  the  oral  testimony  of  witnesses 
and  with  perception  the  class  of  media  of  proof.  (3)  That  the  oral  testimony 
of  witnesses  is  properly  confined  to  the  psychological  facts,  such  as  thought, 
and  the  like,  which  are  conveyed  to  the  tribunal  by  means  of  oral  testimony, 
i.e.,  the  verbal  statements  of  witnesses.  (4)  That  "  documentary  evidence  " 
is  confined  to  such  psychological  facts,  including  thought  and  the  like,  as  are 
conveyed  to  the  consciousness  of  the  tribunal  by  the  medium  of  written  lan- 
guage carried  by  any  material  substance.  (5) That  the  third  medium  of  proof, 
perception,43  may  properly  be  used. to  denote  all  physical  facts,  including  the 

38.  See   Evidence   by   Perception,  post   CK  rying  a  number   suggests  tbe  thought  of   a 
LX  corresponding    number    which    may    serve    to 

39.  Tracy    Peerage    Case,     10    Cl.    &    Fin.  identify    the    proper    claimant      Yet    neither 
154,    180    (1843).     But   the   difficulty   of   re-  this,  nor  any  similar  suggestions  apparently 
moral   must   affirmatively   appear;    otherwise  suffice  to  make  the  check  such  a  conveyor  of 
the  evidence  will  be  rejected.     Jones  r.  Tarle-  thought    as    to    constitute    it    a    document, 
ton,    0    M.    &    W.    675,    677,    per    Parke,    B.  "  The  tag   referred   to  was   not   a   document, 
(1842).  but    an    object    to    be    identified."     Com.    v. 

40.  Slaney     v.    Wade,     1     Myl.    &    C.    33S  Morrell.  00  Mass.   542    (1868) 

(1835).  42.  1    Chamberlayne.    Evidence.    §§    21-24. 

41.  1   Chamberlayne.   Evidence.   §   20      The          43.  See  Evidence  by  Perception,  post  Chap- 

check  attached  to  a  trunk  and  car-      ter  LX. 


§§  20,21  LAW  OF  EVIDENCE.  8 

expression  or  manifestation  of  psychological  facts,  whether  the  immediate 
source  of  these  facts  is  a  person  or  thing,  which  the  court  perceives  by  the  use 
of  its  own  senses.  It  may  be  added  that  in  connection  with  the  treatment  of 
documents  as  a  medium  of  proof,  it  has  seemed  appropriate  to  treat  the  re- 
quirements of  substantive  law  or  various  branches  of  procedure  especially  af- 
fecting the  use  of  documents  and  their  distinctive  effect  in  evidence,  under 
this  heading  of  documentary  evidence.44 

§  20.  [Subdivisions  of  Evidence] ;  Positive  and  Negative  Evidence.45 —  The 
term  "  positive  evidence  "  has  been  used  as  synonymous  with  "  direct."  46  A 
more  accurate  use  of  the  term  "  positive  "  is  that  by  which  it  is  employed  as 
opposed  to  "  negative  "•  —  positive  evidence  being  denned  as  direct  evidence 
as  to  the  existence  of  an  alleged  fact,  negative  evidence  being  used  to  indicate 
the  case  where  a  tribunal  is  asked  to  infer  the  nonexisteuce  of  the  fact  in  ques- 
tion from  the  circumstance  that  the  witness  did  not  perceive  it.47  Certainly 
the  distinction  is  of  little  if  any  practical  importance. 

§  21.  [Subdivisions  of  Evidence] ;  Real  and  Personal  Evidence.48 —  The  dis- 
tinction between  real  and  personal  evidence  has  proved  one  fertile  in  confusion. 
The  fundamental  difficulty  does  not  lie  in  the  main  line  of  cleavage  —  real  evi- 
dence, on  the  one  hand,  being  the  evidence  furnished  by  things  —  Latin,  res; 
personal  on  the  other,  being  evidence  furnished  by  persons,  as  this  distinction 
was  originally  formulated  by  Bentham.  The  distinction  between  real  'and 
personal  evidence  is  thus  stated  by  Bentham :  "  Personal  evidence,  that  which 
is  afforded  by  some  human  being  —  by  a  being  belonging  to  the  class  of  per- 
sons; real  evidence,  that  which  is  afforded  by  a  being  belonging,  not  to  the 
class  of  persons,  but  to  the  class  of  things." 

This  distinction  has  been  confused  by  Mr.  Best  by  attempting  to  make  the 
distinction  depend  on  whether  the  evidence  is  furnished  by  the  testimony  of 
a  witness  or  by  perception  of  the  tribunal :  and  by  making  a  distinction  between 
evidence  which  is  voluntary  and  that  which  is  involuntary. 

It  seems  the  better  rule  to  follow  to  hold  that  that  which  the  tribunal  per- 

44.  1    Chamberlayne,   Evidence,   §   25  be    illustrated    thus:     It    is    positive   to    say 

45.  1   Chamberlayne  Evidence.  §  26.  that   a  thing  did   or   did   not   happen;    it   is 

46.  Davis    r.    Curry,    2     Bibb     (Ky.)     238  negative   to   say  that  a   witness  did   not   see 
(1810):  Cooper?'.  Holmes.  71  Md   20,281.  17  or    know    of    an    event's    having    transpired 
Atl.   711     (1880):    Com.   v.   Webster.   5   Cush  McConnell   v    State.  07   (Ja.  033    (1881). 
(Mass.)    205,    310    (1850):    Xiles   r.    Rhodes,  Although   positive  testimony  will  outweigh 
7    Mich     374     i  1850);     Pease    v     Smith.    61  negative    testimony    still    testimony    by    men 
i>.  Y    477.  484    (1875)  :   Bash  v.  Bash,  0  Pa  that    no   warning   was   given    when    the   wit- 
St.  260.  262    (1848),  "positive"  and  "clear  nesses   were  in   a  position   to  hear  one   if  it- 
and   satisfactory  "     See  also   Schrack   v.   Me-  had  been  given  is  not  purely  negative  but  ia 
Knight,  84  Pa.  St.  26,  30   (1877),  "positive"  sufficient   to  justify  a  verdict  which   the  ap- 
and    "  satisfactory  "  pellate   court   will    not    set   aside   on    appeal 

47.  Falkner     v.     Behr,    75    Ga.    2671,    674       P.  B.  &  W   S   R.  v   Gatta.  4  Boyce  (Del.)  38, 
(1885)       Illustration.—  The    distinction     be-       85  Atl    721.  47  L.  R.  A.   (X.  S.)   932   (1013). 

tween   positive   and   negative   testimony   may  48.   ]     Chamberlayne,    Evidence.    §§    27-31. 


9  SECONDARY  MEANINGS.  §  22 

ceives  of  an  evidentiary  nature  furnished  by  a  thing,  a  physical  object,  is  real 
evidence;  that  which  it  perceives  of  an  evidentiary  nature  furnished  by  a 
person,  is  personal  evidence.  In  other  words,  that  evidence  is  personal  which 
is  furnished  to  the  tribunal  by  persons,  and  real  evidence,  that  which  is  fur- 
nished to  the  tribunal  by  things.  If  this  mental  concept  of  the  viewpoint  of 
the  tribunal  be  abandoned,  the  distinction  has  no  value,  and  only  confusion 
results  from  its  use.  Thus  the  physical  aspect  of  persons  who  appear  before 
the  tribunal  is  personal  and  not  real  as  it  emanates  from  persons  and  so  of  evi- 
dence of  involuntary  acts. 

§  22.  Secondary  Meanings  of  the  Term  "  Evidence."  49 —  It  seems  appropriate 
that  the  subsidiary  or  secondary  meaning  of  the  term  "  evidence,''  that  is  evi- 
dence treated  as  a  science,  or  regarded  as  an  art  should  receive  brief  attention 
at  this  point.  This  subordination  must  be  understood  as  merely  relative  to 
the  purposes  of  a  particular  treatise.  Jurisprudence  stands  sorely  in  need  of 
a  science  of  evidence.  Judicial  administration,  both  in  the  work  of  trial  and 
appellate  courts  would  be  greatly  facilitated  and  expedited  were  the  art  of  evi- 
dence more  clearly  formulated  and  better  understood  by  the  vast  majority  of 
practitioners.  The  rules  and  practical  administration  of  evidence  —  the  law 
of  evidence  —  may  fairly  be  defined  as  being  that  part  of  the  doing  of  judicial 
justice  which  concerns  itself  with  the  ascertainment  of  truth.  That  justice 
should  be  done  in  any  case  it  is  first  essential  that  the  truth  of  the  matter  be 
ascertained.  It  is  as  to  this  preliminary  requisite  to  the  just  action  of  any 
tribunal  with  which  the  law  of  evidence,  whether  regarded  as  a  science  or  as 
an  art,  exclusively  concerns  itself.  The  object  of  the  law  of  evidence  is, 
therefore,  that  of  all  scientific  inquiry  —  the  establishment  of  truth  by  the  use 
of  the  perceptive  and  reasoning  faculties. 

Substantive  law  is  in  the  nature  of  things  comparatively  distinct  but  sub- 
stantive law  has  much  direct  influence  on  the  law  of  evidence  introducing  its 
considerations  of  public  policy  and  the  rights  of  the  parties.  Substantive  law 
has  further  much  concealed  influence  on  evidence  and  the  instances  in  which 
this  is  done,  are  most  frequently  introduced  by  the  phrase  "  evidence  is  ad- 
missible to  prove  "  or  "  evidence  is  not  admissible  to  prove "  a  given  fact. 
The  peculiarity  is  that  in  many  such  cases,  the  evidentiary  fact,  the  factum 
probans,  is  well  calculated  to  prove  the  fact  to  the  proof  of  which  it  is  directed, 
i.  e.,  the  factum  probandum.  The  real  cause  for  rejecting  the  former  fact  is 
that  the  latter  fact  is  not  provable  under  the  rules  of  substantive  law,  or  that 
the  ultimate  factum  probandum  —  the  constituent  fact  at  the  end  of  the  chain 
of  probative  facts  would  be  excluded  by  these  rules.  The  real  difficulty  lies  in 
a  failure  to  distinguish  accurately  between  the  function  of  a  probative  fact  and 
that  of  a  constituent  one. 

49.  1  Chamberlayne,  Evidence,  §§  32-37. 


CHAPTER  II. 

FACTS. 

Fact  defined,  23. 

Matter  of  fact,  24. 

Matter  of  law,  25. 

Matter  of  opinion,  26. 

Classification  of  facts,  physical  or  psychological,  27. 

simple  and  compound,  28. 

component  facts,  29. 

component  and  probative,  30. 

res  gestae  and  constituent,  31. 

compound,  component  and  constituent,  32. 

positive  and  negative,  33. 

principal  and  probative,  34-. 

states  and  events,  35. 
Relevancy,  36. 
Constitutionality  of  statute  declaring  effect  of  certain  facts,  37. 

§  23.  "  Fact "  Defined. —  Scientifically  speaking,  a  fact  is  that  which  exists 
—  either  in  the  world  of  matter  or  in  that  of  mind.  "  We  may  define  a  fact  as 
a  reality  of  nature,  existing  or  perceptible  in  the  present  or  the  past,  and  hav- 
ing its  seat  either  in  matter  or  in  mind.''  1 

§  24.  "  Matter  of  Fact."-  -  For  judicial  purposes,  "  fact "  as  a  genus,  is 
divided  into  three  species  (1)  matter  of  law,  (2)  matter  of  opinion,  and  (3) 
matter  of  fact.  N'o  very  clear  differentiae  indicate  these  several  species. 
It  may  be  said  that  whatever  falls  within  the  genus  "  fact "  which  is  not 
clearly  "  matter  of  law  "  or  "  matter  of  opinion  "  is  properly  classed  as  "  mat- 
ter of  fact."  - 

§  25.  Matter  of  Law. —  The  existence  of  a  rule  of  foreign  law  is,  by  the 
great,  weight  of  authority.3  a  question  of  fact.  But  it  is  otherwise  as  to  rules 
of  municipal  or  domestic  law.  Knowledge  and  enforcement  of  these  laws  is,  so 
far  as  the  judge  is  concerned,  part  of  the  judicial  office.  It  has  seemed  wise, 
party  as  conducive  to  the  proper  demarcation  of  the  respective  provinces  of 
the  court  and  jury,4  to  segregate  such  matters  of  fact  from  facts  of  a  different 
relation  to  the  administration  of  justice  under  the  general  term  "  matter  of 
law."  5 

1.  1  Chamberlayne,  Evidence,  §§  38,  39.  4.   1  Chamberlayne,  Evidence,  §  67  et  seq. 

2.  1   Chamberlayne.  Evidence.  §  40.  5.  1  Chamberlayne,  Evidence,  §  41. 

3.  1  Chamberlayne,  Evidence,  §  154  et  seq. 

10 


11  CLASSIFICATION.  §§  26-29 

§  26.  Matter  of  Opinion. — "  Matter  of  opinion,  not  being  disputed  questions 
of  fact,  are  general  propositions  or  theorems  relating  to  laws  of  nature  or  mind, 
principles  and  rules  of  human  conduct,  future  probabilities,  deductions  from 
hypotheses  and  the  like,  about  which  a  doubt  may  reasonably  exist.  All  doubt- 
ful questions,  whether  of  speculation  or  practice,  are  matter  of  opinion.  With 
regard  to  these,  the  ultimate  source  of  our  belief  is  always  a  process  of  rea- 
soning." 6 

§  27.  Classification  of  Facts ;  Physical  or  Psychological —  Classifying  facts  in 
general,  according  to  whether  they  are  within  or  without  the  body  of  the  ob- 
server, they  may  be  divided  into  (1)  physical,  of  which  the  knowledge  of  the 
observer  comes  through  the  perception  of  the  senses;  and  (2)  psychological, 
comprising  feelings,  emotions  and  other  phases  of  the  mind  of  which  the 
latter  is  intuitively  aware.  It  may  well  be  that  the  mind  is  aware  only  of 
changes  in  its  states  of  consciousness.7 

§  28.  [Classification  of  Facts] ;  Simple  and  Compound —  Facts  of  a  compara- 
tively simple  nature  may  unite  to  form  compound  facts  of  a  greater-  degree  of 
complexity,  these  in  turn  joining  with  others  to  form  a  fact  still  more  involved, 
and  so  on  to  an  indefinite  extent.  An  absolutely  simple,  uncompounded,  in- 
divisible fact  apparently  does  not  exist  in  nature  as  commonly  presented  to 
perception.  Even  the  simplest  act  to  which  a  single  name  is  attached  in  lan- 
guage as  of  a  unit  is  in  reality  upon  closer  inspection  found  to  be  a  series  of 
collection  of  simpler  acts.8  "  In  theory  we  can  conceive  a  fact  absolutely 
simple ;  for  example,  the  existence  of  an  atom  in  a  state  of  rest,  an  instanta- 
neous perception  of  the  mind,  etc.  In  practice,  there  is  nothing  of  this  kind ; 
a  fact,  though  it  may  be  spoken  of  as  a  single  fact,  is  still  in  reality  an  aggre- 
gate of  facts." 

\\"hile  this  is  essentially  true,  it  has  been  deemed  practically  expedient  to 
treat  as  a  simple  fact  any  existing  state  of  matter  or  mind  which  may  be  ascer- 
tained or  verified  by  a  single  act  of  perception  or  intuitive  consciousness.9 

§  29.  [Classification  of  Facts] ;  Component  Facts. —  In  any  investigation,  judi- 
cial or  other,  in  which  the  existence  of  a  right  is  claimed  or  a  liability  asserted, 
the  truth  of  certain  special  facts  which,  when  united,  make  up  or  compose  such 
right  or  liability,  is  necessarily  involved.  It  seems  proper  to  designate  these 
facts  as  component.  Proof  of  these  facts  is  absolutely  essential  to  proof  of 

6.  1  Chambcrlayne,  Evidence,  §   42.  issue  the  circumstances  attending  his  acts  are 
Lewis,  Authority  on  Matters  of  Opinion,  c.       competent   evidence   of   it   and   also   his   own 

1,   §    1.  testimony  as  to  his  motive,  purpose  and  intent 

7.  Physiological  Facts. —  Tt  has  seemed  best,  is  also  competent,     Eckerd  v.  Weve,  85  Kan. 
to  classify  physiological  with  physical  facts,  752,  118  Pac.  870,  38  L.  R.  A.    (N.  S.)    516 
1  Chamberlayne,  Evidence,  §  43.  (1911). 

Proof   of   condition  of  mind. —  Where  the  8.  1  Chamberlayne,  Evidence,  §  44. 

condition  or  state  of  mind  of  a  party  is  in          9.  1  Chamberlayne,  Evidence,  §  45. 


§§  30-32  FACTS.  12 

the  proposition  submitted  to  investigation.     They,  or  more  properly,  their  ex- 
istence is  essential  to  the  truth  of  the  proposition  in  issue.10 

§  30.  [Classification  of  Facts] ;  Component  and  Probative. —  The  relation  be- 
tween a  compound  fact  and  its  component  facts  is  essentially  different  from 
that  between  an  evidentiary  and.  a  principal  one,  between  a  factiun  probans  and 
a  factum  probandum  whatever  be  the  degree  of  approximation  to  the  res 
gastae  and  through  these  and  the  component  facts  to  the  proposition  in  issue. 
First,  a  component  fact  is  comprised  in,  and  part  of,  its  compound  fact.  The 
latter,  at  least  in  its  present  form,  does  not  exist  unless  the  component  fact 
also  exists.  If  the  compound  fact  exists,  its  component  facts,  of  necessity, 
also  exist. 

On  the  contrary,  a  probative  or  evidentiary  fad  (factum  probans}  is  some- 
thing extrinsic  to  and  entirely  outside  of  the  principal  fact  (factum  proban- 
dum), it  is  externalized  as  part  of  objective  nature.  The  evidentiary  or  pro- 
bative fact  may  exist  and  the  'principal  fact  not  exist ;  or,  on  the  contrary,  the 
probative  fact  may  not  be  true  and  the  factum  probandum  still  exist.11 

§  31.  [Classification  of  Facts] ;  Res  Gestae  and  Constituent. —  The  res  fjestae 
of  a  judicial  inquiry  are  that  portion  of  the  natural  occurrences,  a  portion,  as 
it  were,  of  the  world's  aggregate  of  happenings  or  existences,  out  of  which 
the  right  claimed  or  liability  asserted  comes  into  being.  Constituent  facts  are 
those  among  the  res  gestae  facts  which  are  material  to  the  existence  of  this 
right  or  liability.12 

§  32.  [Classification  of  Facts] ;  Compound,  Component  and  Constituent. —  The 
relation  of  the  component  facts  to  the  compound  proposition  —  of  the  facts  in 
issue  to  the  issue  itself  —  is  a  matter  of  law.  The  existence  of  these  com- 
ponent facts  is  part  of  the  definition,  in  point  of  law,  of  the  main  proposition, 
i.e.,  of  the  issue.  These  component  facts  are  the  requirements  of  substantive 
law  expressed  in  terms  of  fact,  they  establish  the  legal  standard  up  to  which 
the  facts  proved  in  the  case  are  to  come  in  order  to  establish  the  truth  of  the 
main  proposition  asserted. 

The  constituent  facts  constitute  the  final  or  primary  facts,  to  which,  when 
established  to  their  satisfaction,  the  court  or  jury,  as  the  case  may  be,  will 
apply  the  rule  of  law  involved  in  the  main  proposition  —  the  issue.  In  other 
words,  component  facts  are  part  of  the  rule,  furnished  by  the  court,  and  ap- 
plied by  it  or  by  the  jury.  The  constituent  facts  are  those  to  which  the  rule 
is  applied.1'" 

10.  1  Chamber layne,  Evidence,  §  45.  rated    by    evidence    of   other    witnesses    that 

11.  1  Charaberlayne,  Evidence,  §  46.  men   were   seen   in   the  places  where  the  ac- 

12.  1  Chamberlayne,  Evidence,  §§  47,  48.  complice  said  they  were  who  looked  like  the 
For  example. —  An  accomplice  may  testify  accused.     Grant    v.    State,    Tex.    Grim.    Rep. 

as   to    the    plans   of   the   conspirators   before  148  8.  VV.  760,  42  L.  R.  A.  (N.  S.)  428  (1912) 

the  crime  and  what  they  intended  to  do  with  citing  text. 

the  money  they  expected  to  steal   from  the  13.  1  Chamberlayne,  Evidence,  §§  45,  49. 
victim.     So   his   testimony   may   be   corrobo- 


13'  CLASSIFICATION.  §* 

§  33.  [Classification  of  Facts] ;  Positive  and  Negative.14 —  It  has  been  said 
by  high  authority  15  that  all  facts  may  be  classified  as  positive  or  negative. 
This  statement  is  true  rather  of  propositions  than  of  facts.  In  the  nature  of 
things,  all  facts  must  be  positive.  For,  as  Bentham  more  accurately  says,16 
"  the  only  really  existing  facts  are  positive  facts.  A  negative  fact  is  the  non- 
existence  of  a  positive  one,  and  nothing  more.  But  it  is  otherwise  of  proposi- 
tions of  fact.  We  may,  and  frequently  do,  predicate,  both  in  judicial  or  other 
inquiries,  the  nonexistence  of  a  fact."  A  proposition,  negative  in  form,  may 
well  be  positive  in  substance ;  a  statement  in  form  positive,  may 
in  reality  be  negative.  Indeed,  the  same  proposition  may  be  made  positive  or 
negative  at  will  —  it  being  obvious  that  it  is  not  material  to  the  meaning 
whether  the  existence  of  a  fact  be  affirmed  or  its  nonexistence  be  denied ;  or 
whether  its  nonexistence  be  affirmed  or  its  existence  be  denied.  The  proposi- 
tion, in  either  form,  is  positive  in  the  first  case  and  negative  in  the  second. 
It  is  for  this  reason  that  one  who  testifies  to  a  positive  fact,  e.g.,  that  he  no- 
ticed a  certain  detail  of  an  accident,  is  deemed,  as  a  rule,  more  credible  than 
he  who  affirms  the  negative  fact  thai  it  did  not  occur. 

The  most  that  can  be  done  in  the  way  of  proof  of  the  negative  fact  — or,  if  the 
expression  be  preferred,  the-  disproof  of  the  correlative  positive  —  is  the  proof 
of  some  positive  fact,  the  existence  of  which  is  inconsistent  with  the  existence  of 
the  correlative  positive  fact,  and  then  infer  the  nonexistence  of  the  latter  from 
the  existence  of  the  former.  In  other  words,  while  a  negative  fact  presents 
peculiar  difficulties  in  the  way  of  direct  proof,  it  may  be  established  inferen- 
tially  or,  by  the  more  customary  phrase,  circumstantially. 

§  34.  [Classification  of  Facts] ;  Principal  and  Probative.17 —  According  to  the 
classification  adopted  by  Bentham  the  distinction  between  a  principal  and  an 
evidentiary  fact  is  that  between  a  factum  probandum  and  a  factum  probans. 
The  relation  is  not  as  to  the  proposition  in  issue  but  as  to  the  two  facts  —  the 
fact  to  be  proved  and  the  fact  offered  as  proving  or  assisting  to  prove  it.  In 
other  words  the  principal  fact  is  not  a  principal  fact  as  related  to  the  issue 
but  as  related  to  the  evidentiary  or  probative  fact.  "  In  every  case,  there- 
fore, of  circumstantial  evidence,  there  are  always  at  least  two  facts  to  be 
considered  —  1.  The  factum  probandum,  or  say,  the  principal  fact  —  the  fact-, 
the  existence  of  which  is  supposed  or  proposed  to  be  proved  —  the  fact  evi- 
denced to,  the  fact  which  is  the  subject  of  proof.  2.  The  factum  probans  — 
the  evidentiary  fact  —  the  fact  from  the  evidence  of  which  that  of  the  factum 
probandum  is  inferred. 

An  anomahj  of  code  pleading  'may  make  such  a  statement  inaccurate.  As 
contrasted  with  common  law  pleading  and  statutory  pleading  which  adopts 
common  law  pleading  as  its  basis,  code  pleading,  distinctively  so  called,  states 

14.  1  Chamberlayne,  Evidence,  §   50.  17.   1  Chamberlayne.    Evidence,    §§    51,    52. 

15.  Best,  Ev.,  §  13  Bentham,  Rationale  of  Jud.  Ev.,  bk.  V,  c.  1. 

16.  Rationale  of  Jud.  Ev.,  bk.  I,  §  50. 


§§  35,36  FACTS.  14 

the  constituent  rather  than  the  component  facts.  This  circumstance  must  be 
kept  constantly  in  mind  while  dealing  with  the  rulings  of  certain  courts.18 
The  ultimate  facta  probanda .  are  these  constituent  facts.  Here  the  line  of 
proof  —  the  proper  subject  of  evidence  —  ceases.19  Deliberative  facts,  in  the 
original  significance  of  the  term,  comprise  that  species  of  judicial  evidence 
which  assists  the  tribunal  in  weighing  the  truth  of  a  party's  contention  or  the 
credibility  of  the  witnesses  or  other  proof  by  which  it  is  established.  Delib- 
erative facts  enable  the  court  or  jury  to  exercise  adequately  and  accurately  the 
function  of  judging.  They  explain,  elucidate  or  qualify  the  probative  or  res 
gestce  facts  in  such  a  way  as  to  determine  the  evidentiary  weight  that  shall  be 
accorded  them.  They  are  placed,  as  it  were,  in  the  mental  scales,  together 
with  the  probative  or  res  gestce  facts  to  assist  in  striking  the  proper  balance. 
Such  facts  are  probative ;  but  possess  that  slight  degree  of  probative  relevancy 
which  may  properly  be  spoken  of  as  deliberative. 

§  35.  [Classification  of  Facts];  States  and  Events.20 — Bentham  distinguishes, 
as  a  classification  of  facts,  between  events  and  states  of  things.21  Best  adopts 
the  same  distinction  and  assigns  Bentham's  reasons  for  making  it.22  "  By  an 
event,"  says  Best,  "  is  meant  some  motion  or  change  considered  as  having  come 
about  either  in  the  course  of  nature  or  through  the  agency  of  the  human  will, 
in  which  latter  case  it  is  called  an  act  or  action.  The  fall  of  a  tree,"  he  goes 
on,  "  is  an  event,  the  existence  of  a  tree  is  a  state  of  things,  but  both  are  alike 
facts."  The  essential  point  of  difference  here  indicated  is  that  between  mo- 
tion and  rest.  Whatever  embodies  motion  is  an  event ;  that  which  is  attended 
by  a  condition  of  rest  is  a  state  of  things.  Such  a  distinction  one  may  ven- 
ture to  observe,  with  deference  to  these  two  eminent  authorities  who  have 
placed  the  students  of  the  law  of  evidence  under  such  heavy  obligations,  is,  in 
reality,  superficial  and  inaccurate. 

From  the  standpoint  of  the  law  of  evidence,  however,  the  distinction  will 
continue  to  be  of  importance.  It  need  not  be  pointed  out  that  only  facts, 
however  numerous  or  complicated,  which  constitute  to  the  observer,  whether 
a  witness  or  the  tribunal  itself,  present  existences  or  states  of  things,  can  be 
the  subject  of  perception  and,  consequently,  of  personal  knowledge.  Com- 
pleted events  can  be  learned  only  by  information  derived  from  others  —  results 
of  their  past  perception  of  what  were  to  them,  at  that  time,  continuing  states  of 
things. 

§  36.  Relevancy.23 —  The  relation  between  a  factum  probans  and  a  factum 
probandum  by  virtue  of  which  of  which  the  former  tends  to  establish  the  exist" 

18.  An  "ultimate  or  issuable  fact"  is  one  19.  Caywood    v.    i-arrell.    175    111.    480,    51 

essential  to  the  claim  or  defense,  and  which       N.  E.  775,  776    (1808). 
cannot  be  stricken  from  the  pleading  without  20.   1   Chamberlayne,  Evidence,   §  53. 

leaving  it  insufficient.     Meyer  v.  School  Dist.  21.  Rationale,  Jud.  Ev.,  bk  I,  47. 

No.  31,  4  S.  D.  420,  57  N.  W.  68,  69   (1893).          22.  Best,  EV.,  §  13. 

23.  1  Chamberlayne,  Evidence,  §§  54-64. 


1."  RELEVANCY.  §  36 

ence  of  the  latter  is  logical  relevancy.  Objective  relevancy  is  a  relation  aris- 
ing in  the  world  of  matter,  as  distinguished  from  the  realm  of  mind.  Subjec- 
tive relevancy  deals  with  the  realm  of  mind.  It  is  chiefly  confined,  in  its 
operation,  to  judicial  evidence,24  i.  e.,  to  the  oral  statements,  the  testimony 
of  witnesses,  given  in  court,  or  the  written  declarations  of  the  author  of  a 
document.  Relevancy  is  a  state  of  relation.  Unless  and  until  conditioned,  it 
may  well  be  regarded  as  a  link  connecting  any  given  fact  in  point  of  time,  with 
varying  degrees  of  remoteness,  with  all  other  facts,  prior  or  subsequent,  and  in 
all  directions  of  space.  The  proponent  may  start  his  proof  of  a  material  res 
gestce  fact  as  far  back  over  the  links  of  the  chain  of  causation  as  the  court, 
under  all  the  circumstances  of  the  case,  shall  deem  not  too  remote  to  be  helpful 
to  him  or  the  jury.  He  may  then  prove  the  existence  of  the  several  links  in  the 
chain  until  the  ultimate  factum  probandum,  the  res  gestce  fact  is  reached. 
This  is  the  direct  line  of  proof,  the  direct  lineal  relevancy.  Any  res  gestce 
fact  may  be  proved  in  this  way.  Establishing  the  direct  line  of  proof,  in  and 
of  itself,  makes  other  potentially  direct  relevancy  indirect  or  collateral.  It  is 
as  natural  and  inevitable  as  that  laying  out  and  constructing  a  road  should 
create  sides  for  it.  Other  relevant  relations  persist  but  in  a  subordinate,  col- 
lateral and  incidental  capacity.  As  Frederick  Pollock  says :  "  Facts  may  be 
relevant  to  one  another  not  only  when  they  are  links  in  the  same  chain,  but 
when  they  are  links  in  two  chains  having  a  common  link  in  some  other  part  of 
their  length ;  that  is,  when  they  are  effects  of  the  same  cause  or  causes  of  the 
same  effect.  Relevancy  is  a  question  of  logic,  with  which  law,  either  in  its 
substantive  or  adjective  form  has  nothing  to  do.  The  only  test  is  that  of 
experience ;  and  to  follow  it,  presents  in  practice,  little,  if  any,  difficulty  except 
the  question  of  what  degree  of  probative  force  may  be  deemed  by  a  presiding 
judge  helpful  to  himself  and  to  the  jury.  The  probative  relation  of  a  delib- 
erative fact  to  the  existence  of  one  in  the  res  gestce  may  well  be  spoken  of  as 
deliberative  relevancy.  It  is  a  relation  of  logical  relevancy  where  the  con- 
nection between  the  evidentiary  and  principal  fact  is  a  slight  one.  All  rele- 
vancy is  not,  however,  that  of  logic. 

Two  inquiries  at  once  arise:  '  (1)  What  is  the  nature  of  the  relevancy  exist- 
ing between  the  constituent  and  the  component  facts  ?  (2)  What  is  the  nature 
of  the  relevancy  which  exists  between  the  component  facts  or  expressions  of 
fact  and  the  right  or  liability  asserted  or  denied  ?  In  answering  them,  it  will 
at  once  occur  to  the  mind ;  that  an  entirely  distinct  element  has  been  added  to 
the  logical  relevancy,  based  on  experience,  which  has  been  hitherto  dominant 
in  establishing  the  res  gestce  —  from  which. the  constituent  facts  have  been 
selected  or  inferred ;  and  that  this  new  element  furnishes  the  selective  prin- 
ciple in  determining  which  of  the  res  gestce  facts  are  material  to  the  component 
facts  and  so  are  constituent,  of  the  right  or  liability.  It  so  becomes  clear  that 
this  new  element  is  the  substantive  or  positive  law  of  the  subject  which  confers 

24.  Summerour  v.   Felker,   102  Ga.  254,  29     S.  E.  448,  450    (1897). 


§  37  FACTS.  16 

• 

the  right  or  imposes  the  liability.  Such  a  rule  is  entirely  outside  the  logic  of 
experience,  is  arbitrary,  of  legal  rather  than  mental  allegiance  and  relations. 
The  establishment  of  the  proposition  in  issue  by  the  correspondences  between 
the  constituent  and  .the  component  facts  is  determined,  in  pan  at  least,  by  legal 
reasoning,  with  which  logic  has  no  exclusive  function.  This  is,  so  far  as  pos- 
sible, within  the  inviolable  province  of  the  jury  —  the  judging  of  their  evi- 
dence. To  this  form  of  relevancy,  no  designation  seems  more  appropriate  than 
that  of  legal  or  constituent  relevancy.  Legal  relevancy  imports  the  possi- 
bility of  legal  reasoning.  The  relation  between  the  constituent  and  the  com- 
ponent facts  and  the  further  step  from  the  component  facts  to  the  truth  of  the 
main  proposition  in  issue  is  determined  by  this  legal  reasoning.  Reasoning 
from  probative  to  constituent  facts  is  thus  seen  to  be  a  conclusion  of  fact,  while 
any  reasoned  result  from  the  constituent  or  res  gestce  facts  is  a  matter  of 
legal  reasoning.25  This  class  of  reasoning  is  merely  reasoning  in  general 
motivated  and  conditioned  by  a  rule  of  substantive  law. 

§  37.  Constitutionality  of  Statute  declaring  Effect  of  certain  Facts. —  It  is  not 
competent  for  the  Legislature  to  declare  that  affidavits  of  the  shipper  as  to  the 
amount  of  grain  carried  is  conclusive  on  the  carrier.  The  Legislature  may 
declare  rules  of  evidence,  change  the  burden  of  proof,  or  declare  that  a  fact 
from  which  an  inference  as  to  the  existence  of  another  fact  may  reasonably  be 
drawn  should  be  regarded  as  evidence  of  the  latter  fact  but  it  is  not  compe- 
tent for  the  Legislature  to  declare  that  the  existence  of  the  first  fact  shall  con- 
clusively establish  the  existence  of  the  latter.26 

25.  Nolan  v.  New  York,  N.  H.,  etc.,  R.  Co.,  26.  Shelabarger    Elevator    Co.    v.    Illinois 

70  Conn.  159,  39  Atl.  115,  43  L.  R.  A.  305  Central  R.  Co.,  278  111.  333,  116  N.  E.  170, 
(1898).  L.  R.  A.  1917  E  1011  (1917). 


CHAPTER  III. 

LAW  AND  FACT. 

Law  defined,  38. 

A  divided  tribunal,  39. 

Who  should  apply  the  law,  40. 

judge  authoritatively  announces  rule  of  law,  41. 

jury  ascertain  constituent  facts,  42. 

application  of  law  to  constituent  facts,  43. 
Coke's  maxim  considered,  44. 
General  verdicts,  45. 
More  rational  expedients,  46. 

agreed  statements  of  fact,  47. 

advantages  to  be  expected,  48. 

special  verdicts;  statutory,  49. 

special  interrogatories;  common  law,  50. 

special  interrogatories;  statutory,  51. 
administration  by  the  court,  52. 
Matters  of  argument,  opinion  or  judgment,  53. 
Matter  of  law,  54. 
Meaning  of  words,  55. 
The  use  of  reason,  56. 
Construction  of  documents,  57. 
Construction  of  oral  contracts,  58. 
Demurrers  to  evidence,  59. 
Certainty  of  law ;  rulings  on  facts,  60. 
Trial  by  inspection,  61. 

§  38.  Law  Defined. —  Law  may,  for  municipal  or  domestic  judicial  purposes, 
be  defined  as  a  rule  of  conduct  prescribed  by  the  sovereign  of  the  forum  upon 
its  subjects  and  enforced  by  a  sanction.1 

§  39.  A  Divided  Tribunal. —  In  considering  the  relation  between  the  respec- 
tive provinces  of  judge  and  jury,  at  common  law,  in  an  English  or  American 
court,  in  respect  to  the  distinction  between  "  matter  of  law  "  and  "  matter  of 
fact,"  it  may  be  said,  in  general,  that  it  is  error  to  instruct  the  jury  that  they 
are  to  judge  the  law  2  or  of  its  constitutionality.3  While  the  contrary  has  been 

1.  1  Chamberlayne,  Evidence,  §  66.  Ohio  424    (1842):    1  Chamb.,  Ev.,  §  67,  n.  2 

2.  Sweeney    v.    State,    35    Ark.    586,    001       and  cases  cited. 

(1880);    Hamilton   v.   People,   29   Mich.    173,  3.  Com.    v.    Anthes.    5    Gray    (Mass.)     186 

189-193    (1874);    Montgomery   v.    State,    11        ( 1855)  ;  Pierce  v.  State,  13  N.  H.  537  (1843). 

17 


§§  40,41  LAW  AND  FACT.  18 

at  times  held,4  the  view  that  even  in  criminal  cases  the  jury  are  to  receive  and 
applv  the  rule  of  law  as  announced  by  the  court  is  supported  by  the  great 
weight  of  authority.5  With  the  policy  of  the  law  the  jury  are  not  concerned.6 

§  40.  Who  Should  Apply  the  Law. —  Before  it  can  be  ascertained  by  the  tri- 
bunal as  to  whether  the  right  or  liability  asserted  or  denied  in  the  ordinary 
judicial  action  can  be  regarded  as  established  or  shown  not  to'  exist,  three 
steps,  one  of  law,  one  of  logic  and  one  partly  of  law  and  partly  of  logic,  i.e., 
of  legal  reasoning,  must  be  taken  by  the  tribunal,  or  one  of  its  component  parts. 
That  is  to  say,  (1)  a  rule  of  law  must  be  formulated  and  announced;  (2)  the 
ultimate  facts  must  be  ascertained;  (3)  the  rule  of  law  must  be  applied  to 
these  ultimate  constituent  facts  and  determine  in  this  way  whether  the  right 
or  liability  has  been  established.7 

§  41.  [Who  should  apply  the  Law] ;  Judge  Authoritatively  Announces  Rule 
of  Law. —  It  is  the  universally  recognized  duty  of  the  jury,8  even  in  criminal 
cases,9  to  follow  the  rulings  of  the  judge  as  to  matter  of  law.10  These  instruc- 
tions as  to  rules  of  law  the  judge  will  give  so  far  as  required  by  the  state  of  the 
evidence,  either  sua  sponte,  of  his  own  motion,11  or  at  the  request  of  the 
parties,12  even  in  criminal  cases.13  This,  for  the  purposes  of  the  trial,  is 
authoritative;  revision  or  correction,  so  far  as  needed, 'is  the  work  of  other 
judges,  nothing  of  the  kind  being  allotted  to  the  jury.14 

Civil  Cases. —  As  quasi  matter  of  fact,  the  jury  have  been  considered,  in  a 
few  cases,  as  entitled  to  find  the  laW  to  be  different  from  that  announced  to 
them  by  the  court,  should  the  law  be  one  of  local  nature.15  This  may  be  re- 
garded as  untenable.16 

Criminal  Cases. —  Juries  are  not  judges  of  the  law  in  criminal  cases.17 

Connecticut  permits  this.     State  v.  Thomas,  (1845)  ;  Montgomery  v.  State,  supra;  Nels  v. 

47  Conn.  546,  36  Am.  Rep.  98   (1880).  State,   2   Tex.  280    (1847). 

4.  Infra,  §§  41,  45;   1  Chamb.,  Ev.,  §§  71.  13.  Montee  v.  Com.,  3  J.  J.  Marsh.    (Ky.) 
86.  132  (1830)  ;  1  Chamb.,  Ev.,  §  69. 

5.  Washington  v.  State,  63  Ala.  135,  35  Am.  14.  Hamilton    v.    People,   supra;    No   inde- 
Rep.    8     (1879);     Com.    v.    Rock,     10    Gray  pendent    examination    into    the    law    is    per- 
(Mass.)    4    (1857);    Hamilton   v.   People,   29  missible  in  the  jury-room.     Newkirk  v.  State, 
Mich.    173,   189    (1874);   Duffy  v.   People,  26  27   Ind.  1    (1866);   Merrill  v.  Xary,  10  Allen 
X.  Y.  588   (1863);   1  Chamb.,' Ev.,  §  67,  n.  6  (Mass.)    416    (1865);   Harrison  v.  Hance,  37 
and  cases  cited.  Mo.   185    (1866)  ;   State  v.  Smith,  6  R.  L.  33 

6.  State  v.  Buckley,  40  Conn.  247    (1873);  (1859).     Improper     conduct     in     using     law 
State  v.   Miller,  53    Iowa   154,   4.  N    W.   900  books  in  the  jury-room  does  not  require  that 
(1880).  the    verdict    should    be    set    aside.     State    v. 

7.  1  Chamberlayne,  Evidence,  §  68.  Hopper,  71   Mo.  425    (1880);   People  v.  Gaff- 

8.  Higginhotham  v.  Campbell,  85  Ga.  638,       ney,  14  Abb.  Prac.  (N.  Y.)   37   (1872). 

11   S.  E.   1027    (1890).  15.  Sparf  v.  U.   S.,   156   U.   S.  51,   110,   15 

9.  Infra.  §   140;    1   Chamb.,  Ev.,  §  71.  S.  Ct.  273    (1895). 

10.  Council  v.   Teal,   122  Ga.   61,  49   S.  E.  16.  State  v.  Gannon,  75  Conn.  206,  52  Atl. 
806   (1876)  ;  Com.  v.  Rock,  supra  727    (1902)  ;  Com.  v    Porter,  supra;  State  v. 

11.  State  v.  Stonum,  62  Mo.  596  (1876).  Hodge,  50  N.  H.  510   (1869)  :   1  Chamb.,  Ev., 

12.  Com.  v.  Porter,  10  Mete.    (Mass.)    263  §  70,  n.  3  and  cases  cited. 

17.  Townsend  v.  State,  2  Black   (Ind.)    151 


19  JUDGE  ANNOUNCES  LAW.  §  41 

Double  Jeopardy. —  In  criminal  cases,  the  court  may  direct  a  verdict  for 
the  defendant  but  not  against  him.18  The  entire  power  of  the  jury  to  deal 
with  the  rules  of  law  in  any  case  is  incidental  to  their  right  to  render  a  gen- 
eral verdict.19  The  peculiarity  in  criminal  cases  is  this:  that  wh*ere  such  a 
general  verdict  is  one  of  acquittal,  the  judge  cannot  set  it  aside.20  Under  an 
almost  universal  constitutional  provision,  one  accused  of  crime  cannot  twice  be 
placed  in  jeopardy  for  the  same  offence.  Changed  social  conditions  seem 
greatly  to  have  impaired  the  basis  of  public  policy  upon  which  the  rule  orig- 
inally rested.21  The  fact  of  the  provision  against  double  jeopardy  has  given 
rise  to  the  conception  that  as  the  work  of  the  jury  in  acquitting  contrary  to  the 
rule  of  law  formulated  by  the  court  could  neither  be  prevented,  revised,  -nor 
punished,22  therefore,  they  had  a  right  to  disregard  the  instructions  of  the 
court.  "  This  power,  instead  of  being  called  a  power  to  judge  of  the  law, 
should  rather  be  regarded  as  a  power  to  set  aside  the" law  in  a  given  instance.23 
Such  is  the  general  view  of  American  courts  who  very  properly  distinguish 
sharply  between  a  right  and  an  uncorrectible  abuse  of  power.24 

Public  Policy. —  The  rule  of  law  laid  down  by  the  court  may  be  the  sole 
protection  of  innocence.  A  lawless  jury  may  be  as  dangerous  to  a  person 
accused  of  crime  though  innocent  as  a  lawless  mob.25  "  If  the  court  had  no 
right  to  decide  the  law,  error,  confusion,  uncertainty  and  licentiousness  would 
characterize  the  criminal  trials,  and  the  safety  of  the  accused  might  be  as 
much  endangered  as  the  stability  of  justice  certainly  would  be."  26 

Confusion  of  Law. —  To  permit  casual  bodies  of  twelve  untrained  men,  se- 
lected by  lot  from  the  community,  to  construe  the  law,  would  introduce  such 
an  element  of  confusion  as  to  what  that  law  is  as  would  amount  to  an  intoler- 
able abuse  and  degradation  of  the  administration  of  justice.27  More  than  this: 
under  such  circumstances,  "  Jurors  would  become  not  only  judges  but  legis- 
lators as  well."  28  Xor  is  this  all.  "  If  the  jury  were  at  liberty  to  settle  the 
law  for  themselves,  the  effect  would  be,  not  only  that  the  law  itself  would  be 

(1828);    Com.    v.    Anthes,    supra;   Hardy   v.  vided    a    punishment    of    the    jury    for    false 

State,    7    Mo.    607    (1842);    State   v.    Hodge,  verdicts  by  way  of  attaint.     Co.  Litt.,   155b, 

supra;  Duffy  v.   People,  supra;  Com.  v.  Me-  228a. 

Manus,  143  Pa    64.  21  Atl.  1018,  22  Atl.  761  23.  2  Thomp.  on  Tr.,  2133. 

(1891)  :   Sparf  v.  U.  S.,  supra.  24.   State  v.  Ford,  37  La.  Ann.  443   (1865)  ; 

CONTRA:     Montee  v.   Com.,  supra;  State  U.   S.   v.   Greathouse,   4   Sawy.    ( U.   S.)    457, 

v.    Jurche,    17    La.    Ann.    71     (1865):    State  464,  2  Abb.  364   ( 1863)  ;  1  Chamb.,  Ev.,  §  72, 

v.  Snow,  18  Me.  346   (1841)  ;  Drake  v.  State,  n.    7    and    cases    cited.     CONTRA:    Kane    v. 

•30   N.  J.   L.  422    (1863);   Nelson  v.  State,  2  Com.,  89  Pa.  522    (1879). 

Swan   (Tenn.)   482   (1852);  State  v.  Croteau,  25.  Pennsylvania  v.  Bell.   Add.    (Pa.)    156, 

23  Vt.  14    (1849).     Generally,  see  1   Chamb.,  160    (1793):    U.  S.  v.  Battiste,  2  Sumn.    (U. 

Ev.,  §  71  and  cases  cited.  S.)  240  (1835)  ;  Hamilton  v.  People,  29  Mich. 

18.  Infra,  n.  20.  173    (1874). 

19.  Devizes  v.  Clark,  3  A.  &  E.  506  (1835)  ;  26.  Montee  v.  Com.,  supra;  1  Chamb.,  Ev., 
1  Chamb.,  Ev.,  §  72,  n.  2  and  cases  cited.  §  73. 

20.  King-  v.  Jones,  8  Mod.  201,  208  (1724).  27.  Hamilton    v.    People,    supra:    Duffy   v. 

21.  Duffy    v.    People,    26    N.    Y.    588,    591  People,  supra;  Pennsylvania  v.  Bell,  supra. 
(1863).  28.  Duffy  v.  People,  supra. 

22.  Attaint. —  The     earlier     practice     pro- 


§§  42-44  LAW  AND  FACT.  20 

most  uncertain,  from  the  different  views  which  juries  might  take  of  it,  but,  in 
case  of  error,  there  would  be  no  remedy  or  redress  of  the  injured  party;  for  the 
court  would  not  have  any  right  to  review  the  law  as  it  had  been  settled  by  the 
jury.  Indeed,  it  would  be  almost  impracticable  to  ascertain  what  the  law,  as 
settled  by  the  jury,  actually  was."  -!l 

Differing  Views. —  In  several  jurisdictions  more  powers  in  dealing  with 
the  rule  of  law  than  are  generally  adjudged  to  be  in  the  public  interest  have,  by 
statute  or  constitution,  been  conferred  upon  the  jury.3"  The  same  results 
authorizing  the  jury  to  invent  or  improvise  a  rule  of  law  for  themselves,  in 
criminal  cases,  have  been  occasionally  effected  by  judicial  decision/51  Among 
these  jurisdictions  are  Illinois,32  Indiana,33  Louisiana/'4  Maine,3*  Massa- 
chusetts,36 Pennsylvania,37  Tennessee38  and  Vermont/'9  A  growing  tendency 
is,  however,  observable  among  such  courts  to  bring  their  rulings  more  nearly 
into  correspondence  with  the  general  weight  of  authority.40 

§  42.  [Who  should  apply  the  Law] ;  (2)  Jury  Ascertain  Constituent  Facts.— 
Speaking  generally,  the  second  step  —  that  of  ascertaining  the  constituent 
facts  —  is  admittedly  for  the  jury.41 

§  43.  [Who  should  apply  the  Law] ;  (3)  Application  of  Law  to  Constituent 
Facts. —  Upon  a  natural  scientific  division  of  matter  of  law  and  matter  of  fact, 
the  jury  should  find  simply  the  constituent  facts.  To  the  judge  should  fall  the 
duty  of  announcing  the  rule  of  law  and  applying  it  to  the  constituent  facts 
fdund  by  the  jury.  In  other  words,  both  the  rules  of  law  and  their  applica- 
tion—  judicial  knowledge42  and  legal  reasoning43 — are  "matter  of  law." 

§  44.  Coke's  Maxim  Considered.44 —  It  may  be  accepted  as  settled  that  what- 

29.  State  v.  Ford,  supra;  Nicholson  v.  Com.,  36.  Com.  v.   Porter,  .10  Mete.    (Mass.)    263 
96  Pa.  503   (1880)  ;   L.  S    v.  Battiste,  supra;       (1845). 

1  Chamb.,  Ev..  §  74,  n.  3  and  cases  cited.  37.  Kane  v.  Com.,  89  Pa.  522    (1879). 

30.  Hudelson  v.  .State,  94  Ind.  426   (1883)  ;  38.  Hannah  v.  State,  75  Tenn.  (11  Lea)  201 
State  v.  Ford,  supra;  State  v.  Miller.  75  X.  C.       ( 1883) . 

74    (1876);   R.  S.   Ind.   1881,  §  64,   1823.     In  39.  State   v.    Croteau,    23    Vt.    15     (1849). 

Georgia   a    code    provision    is   as    follows:  —  For  full  list  of  cases,  see  1  Chamb.,  Ev.,  §  75 

"  The    jury    in    all    criminal    cases    shall    be  and  notes. 

the  judges  of  the  law  and  the  facts."     Const.  40.  State  v.  Ford,  supra. 

Ga.,   art.    I,    §    2.   par.    I     (1877);    Ga.    Code  41.  Fowler   v.   State.   85   Ind.   538    (1882); 

1882,  §  5019.     See  1  Chamb.,  Ev.,  §  75,  n.  1  Robbins   v.   State,   8   Ohio   St.    131,    14b,    166 

and  cases  cited.  (1857)  ;  U.  S.  v.  Greathouse,  supra;  1  Chamb., 

31.  An  erroneous  instruction  by  the  court  Ev..   §    76.     This   is   the   rule   even    in   states 
will,  even  in  states  where  the  jury  are  judges  which   by  constitutional   provision   make   the 
of  the  law,  beg  round  for  a  new  trial.     Clem  jury  judges  of  both  law  and  fact  in  criminal 
v.   State,   42   Ind.   422,  447    (1873);    State  v.  causes.     State  v.  Tisdale,  41   La.  Ann.  338,  6 
Rice,  56  Iowa  431,  9  N.  W.  343    (1881).  So.  579    (1889). 

32.  Adams  v.  People,  47  III.  376   (1868).  42.  Infra,  §  315  et  seq.;   1  Chamb.,  Ev.,  § 

33.  Stout  v.  State,  96  Ind.  407    (1884).  570  et  seq. 

34.  State    v.     Vinson.     37     La.     Ann.     792  43.  Supra,  §  36;   1  Chamb.,  Ev.,  §§  59,  63. 
<1885).  44.  1  Chamberlayne,  Evidence,  §§  78-84. 

35.  State  v.  Snow,  18  Me.  346  (1841). 


I 

21  PROVINCE  OF  JUDGE  AXD  JUHY.  §  44 

ever  be  the  proper  relation  between  law  and  fact  on  a  jury  trial,  no  such  simple 
division  exists  as  that  all  matters  of  law  are  for  the  judge ;  all  matters  of  fact 
are  for  the  jury,  which  has  had  a  wide  vogue  in  England45  and  America.46 
The  so-called  maxim  —  ad  quaestionem  facti  non  respondent  judices,  ad  quaes- 
tionem  juris  non  respondent  juratores  —  was  a  favorite  with  Lord  Coke  and 
was  by  him  47  attributed  to  Bracton.  It  was,  however,  never  more  than  par- 
tially true. 

"Ad  Quaestionem  Facti  Non  Respondent  Judices." — So  far  as  regards  the 
first  branch  of  the  statement  —  that  judges  do  not  decide  questions  of  fact  — 
the  announcement  is  so  transparently  false  as  not  to  be  essentially  misleading.48 
The  only  facts  with  which  the  jury  is  concerned  are  constituted  facts,  i.e.,  ma- 
terial facts  in  the  res  gestae  relevant  to  the  issue  raised  by  the  pleadings ;  49  or, 
where  there  are  no  pleadings,  to  the  existence  of  the  right  or  liability  involved 
in  the  inquiry.  Other  questions  of  fact  are  normally  for  the  court. 

Incidental  Findings. —  On  any  trial  u  carried  on  at  once  before  court  and 
jury  "  50  questions  of  fact  are  incessantly  arising.  Whether  an  expert  is  suf- 
ficiently qualified  to  make  his  ''  opinion  "  of  value  to  the  jury;  a  document  has 
been  "  attested  " ;  a  confession  offered  in  evidence  is  "  voluntary  '' ;  whether 
the  nonproduction  of  a  document  has  been  sufficiently  explained  —  these  and 
other  subsidiary  or  preliminary  questions  of  fact 51  can,  under  the  rules  of 
common  law  procedure,  be  decided  only  by  the  judge.52 

Preliminary  Facts  Conditioning  AdmissibiUty. —  It  may  happen  that  the 
admissibility  of  particular  testimony  is  dependent  upon  or  conditioned  by  the 
existence  of  a  preliminary  fact.53  Where  a  serious  conflict  arises  upon  the 
evidence  as  to  the  existence  of  a  conditioning  or  qualifying  fact,  the  judge  may 
adopt  one  of  several  expedients:  (1)  He  may  hear  the  evidence  and  adjudi- 
cate as  to  the  existence  of  the  qualifying  fact,54  hearing  the  evidence  as  offered 
by  both  sides,  and  not  in  the  presence  of  the  jury.5"  When  he  has  decided 
whether  the  evidence  in  support  of  admissibility  is  such  that  the  jury  might 
rationally  act  on  it,  he  will  proceed  as  in  a  case  where  the  evidence  is  uncon- 

45.  \\elstead  v.  Levy,   1   Mood.  &  Rob.  138  51.  Zipperlen  v.  Southern  Pac.  Co.,  7   Cal. 
(1831).  App.  206.  93  Pae.   1049. 

46.  Scott  v.  People,   141    111.   195,  30  N.  E.  52.  Fail-bank     v.     Hughson,    58     Cal.     314 
329     (1892);    Com.    v.    Robinson,    146    Mass.  (1881);   Com.  v.  Robinson,  supra;  Semple  v. 
571,  16  X.  E.  452  (1888)  ;  Strauas  V.  Kansas,  Callery,    184    Pa.    95,    39    Atl.    6    (1898);     1 
etc..   R.  Co.,  S6  Mo.  421    (1885)  :   New  Jersey  Chamb.,  Ev.,  §  80.  n.  3  and  cases  cited. 
Steamboat  Co.  v.   Xew  York  City,   109  N.  Y.  53.  As,  for  example,  whether  a  witness  is 
621.   15  X.   E.  877    (1888);    1  Chamb.,  Ev.,  §  disqualified  by  interest,  Bartlett  v.  Hoyt,  33 
78,  n   2  and  cases  cited.  X.  H.  151.  165   (1856)  :  whether  one  to  whom 

47.  Isaak  v.  Clark,  Rolle,  59;  2  Bulstr.  314  a  communication  was  made  was.  at  the  time. 
(1614).                                                                       '  a  legal  adviser.     Hartford  F.  Ins   Co.  v.  Rey- 

48.  Thayer,  Prelim.  Treat.  185:    1   Chamb.,  nolds,   36   Mich.   502    (1877);    or  the   like. 
Ev.,    §    79  54.  Cleve  v.  Jones.  7  Exch.  421   (1852). 

49.  State    v.    Hodge,    50    X.    H.    510.    522  55.  State  v.  Shaffer,  23  Or.  555,  32  Pac.  545 
(1869i  :   §  31.  supra;  1  Chamb.,  Ev.,  §  47.  (1893). 

50.  Com.  v.  Porter,  10  Mete.    (Mass.)   263, 
284    (1845). 


§  44  LAW  AND  FACT.  22 

troverted.56  (2)  He  may  ask  the  jury  to  find,  specifically,  as  to  the  existence 
of  the  qualifying  fact ;  and,  upon  receiving  their  report,  proceed  as  where  the 
evidence  is  uncontroverted.  Or,  (3)  he  may  leave  the  entire  matter  to  the 
jury,  to  whom  it  must  ultimately  go  on  the  question  of  weight,  under  suitable 
instructions  directing  them  as  to  their  proper  course  in  the  event  that  they  find, 
or  fail  to  find,  the  existence  of  the  qualifying  fact.57 

Function  of  the  Jury. —  Common  practice  permits  a  presiding  judge  to  sub- 
mit the  evidence  in  its  entirety  to  the  jury,  instructing  them  to  regard  or  dis- 
regard it  according  as  they  shall  find  as  to  the  existence  of  the  preliminary 
fact  upon  which  its  admissibility  is  dependent.58  But  making  such  prelimi- 
nary findings  is  not  a  recognized  and  essential  part  of  the  jury's  duty. 

"  Ad  Quaestionem  Juris  Non  Respondent  Juratores." —  The  second  division 
of  the  rule  —  that  the  jury  are  not  to  answer  questions  of  law  —  is  more  nearly 
accurate  than  is  its  associated  branch  of  the  rule.  Their  power  of  applying  the 
rule  of  law  announced  by  the  judge  to  the  constituent  facts  found  by  them  and 
of  returning  a  general  verdict 59  seems,  however,  to  approximate  closely  to 
dealing  with  a  question  of  law.  As  is  more  fully  stated  elsewhere,60  it  is  the 
substantive  right  of  a  party  to  have  the  judge  exercise  his  allotted  functions. 
He  will  not,  therefore,  as  a  rule,  submit  questions  of  law  to  the  jury.*51 

Collateral  Rulings. —  Where  the  ruling  as  to  the  law  concerns  a  collateral 
matter,  as  in  connection  with  the  admissibility  of  evidence,  statements  as  to  the 
issue  raised  by  the  pleadings,62  whether  the  evidence  is  sufficient  in  law  to  sup- 
port a  verdict  °3  or  the  like,  the  power  and  duty  of  the  court  to  make  an  authori- 
tative ruling  for  the  purposes  of  the  case  are  unchallenged  in  any  quarter.64  The 
jury  may  refuse  to  follow  evidence  admitted  by  the  judge,  but  they  cannot  dis- 
regard it.65  For  the  court  to  instruct  the  jury  that  they  may  so  act  is  error.66 

56.  Infra,   §§    179   et  seq.;   1    Chamb.,   Ev.,      App.)  92  S.  W.  439   (1906)  ;   1  Chamb.,  Ev.,  § 
§§  385  et  seq.     It  has  been  held  that  the  pro-      82. 

priety  of  the  judges   finding  in  this  connec-  59.  Infra,  §  45;  1  Chamb.,  Ev.,  §  86. 

tion  will  not  be  reviewed  in  an  appellate  court.  60.  Infra,  §  203;  1  Chamb.,  Ev.,  §  409. 

Com.   v.   Robinson,  supra.     It  has  been   sug-  61.  Thomas  v.  Thomas,   15  B.  Mon.    (Ky.) 

gested  that  in  a  criminal  case,  the  court,  to  178     (1854);    Hickey    v.    Ryan,    15    Mo.    63 

find  a  fact  against  a  prisoner,  must  be  satis-  (1851)  ;    1   Cham..  Ev.,  §  84,  n.  3  and  cases 

tied  of  the  truth  of  the  matter  beyond  a  rea-  cited. 

sonable  doubt.     Lipscomb  v.   State,   75  Miss.  62.  Missouri   Coal   &  Oil   Co.  v.   Hannibal, 

559,  23  So.  210    (1898).     The  better  view  is  etc.,  R.  Co.,  35  Mo.  84   (1864). 

that  no  such  limitation  on  the  court's  action  63.  Harris   v.   Woody,   9   Mo.    113    (1845)  ; 

exists.     Com.   v.    Robinson,  supra.  Cole  v.  Hebb,  7  Gill  &  J.  (Md.)  20  (1835). 

57.  1    Chamb,   Ev.,   §   81.     The   reason   as-  64.' Carter  v.  Bennett,  6  Fla.  214    (1855); 
signed   for  this  course  is  that  it   "does  not  Gorton    v.     Hadsell.    9    Cush.     (Mass.)     508 
properly  belong  to  a  judge  to  decide  upon  the  (1852)  ;   1  Chamb.,  Ev.,  §  85,  n.  4  and  cases 
truth  of  matters  which  have  come  out  during  cited. 

the   examination   of  witnesses  who   conflict."  65.  Com.  v.  Knapp,  10  Pick.    (Mass.)   477, 

Hartford  F.  Ins.  Co.  v.  Reynolds,  supra.  496    (1830). 

58.  Central  of  Ga.  Ry.  Co.  v.  Harper,  124  66.  Thomason  v.  Odum,  31  Ala.  108  (1857)  ; 
Ga.  836,  53  S.   E.  30]    (1906)  :   Com.  v.  Cul-  Robinson  v.  Ferry,  11  Conn.  460  (1836)  ;  Rat- 
ver,    126   Mass.   464    (1879).     See   American  liff  v.  Huntley,  5  Ired.  (N.  C.)  545  (1845). 
Nat.    Bank   v.    First   Mat.    Bank    (Tex.    Civ. 


2:5  GENERAL  VERDICTS.  §  45 

§  45.  General  Verdicts.67 —  The  result  announced  in  a  general  verdict  is  a 
composite  one,  blending  a  decision  as  to  certain  constituent  facts  with  the  appli- 
cation of  a  rule  of  law  to  them.68  That  it  is  the  duty  of  the  jury  in  thus 
blending  the  fact  and  the  law  into  a  composite  result  to  take  the  rule  of  law  to 
be  as  stated  by  the  presiding  judge  is  entirely  settled.69  The  right  of  the  jury, 
by  returning  a  general  verdict,  to  make  for  themselves  the  application  of  the 
rule  of  law  as  stated  by  the  courts  to  the  constituent  facts  ascertained  by  them 
is  equally  settled.70  They  may,  in  all  cases,  civil 71  or  criminal,72  return  a 
general  verdict.  In  the  absence  of  regulation  by  statute.73  the  jury  may  decline 
to  return  any  other  verdict  than  a  general  one,74  although  the  court  may  have 
required  special  findings.  It  follows  from  this  power  and  practice  of  the  jury 
to  return  a  general  verdict  that  the  whole  matter  of  law  as  well  as  of  fact  must 
be  stated  and  explained  to  the  jury  so  that  they  may  fully  understand  and 
apply  it  to  the  facts.75  Fox's  Libel  Act  ™  set  this  matter  as  to  the  right  of  a 
jury  to  return  a  general  verdict  at  rest,  so  far  as  England  itself  was  concerned, 
by  expressly  providing  that  on  such  prosecutions  it  should  be  the  right  of  the 
jury  to  return  a  general  verdict,  passing  not  only  upon  the  facts  but  applying 
the  rule  of  law  to  them.  The  rule  essentially  of  administration  or,  at  most  of 
procedure,  upon  this  point  has  been  inscribed  into  most  of  the  constitutions  of 
the  American  States,  it  being  provided,  for  example,  in  Pennsylvania,  that  "  in 
all  indictments  for  libel,  the  jury  shall  have  the  right  to  determine  the  law  and 
the  facts  under  the  direction  of  the  court,  as  in  other  cases."  77  Other  juris- 
dictions, with  great  uniformity,  have  enacted  similar  provisions,  statutory78 
or  constitutional.  Very  strong  arguments  in  favor  of  the  contrary  view,  in 
point  of  administrative  principle,  may  be  found,  among  the  American  courts.79 

Matter  of  Law  for  the  Jury  an  Incidental  Power. —  Only  when  the  jury  are 
themselves  required  to  find  the  constituent  facts  and  in  connection  with  the  dis- 
charge of  such  a  duty  may  the  jury  apply  the  law  to  the  facts.  Xo  practice 
exists  under  which  the  jury  are  to  apply  the  rule  of  law,  announced  by  the 
court,  to  constituent  facts  found  b\  others,  or  to  such  facts  when  admitted,  not 

67.  1  Chamberlayne,  Evidence,  §§  86-88.  263    (1845):    Com.   v.   McManus.   143   Pa.   64 

68.  Gibson  v.  Hunter,  2  H.  Bl.  187   (1793).  (1891)  :   1  Chamb.,  Ev.,  §  86. 

69.  Supra,  §41;   1  Chamb.,  Ev..  §  69.  76.  Stat.  32  Geo.  Ill,  c.  60. 

70.  Kane   v.   Com.,   89   Pa.   522    (1879);    1  77.  Const.  Pa.,  Art,  1.  §  7 

Chamb..  Ev.,  §  86,  n.  5  and  cases  cited.  78.  People  v.   Croswell,   3  Johns.  Cas.    (N. 

71.  Com.   v.   Porter,   10  Mete.    (Mass.)    263      Y.)    337    (1804). 

(18451.  79.  Prominent  among  these  is  the  opinion 

72.  King  v.  Jones,  8  Mod   201   (1723).     See  of  Chief  Justice   Lewis,  in  which  Chief  Jus- 
also.   Erving  v.  Cradock.  Quincy   (Mass.)   553  tice  Livingston  concurred   (People  v.  Croswell. 
(1761)  ;  Georgia  v.  Brailsford,  3  Dall  (U.  S.)  supra},   where,  after  an   elaborate  review  of 
1   (1794).  the    authorities,    the    conclusion    is    reached 

73.  Infra,  §  49  et  seq.:  1   Chamb.,  Ev..  §§  that  Lord  Mansfield  was  right  in  holding  that 
96.  !>8  et  seq.  judges    had    power    to    determine,    after    the 

74.  Devizes  v.  Clark,  3  A.  &  E.  506  (1833)  fact    of    publication    has    been    found,    as    to 

75.  higginbotham  v.  Campbell,  85  Ga.  638      whether  a  given  publication  was  or  was  not 
(1890):    Cain   v.   Porter,    10   Mete.    (Mass.)       libellous. 


>j§  4:0,47  LAW  AXD  FACT.  24 

disputed,  or  established  beyond  the  point  of  successful  contradiction.80  The 
rule  is  well-nigh  universal  that,  where  the  constituent  facts  are  found  and  all 
which  remains  to  determine  the  action  of  the  court  is  the  application  of  the 
measuring  rule  of  law,  the  application  of  this  rule  is  a  question  of  law  and 
within  the  function  of  the  judge.81 

§  46.  More  Rational  Expedients.1"2 —  The  common  law  judge  is  not  compelled, 
in  all  cases,  to  work  out  the  substantial  rights  of  the  parties  through  the  expen- 
sive and  dilatory ,- method  of  granting  new  trials.  In  certain  cases  the  more 
normal  relations  of  the  judge  and  jury  are  maintained  —  the  jury  finding 
some  or  all  of  the  constituent  facts  and  the  judge  applying  the  rule  of  law.83 

Inferences  of  Fact. —  A  main  difficulty  encountered  by  a  court  in  applying 
the  rule  of  law  to  facts  found  by  a  jury,  or  agreed  upon  by  the  parties,  is  that 
certain  inferences  of  fact,  so  called,  still  remain  to  be  found.  The  rule  of  law 
can  properly,  as  has  elsewhere  been  said.84  be  applied  only  to  the  constituent 
facts,85  the  ultimate  facts  so  called.  But  it  frequently  happens  that  th«  jury 
in  finding  the  facts  or  the  parties  in  agreeing  on  them  rest  content  with  finding 
the  probative  facts  86  without  proceeding  to  ascertain  the  constituent  facts  to 
be  proved  by  these  probative  ones.  Clearly  these  inferences  from  the  existence 
of  the  probative  to  that  of  the  constituent  facts  which  they  tend  to  establish  is 
for  the  jury  to  draw,  or,  in  case  of  a  statement  of  agreed  facts,  for  the  agree- 
ment to  cover.87 

§  47.  [More  Rational  Expedients] ;  Agreed  Statements  of  Fact.88 —  Questions 
of  fact  may  be  submitted  to  the  court  in  the  form  of  an  agreed  statement.  The 
function  of  applying  the  law  to  the  facts  is  thus  transferred  to  the  judge. 
Where  only  the  probative  facts  are  agreed  upon,  unless  there  is  a  provision  that 
the  court  may  draw  the  inferences  from  the  probative  to  the  constituent  facts, 
the  task  is  to  apply  the  rule  of  law  to  the  probative  facts.89 

Power  to  Draw  Inferences;  Express  Authority  Needed. —  It  has  been  deemed 
by  certain  courts  advisable90  and  even  necessary91  that  power  to  draw  infer- 

80.  1   Chamb.,  Ev.,  §  88.     See  discussion  of  tempt  takes  place  in  the  presence  of  the  court 
the  question  of  Matter  of  .Law  for  the  Jury,  (Infra,  §  112;  1  Chamb.,  §  255),  the  judge  is 
1    chamb.,   Ev.,   §§   87,   88.  the  percipient  witness  of  all  the  constituent 

81.  Illustrative  Instances. —  It  is  not  ma-  facts      In  all  such  cases,  it  is  not  questioned 
terial   whether  the  right  of  the  jury  to  ap-  that  it  is  for  the  judge  to  apply  the  law. 
ply  the  law  is  excluded  because  the  constitu-  82.    1  Chamberlayne,  Evidence,  §§  89,  90. 
ent   facts   are   agreed    by    the   parties,   as    in  83.    1  Chamb.,  Ev.,  §  89. 

agreed   statements    (Infra,    §   47 ;    1    Chamb.,  84.  Supra,  §  36:   1  Chamb.,  Ev.,  §  61. 

Ev.,  §  91)  demurrers  to  evidence  (Infra,  §  59;  85.  Supra,  §  31:  1  Chamb.,  Ev.,  §  47. 

1  Chamb.,  Ev.,  §  139)   or  the  like:  or  because  86.  Supra,  §  34;  1  Chamb.,  Ev.,  §  51. 

the   facts   are   uncontroverted,   as   where   the  87.  1  Chamb.,  Ev.  §  90. 

court  orders  a  verdict  where  only  one  outcome  88.  1  Chamberlayne,  Evidence,  §§  91-94. 

is  rationally  possible,  (Infra.  §  184;  1  Chamb.,  89.   1  Chamb  ,  Ev.,  §  91. 

Ev.,  §  390)  or,  as  in  the  case  of  the  construe-  90.  Cole  v.    Northwestern  Bank,  L.  R.  10, 

tion   of   documents    (Infra,   §   57    et   seq. ;    1  C.  P.  354  (1875). 

Chamb.,  Ev.,   §    128  et  seq.),  or  where  con- 


25  RATIONAL  EXPEDIENTS.  §§  48,49 

ences  other  than  those  necessary,  as  matter  of  law,?2  should  be  conferred  totidem 
verbi§  if  the  court  is  to  exercise  it.  Otherwise  the  province  of  the  judge  is 
limited  in  the  original  instance,  to  finding  the  effect  of  the  facts  thus  stated  on 
the  record  as  matter  of  law  93  and  that  of  an  appellate  court  to  saving  whether 
the  ruling  was  right,  or,  if  erroneous,  what  it  should  be;  not,  as  in  case  of  a 
finding  of  fact,  as  where  the  court  is  permitted  to  draw  inferences  of  fact,94 
whether  there  was  any  evidence  warranting  a  finding.95 

A  Different  View. —  The  action  of  the  parties  may  reasonably  be  regarded  as 
implying  liberty  to  use  a  certain  discretion  in  drawing  inferences  from  the 
facts  stated.  Even,  therefore,  in  the  case  of  stipulations  where  no  express 
power  of  drawing  inferences  of  fact  has  been  conferred,  certain  judges  have 
asserted  and  exercised  the  right  of  drawing  these  inferences,96  while  declining 
to  exercise  the  same  power  in  dealing  with  the  facts  found  by  a  jury  in  the 
form  of  a  special  verdict.97 

Effect  of  Agreement. —  But  where  a  case  is  tried  on  an  agreed  statement  of 
facts,  it  is  not  necessary  that  the  courts  should  make  separate  findings  of  fact 
and  law.98  Where  the  facts  are  agreed  on  they  are  equivalent  to  facts  found 
by  the  court.99  Though  findings  of  fact  are  not  necessary  to  the  validity  of  a 
judgment,  the  court  is  not  thereby  precluded  from  making  such  findings.1 

§  48.  [More  Rational  Expedients] ;  Advantages  to  Be  Expected. —  That  the 
jury  should,  in  all  cases,  find  the  existence  of  all  constituent  facts  about  which 
a  dispute  exists  between  the  parties,  leaving  the  court,  in  all  cases,  to  apply  the 
rule  of  law,  has  certain  attractive  features  as  a  satisfactory  rule  of  adminis- 
tration.2 

§  49.  [More  Rational  Expedients];  Special  Verdicts;  Statutory.3 — The  prac- 
tice of  rendering  special  verdicts  is  one  of  considerable  antiquity.4  The  differ- 
ence between  a  special  verdict  and  the  answers  to  special  interrogations,  con- 

91.  Schwartz    v.     Boston,     151     Mass.    226       mate  fact  in  issue  if  it  may  be  inferred  from 
(1890);      Kinsley     v.     Coyle,     58     Pa.     461       the  stipulated  facts.     Crisman  v.  Lanterman, 
(1868)  ;    Byam  v.  Bullard,  1  Curt.  C.  C.    (U.       149  Cal.  647.  87  Pac.  89    (1906). 

S.)   100  (1852);  1  Chamb..  Ev.,  §  92  and  cases  97.  Tancred    v.   Christy,    12    M.   &    W.   316 

cited.  (1843). 

92.  Later  v.  Haywood,  14  Ida.  45,  03  Pac.  98.  Cincinnati,  etc.,  Ry.  Co.  v.  Hansford  & 
374    (1908):    May  hew    v.    Durfee,    138    Mass  Son.    30    Ky.    L.    Rep.    1105,    100   S.    W.   251 
5S4    (1885).  (1907). 

93.  Coffin  v.  Artesian  Water  Co.,  193  Mass.  99*   Anderson  v.  Messinger.  146  Fed.  929,  77 
274.  79  X.   E.  262    (1906);   Schwartz  v.  Bos-  C.  C.  A.  179,  7  L   R.  A.   (X.  S.)   1094  (1906). 
ton,  supra.  1.   Towle   v    Sweeney,   2   Cal.   App.   29.   83 

94.  Charlton    v.    Donnell,    100    Mass.    229  Pac.  74  ( 1905) . 

(1868).  2.  See    discussion    of    the    question    in     1 

95.  Schwartz  v.  Boston,  supra.  Chamb..  Ev..  §  95  and  notes  thereto,  wherein 

96.  Jackson  v.   Whitbeck,   6  Cow.    (X.  Y.)  the  author  advances  si\  important  advantages 
632    (1827)  ;    Whitney  v.   Sterling.   14  Johns,  to  be  expected  from  the  rule. 

(X.  Y. )   215    (1817).     But  see,  contra,  under  3.   1  Chamberlayne,  Evidence,  §  96. 

the  Code,  Clark  v.  Wise,  46  N.  Y.  612  (1871).  4.   First    Xat.    Bank   v.    Peck,    8    Kan.   660 

It  is  the  duty  of  the  court  to  find  an  ulti-       (1871);  Ross's  Case,  12  Ct.  Cl.  565    (187.6). 


§§  50,  51  LAW  AND  FACT.  26 

sidered  elsewhere,5  is  obvious  and  fundamental.  The  interrogations  inquire  as 
to  the  existence  of  one  or  more  constituent  facts.*5  The  special  verdict  finds 
them  all.7  Xo  special  interrogatories  can  be  propounded,  as  of  right,  by  a 
party  when  a  special  verdict  is  asked.8  Should  the  jury  have  the  option  to 
return  either  a  special  or  a  general  verdict,  they  need  return  special  answers 
only  in  case  they  decide  to  return  a  verdict  in  general  form.9 

§  50.  [More  Rational  Expedients];  Special  Interrogatories;  Common  Law.— 
The  old  practice  of  requesting  special  findings  of  fact  has  increased  in  popular- 
ity with  judges,10  frequently  acting  under  legislative  sanction.11  The  right  to 
interrogate  the  jury,  on  returning  a  general  verdict,  as  to  the  method  in  which 
they  reached  their  conclusion  in  certain  particulars  has  been  denied  in  Eng- 
land,12 and  by  courts  in  this  country,  in  the  absence  of  agreement  by  the 
parties.13  The  practice,  however,  has  obtained  in  certain  sections  of  Amer- 
ica.14 If  the  ground  assigned  by  the  jury  for  their  action  could  not  support  it, 
the  verdict  is  set  aside.15  Other  courts  have  been  bolder  and  have  directly 
submitted  interrogations  to  the  jury  for  them  to  answer.16 

§  51.  [More    Rational    Expedients];    Special    Interrogatories;    Statutory.17— 
Many  states  of  the  American   Union  have  re-enacted,  with  some  variation  in 
detail,  the  common  law  practice  of  submitting  special  interrogatories  to  the 
jury.     A  typical  statute  is  that  of  Indiana.18 

5.  Infra,  §§  51  et  seq.;  1  Chamb.,  Ev.,  §§  98  by  the  verdict,  it  is  not  unusual  to  ask  the 
et  seq.                                    t  JU1T    upon    what    principle    it    was    found." 

6.  Hazard  Powder  Co.  v.  Viergutz,  6  Kan.  Pierce    v.    Woodward,    6    Pick.     (Mass.)    206 
471,  486    (1870);    Smith  v.  Warren,  60  Tex.  (1828).     See    also,    Roche   v.   .Ladd,    1    Allen 
462   (1883).  (Mass.)  436  (1861). 

7.  Housworth    v.    Bloomhuff,    54    Ind.    487  15.  Parrott    v.    Thatcher,    9    Pick    (Mass.) 
(1876)  ;  Pittsburg,  etc.,  R.  Co.  v.  Spencer,  98  426     (1830).     See    Spurr    v.    Shellmrne,    131 
Ind.  186  (1884)  ;  1  Chamb.,  Ev.,  §  96.  Mass.  429    (1881).     The  answers  to  such  in- 

8.  Chapin  v.  Clapp,  29  Ind.  614   (1868).  terrogatories  may  also  be  used  as  part  of  a 

9.  Hendrickson    v.    Walker,    32    Mich.    68       bill  of  exceptions  or  on  motion  for  a  new  trial 
(1875).  based    on    the    insufficiency    of   the    evidence. 

10.  Atchison.   etc..   "Ry.   Co.   v.   Morgan,  43       Monies  v.  City  of  Lynn,  11!)  Mass.  273  ( 1876). 
Kan.    1    22    Pac.    995     (1890);    Maceman    v.  16.  McMasters  v.  West  Chester  County,  etc., 
Equitable   L.   Assur.   Soc.,   69  Minn.   285,   72       Co.,  25  Wend.  (N.  Y.)  379  (1841). 

N.  W.  Ill    (1897).  17.  Chamberlayne,  Evidence.,  §§  98-116. 

11.  1  Chamb.  Ev.,  §  97.  18.  ''  In  all  actions,  the  jury,  unless  other- 

12.  Mayor  of  Devisees  v.  Clark,  3  A.  &  E.  wise  directed  by  the  court,  may,  in  their  dis- 
506    (1836).  cretion.  render  general  or  special  verdict;  but 

13.  Allen,  etc.,  Co.  v.  Aldrich,  9  Fost.    (X.  the  court  shall,  at  the  request  of  either  party, 
H.)    63    (1854).     Sucli   consent  has  also  been  direct  them  to  give  a  special  verdict  in  writ- 
held  not  to  be  necessary.     Walker  v.  Sawyer,  ing  upon  all  or  any  of  the  issues;  and  in  all 
13  N.  H.  191   (1S42)  :  See  Barston  v.  Sprague,  cases,  when  requested  by  either  party,  shall 
40  X.  H.  27   (1859).  instruct  them,  if  they  render  a  general  ver- 

14.  For  example,  the  presiding  judge  may  diet,  to  find   specially  upon  particular  ques- 
ask  the  jury  whether  they  read  certain  papers  tions  of  fact,  to  be  stated  in  writing      This 
improperly  taken  by  them  to  their  consulta-  special    finding    is    to    be   recorded    with    the 
tion-room.     Hix   v.    Drury,   5    Pick.    (Mass.)  verdict.  .  .  .   When     the    special     finding    of 
296   (1827).     "Where  the  judge  is  surprised  facts  is  inconsistent  with  the  general  verdict, 


27  RATIONAL  EXPEDIENTS. 

Criminal  Cases  Excluded. —  The  enabling  statutes  do  not,  in  the  absence  of 
express  language,  apply  to  criminal  cases.19  In  equity  causes  where  the  jury 
is  brought  in  to  assist  the  judge  no  binding  effect  attaches  to  the  findings.20 

Object  of  Special  Findings. —  It  has  been  said  that  the  object  of  answers  to 
special  interrogatories  is  to  obtain  an  explanation  of  a  general  verdict,21  and  to 
place  upon  record  the  details  of  this  explanation.22  If  the  jury  finds  simply 
u  general  verdict,  and  it  should  happen  later  that  the  judge  should  be  convinced 
that  he  had  given  the  wrong  rule  of  law  to  the  jury,  the  obvious  available  course 
is  to  order  a  new  trial.  If  the  separate  findings  are  before  the  judge  on  the 
record,  he  may,  however,  order  such  a  verdict  as  would  have  been  rendered, 
had  the  correct  rule  been  given.23  A  special  verdict  or  set  of  findings  must  set 
forth  the  existence  of  all  constituent  facts  necessary  to  the  actor's  case.24 
Thus  is  the  emotionalism  of  the  jury  in  part  controlled.25  Error  may  be  recti- 
fied by  checking,  by  the  knowledge  furnished  by  separate  findings,  erroneous 
inferences  from  the  facts  found ;  2ti  a  consideration  of  no  small  consequence 
where  any  verdict  is  allowed  to  stand  for  which  any  logical  basis  can  be 
assigned  from  the  evidence.-7 

§  52.  [More  Rational  Expedients] ;  Administration  by  the  Court,28 —  The  court 
may,  with  great  propriety,  exert  its  administrative  powers  so  to  formulate  the 
interrogations  to  the  jury  as  to  raise  material  questions,  so  framed  as  not  to 
confuse  or  mislead  them  29 —  the  object  being  to  enable  the  judge  to  apply  the 
law  to  the  constituent  facts.30  Where,  therefore,  the  question  asked  is  as  to  the 
existence  of  a  probative  as  distinguished  from  a  constituent  fact,  it  may  prop- 
erly be  rejected.31  The  question  should  be  specific,  something  more  than  a 
mere  application  of  a  rule  of  law  to  a  particular  branch  of  the  case.32  In  other 

the  former  shall  control  the  latter,  and  the  26.  Morse  v.   Morse,   25   Ind.    156    (1865); 

court  shall  give  judgment  accordingly"     In-  Cole  v.  Boyd,  47  Mich.  98   (1881). 

diana  Kev.  St.,  1881,  §§  546,  547.     1  Chamb.,  27.  Buntin  v.  Rose,  16  Ind.  209   (1861). 

Ev.,  §  98.  28.  Chamberlayne,  Evidence,  §§  101-116. 

19.  State  v.  Ridley.  48   Iowa  370    (1878)  ;  29.  Manning  v.  Gasharie,  27  Ind.  399,  409 
People  v  Marion.  29  Mich.  32  ( 1874) .  (  1866) . 

20.  Jennings     v.     Durham,     101     Ind.     391  30.   Plyler  v.   Pacific  Portland  Cement  Co., 
(1884);    Learned    v.    Tillotson,    97    N.    Y.    1  (Cal.  1907)   92  Pac.  56. 

(1884)  ;   1  Chamb..  Ev.,  §  99.  Inferences     of    fact.— If    the    constituent 

21.  llendrickson    v.    Walker,    32    Mich.    68  facts  found  by  the  jury  are  ambiguous,  they 
(1875).  may  be  asked  for  a  definite  inference  of  fact 

22.  Dtirfee  v    Abbott,  50  Mich.  479   (1883).  from    them.     Ft.    Wayne    Cooperage    Co.    v. 

23.  Moss  v.   Priest.   19  Abb.   Prac     (N.  Y.)  Page,    (Ind.   App.    1907)    82   N.   E.   83.     But 
341,    1    Hob.    632     (1863).     See    Dempsey    v  they  cannot  be  asked  to  draw  a  conclusion  of 
Mayor,   etc.,    10   Daly    (N.   Y.)    417    (1882);  law. 

Partridge    v.    Gilbert,    3    Duer    (X.    Y.)     184  31.  Springfield   Coal    Min.    Co.   v.    Gedutis, 

(1854).  227  111.  9,  81  X.  E.  9   (1907)    [affirming  judg- 

24.  Ehvood   State   Bank   v.    Mock,   40   Ind.       ment.   127  111.  App.  327    (1906)]. 

App   685,  82  X.  F.  1003  (1907).  32.  Trentman  v.  Wiley,  85  Ind.  33   (1882). 

25.  Morrow  v.  Commrs.  Saline  Co.,  21  Kan. 
484   (1879). 


§  53  LAW  AND  FACT.  28 

words,  questions  of  mingled  law  and  fact,  as  it  is  said,  should  not  be  permitted.33 
Of  such  a  nature  is  the  scope  of  a  partnership.34 

On  the  other  hand  where  the  jury,  in  reply  to  a  proper  question  state  a  mere 
conclusion  as  to  the  law  the  answer  may  be  disregarded. 

That  a  fact  is  compound  or  complex  is  no  ground  for  rejecting  a  tinding  as 
to  it ;i5  but  the  question  must  be  sufficiently  specitic  to  be  helpful  and  must 
admit  of  a  direct  answer.30  ISuch  questions  should  be  few  in  number,37  in  a 
form  approved  by  the  court  3S  and  so  drawn  as  to  present  a  single  material 
proposition  for  the  jury  'M  and  should  be  asked  for  before  the  arguments.40 

The  answers  should  be  full  and  unequivocal41  and  not  in  the  alternative.42 
Qualifying  expressions  as  "  in  our  judgment  "  may  be  disregarded.43 

General  verdicts  cannot  take  the  place  of  the  special  answers44  which  the 
judge  may  require.45  Special  answers  are  without  effect  unless  the  ques- 
tions were  regularly  submitted  to  them.40  Usually  the  special  answers  will 
prevail  over  general  verdicts  when  they  are  inconsistent 4T  if  irreconcilably 
so.48  Granting  a  new  trial  sets  .aside  a  special  answer  49  but  the  special  an- 
swers may  be  used  by  the  judge  in  deciding  whether  a  new  trial  should  be 
ordered.50 

§  53.  Matters  of  Argument,  Opinion  or  Judgment.51 —  Not  all  matters  of  fact 
involved  in  the  province  of  the  jury  are  the  subject  of  evidence.  Within  limi- 
tations imposed  by  the  rule  of  law  which  requires  the  exercise  of  reason,  the 
judging  of  the  issue,  the  exercise  of  the  reasoning  faculty  on  the  facts  involved 
in  the  case  as  to  the  truth  of  the  proposition  in  issue  or  as  to  the  existence  of 
any  constituent  fact  is  a  function  of  the  jury.  A  witness,  therefore,  is  not  at 
liberty  (1)  to  testify  to  the  existence  and  nature  of  the  rules  of  reasoning 

33.  Town  of  Albion  v.  Hetrfek,  ;)0  Ind.  545  40.   Plyler  v.  Pacific  Portland  Cement  Co., 
(1883).                                                                              (Cal    1907)   92  Pac.  56. 

The  construction  of  an  unambiguous  writ-  41.  .Summers    v.    Greathouse,    87    Ind.    205 

ing   is  of  this  nature.     Comer  v.   Himes,   49  (1882). 

Ind.  482    (1875)  ;   Symmes  v.  Brown.  13  Ind.  42.   Peters  v.  Lane,  55  Ind.  391   (1876). 

318   (1859).  43.   Peters  v.  Lane,  55  Ind.  391    (1876). 

34.  Bonner    Tobacco    Co.    v.    Jennison,    48  44.   Leavenworth,   etc.,   R    Co.    v.   Rice,    10 
Mich.    4.-)0     (1882);    Dubois    v.    Compan,    28  Kan.  426   (1872). 

Mi<-h.  304   (1873).  45.   L'rbanek   v    Chicago,   etc.,   Ry.   Co.,   47 

35.  Howard     v.     Beldenville     Lumber     Co.,       Wis.  59   (1879). 

(Wis.  1908)   114  X.  W.  1114.  46.   Hamilton  v.  ShoafT,  99  Ind.  63   (1884). 

36.  Plyler  v.   Pacific  Portland  Cement  Co.,  47.    Plyler  v.  Pacific  Portland  Cement  Co., 
(Cal.  1907)   92  Pac.  56.  (Cal.   1907)    92   Pac.  56;    New  York,  etc.,   R. 

37.  City  of  Indianapolis  v.  Lawyer,  38  Ind.  Co.    v.    Hamlin,    (ind.    1908)    83    X.    E.    343 
348  (1871)  ;  Atchison.  etc.,  R.  Co.  v.  Plunket,  [judgment  modified,  79  N.  E.   1040    (1907)]. 
25  Kan.   188   (1881).  48.   Woollen     v.     Wishmier,     70     Ind.     108 

38.  Ormond   v    Connecticut   Mut.  Life   Ins.  (1880). 

Co.,  145  N.  C.  140.  58  S.  E.  997   (1907).  49.  Hollenbeck    v.    Marshalltown,    62    Iowa 

39.  Rosier  v    Barnes,  16  Ind.  502    (1861);       21    (1883K 

City   of   Wyandotte  v.   Gibson,   25   Kan.    236  50.   Atcliison,  etc  ,  R.  Co.  v.  Brown,  33  Kan. 

(1881).  757   (1885). 

51.   1   Chamberlayne,  Evidence,  §§  117,  118. 


29  MATTERS  OF  LAW.  §§  54-56 

applicable  to  the  case;  (2)  to  argue  a  proposition  in  issue  or  the  inferences  from 
any  fact  in  evidence,  or  (3)  to  state  the  effect  which  the  evidence  as  to  the 
existence  of  any  probative  or  constituent  facts  has  produced  in  his  mind. 
What  constitute  the  rules  of  sound  reasoning,  or  as  to  what  inferences  should 
properly  and  logically  be  drawn  from  the  evidence  as  to  the  truth  of  proposi- 
tions in  issue,  is  within  certain  limits  also  a  matter  for  the  jury  and  is  also 
imposed  by  the  substantive  law  on  the  judge. 

^  54.  Matter  of  Law.52 —  Consideration  has  thus  been  given  to  "  matter  of 
fact,  "  as  rather  loosely  used  in  the  phraseology  of  judicial  proceedings ;  and  as 
to*  the  manner  and  extent  to  which,  under  the  generally  prevailing  system  of 
English  jurisprudence,  issues  involving  matters  of  fact  are  decided  by  a  jury. 
Jt  remains  to  turn  attention  to  the  many  and  important  issues,  or  questions  of 
fact  which  are  decided  by  the  judge.  While  these  matters  of  fact,  grouped 
under  the  heading  of  "  matter  of  law,"  present  the  common  feature  that  they 
embody  the  use  of  legal  reasoning,  i.e.,  involve  the  application  of  the  rule  of 
law  to  a  set  of  facts,  they  yet  present  among  themselves  certain  points  of  differ- 
ence. Among  them,  for  example,  are  the  meaning  of  words  and  the  general 
requirement  of  the  use  of  reason  in  extrajudicial  as  well  as  in  judicial  conduct, 
especially  in  relation  to  certain  branches  of  the  substantive  law.  In  addition 
to  these  more  general  matters,  it  is  the  practice  of  the  courts  when  certain  sets 
of  constituent  facts  have  been  found  by  the  jury,  or  where  these  are  admitted 
or  not  controverted,  to  apply  to  them  the  rule  of  law  for  themselves.  A  familiar 
instance  of  this  is  in  connection  with  the  construction  of  documents. 

§  55.  Meaning  of  Words.53 —  The  meaning  of  words  is  equally  a  question  of 
fact,  whether  the  meaning  is  of  words  taken  separately  of  themselves,  as  defini- 
tions or  when  the  inquiry  is  as  to  the  meaning  in  which  they  have  been  used 
in  a  given  context  or  under  a  certain  set.  of  circumstances.  In  other  words, 
definition  as  well  as  interpretation  presents  a  question  of  fact.  The  function 
of  defining  words  used  in  connection  with  rules  of  law  necessarily,  however, 
fell  to  the  court  as  part  of  its  duty  of  administration  as  presiding  officer  of  a 
mixed  tribunal  charged  by  the  sovereign  with  the  work  of  administering  jus- 
tice. These  definitions  may  well  be  so  drawn  as  to  exclude  from  the  considera- 
tion of  the  jury  many  inferences  of  fact  otherwise  permissible,  and  in  this  way 
to  take  over  into  the  custody  of  the  judge  the  decision  of  numerous  matters  of 
fact. 

?;  56.  The  Use  of  Reason.54 —  The  power  of  the  jury  to  deal  with  the  facts  as 
measured  by  the  rule  of  law  given  to  them  by  the  court  for  that  purpose  is  not, 
however,  unlimited.  Among  matters  of  law,  i.e.,  rules  of  legal  requirement, 
which  still  remain  in  the  handling  of  the  judge,  is  the  requirement  that  the 

52.  1    C  hamberlayne.   Evidence,   §   119.  54.   1  Chamberlayne,  Evidence,  §§  120a-127. 

53.  1    Chamberlayne,   Evidence,   §   120. 


§   ;>7  LAW  AND  FACT.  30 

jurv  must  proceed  according  to  reason,  whether  the  reasoning  is  logical  or  legal. 
The  law  in  general  requires  that  all  should  act  reasonably  and  this  issue  of 
reasonableness  is  frequently  left  to  the  jury.55 

Where  the  facts  as  to  what  is  a  reasonable  time  are  established  the  question 
is  one  of  law.50  In  cases  of  negligence  the  same  principle  is  applied  that 
where  the  facts  are  undisputed  their  effect  is  a  question  of  law,57  but  where  the 
evidence  is  disputed  the  issue  must  be  left  to  the  jury.  !So  in  an  action  for 
malicious  prosecution  where  the  facts  are  conceded  the  existence  of  reasonable 
cause  is  a  question  for  the  court  as  a  question  of  law,58  but  where  the  facts  are 
in  dispute  the  case  may  be  submitted  to  the  jury  with  alternative  rulings 
adapted  to  their  action  in  determining  the  question  of  fact.59 

§  57.  Construction  of  Documents.6" —  The  discovery  of  the  intention  of  the 
writer  of  a  written  document  is  largely  a  question  of  fact,61  but  where  the  facts 
are  not  in  dispute  and  the  intention  is  to  be  gathered  from  the  document  itself 
its  discovery  presents  merely  a  question  of  law  to  be  ascertained  by  the  judge.62 
The  modern  method  of  construction  is  to  introduce  all  the  surrounding  circum- 
stances in  an  effort  to  ascertain  this  intention.63  The  court  has  also  to  con- 
strue documents  other  than  probative  64  and  all  public  documents,65  including 
statutes,06  but  it  is  beyond  the  province  of  the  court  to  decide  whether  a 
writing  was  intended  to  have  a  certain  effect  as  between  the  parties  to  it  6T  or 
as  to  what  inferences  are  to  be  drawn  from  its  existence.08 

Where  the  terms  of  a  document  are  vague,  technical,  in  a  foreign  language 
or  the  like  where  the  facts  are  not  all  found  any  conflict  of  testimony  is  to  be 
settled  by  the  jury.110  The  jury  also  must  decide  where  the  effect  of  the  instru- 

55.  Chesterfield  v.  Ratliff,   (S.  C.  1898)   30  obtained  by  fraud.     The  theory  of  the  courts 
S.  E.  593   (unreasonable  shooting).  is  that  the  result  of  a  full  hearing  before  the 

56.  American  Window  Glass  Co.  v.  Indiana  trial    court    should    foreclose    the    question. 
Natural  Gas  &  Oil  Co.,    (Ind.  App.  1906)    76  Haddad  v.   Chesapeake  &   0.  R.   Co.,   \V.   Va 
N.  E.  J006.  88  S.  E.  1038.  L.  R.  A.  1916  F  192   (1916). 

57.  Boyle  v.   Mahanoy  City,   187   Pa.   1,  40  60.   1   Chamberlayne.  Evidence.  §§   128-132. 
Atl.  1093   (1898).  61.   Edes     v      Boardman,    58     X.     H.,    580 

58.  Besson    v.     Southard,     10    N.    Y.    236  (1879). 

(1851)  62.  Hamilton   v.    Tns.   Co.,    136   U.   S    242, 

59.  Schattjren  v.  Holnback,  149  111.  646,  652,       255,  10  Sup   945   i 1889). 

36  N    E.  969   (1894).  63.   Shaw    v.    Pope.   SO   Conn.   206,   67    Atl. 

The   question   what    facts   are   sufficient   to  495    (  1907 ) . 

constitute  probable  cause  is  an  unmixed  ques  64.    Ellis    v.    Littlefield.     (Tex.    Civ.    App, 

tion  of  law.     Where  the  facts  are  disputed  it  1906)   93  S    W.  171. 

must   be  left  to  the  jury  to  determine  what  65.   Bedenbaupb   v    Southern  R'y  Co..  ij      v 

the  facts  are:   but  the  court  should   instruct  C    I.  48  S    E  53   (1904). 

what    facts    amount    to    probable    cause    and  66.   \Vinchell  v   Town  of  Camillus.  95  N".  Y-. 

what    do    not.     Matson    v.    Michael,    SI    Kan.  Sup.  6SS.   10!)  App.  Div    341    (1905). 

360.  105  Pac.  537.  L.   R.  A.   1915  D  1    (1909).  67.   Holm  v    Coleman.  89  Wis.  233    (1895). 

In  an  action  for  malicious  prosecution  evi-  68.  Teesdale   v.   Bennett.    (Wis.    1904)    101 

dence  of  a  conviction  is  conclusive  evidence  of  X.  W.  688. 

probable  cause   although   the   conviction   was  69.   Rochester  &  P.  Coal  &  Iron  Co.  v.  Flint, 

reversed  on  appeal  unless  the  conviction  was  Eddy  &  Co.,  84  X.  V.  Supp    269   (1903). 


31  DZMCBEEBS    TO    EVIDENCE.  §§    58-60 

ment  depends  on  collateral  facts70  or  where  the  language  is  ambiguous71  or 
uncertain  in  any  way. 

§  58.  Construction  of  Oral  Contracts.72 —  By  a  parity  of  reasoning  when  the 
terms  of  an  oral  contract  are  undisputed  its  construction  and  effect  are  to  be 
determined  by  the  court  as  a  matter  of  law.73  But  where  its  interpretation 
depends  on  collateral  facts  which  are  disputed  the  court  will  leave  the  construc- 
tion to  the  jury  conditioned  on  their  findings  as  to  the  collateral  facts.74 

§  59.  Demurrers  to  Evidence.75 —  A  demurrer  to  evidence  is  an  effort  to  ascer- 
tain the  rule  of  law  applicable  to  the  facts,  admitting  the  facts  proved,76  and 
has  been  practically  rendered  obsolete  by  the  more  convenient  expedient  of 
moving  to  direct  a  verdict.  The  latter  course  has  the  advantage  of  permitting 
the  party  who  makes  the  motion  to  introduce  further  evidence  if  his  motion  is 
overruled  while  the  party  who  demurs  is  precluded  from  putting  in  new  evi- 
dence.77 The  party  against  whom  such  a  motion  is  made  is  entitled  to  the 
most,  favorable  inferences  deducible  in  his  favor  from  the  evidence  and  the 
pleadings.78 

The  English  rule  required  the  demurring  party  to  state  exactly  what  he 
admitted,79  while  in  this  country  this  rule  has  not  been  generally  enforced,80 
but  the  party  against  whom  the  demurrer  is  taken  has  a  right  to  have  every 
inference  taken  in  his  favor.81  A  demurrer  to  evidence  may  be  taken  before 
a  judge  sitting  without  a  jury.82 

§  60.  Certainty  of  Law;  Rulings  on  Facts.83 —  In  assuming  the  right  of  apply- 
ing the  rule  of  law  to  the  facts  when  nothing  remains  as  to  them  but  to  find 
their  legal  effect,  judges  have  realized  that  only  in  this  way  can  certainty  in 
the  rules  of  law  be  acquired  and  maintained.  Where  a  given  state  of  constitu- 
ent facts  is  measured  by  a  rule  of  law  and  the  result  is  announced  in  the  re- 
ports, it  amounts  pro  tanto  to  a  construction  of  the  law,  in  terms  of  fact.  If 
this  process  were  left  to  the  variant  action  of  successive  juries  nothing  but  a 
very  undesirable  uncertainty,  vagueness  and  confusion  could  result.  Where 
this  is  necessary  by  reason  of  the  circumstance  that  some  disputed  proposition  of 

70.  West    v.    Smith,    101    U.    S.    263,    270  78.  Konigsberg  v.  Davis,  108  X.  Y.  S.  595, 
(18791.  57  Misc.  Rep.  630  (1908). 

71.  Rankin    v.    Fidelity   Ins.,   etc.,   Co.    189  79.   Gibson  v.  Hunter,  2  H.  Bl.  187   (1793). 
U.  S.  242.  23  Sup.  553   (1903).  80.   See  Skinner  Mfg    Co.  v.  Wright,    (Fla. 

72.  1  C hamberlayne.  Evidence,  §§  136-138.  1906)   41  So.  28. 

73.  Spragins    v.     White,     108     X.     C.    449  81.  On  a  demurrer  to  evidence  the  evidence 
(1*911.  is  to  he  given  full  belief  and  should  be  sub- 

74.  Na.-h  v.  Classen,  163  111    409.  45  X.  E.  mitted  to  the  jury  where  the  allegations  of  the 
277   (1S96).  plaintiff's    pleadings   are   supported   by    com- 

75.  1   (hamberlayne.  Evidence,  §§   139-145.  petent    evidence.     Maryland    Casualty    Co.    v. 

76  Golden     v.     Knowles,     120     Mass.     336  Cherryville  Gas.  etc.,   Co.,  99  Kan.   563.   162 
(1876)  -.  Colegrove  v.  New  York,  etc..  R'y  Co.,  Pac.  313.  L.  R.  A.  1917  X.  C.  487    (1917). 
20  X.  Y.  492   (1859).  82.  Gerork  v.  Western  Union  Telegraph  Co, 

77  \\oldert  Grocery  Co.  v.  Veltman,    (Tex.  (X.  C.  1906)  54  S.  E.  782. 

Civ.  App.  1904)   83  S.  W.  224.  83.   1  C  hamberlayne.  Evidence,  §§  145-150 


§   61  LAW  AND  FACT.  32 

fact  is  to  be  determined,  the  mischief  must,  possibly,  be  endured.  But  where 
all  the  facts  are  before  the  court,  it  realizes  the  great  social  advantages  of 
deciding  for  itself  as  to  what  is  correct  legal  reasoning. 

This  is  often  done  by  announcing  where  the  juries  have  decided  for  a  series 
of  verdicts  that  certain  acts  do  or  do  not  constitute  negligence  that  there  is  a 
presumption  of  fact  as  to  it  which  binds  subsequent  juries.  The  court  may 
also  exercise  its  powers  by  ruling  after  hearing  the  evidence  or  the  statement 
of  counsel  as  to  what  he  expects  to  prove  that  there  is  no  evidence  for  the  jury 
of  the  negligence  or  other  liability  claimed.84 

§  61.  Trial  by  Inspection.85 —  The  determination  of  a  plea  of  nul  tiel  record 
is  one  of  a  class  of  issues  of  fact,  determined  by  the  presiding  judge  by  his 
'own  perception  in  much  the  same  way  that  he  needs  no  evidence  to  decide  on  an 
issue  of  direct  contempt.  At  common  law,  these  were  grouped  under  the  gen- 
eral title  of  trial  by  inspection.  Under  this  form  of  trial  the  nonage  of  an 
infant,  whether  a  party  alleged  to  be  dead  was  in  fact  alive,  issues  of  idiocy, 
mayhem,  or  the  like  were  decided  by  the  judge.  Early  law  points  to  the  con- 
clusion that  trial  by  inspection  antedates  the  more  modern  form  of  trial  by 
jury.86  So  far  as  it  applies  to  deterir';"'-'Hon  of  a  constituent  fact,  e.g.,  whether 
certain  pieces  of  wood  submitted  to  inspection  were  "  chips  "  or  "  shingles  "  it 
is  probably  no  longer  permissible.  A  close  approximation  to  the  finding  of  a 
fact  by  the  court  upon  inspection  is  furnished  where  the  judge  decides  from  the 
examination  of  a  document  as  to  whether  it  is  sealed  or  not  sealed. 

So  an  issue  as  to  whether  a  certain  record  exists  "  uul  tiel  record'  '  is  deter- 
mined by  the  judge  looking  at  it.87  However,  a  judgment  of  a  sister  State  in 
this  country  may  be  proved  otherwise  than  by  inspection.88  The  existence  of  a 
foreign  law  is  a  question  of  fact  89  and  it  is  still  an  open  question  whether  evi- 
dence as  to  it  should  be  presented  to  the  judge  or  to  the  jury.!)IJ  It  may  be 
proved  through  skilled  witnesses.91  Where  the  foreign  law  is  in  written  form 
the  province  of  the  judge  is  somewhat  broader  than  when  it  is  not. 

The  court  will  as  far  as  possible  require  that  the  document  itself  be  pro- 
duced when  the  law  is  in  written  form  92  and  may  presume  certain  things  as 
that  the  rate  of  interest  in  a  foreign  country  is  statutory  although  the  better 
practice  is  to  make  no  assumption  in  regard  to  it. 

84.  "  It  frequently  is  not  possible  by  a  gen-  86.   Thayer,  Preliminary  Treatise.  19-24. 
eral   formula  to   mark   out  the  dividing   line           97.  Adam:      v.     Bet/,     1     Watts    425.     427 
with  reference  to  every  conceivable  case,  and        (1833). 

it  is   not   wise  to  attempt  it.     The  best  and  83    Mills  v.  Bartlett.  179  Mass.  76.  61  N.  E. 

only  practicable  course  -is  to  consider  the  cases  i  1  si :;  i . 

as  they  arise,  and  bearing  in  mind  the  grounds  89.  Cook  v.  Bartlett.  179  Mass.  76.  61  X.  E. 

upon   which   the  soundness  of  each  principle  266   (1901). 

is  supposed  to  rest,  by  a  process  of  elimina-  90.  Ottowa  v.  Perkins,  94  U.  S.  260  (1876)  ; 

tion     and     comparison     to     establish     points  by    judge.      Hancock    v.    Western    Union    Tel. 

through  which  the  line  must  run."     Per  Ham-  Co.,   (N.  C.  1905)  49  S.  E.  952:  by  jury 

mond.  J.,  in  Martell  v.  White,  185  Mass.  255,  91.  Mexican   N.   H.  Co.   r    Slater,    115  Fed. 

258    (1904).  593.  606:  53  C.  C    A.  239   (1902). 

85.  1   Chamberlayne,  Evidence,  §§   151-162.  92.  McDeed  v.  McDeed.  67  111    545    (1873). 


CHAPTER  IV. 

COURT  AND  JURY;  COURT. 

Court  and  jury ;  court,  62. 
Functions  of  the  judicial  office,  63. 
judicial,  64. 

procedure  defined,  65. 

rights  relating  to  matters  of  procedure,  66. 
substantive  laiv  may  prescribe  the  remedy ,  67. 
verbal  metabolism,  68. 
distinction  not  important,  69. 
promote  justice,  70. 
apply  practice,  71. 
administrative,  72. 

field  of  administration,  73. 
reason  characteristic  of  administration,  74. 
discretion,  75. 

range  of  application;  absence  of  judge  from  court  room,  76. 
adjournments,  77. 

compelling  consistency  in  parties,  78. 
exclusion  of  persons  from  the  courtroom,  79. 
grounds  for  admitting  public,  80. 
persistence  of  conditions,  81. 
furnish  proof  or  contradiction,  82. 
grounds  for  exclusion,  83. 
adjournments  to  avoid  unwise  publicity,  84:. 
separation  of  ii'itnesses,  85. 

order  not  matter  of  right,  86. 
what  constitutes  violation  of  order,  87. 
time  of  motion  for  order,  88. 
by  whom  motion  is  made,  89. 
to  whom  the  order  applies,  90. 
enforcement  of  the  order,  91. 
consequences  of  disobedience,  92. 
party's  relation  to  violation,  93. 
proceedings  against  offending  witness,  94. 
swearing  of  witnesses,  95. 
method  of  inquiry,  96. 
children  as  witnesses;  insane  persons,  97. 

form  of  oath,  98. 

33 


§§  62,63  COURT  AND  JURY;  COURT.  34 

executive,  99. 

require  order  and  decorum,  100. 

compel  obedience  to  directions;  administrative  orders,  101. 
attorneys,  102. 

others  subject  to  directions,  103. 
protect  the  course  of  justice,  104. 
attorneys,  105. 
court  officers,  106. 

newspapers;  embarrassing  the  administration  of  justice,  107. 
service  of  process,  108. 
witnesses,  109. 

enforcement  by  contempt  proceedings,  110. 
civil  and  criminal  eases,- 111. 
direct  and  constructive,  112. 

constructive  presence  of  judge,  113. 
Judge  sitting  as  a  jury,  114. 
rulings  of  law,  115. 
administrative  questions,  116. 
Evidence  as  a  matter  of  administration,  117. 
Stare  decisis  as  applied  to  the  law  of  evidence,  118. 
Recapitulation,  119. 

§  62.  Court  and  Jury;  Court.1 — Before  proceeding  to  consider  in  some  detail 
the  respective  functions  of  the  court  and  jury,  it  may  be  of  advantage  to  take 
a  brief  survey  of  the  general  constitution  and  relations  of  the  two  branches  of 
the  mixed  tribunal  so  familiar  to  the  English  law.  The  central  figure  of  the 
courtroom  is  unquestionably  the  judge.  The  office,  and,  much  more  frequently 
than  not,  the  individual,  are  hedged  about  with  a  dignity  based  upon  varied 
and  highly  important  considerations.  This  is  due  not  alone  to  the  great  an- 
tiquity of  the  office  of  judge  and  to  the  universal  social  respect  in  which,  wher- 
ever worthily  exercised,  the  office  has  uniformly  been  held.  The  title  of  judge 
is,  indeed,  venerable  with  age  and  revered  for  the  wisdom  with  which  the  age- 
enduring  traditions  of  the  past  have  enriched  it.  Compared  with  the  institu- 
tion of  judge,  that  of  the  jury  is  extremely  recent. 

§  63.  Functions  of  the  Judicial  Office.2 —  In  the  machinery  of  judicial  pro- 
cedure, to  which  reference  will  be  more  fully  made,  the  law  of  evidence  has 
an  especial  place — intervening  in  operation  between  the  establishment  of 
issues  of  fact  by  means  of  the  rules  of  procedure  as  to  pleading,  and  the  exercise 
of  the  reasoning  faculty  in  the  act  of  judging  or  rendering  a  verdict  upon  the 
facts  which  it  is  the  province  of  evidence  to  supply.  But  beside  having  an 
appropriate  field  in  the  procedure  of  a  trial,  the  admissions  and  rejections  of 

1.   1   Chamberlayne,  Evidence,  §   163.  2.    1   Chamberlayne,  Evidence,  §  164. 


35  JUDICIAL  FUNCTIONS.  §§  64-60 

evidence,  the  form  which  it  is  compelled  to  assume,  the  limitations  upon  its 
use  or  effect,  are  being  constantly  modified  and,  in  the  course  of  a  trial,  con- 
trolled by  rules  imported  from  other  branches  of  procedure. 

This  blending  of  the  rules  of  evidence  with  those  of  substantive  law  or  other 
branches  of  procedure  is  rendered  easy  of  occurrence  and  difficult  of  disassocia- 
tion  by  reason  of  the  fact  that  knowledge  and  enforcement  of  all  rules  of  sub- 
stantive law,  as  well  as  those  of  procedure,  are,  together  with  the  task  of  ad-; 
ministration,  centered  in  the  same  person  —  the  presiding  judge. 

A  Necessary  Arrangement. —  This  multiplicity  of  function  on  the  part  of 
the  presiding  judge  could  at  no  time  well  be  avoided. 

A  Palpable  Confusion. —  It  has  proved  easy  for  a  presiding  judge,  under 
the  confusing  conditions  of  a  nisi  prius  trial  to  fail  to  distinguish  or,  indeed, 
greatly  to  concern  himself  as  to  what  was  the  particular  branch  of  procedure 
under  which  he  was  exercising  a  power  which  he  clearly  was  entitled  to  use ;  or 
whether,  indeed,  he  was  dealing  with  procedure  at  all,  rather  than,  in  reality, 
announcing  or  applying  a  rule  of  substantive  law,  or  exercising  his  power  of 
administration. 

But  the  common  statement  that  evidence  is  not  admissible  for  a  given  pur- 
pose does  not  specify  whether  the  exclusion  is  made  because  the  fact  which  the 
evidence  tends  to  prove  (a)  is  not  material  to  the  claim  or  defense  relied  on, 
(b)  is  not  relevant  under  the  pleadings,  (c)  is  not  a  probative  or  constituent 
fact,  (d)  is  calculated  to  mislead  or  confuse  the  jury,  or  unduly  protract  the 
trial. 

For  convenience,  the  functions  of  the  court  may  be  divided  into  those  which 
are  (1)  judicial,  i.e.,  involve  the  use  of  judgment;  (2)  administrative,  i.e., 
imply  the  use  of  discretion;  (3)  those  which  are  executive,  i.e.,  require  the 
exercise  of  what  may  be  called  the  "  police  powers  "  of  the  court. 

§  64.  [Functions  of  the  Judicial  Office] ;  Judicial.3 —  The  presiding  judge  has 
not  only  the  duty  of  announcing  the  substantive  law  of  which  he  is  said  to 
have  judicial  knowledge,  and  which  will  be  more  fully  considered  later,  in  con- 
nection with  that  subject ;  he  also  is  charged  with  the  duty  of  applying  the 
rules  of  procedure. 

§  65.  [Functions  of  the  Judicial  Office] ;  Procedure  Defined.4 —  Properly  consid- 
ered, procedure  relates,  not  to  the  remedy,  but  to  the  process  by  which  the  rem- 
edy is  made  available.  The  law  of  procedure  governs  the  process  of  litigation.5 

§  66.  [Functions  of  tne  Judicial  Office] ;  (1)  Rights  Relating  to  Matters  of  Pro- 
cedure/'- -  The  substantive  rights  of  the  parties  may  well  extend  to  the  observ- 
ance of  certain  methods  of  procedure.  Indeed,  the  rights  to  the  observance  of 

3.  1    Chamberlayne.   Evidence.   §   Ifio.  braced  by  the  three  technical  terms,  pleading, 

4.  1  Chamberlayne.  Evidence,  §§  166.  167.  evidence   and   practice."     Krino-   v.   Missouri, 

5.  ii;e  Supreme  Court  of  the  United  States       107  U.  S.  221.  231. 

defines  procedure  to  include  "  Whatever  is  em-          6.  1  Chamberlayne,  Evidence,  §  168. 


|§  67-69  COUKT  AND  JUKY;  COURT.  36 

an  ebiablished  procedure  are  the  most  ancient  of  which  we  know  anything  in 
Teutonic  law.  Historically,  procedure  antedated  substantive  law.  In  the 
more  formal  jurisprudence  of  early  days,  procedure  was,  in  itself,  the  test  of 
truth.  Facts  were  "  proved,"  not  by  any  appeal  to  reason,  but  by  carrying 
through  without  variation  certain  established  formulae,  known  to  the  judges  — 
noticing  the  result  and  acting  accordingly. 

§  67.  [Functions  of  the  Judicial  Office] ;  (2)  Substantive  Law  May  Prescribe  the 
Remedy.7 —  As  the  right  to  the  observance  of  a  rule  of  procedure  may  be  a 
matter  of  substantive  right,  so  the  remedy  itself  may  be,  and  frequently  is, 
prescribed  by  the  substantive  law.  Thus,  the  punishment  for  crimes,  the  dam- 
ages awarded  upon  the  violation  of  a  right  or  the  infraction  of  a  duty  are  all 
clearly  part  of  the  remedy.  It  is  equally  plain  that  such  remedies  are  pre- 
scribed by  the  substantive  law. 

§  38.  [Functions  of  the  Judicial  Office] ;  Verbal  Metabolism.8 —  This  verbal 
metabolism  between  the  phraseology  of  the  substantive  law  and  that  of  pro- 
cedure by  which  the  rules  of  positive  law  are  made  to  appear  as  if  they  were 
part  of 'the  separate  and  distinct  branch  of  law  denominated  procedure,  takes 
place,  most  frequently,  in  practical  judicial  administration  in  three  ways: 

1.  Exclusive  Mode  of  Proof. — '  The  first  instance  of  this  verbal  interchange- 
ability  of  a  rule  of  substantive  law  with  one  of  procedural  law  is  furnished 
where  an  exclusive  mode  of  proof  is,  in  reality,  a  component  element  of  the 
right  or  liability  prescribed  by  substantive  law.     Thus,  if  contracts  of  a  certain 
nature  can,  under  the  rule  of  substantive  law,  be  proved  only  by  a  writing,  the 
evidentiary  requirement  practically  adds  an  additional  condition,  under  which 

i  alone  a  right  to  enforce  such  a  contract  will  arise. 

2.  Conclusive  Presumptions. —  A  second  paraphrasing  or  interchangeability 
of  substantive  for  procedural  rules  is  furnished  where  a  conclusive  effect  is 
given  to  a  particular  fact  in  a  given  connection,  irrespective  of  probative  force ; 
e.g.,  where  a  certain  evidentiary  fact  is  the  equivalent  of  and  may  be  substituted 
for  another.     A  conclusive  presumption,   as  it  is  called,  states  in  substance, 
the  equivalence  in  legal  effect  between  two  facts.     The  form  of  expression  is 
that  of  procedural  law;  the  reality  is  a  proposition  in  substantive  law.     For  ex- 
ample a  child  under  seven  is  said  to  be  conclusively  presumed  to  be  incapable 
of  forming  a  criminal  intent.     Of  this  the  only  rational  meaning  can  be  that 
the  law  of  persons  provides  that  infants  under  this  age  shall  not  be  criminally 
punished  for  offenses  of  which  intent  is  an  essential  element. 

3.  Statute  of  Limitations. —  The  limitation  on  the  right  to  bring  an  action  — 
a  specimen  of  procedural  law  —  is  practically  equivalent  to  the  loss  of  prescrip- 
tion of  the  right  itself  by  lapse  of  time. 

§  69.  [Functions    of   the   Judicial    Office] ;    Distinction   Not   Important.9 —  It 

7.  1     'hamberlayne,  Evidence,  §  169.  9.  1  Chamberlayne,  Evidence,  §  171. 

8.  1     hamberlayne,  Evidence,  §  170. 


37  PROMOTE  JUSTICE.  §  70 

would  thus  appear  that  the  distinction  between  substantive  and  procedural  law 
is  one  not  only  of  but  little  consequence ;  it  is  one  which  is  principally  based, 
as,  perhaps,  the  historical  evolution  of  substantive  law  from  forms  of  rigid 
procedure  might  in  itself  suffice  to  show,  on  a  mere  difference  in  form  of  state- 
ment. The  distinction  between  substantive  and  procedural  law  is  artificial 
and  illusory.  In  essence,  there  is  none.  The  remedy  and  the  predetermined 
machinery,  so  far  as  the  litigant  has  a  recognized  claim  to  use  it,  are,  legally 
speaking,  part  of  the  right  itself. 

In  reality,  the  true  distinction  for  the  purpose  of  the  law  of  evidence,  the 
correct  line  of  radical  cleavage,  is  not  between  rules  as  announced  in  substan- 
tive law  and  similar  and  often  interchangeable  rules  formulated  as  part  of  the 
law  of  procedure;  but  is,  on  the  contrary,  between  rules  of  law,  substantive  or 
procedural,  on  the  one  hand,  and  the  principles  of  rational  judicial  adminis- 
tration on  the  other. 

§  70.  [Functions  of  the  Judicial  Office] ;  Promote  Justice.10 — Equally  within 
the  judicial  function  of  the  court  with  the  enforcement  of  law,  and  far  tran- 
scending it  in  social  importance  is  the  promotion  and  furtherance  of  justice. 
This  is  the  field  of  judicial  administration.  The  primary  mandate  to  the 
judge  is  to  promote  justice.  But  society  is  not  only  interested  in  the  doing  of 
abstract  individual  justice.  It  is  also  essential  to  the  objects  which  it  has  in 
view  that  rights  and  duties  should  be  certain,  that  things  once  done  in  a  given 
way  should  continue  to  be  done  in  that  way.  The  taking  of  judicial  action  in 
a  particular  way  creates,  to  a  certain  extent,  a  right  on  the  part  of  the  litigant 
and  a  corresponding  obligation  on  the  judge  to  do  the  same  thing  in  a  similar 
case.  .Thus  arises  a  rule,  a  law. 

For  this  uniformity,  created  by  its  legal  rules,  society,  however,  is  forced  to 
pay  a  heavy  price  in  terms  of  justice.  This  is  inevitable;  but  it  should  be 
recognized.  As  the  objective  and  subjective  conditions  of  no  two  cases  are,  it 
may  be  anticipated,  precisely  similar,  applying  a  rule  from  a  case  to  which  it 
was  perhaps  ideally  accurate  to  another  case  can  only  be  done  by  the  disregard 
of  certain  of  the  attendant  features  of  the  actual  situation  in  the  latter  case. 
The  more  general  the  rule,  the  more  rigidly  it  is  enforced,  the  greater  must  be 
the  number,  variety  and  importance  of  the  elements  present  in  the  situation 
before  him  which  the  judge  is  forced  to  disregard. 

A  further  price  is  paid  in  terms  of  popular  respect.  Truth  is  usually  in 
advance  of  public  opinion ;  public  opinion  is,  as  a  rule,  in  advance  of  the  law. 
The  standards  of  what  is  just  and  even  of  what  is  socially  expedient  are  not 
only  in  a  state  of  constant  flux  but  in  one  of  incessant  sublimation.  Those 
held  by  any  particular  epoch  are,  as  a  rule,  mentally  and  morally  in  advance 
of  those  used  by  that  which  has  preceded  it.  The  law,  in  proportion  as  it  pre- 
sents the  advantage  of  fixity  and  uniformity,  tends  pari  passu  to  exhibit  the 

10.    1    Chamber layne,  Evidence,   §   172. 


§§  71-73  COUET  AND  JUKY;  COURT.  38 

evils  of  undue  conservatism.  Law  almost  necessarily  lingers  behind  the  ethical 
standards  of  the  age  in  which  it  is  being  applied.  It  proclaims  the  views  of  a 
previous  age. 

A  mare  disguised  but  still  very  substantial  price  is  paid  by  society  in  the 
prevalence,  in  the  body  of  law,  of  the  trivial,  the  false  and  the  formal,  the  un- 
true estimate  of  real  values  which  is  not  only  in  practice  detrimental  to  the 
cause  of  justice,  but  powerfully  operates  to  impair  the  instinct  for  justice  itself 
which  is  the  very  crown  of  the  judicial  office.  Formalism  dies  hard;  it  is  kept 
alive  by  technicality  of  which  the  essential  element  is  the  rigidity  of  legal  re- 
quirement. 

§  71.  [Functions  of  the  Judicial  Office];  Apply  Practice.11 — The  presiding 
justice  is  charged  not  only  with  the  function  of  enforcing  the  rules  of  law  and 
promoting  justice ;  he  has  also  the  duty  and  function  of  announcing  and  apply- 
ing to  matters  before  him  the  judicial  practice,  local  or  general,  which  prevails 
in  the  jurisdiction  of  his  forum.  In  connection  with  the  field  of  "  Evidence," 
"  Practice  "  may  be  defined  as  that  portion  of  the  field  of  administration  which 
is  covered  by  a  custom  or  usage. 

The  right  of  a  party,  for  example,  to  cross-examine  his  opponent's  witnesses, 
is  a  matter  of  procedural  law.  The  scope  of  such  an  examination  at  any  par- 
ticular stage  of  the  trial  is  largely  a  matter  of  administration,  controlled  and 
conditioned  by  the  fact  that  reason  must  be  exercised.  The  order  in  which 
the.  examination  of  the  adversary's  witnesses  shall  be  conducted  is  controlled, 
unless  the  judge  actively  intervenes,  by  a  custom. 

A  rule  of  court  is  improperly  spoken  of  as  a  rule  of  practice.  When  passed 
under  authority  of  law  a  rule  of  court  is  one  of  procedural  law. 

§  72.  [Functions  of  the  Judicial  Office] ;  Administrative.12 — "  The  judicial  of- 
fice is  really  one  of  administration."  So  far  as  it  ceases  to  be  administrative, 
it  ceases  to  be  judicial.  Undoubtedly  the  supreme  function  of  the  judicial 
office  is  precisely  that  of  administration.  The  function  of  enforcing  law  is 
governed  by  rules;  the  function  of  administration  is  guided  and  governed  by 
the  fundamental  nature  of  the  judicial  office  itself.  In  other  words,  adminis- 
tration is  that  portion  of  procedure  which  is  not  governed  by  a  rule  of  law. 

§  73.  [Functions  of  the  Judicial  Office] ;  Field  of  Administration.13 —  The  gen- 
eral field  of  administration  and  the  force  and  effect  which  shall  be  wisely  ac- 
corded it,  as  contrasted  with  law,  procedural  or  substantive,  is  determined  in 
any  particular  connected  by  the  inherent  nature  of  administration  itself.  An 
infinite  series  of  minute  details,  a  nice  adjustment  of  a  principle  to  a  number 
of  conflicting  phenomena  requiring  the  constant  exercise  of  judgment,  the 
choice  and  selection  of  means  to  an  end,  cannot  well  be  made  the  subject  of  a 
rule  of  law.  This  is  the  distinctive  field  of  administration. 

11.  1  Chamberlayne,  Evidence,  §  173.  13.  1  Chamberlayne,  Evidence,  §  175. 

12.  1  Chamberlayne,  Evidence,  §  174. 


39  ADMINISTRATIVE  FUNCTIONS.  §§  74, 75 

§  74.  [Functions  of  the  Judicial  Office] ;  Reason  Characteristic  of  Administra- 
tion.14—  The  characteristic  feature  of  that  portion  of  procedure  which  we  shall 
term  administration,  is  its  constant  employment  of  reason  and  judgment  rather 
than  the  imposition  of  a  command  to  do  things  in  a  particular  way.  The  test 
and  guide  of  sound  administration  is  the  exercise  of  the  reasoning  faculty. 

§  75.  [Functions  of  the  Judicial  Office] ;  "  Discretion."  15 —  It  is  commonly 
said  that  matters  of  procedure  in  which  there  is  no  definite  rule  are  those  of 
"  judicial  discretion."  Ko  especial  objection  exists  to  the  use  of  the  phrase 
other  than  that  it  appears  misleading  by  a  suggestion  of  arbitrary  and  irrespon- 
sible action  on  the  part  of  the  presiding  judge.  This  by  no  means,  in  fact, 
exists.  As  Lord  Mansfield  says :  16  "  Discretion,  when  applied  to  a  court  of 
justice,  means  sound  discretion  guided  by  law.  It  must  be  governed  by  rule, 
not  by  humor;  it  must  not  be  arbitrary,  vague  and  fanciful,  but  legal  and 
regular." 

Of  discretion  in  the  sense  of  purely  arbitrary  power  to  deal  with  the  rights 
of  litigants  it  may  be  truly  said  that  no  such  right  exists  in  the  English  law 
of  evidence.17 

Action  of  appellate  courts  as  to  matters  of  discretion.—  It  may  fairly  be  ob- 
served that  the  action  of  many  appellate  courts  in  this  respect  is  such  as  not 
only  to  add  enormously  to  their  own  labors,  but  also  to  create  a  serious  conges- 
tion of  judicial  business  through  repeated  new  trials  and  a  consequent  prac- 
tical denial  of  justice.  In  matters  properly  of  administration  or  discretion 
reversal  should  properly  occur  only  where  error  in  law  has  been  committed. 

Abuse  of  discretion,  it  would  thus  appear,  is  its  unreasonable  1S  or  other- 
wise illegal,10  use.  This  is  commonly  spoken  of  as  "abuse"  of  discretion,  it 
being  said  that  the  action  of  the  trial  judge  on  a  matter  within  his  discretion 
will  not  be  reversed  except  in  the  event  of  its  abuse,20 —  a  phra'se  which  does 

14.  1  Chamberlayne,  Evidence,  §  176.  order  which  the  trial  judge  should  have  made, 

16.  R.  v.  Wilkes,  4  Burr,  2527,  2539  ( 1770) .       removes    the   hardship   and   delay   of   justice 

15.  1  Chamberlayne,  Evidence,  §§  177,  178.       which  attend  the  attempt,  undertaken  in  sev- 

17.  New  Jersey. —  Sea  Isle  City  Imp.  Co.  v.  eral  jurisdictions,  to  establish  the  same  rule 
Assessors   of   Taxes   of   Borough   of   Sea   Isle  at  law.     It  follows  that  judicial  discretion,  in 
City,  61   X.  J.   Law  476,  39   Atl.   1063.   1064  equity   cases,   is  not   arbitrary   or   capricious 
(1898).  dependent  upon  the  mere  pleasure  of  the  judge 

Discretion  in  equity  is,  normally,  quite  a  but  is   a    "  sound   and   reasonable   discretion 

different  matter  from  the  exercise  of  adminis-  which  governs  itself,  as  far  as  it  may,  by  gen- 

trative   powers   at   common   law.     The   juris-  eral  rules  and  principles/'     Patten  v.  Stewart, 

diction  of  equity  was  a  prerogative  one:  many  24  Tnd.  332   (1865)    (rescission), 

of    its   remedies    were   not    obtainable    as    of  18.  McBride  v.  McBride,    (Iowa  1909)    120 

right.     Much,  in  most  cases,  depended  on  the  X.  W.  709;    Freasier  v.  Harrison.    (Mo.  App. 

extent    to    which    certain    facts    affected    the  1909)   118  S.  W.  108. 

mind   and   conscience   of   a   particular   judge.  19.  Connecticut.- — McKone     v.     Schott,    82 

The  substantive  law   relating  to  equity  pro-  Conn.  70,  72  Atl.  570   (1909). 

cedure   made    the    discretionary    action    of    a  Florida. —  Atlantic    Coast    Line    R.    Co.    v. 

trial  judge  reviewable  in  an  appellate  chan-  Dees.  56  Fla.  127.  48  So.  28   H908). 

eery  tribunal.     Absence  of  the  jury,  enabling  20.   Kansas. —  Hackett  v.   Turner,   19  Kan. 
the  appellate  court  in  equity  to  enter  the  final 


§§  76,77  COURT  AND  JURY;  COURT.  40 

not  seem,  essentially  modified  in  meaning  by  the  addition  of  adjectives  such 
as  "  gross,"  21  "  wanton  "  or  the  like.22 

"  All  reasonable  intendments  must  be  made  in  favor  of  the  acts  of  officials 
who  are  under  obligations  to  perform  their  duties  correctly,  so  long  as  they 
appear  to  be  acting  in  good  faith."  23  It  has  even  been  suggested  that  where 
the  police  powers  have  alone  been  exercised,  by  the  court,  the  propriety  of  the 
trial  judge's  action  will  not  be  revised.24 

§  76.  [Functions  of  the  Judicial  Office] ;  Absence  of  Judge  from  Courtroom.25— 
The  presiding  judge  may,  in  his  administrative  discretion,  leave  the  bench 
when  so  disposed. 

A  purely  temporary  absence  of  the  judge  from  the  courtroom  will  not  be 
deemed  error.26 

On  the  other  hand,  as  much  prejudice  may  be  caused  to  a  party  by  the  un- 
controlled action  of  his  adversary  during  a  prolonged  absence  of  the  judge,  re- 
versible error  may  be  committed  in  leaving  the  courtroom.27 

§  77.  [Functions  of  the  Judicial  Office] ;  Adjournments.28 —  The  court  may 
grant  adjournments  if  justice  apparently  requires  it,  but  he  is  not  required  to 
defer  justice  to  other 'suitors  because,  in  a  case  on  trial,  a  party  has  failed  to 
present  such  a  case  as  with  due  diligence  he  might  and  should  have  done.29 

Where,  however,  surprise  on  a  material  point  30  has  been  caused  to  a  party  as 
by  the  taking  of  a  sound  technical  objection  which  was  not  fairly  to  have  been 
anticipated,  ai  or  an  unexpected  demand  for  available  proof  arises,32  an  ad- 
journment, upon  suitable  terms,33  may  reasonably  be  conceded. 

527      (1878)       (amendments;      continuances;  27.  Wells  v.  O'Hare,  209  111.  627,  70  N.  E. 

costs).  1056    (1904).     [Judgment   reversed,    110   111. 

21.  Murphy   y.    Southern    Pac.    Co.,    (Nev.      App.  7   (1903).] 

1909)   101  Pac.  322.  28.   1  Chamberlayne,  Evidence,  §  180. 

22.  Maryland. —  Consol.    Gas,    etc.,    Co.    v.  29.  The  court  is  not  bound  to  suspend  to 
State,  109  Md.  186,  72  Atl.  651   (1909)    (arbi-  enable  a  party  to  procure  additional  evidence, 
trary).  Zipperer  v.  City  of   Savannah,    128   Ga.    135, 

Massachusetts. —  Jenkins    v.    Weston,     200  57    S.    E.   311     (1907):    Black   v.    Sherry,   87 

Mass.  488,  86  X.  E.  955    (1909)    (manifestly  X.  Y.  Supp.   166,  43  Misc.  Rep.  342    (1904); 

unfounded).  Sheedy  v.   City  of  Chicago,  221    111.    Ill,   77 

23.  l!io  (Grande  County  Com'rs  v.  Lewis,  28  X.  E.  539   (1906)    (Measure  sewer)  ;  or  to  get 
Colo.  378.  65  Pac.  51   (1900)    [citing  Smith  v.  a  witness  whom  he  has  neglected  to  summon. 
Board.  10  Colo.  17    (1887)].  vozlowski  v.  City  of  Chicago,  113  111.  App  515 

The  fact  of  abuse  must  be  affirmatively  es-  (  1904)  -.   Knapp  v.  Order  of  Pendo,  36  Wash, 

tablished  by  the  objecting  party.     Waldron  v.  601,  79  Pac.  209   (1905). 

First  Xat.  Bank.  60  Neb.  245.  82  X.  W.  856  30.  Xieberg  v.   Greenberg,   91   X.   Y.   Supp. 

(1900)  :  Brenxinger  v.  American  Exch    Bank.  83    (1904). 

19    Ohio    fir.    Ct.    R.    536,    10   O.    C.   D.    775  31.   Reiss  v.   PfeifTer,   117   X.  Y.   App.  Div. 

(1900).  880,  103  X.  Y.  Suppl.  478   (1907) 

24.  Xorris  v.  C'linkscales,  47  S.  C.  488,  25  32.    Heyman  v    Singer,  99  X.  Y.  Supp.  942, 
S.  E.  7!)7   (1896).  51  Misc.  Rep.  IS   (1906). 

25.  1  Chamberlayne.  Evidence,  §  179.  33.   Poland    v.    Minshall.    96    X.    Y.    Supp. 

26.  Chicago  City  Ry.  Co.  v.  Creech,  207  III.      500  (1905)    (judgment  of  costs). 
400,  69  X.  E.  919   (1904). 


41  ADMINISTRATIVE  FUNCTIONS.  §§   78-81 

An  unreasonable  refusal  to  adjourn  may  be  treated  as  prejudicial  error.34 
On  the  other  hand,  the  court  may  proceed  to  trial  ex  .paste  where  a  case  is 
reached  in  its  order,35  and  no  request  for  adjournment  is  made  or  such  a 
motion  has  been  overruled.  He  may  even  proceed  ex  parte  where  the  attor- 
neys of  the  moving  party  upon  the  refusal  of  their  motion  to  adjourn,  immedi- 
ately withdraw  from  the  case.36 

§  78.  [Functions  of  the  Judicial  Office] ;  Compelling  Consistency  in  Parties. — 
Parties  to  a  suit  ought  to  be  consistent  and  not  play  fast  and  loose  wTith  the 
court.  Where  a  defendant  objects  to  a  rule  of  damages  laid  down  by  the 
court,  and  later  accepts  the  court's  theory  and  asks  for  rulings  upon  that  very 
theory  and  the  court  does  instruct  upon  that  theory  the  party  must  be  held  to 
have  abandoned  his  first  theory  and  accepted  the  theory  of  the  court.37 

§  79.  [Functions  of  Judicial  Office] ;  Exclusion  of  Persons  from  the  Courtroom.38 
-  The  presiding  justice  may  exclude  from  the  courtroom  any  persons  not 
directly  concerned  in  the  particular  trial  which  is  in  progress,  except  where 
the  constitution  guarantees  a  public  trial.39 

§  80.  [Functions  of  Judicial  Office] ;  Grounds  for  Admitting  Public.40 —  As  a 
rule,  a  portion  of  the  public,  suited  to  the  capacity  of  the  courtroom,  will  be 
admitted  by  the  special  or  standing  order  of  the  judge. 

A  valuable  educational  influence  tending  toward  interest  in  and  respect  for 
public  justice  is  thereby  created.  The  correction  of  judicial  abuses,  loyalty  to 
good  administration  and  general  respect  for  law  and  its  enforcement,  are  made 
personal  to  the  citizen,  and  greatly  .promoted  by  examination  and  discussion. 

The  power  for  good  in  this  connection,  is  perhaps  most  dramatically  revealed 
in  the  abuses  which  have,  as  an  almost  invariable  rule,  attended  the  exercise  of 
judicial  administration  through  tribunals  whose  proceedings  have  been  held  in 
secret.  Xot  only  is  publicity  in  judicial  proceedings  helpful  in  making  the 
influence  of  legal  administration  powerful  and  personal  through  the  commu- 
nity ;  it  is  an  important  guarantee  for  truth,  as  it  is  elicited  from  witnesses, 
in  civil  or  criminal  cases. 

§  81.  [Functions  of  Judicial  Office] ;  Persistence  of  Conditions.41 —  The  exist- 
ence and  nature  of  the  subtle,  intangible  and  yet  powerful  emotional  disturb- 
ances which  may  be  called  the  psychic  atmosphere  of  a  trial,  are  carefully  to 
be  considered  and  dealt  with  by  the  wise  practitioner,  and  it  is  no  small  ad- 
vantage of  the  public  trial  of  causes  that  a  practitioner  may  thus  gauge  the 

34.  Heyman  v.  Singer,  99  N.  Y.  S.  942,  51       143  N.  W.  439,  L.  R.  A.  1916  E.  983   (1913). 
Misc.  Rep.  .18   (1906).  38.    1   Chamberlayne,  Evidence,  §  182. 

35.  Linderman   v.    Nolan.    16   Okl.   352,  83  39.  State  v.  Keeler.  Mont.  156  Pac.  1080,  L. 
Pac.  796   (1905).                                                            R.  A.  1916  472   (1916). 

36.  Mclnnes   v.   Sutton,   35   Wash.   384,  77  40.    1  Chamberlayne,  Evidence,  §  183. 
Pac.  736  (1904).                                                             41.  1  Chamberlayne,  Evidence,  §  184. 

37.  Ottumwa  v.  Nicholson,  161   Iowa  473, 


§§  82,83  COURT  AND  JURY;  COURT.  42 

mental  attitude  of  the  tribunal  in  approaching  the  consideration  of  his  case  and 
be  able  to  judge  as  to  the  precise  nature  of  the  task  before  him.42 

§  82.  [Functions  of  Judicial  Office] ;  Furnish  Proof  or  Contradiction. la —  The 
presence  of  the  public  in  the  courtroom  and,  to  a  still  wider  and  more  impressive 
extent,  the  publication  in  the  newspaper  press  of  judicial  proceedings,  is  a 
powerful  agency  in  bringing  to  the  attention  of  persons  having  facts  in  their 
possession  relating  to  a  matter  on  trial  the  knowledge  that  they  may  be  helpful 
to  the  cause  of  justice.44 

§  83.  [Functions  of  Judicial  Office] ;  Grounds  for  Exclusion.45 —  In  discharging 
his  administrative  power  in  relation  to  the  admission  of  the  public  to  the  court- 
room, very  different  considerations  may  well  be  felt  to  apply  to  those  who  are 
attending  on  business  in  the  courtroom  as  compared  with  those  whose  position 
is  that  of  mere  spectators. 

In  the  case  of  persons  having  no  direct  connection  with  the  business  before 
the  court,  it  may  frequently  seem  to  a  presiding  judge  that  his  administrative 
control  of  the  courtroom  will  be  more  rationally  exercised  by  excluding  their 
personal  presence  from  it  —  all  legitimate  social  interests  being  amply  con- 
served by  fair  reports  of  the  newspapers  of  daily  judicial  proceedings  and 
temperate  editorial  comments  upon  finished,cases,  the  interests  of  justice  being 
secured  in  this  connection  by  a  correction  by  the  judge  of  any  abuses. 

Fear  of  Violence. —  Where  the  judge  apprehends  danger  of  disorderly  pro- 
ceedings by  the  spectators,  or,  the  exercise  of  undue  and  improper  influence  on 
the  jury,  he  may  properly  exclude  from  the  courtroom  all  persons  who  have  no 
direct  connection  with  the  proceedings.40 

Protect  Public  Movals. —  Unmoral  or  immoral  cases,  especially  those  relat- 
ing to  sexual  offenses  or  perversions,  are  constantly  arising  for  trial  and  obvi- 
ously tend  to  excite  and  gratify  the  morbid  sensationalism  of  the  lovers  of 
moral  filth  at  the  expense,  in  all  cases,  of  public  morals  and  social  sanity ;  and, 
in  many  cases,  of  great  mental  anguish  to  sensitive  witnesses  or  parties.  The 
judge,  as  custos  morum,  may  reasonably  consider  that  the  assemblage  over  which 
he  directly  presides  should  be  rather  held  for  the  dispatch  of  public  business 

42.  State     v.     Brooks,     92    Mo.     542,     573  purpose  of  hearing  what  is  going  on."     Daub- 

(1887)  ;   Garnett  v.  Ferrand,  6  B.  &  C.  611,  ney  v.  Cooper,  10  B.  &  C.  237,  240   (1829). 

626   (1827).     "The  public  had  a  right  to  be  43.   1  Chamberlayne,  Evidence,  §  185. 

present,  as  in  other  courts."     Colier  v.  Hicks,  44.  A  jeweler,  reading  in  the  papers  of  a 

2  B.  &   Ad.  663,  668    (1831),  per  Tenterder,  perjured  testimony  as  to  when  he  did  certain 

C.  J.  "  We  are  all  of  opinion  that  it  is  one  engraving  on   jewelry,  attended  and  rendered 

of  the  essential  qualities  of  a  court  of  justice  valuable    assistance    in    exposing   the    deceit, 

that  its  proceedings  should  be  public,  and  that  Smyth  v.  Smyth,  Woodley's  Celebrated  Trials, 

all  parties  who  may  he  desirous  of  hearing  1,  115,  140,  144   (1853). 

what  is  going  on,  if  there  be  room  in  the  place  45.   1  Chamberlayne,  Evidence,  §  186. 

for  that  purpose,  provided  they  do  not  inter-  46.  Stone  v.  People,  3  111.  326,  338   (1840). 

rupt  the   proceedings   and   provided   there   is  People  v.  Kerrigan,  73  Cal.  222,  14  Pac.  849 

no    specific    reason    why   they    should    be   re-  (1887). 
moved,  have  a  right  to  be  present  for  the 


43  ADMINISTRATIVE  FUNCTIONS.  §§  84, 85 

than  composed  of  persons  met  for  diversion  —  innocent  or  prurient.  This 
power  may  however  be  controlled  by  a  constitutional  provision  guaranteeing  a 
public  trial.47 

Declaratory  statutes  have  been  passed  in  many  states  making  it  the  duty  of 
the  judge  to  exclude  the  public  from  cases  of  a  lascivious  nature48  which  may 
however  be  void  when  the  state  constitution  contains  a  guarantee  of  a  public 
trial.49 

§  84.  [Functions  of  Judicial  Office] ;  Adjournments  to  Avoid  Unwise  Publicity, 
etc.50 —  An  alternative  administrative  expedient  for  the  purpose  of  avoiding 
unwise  publicity  is  to  keep  the  courtroom  open  for  the  general  dispatch  of 
public  business,  while  withdrawing  a  particular  case,  presenting  exceptional 
circumstances,  from  idle  or  morbid  curiosity  or  the  other  evils  to  which  refer- 
ence has  been  made,  and  hearing  it  privately  in  some  other  place.51 

Other  causes  for  Adjournments. —  Adjournments  may  be  made  to  places 
other  than  the  courtroom,  for  causes  entirely  apart  from  protection  of  the 
public  morals.  The  adjournment  may,  for  example,  be  to  the  house  of  a  sick 
witness  52  or  party.53 

§  85.  [Functions  of  Judicial  Office] ;  Separation  of  Witnesses.54 —  It  is  within 
the  administrative  function  of  the  presiding  justice  to  order  that  certain  wit- 
nesses be  excluded  from  the  courtroom  until  they  or  other  witnesses,  whether 
called  by  the  party  proposing  the  order  or  by  his  opponent,55  shall  give  their 
testimony.56 

Such  an  order  may  go  further  and  direct  that  one  witness  be  kept  apart  from 
the  others ;  or  that  each  witness  shall  have  been  kept  by  himself  until  after  he 
has  testified.  When  falsehood  or  bad  faith  is  to  be  prevented  or  detected  the 
expedient  is  of  obvious  value  in  that  it  permits  effective  inquiry  as  to  sub- 
sidiary matters  difficult  to  cover  by  a  previous  agreement  between  the  wit- 
nesses. It  is  not,  however,  essential,  in  order  that  a  separation  should  be  or- 

47.  Where  the  constitution  guarantees  an        (1877)   at  lawyer's  office;   Bates  v.  Sabin,  64 
accused  a  public  trial  it  is  error  to  exclude      Vt.  511,  514,  24  Atl.  1013   (1892)  at  his  own 
from  the  court  room  all  persons  except  those       home. 

then  in  it  even  in  a  rape  case  where  the  order  50.  1  Chamberlayne,  Evidence,  §  187. 

is  made  in  the  interest  of  decency.     The  defen-  52.  Sutton  v.  Snohormish,  11  Wash.  24,  39 

dant  must  protect  his  rights  by  objecting  to  Pac.  293  (1895). 

the  order  at  the  time.     State  v.  Keeler.  Mont.  53.  Selleck  v.  Janesville,   100  Wis.   157,  75 

156  Pac.  1080,  L.  R.  A.  1916  E  472   (1916).  X.  W.  975    (1898). 

48.  Colo.  C.   C.   P.   1891,  §  427;   Ga.  Code,  54.   1  Chamberlayne,  Evidence,  §  188,  189. 
1895,  §  5296;  Mich.  Comp.  L.  1897,  §  11873;  55.   State   v.   Zellers.   7   N.   J.   L.   220,   224 
Mich.  Comp.  L.  1897,  §  11852;  Utah  Rev.  St.  (1824)    (defendant's  witnesses). 

1898,  §  696;  Wis.  Stats.  1898.  §  4789.  56.   Alabama.—  McClellan  v.  State,  117  Ala. 

49.  People    v.    Murray,    89    Mich.    276.    50       140,  23  So.  653   (1897);  McLean  v.  State,  16 
X.  W.  95  (1891)  ;  People  v.  Yeager,  113  Mich.       Ala.    (X.  S.)   672   (1849). 

228,  71  X.  W.  491    (1897).  Massachusetts. —  Com.    v.    Knapp,    9    Pick. 

51.   Heed   v.   State,   147   Ind.   41,   46   X.   E.  496,  20  Am.  Dec.  491    (1830). 

135   (189")  :  Le  Orange  v.  Ward,  11  Ohio  257  A>«?  York. —  People  v.  Green,  1  Park  Cr.  R. 

(1842);   Mohon  v.  Harkreader,   18  Kan.  383  (N.  Y.)    11    (1845). 


§§  86,87  COURT  AND  JURY;  COUET.  44 

dered,  that  fraudulent  collusion  should  be  charged.  Separation  is  further 
useful  at  times  in  preventing  a  certain  unintentional  and  even  unconscious  col- 
lusion between  interested  persons  who  hear  each  .other's  story  when  testify- 
ing.57 

Persons  testifying  to  the  same  transaction  almost  invariably,  and  without 
active  bad  faith,  seek  to  harmonize  their  story.  It  apparently  seems  to  them 
to  strengthen  it  and  give  to  each  the  moral  support  of  all. 

§  86.  [Functions  of  Judicial  Office] ;  Order  Not  Matter  of  right.58 —  It  fol- 
lows, for  obvious  reasons,  that  the  request  is  usually  granted,  as  a  matter  of 
course.  This,  however,  is  quite  different  from  saying  that  the  judge,  whatever 
his  view  of  the  actual  situation,  is  required  to  make  the  order,  as  has  been  at 
times  decided,59  or  intimated.00 

The  Right  to  Demand  a  Separation  May  be  Conferred  by  Statute.^ — In 
trials  before  Houses  of  Parliament  the  practice  of  granting  an  order  seems  to 
have  been  invariable.62 

Unless  the  judge's  discretion  has  been  abused,  the  propriety  of  the  exercise 
of  this  power  to  order  a  separation  of  witnesses  will  not  be  reversed  in  an 
appellate  court."3 

§  87.  [Functions  of  Judicial  Office] ;  What  Constitutes  Violation  of  the  Order.64 
- — A  reasonable  construction  should  be  applied  to  such  an  order.  As  the  ob- 
ject is  to  prevent  giving  of  information  to  the  witnesses,  a  hypothetical  ques- 
tion which  gives  no  information  is  not  objectionable."0  A  counsel  is  at  liberty, 
unless  otherwise  ordered,  to  consult  with  one  of  his  own  witnesses,  and  tell  him 
while  the  latter  is  under  the  rule,  what  one  of  those  called  by  his  opponent  has 
stated  in  the  course  of  his  testimony,60  though  it  has  been  required  that  the 
consultation  take  place  in  the  presence  of  the  court <i7  or  one  of  its  officers,68  or 

57.  Louisville,   etc.,   Ry.   Co.   v.   York,    128  61.  Nelson  v.  State.  2  Swan    (Tenn.)    237, 
Ala.  305,  30  So.  676  (1900)  ;  State  v.  Zellers,       257    (1852). 

7  N.  J.  L.  220.  226   ( 1824)  ;  Rainwater  v.  El-          62.  Taylor  v.  Lawson,  3  C.  &  P.  543  (1828)  ; 
more,    1    Heisk.     (Tenn.)     303.    30.1     (1870);       Berkeley  Peerage  Trial,  Sherwood's  Abstract, 
Fortesque,  De  Landilms  Legum  Angliae,  c.  26       151    (1811). 

( 1470) .     "  The  rule  is  provided  merely  to  pre-  63.   May  v.  State,  94  Ga.  76  ( 1894)  ;  Nelson 

vent  the  testimony  of  one  witness  from   in-  v.  State,  2  Swan  (Tenn.)  237   (1852);  Powell 

fluencing  the  testimony  of  another."     Cook  v.  v.  State,  13  Tex.  Ap.  244    (1882)  ;   Haines  v. 

State,  30  Tex.  App.  607  (1892).  Terr.,  3   \Vyo.   168    (1887)    ("gross  abuse."). 

58.  1   Chamberlayne,  Evidence,  §  190.  64.   1  Chamberlayne,  Evidence,  §  191. 

59.  Georgia.—  Shaw  v.  State,  102  Ga.  660,  65.  State  v.  Taylor,  56  S.  C.  360,  34  S.  E. 
29  S.  E.  477   (  1897) .  939  ( 1899)    ("   if  your  husband  says  so  "  is  it 

West   }'irginia. —  Gregg  v.  State,  3  W.  Va.  true?). 

705   (1869).  66.  Home  v.  Williams,  12  Ind.  324  (1859)  ; 

60.  Wilson    v.     State,     52     Ala.     299,    303  Allen    v.    State.    61    Miss.    627,    629    (1884); 
(1875)     ("rarely   if   ever"   withheld);    Cook  White   v    State.   52   Miss.   216.   224    (1876); 
v.  State,  11  Ga.  55,  02    (1852)    (the  prosecu-  Williams  v.  State.  35  Tex.  355    (1872)    ("in 
tion  may  claim  as  of  right)  :  Walker  v.  Com.,  a  proper  manner  "). 

8  Bush     (Ky.)     86,    89.    96     (1871):    R.    v.  67.  Jones  v.  State,  3  Tex.  Cr.  App.  150,  153 
Murphy,   8   C.   &  P.   307    (1837)     (almost  a       (1877). 

right). 


45 


ADMINISTRATIVE  FUNCTIONS. 


88-90 


be  expressly  permitted  iu  the  court's  discretion.69  The  rule  is  the  same  as  to  a 

party ;  70  whether  this  privilege  applies  to  other  agents  assisting  in  the  trial 

of  the  cause  is  more  doubtful.71     Information  as  to  the  trial  conveyed  by  the 
daily  journals  does  not  violate  such  an  order.72 

§  88.  [Functions  of  Judicial  Office] ;  Time  of  Motion  for  Order.73 —  The  order 
may  properly  be  requested  at  any  time74  after  the  reading  of  the  pleadings75 
and  the  opening  address  of  the  counsel,76  and  before  the  close  of  all  the  evi- 
dence; though  it  has  been  held  inappropriate  to  make  a  motion  for  a  separation 
while  affidavits  are  being  read.77 

ji  89.  [Functions  of  Judicial  Office] ;  By  Whom  Motion  is  Made.78 —  The  mo- 
tion may  be  made  by  either79  or  both80  parties;  the  jury  may  request  it;81 
or  the  judge  may  make  the  order,  sua  sponte.82 

§  90.  [Functions  of  Judicial  Office] ;  To  Whom  the  Order  Applies.83 —  The  ad- 
ministrative power  of  the  court  extends  not  only  to  the  making  of  the  order, 
and  the  details  of  its  enforcement,  but  as  to  whom  it  shall  cover.84  Not  only 
do  attorneys  (in  the  American  sense)85  and  counsel,86  form,  as  a  rule,  an  ex- 


68.  Brown   v.   State,   3  Tex.   Cr.   App.   294, 
310   (1877). 

69.  Kennedy  v.  otate,  19  Tex.  Cr.  App.  618, 
631   (1885). 

70.  Shaw  v.  State,   79  Miss.  21,  30  So.  42 
(1901);   Holt  v.  State,  9  Tex.  Cr.  App.  571, 

580   (1S80)    (discretionary  with  court). 

71.  Travelers'  Ins.  Co.  v.  Sheppard,  85  Ga. 
751,  S14,  12  S.  E.  18   (1890). 

72.  Com    v.    Her>ey,  2   Allen    (Mass.)    173 
(1861). 

73.  1   Chamberlayne,  Evidence,  §   192. 

74.  Southey  v.  X*ash,  7  I.  &  P    632   (1837). 

The  separation  may  be  ordered  at  the  re- 
quest of  a  party  whose  own  witnesses  have 
been  already  examined  Southey  v.  iSash,  7 
C.  &  P.  G32  (1837). 

75.  Wilson   v.   State,   52   Ala    299    (1875); 
Roberts  v.  Com.,  94  Ky   499   i  1893). 

76.  Benaway   v    Conyne,   3   Chand.    (Wis  ) 
214,  219   (1851). 

Little  doubt  exists  that  in  most  jurisdic- 
tions, if  reasonably  requested,  separation 
would  be  ordered  before  the  opening.  Rex  v. 
Murphy,  S  Car.  &  P.  297  (1S37).  It  may. 
under  certain  circumstances,  be  highly  im- 
portant that  the  witnesses  be  not  influenced 
by  suggestions  conveyed  to  them  by  counsel  at 
this  stage.  It  has  been  held,  however,  that  it 
is  beyond  the  court's  power  to  separate  the 
witnesses  during  the  opening  address.  Ben- 
away  v.  Conyne,  3  Chand.  (Wis.)  214  (1851). 

77.  Penniman   v.   Hill,  24  Wkly.  Rep.   245 
(1876)     (Hall,  V.  C.). 


78.  1  Chamberlayne,  Evidence,  §  193. 

79.  Holder  v.  U.  S.,  150  U.  S.  91   (1893). 

80.  State   v.    Sparrow,    3    Murph.    (N.   C.) 
487    (1819). 

81.  Earl  of  Shaftesbury's  Trial,  8  How.  St. 
Tr.  759,  778   (1681). 

82.  Ryan  v.  Couch,  66  Ala.  244,  248  (1880)  ; 
Wilson  v.  State.  52  Ala.  299   (1875). 

83.  1  Chamberlayne.  Evidence,  §  194. 

84.  Alabama. —  Webb  v.  State,  100  Ala.  47, 
52     (1893).     See    also    Strickland    v.    State, 
(Ala.  1907)   44  So.  90. 

85.  State  v.  Brookshire,  2  Ala.  303  ( 1841 )  ; 
Wisener  v.  Maupin,  2  Ba..c.   (Tenn.)   342,  357 
(1N72);    Powell  v.    State.    13   Tex.    App.   244 
(1882);    State  v.   Ward,  61  Vt    153.   179,  17 
Atl.    483     (1888)     (not    employed    on    case). 
This  has  been  said  to  be  a  matter  of  discre- 
tion and  not  as  of  right.     Powell  v.  State.  13 
Tex.  App.  244,  252   (1882).     An  attorney  ap- 
pearing simply  as  a  witness  may  bo  granted 
a  similar  privilege  of  remaining,  although  the 
other   witnesses   have   been   placed   under  the 
rule.     Mitchell  v.  State,  (Tex.  Cr.  App.  1908) 
114  S.  W.  830. 

No  express  exception  need  be  made  in  the 
case  of  an  attorney  or  counsel.  It  will  be 
implied.  Powell  v.  State.  13  Tex.  App.  244 
(1882)  :  Gregg  v.  State.  3  W.  Va  705  (1869' 
See  also  to  the  same  effect,  Bischoff  v.  Com., 
29  Ky.  Law  Rep  770.  96  S.  W.  538  (1906). 

86.  Boatmeyer  v   State,  31  Tex.  Cr.  473,  20 
S.  W.  1102    (1893)  ;   Powell  v.  State,  13  Tex. 
App.  244   (1882)  :   Pomeroy  v.  Baddeley,  R.  & 


90 


COUET  AND  JURY;  COURT. 


ception  to  the  operation  of  the  order,  but  the  party  ST  and  other  persons  neces- 
sary to  protect  his  interest  in  the  management  of  the  trial,88  also  are  permitted 
to  remain  in  the  court  room.89 

Corporations  as  parties  come  under  the  same  administrative  indulgence. 
Its  officers,  e.g.,  a  president,90  so  far  as,  in  the  opinion  of  the  judge,91  their 
presence  shall  be  reasonably  necessary  to  protect  the  interest  of  the  company, 
will  be  allowed  to  remain. 

Court  officers,  92  jurors®3  and  parties/**  are  equally  privileged  to  remain. 

In  criminal  cases,  the  exemption  from  the  order  of  separation  applies  also 
to  prosecutors  95  and  defendants.96  Public  officers/7  medical  98  or  other  ex- 
perts, and.  indeed,  any  witness  "  or  class  of  witnesses  may  be  excepted  from 
the  order  by  express  action  of  the  court  or  agreement  of  parties.1  If  persons 


M.  430  (1820)  ;  Everett  v.  Lowdham,  5  Carr 
&  P.  91   (1831). 

87.  Seaboard  Air-Line  Ry.  v.  Scarborough, 
(Fla.  1906)   42  So.  706. 

88.  Ryan  v.  Couch,  66  Ala.  244,  248  (1880) 
(father  of  absent  plaintin"). 

89.  Thus  the  judge  may  properly  permit 
a  brother  of  a  person  accused  of  crime  to  re- 
main in  the  court  room  and  assist  in  the  de- 
fense.    May  v.  State,  94  Ga.  76    (1894).     So 
also  of  the  wife  and  daughter  of  one  accused 
of   crime.     State   v.    Pell,    (Iowa    1909)    119 
N.  W.  154. 

90.  Warden  v.  Madisonville,<H.  &  E.  R.  Co., 
101  S.  W.  914,  31  Ky.  ^.  Rep.  234  (1907) . 

91.  Trotter  v.  Town  of  Stayton,  (Ore.  1904) 
77   Pac.   395.     As  between   its  president  and 
vice-president  the  corporation   may   properly 
be  called  upon  to  elect  whom  it  would  prefer. 
Atlanta   Terra   Cotta   Co.   v.   Georgia,   Ry.   & 
Electric  Co.,  1.32  Ga.  537,  64  S.  E.  563  (1909). 
A   municipal   corporation   occupies   a   similar 
position.     Thus,  a  city  recorder   may  be  ex- 
cluded although  it  is  asked  that  he  he  per- 
mitted to  remain  to  assist  counsel.     Trotter 
v.  Town  of  Stayton,    (Or.  1904)   77  Pac.  395. 

92.  Johnican  v.  State,   (Tex.  Cr.)   48  S.  W. 
181    (1898)    (clerk  of  court);   State  v.  Lock- 
wood,  58  Vt.  378,  3  Atl.  539    (1886)    (deputy 
sheriff) . 

93.  State  v.  Vari,  35  S.  C.  175,  14  S.  E.  892 
(1801). 

94.  Mclntosh    v.    Mclntosh,    79   Mich.    198, 
203,  44  N.  W.  592   (1890). 

The  marked  degree  to  which  parties  are 
exposed  to  the  temptations  to  perjury  and 
general  falsity  in  testimony  which  separation 
seeks  to  minimize,  has  not,  however,  escaped 
attention.  Salisbury  v.  Com.,  79  Ky.  425, 
432  (1881);  Wisener  v.  Maupin,  2  Baxt. 


(Tenn. )  342,  357  (1872).  In  pursuance  of 
this  line  of  thought  it  has  been  held  that 
parties  stand  on  the  same  position  as  other 
witnesses  ^and  should  be  equally  subject  to 
exclusion. 

Arkansas. —  Randolph  v.  McCain,  34  Ark. 
696  (1879). 

Georgia. —  Tift  v.  Joens,  52  Ga.  538,  540, 
542  (1874). 

Kentucky. —  Salisbury  v.  Com.,  79  Ky.  425, 
432  (1881). 

Tennessee. —  Wisener  v.  Maupin,  2  Baxt. 
342,  b56  (1872). 

England.—  Penniman  v.  Hill,  24  W.  R.  245 
(1876). 

95.  Coolman  v.  State,  (Ind.  1904)  72 -N.  E. 
568;   State  v.  Whitworth,  196  Mo.  573,  29  S. 
W.    595     (1894)      (father    of    prosecutrix    in 
rape) .     But  see  to  the  contrary,  Salisbury  v. 
Com.,  79   Ky.  425,  432    (1881). 

96.  Of  two  persons  jointly  charged  with 
crime,  each  proposing  to  testify  for  himself, 
neither  can  be  excluded  during  the  examina- 
tion of  the  other.     Richards  v.  State,  91  Tenn. 
723,  30  Am.  St.  907    (1892). 

97.  Webb  v.  State,  100  Ala.  47,  52,   14  So. 
865    (1893)    (sheriff);   People  v.  Garnett,  29 
Cal.  622   (1866)    (chief  of  police). 

98.  Vance  v.  State.  56  Ark.  402,  19  S.  W. 
1066   (1892;    (insanity). 

99.  May  v.  State,  94  Ga.  76  (1894)  ;  Hinkle 
v.  State,  94  Ga.  595    (1894)  :   State  v.  Whit- 
worth,    (Mo.    1895)    29    S.    W.    595;    Cook   v. 
State,  30  Tex.  App    607    (1892). 

1.  Alabama.—  Hall  v.  State,  137  Ala.  44, 
34  So.  681  (1902). 

California. —  People  v.  Sam  Lung,  70  Cal. 
515,  11  Pac.  673  (1886). 

Vermont. —  State  v.  Hopkins,  50  Vt.  316, 
322,  332  (1877). 


47  ADMINISTRATIVE  FUNCTIONS.  §  91 

reasonably  necessary  to  the  orderly  conduct  of  the  case  are.  2  not  expressly  ex- 
cluded from  the  scope  of  the  order,  but  nevertheless  remain  in  court  contrary 
to  its  terms,  the  presiding  judge  may  ratify  and  sanction  their  action,  in  this 
respect,  thus  placing  them  in  a  position  equivalent  for  administrative  purposes 
to  a  previous  exemption. 

Such  exemption  is  matter  of  administration.  A  party  has  no  right  to  insist 
that  his  expert  3  or  other  special  witnesses,  or  even  the  members  of  his  imme- 
diate family,4  be  allowed  to  remain. 

§  91.  [Functions  of  Judicial  Office] ;  Enforcement  of  the  Order.5 —  A  witness 
"  under  the  rule  "  is  not,  unless  specially  permitted,  at  liberty  to  remain  in  the 
courtroom  after  giving  his  testimony.6  It  may  be  necessary  to  require  his  evi- 
dence again  as  a  witness  at  a  later  stage  of  the  trial ;  to  permit  him  to  hear  the 
testimony  of  others  whom  he  may  be  asked  to  refute  is,  therefore,  within  the 
mischief  which  separation  seeks  to  prevent.  The  judge's  order  is  at  times, 
especially  in  cases  of  magnitude,  enforced  by  the  sheriff."  The  parties  may 
furnish  the  latter  with  a  list  of  the  witnesses  to  enable  him  to  see  that  they 
withdraw  from  the  courtroom.8  But  a  party  is  not  under  obligation  to  do  so.9 
Where  the  list  is  not  furnished,  or  in  case  of  witnesses  who  for  any  reason 
have  not  been  placed  on  it,  it  is  the  duty  of  each  party  to  see  that  the  witnesses 
whom  he  proposes  to  have  sworn  do  not  enter  the  courtroom  before  they  are 
called  to  testify.10  A  more  usual  course  is  to  require  counsel  to  state  to  the 
judge  the  names  of  the  witnesses  to  be  affected  in  the  order  and  for  the  judge 
to  direct  the  sheriff  as  to  the  time  at  which  their  appearance  will  be  required 
in  court  for  the  purpose  of  testifying,  and  as  to  the  other  particulars  of  the 
order.11 

A  common  practice  is  for  the  judge  merely  to  announce  from  the  bench  that 
certain  witnesses  are  directed  to  withdraw.  The  effect  of  their  failure  to  do 
so,  or  of  their  returning  to  the  courtroom  before  being  called  for  the  purpose 
of  testifying,12  or  of  their  conversing  or  consulting  with  other  witnesses  or 
third  persons,  either  while  the  trial  is  actually  going  on  or  during  adjourn- 
ment,13 may  be,  and  usually  are  also  stated  to  them.  It  is  within  the  adminis- 

2.  Shaw  v.  State,  102,  Ga.  660,  29  S.  E.  477  6.  Roach  v.  State,  41  Tex.  261,  263   (1874). 

(1897)  (two  witnesses  assisting  in  the  prose-  7.  Hey  v.  Com.  32  Gratt.  (Va.)  946,  34  Am. 
cution).                                                                             R.  799    (1879). 

3.  Roberts  v.  State,  122  Ala.  47,  25  So.  238  8.  Anon.,  1  Hill   ( S.  C.)   251   (1833). 

(1898)  ;  Atlantic  &  B.  Ry.  Co.  v.  Johnson,  127  9.  Anon.,  1  Hill   (S.  C.)  251   (1833). 

Ga.  392,  56  S.  E.  482  (1907).     State  v.  Forbes,  10.  Anon..  1  Hill    (S.  C.)   251,  254    (1833). 

Ill  La.  473,  35  So.  710  (1903).  11.   Golden    v.    State,     19    Ark.    590,    598 

4.  McGuff  v.  State,  88  Ala.  147,  150,  7  So.       (1858). 

35    (1889);   May  v.  State,  94  Ga.  76    (1894)  12.   Golden    v.    State,     10    Ark.    590,    598 

(brother);    Hinkle  v.   State,   94  Ga.   595,  21  (1858). 

S   E.  595  (1894)  ;  Bond  v.  State,  20  Tex.  App.  13.  Broyles  v.  Priaock,  97  Ga.  643,  25  S.  E. 

437    (1886).  389   (1895). 

5.  1  (  hamberlayne.  Evidence,  §  195. 


§§  92-94  COURT  AND  JURY;  COURT.  48 

trative  powers  of  the  court  to  decline  to  allow  the  offending  witness  to  testify,14 
though  it  is  also  within  his  power  to  receive  the  evidence.15 

§  92.  [Functions  of  Judicial  Office} ;  Consequences  of  Disobedience.16 —  Where 
an  express  order  of  separation  has  been  made  1T  and  a  witness,  though  aware 
of  its  terms  and  that  it  applies  to  himself,18  willfully  19  violates  it,  by  listening 
to  the  evidence  of  the  other  witness  as  given  in  court,  either  before  he  has  testi- 
fied or  after  2(J  he  has  himself  testified ;  or  mingling  with  persons  who  have 
heard  the  other  witnesses,21  he  is  in  contempt  of  court  and  ready  to  be  dealt 
with  by  the  presiding  judge  as  seems  just  and  proper  under  the  particular 
circumstances  of  the  case. 

§  93.  [Functions  of  Judicial  Office] ;  Party's  Relation  to  Violation.22 —  If  the 
disobedience  is  not  only  wilful  on  the  part  of  the  witness,  but  is  aided  and 
abetted  by  a  party  23  or  his  counsel,24  the  right  and  propriety  25  of  refusing  to 
hear  the  evidence  of  the  witness  is  undoubted,  and  would  in  many  instances 
be  exercised.  Where  the  party  is  himself  without  fault  in  the  matter,  to  ex- 
clude a  guilty  witness  is  in  reality  to  punish  an  innocent  person,26  or  enable  one 
of  his  witnesses  to  do  so ;  and  at  the  same  time,  avoid  the  possibly  unwelcome  or 
irksome  task  of  testifying  at  all.27 

It  is,  therefore,  the  practice,  i.e.,  a  customary  exercise  of  judicial  adminis- 
tration, to  receive  the  testimony  of  the  offending  witness,  in  the  absence  of 
facts  from  which  the  inference  of  connivance  by  the  party  or  his  counsel  in 
the  misconduct  of  the  witness  28  can  reasonably  be  drawn. 

§  94.  [Functions  of  Judicial  Office] ;  Proceedings  against  offending  Witness.29 
—  The  witness,  in  any  event,  may  himself  be  dealt  with  by  the  court,  as  for 
a  contempt. 

14.  Alabama.—  gloss-Sheffield  Steel  &  Iron       W.     76      (1899);     Clemmons     v.     Clemmons 
Co.   v.    Smith,   40   So.   91    (1905);    Jarvis   v.        (Nebr.)   96  N.  W.  404   (1901);  Pile  v.  State, 
State,  138  Ala.  17,  34  So.  1025   (1902).  107  Term.  532,  64  S.  \V.  476   (1901). 

Kentucky.—  Crenshaw  v.  Gardner,  25  Ky.  20.  Sartorius  v.  State,  24  Miss.  602  (1852) 

Law  Rep.  506,  76  S.  W   26   (1003)  ;  Gilbert  v.  21.  Porter  v.  State,  2  Ind.  435   (1851). 

Com.,  Ill  Ky.  793,  64  S.  W.  846   (1901).  22.   1  Chamberlayne,  Evidence,  §   197. 

15.  Sharpton  v.  Augusta  &  A.  Ry.  Co.,  72  23.   Kentucky. —  Crenshaw    v.    Gardner,    76 
S.  C.  162.  51  S.  E.  553  (1905).  S.  W.  26    (1903). 

16.  1  Chamberlayne,  Evidence.  §  196.  Virginia. —  Com.    v.    Brown,    90    Va.    671, 

17.  R.  v.  Fursey,  3  State  Tr.    (N.  S.)   543,  675,    19   ,s.   E.   447    (1894). 

564   (1833).  24.  Bird  v.  State.  50  Ga.  585,  589    (1874)  ; 

18.  A  bystander  unexpectedly  called  upon       Com.  v.  Crowley,  168  Mass.  121,  46  N.  E.  415 
to  testify  after  the  making  of  an  order  is  not        (1897). 

excluded  from  the  witness  stand  by  reason  of  25.  Dyer    v.    Morris,    4    Mo.    214     (1835)  ; 

his    previous    presence    in    the    court    room.  Trujillo  v.  Terr.    (X.  M.   1802),  30  Pac.  870. 

Laughlin  v.  State,  18  Oh.  09   (1849).  26.  Hubbard  v.  Hubbard,  7  Oreg.  42  (1879). 

19.  An  inadvertent  violation  without  con-  27.  Keith  v.  Wilson,  6  Mo.  435,  441   (1840). 
nivance  by  the  party  is  not  ground  for  exclu-  28.  Holder  v.  U.  S.,  150  I".  S.  91   (1893). 
sion.     State  v.  Sumpter,  153  Mo.  436,  55  S.  29.  1  Chamberlayne,  Evidence,  §  198. 


49  ADMINISTRATIVE  FUNCTIONS.  §§  95-97 

Direct  Punishment  of  Conniving  Party, —  If  a  party  has  aided  and  abetted 
the  offense,  he  may  be  treated  in  like  manner.  'M 

The  inference  of  bad  faith  is  still  more  cogent  in  case  of  a  party,31  and  the 
jury  may  be  asked  to  consider  his  conduct  in  weighing  the  evidence.32 

§  95.  [Functions  of  Judicial  Office] ;  Swearing  of  Witnesses.33 —  General 
Rule. —  Where  not  regulated  by  statute  the  administration  of  the  oaths  im- 
posed upon  interpreters  and  other  witnesses  takes  place  under  the  direction  of 
the  court.  As  the  sanction  of  truthfulness  which  the  imposition  of  an  oath 
seeks  to  attain,  consists  in  u  laying  hold  of  the  conscience  of  the  witness  and 
appealing  to  his  sense  of  accountability/'  34  it  must.be,  so  far  as  possible,  im- 
posed in  a  form  binding  upon  his  conscience,  or  such  as  to  arouse  his  fear  of 
punishment.35  The  duty  of  ascertaining  the  nature  of  such  an  oath  devolves 
upon  the  judge,  as  a  preliminary  finding  of  fact,  on  voir  dire;  though  he  may 
delegate  to  a  party  the  duty  of  eliciting  any  facts  necessary  to  his  contention;  36 
and,  in  any  event,  counsel  have  the  right  to  bring  out  by  examination  con- 
ducted by  themselves,  facts  of  advantage  to  their  position;  the  burden  of 
proof  being  on  the  party  objecting  to  the  competency  of  the  witness.37 

§  96.  [Functions  of  Judicial  Office] ;  Method  of  Inquiry.38 —  The  subject  of 
inquiry,  being  as  to  the  existence  of  a  particular  mental  state,  belief  or  fear, 
may  logically  be  proved  by  any  of  the  methods  employed  in  proof  of  mental 
states.  The  natural  and  frequently  the  only  source  of  information  on  these 
particulars  is  the  person  himself.  His  mental  attitude  may  be  gathered,  (1) 
directly  from  his  answers  as  a  witness  upon  voir  dire,  or  (2)  indirectly  from 
evidence  of  his  declarations  as  narrated  by  others. 

§  97.   [Functions  of  Judicial  Office];  Children  as  Witnesses;  Insane  Persons.39 

-  The  examination  of  children  as  to  a  belief  in  future  punishment  sufficient 
to  make  the  oath,  when  administered,  of  binding  effect,  is  usually  conducted  by 
the  judge  himself,40  whose  finding  will  not,  as  a  rule,  be  revised.41 

Feeble-blinded  and  Insane   Persons. —  Feeble-minded   and   insane   persons 

30.  Hagan  v.  State,  45  La.  Ann  839  (1893).  (1854)  ;   Gray  v.  Macallum,  2  Brit.  Col.   104 

31.  Laughlin  v.  State,  18  Oh.  99  (1849).  (1892). 

32.  Davenport  v.  Ogg.  15  Kan.  363   (1875)  37.  Smith    v.    Coffin,    18    Me.    157    (1841); 

33.  1   Chamberlayne,  Evidence.  §§   199.  200.  Donnelly    v.    State.    26    X.    J.    L.    463,    601 

34.  C'linton    v.    State,   33   Oh.    St.   27    (per  (1857):    Den    v.    Vancleve.    5    X.    J.    L.    589 
Aehburn  J.)    (1877).  '1819)  ;  Attorney-Gen,  v.  Bradlaugh,  14  Q.  B 

35.  The  modern  purpose  of  the  oath  is  to  Div.  667    (1885). 

call    the    attention    of    the    witness    to    God.  38.    1   Chamherlayne.  Evidence.  §  201. 

Blackburn    v.    State,    71    Ala.    319     (1882):  39.   1   Chamberlayne.  Evidence.  §  202. 

Curtiss    v.    Strong,    4    Day     (Conn.)     51.    56  40.  State  v.   Crocker.   65   X.  J.   L.   410,   47 

(1809);    Clinton   v.    State.    33    Ohio,    27,    33  All.  643    (1900). 

(1877).     Its  ancient  object  was  rather  to  di-  41.  Com.    v.    Lynes,    142    Mass.    577,    580 

rect  the  attention  of  God  to  the  witness.  (1886). 

36.  Com.    v.    Smith,   2   Gray    (Mass.)    516 


§§  98,99  COUET  AND  JURY;  COURT.  50 

should  be  examined  as  to  their  understanding  of  the  nature  and  obligation  of 
an  oath  in  the  same  manner  as  is  done  in  the  case  of  children.42  It  has  been 
doubted  whether  a  difficulty  of  so  permanent  a  nature  might  reasonably  be 
overcome  by  instruction  during  an  adjournment.43 

§  98.  [Functions  of  Judicial  Office] ;  Form  of  Oath.44 — JX'o  particular  form  of 
oath  is  essential 45  unless  one  is  prescribed  by  the  religion  of  the  witness.46 

Telephone  administration. —  Although  the  officer  administering  an  oath  may 
be  familiar  with  the  voice  of  the  person  swearing,  the  administration  of  an  oath 
over  the  telephone  is  not  valid  for  the  purpose.47 

§  99.  [Functions  of  Judicial  Office] ;  Executive.48 —  Inherent  in  the  judicial 
office  are  certain  powers  conferred  upon  the  presiding  judge  and  designed  to 
enable  him  to  preserve  order,  maintain  the  dignity  of  his  office,  to  compel  and 
preserve  popular  respect  for  the  public  administration  of  justice.  Such  powers 
may,  with  apparent  propriety,  be  designated  the  executive  or  ''  police  "  powers 
of  a  presiding  judge;  although  it  may  fairly  be  objected  that  the  difference 
between  these  and  the  administrative  function  of  the  court  is  but  slight.  The 
power  of  the  judge  to  enforce,  by  summary  proceedings,49  by  compliance  with 
any  order  for  securing  calm  deliberation  and  orderly  quiet  in  the  courtroom  50 
is  undoubted,51  subject  to  the  limitation  imposed  by  constitutional  or  statutory 
provisions.52 

Federal  Courts. —  The  power  to  punish  for  contempt  is  an  inherent  attribute 

42.  Holcomb    v.    Holcomb,    28    Conn.     179       470;    State  ex  rel.  Stewart  v.   Reid,   118  La. 
(1859);   R.  v.  Whitehead,  L.  R.   1   C.  C.  33,       827,    43    So.    455     (1907). 

38  (1866)  ;  R.  v.  Hill,  2  Den.  C.  C.  254  (1851).  50.  A    summary    proceeding,    in    this    con- 

43.  R.   v.   Whitehead,  L.   R.   1  C.  C.   R.   33  nection  may  mean  one  where  the  party  offend- 
(1866)     (idiot).  ing   is  not  given  a  trial   by  jury.     Yoder  v. 

44.  1   Chamberlayne,  Evidence,  §  203.  Com.    (Va.   1907),  57  S.  E.  581. 

45.  Miller  v.  Salomons,  7  Exch.  475  (1852)  ;  51.  Ormond  v.  Ball.  120  Ga.  916.  48  S.  E. 
Atcheson     v.     Everitt,     Cowp.     382     (1776);  383    (1904);   State  v.  Rose    (Kan.   1906),  85 
Omychund  v.  Barker,  1  Atk.  21    (1744).     "A  Pac.  803;    Back  v.  State    (Nebr.    1906),   106 
Jew  is  to  be  sworn  on  the  Bobk  of  the  Law  N.    W.    787.     The   primary   purpose   of   such 
and  with  his  head  covered,  a  Brahmin  by  the  punishment   is  the  vindication  of  public  au- 
mode    prescribed    by    his    peculiar    faith,    a  thority.     Powers  v.  People,  114  111.  App.  323 
Chinese   by    his   special    ceremonies,   and   the  (1904). 

like."     Miller  v.  Salomons,  7  Exch.  535,  558  52.  Arkansas. —  Ford  v.  State,  69  Ark.  550, 

(per  Alderson,  B.).  64   S.   W.   879    (1901). 

46.  R.  v.  Pah-Mah-Gay,  20  Q.  B.  U.  C.  195  Indiana.—  Mahoney  v.  State,  72  X.  E    151 
(I860).  (1904). 

47.  Sullivan  v.  First  Nat.  Bank   (Tex.  Civ.  Xorth  Carolina. —  In  re  Gorham,  129  X.  C. 
App.   1904)    8:5  S.  W.  421.  481,  40  S.  E.  311    (1901).     While  courts  do 

48.  1   Chamberlayne,  Evidence,  §  204.  not  derive  their  power  to  punish  for  contempt 

49.  Only   a   breach   of  order  and   decorum  from  any  statute,  it  is  their  duty  to  conform 
in  the  presence  of  the  court  in  actual  session  to    a    statute    which    does    not    abridge    this 
and  within  its  view  and  hearing  can  be  prop-  power,  but  simply  points  out  the  manner  in 
erly  dealt  with  without  notice  to  show  cauae.  which  it  shall  be  exercised.     Ex  parte  Morris, 
Reymert  v.  Smith   (Cal.  App.  1907),  90  Pac.  28  Ohio  Cir.  Ct^R.  611   (1906). 


51 


EXECUTIVE  FUNCTIONS. 


100 


of  the  federal  courts,  vested  in  them  by  Const.  U.  S.  art.  3,  §  1,  granting  to 
them  the  judicial  power  of  the  nation.53 

Protected  by  Constitution. —  The  right  to  prevent  the  commission  of 
breaches  of  order  in  the  presence  of  the  judge  while  sitting  at  a  trial  is  pro- 
tected by  a  judicial  power,  in  the  proper  exercise  of  which,  the  entire  commu- 
nity is  deeply  interested  and  concerned.  Any  attempt  on  the  part  of  the  legis- 
lature to  abridge  this  right  is  invalid,  as  tending  to  alter  the  constitutional  dis- 
tribution of  power  between  different  branches  of  government.54 

§  100.  [Functions  of  Judicial  Office] ;  Require  Order  and  Decorum.55 —  The 
court  may  punish  insulting  language,50  or  disorderly  conduct  57  such  as  carry- 
ing weapons  5S  or  appearing  in  court  intoxicated  59  or  indulging  in  objection- 
able language.00  !So  insults  in  papers  submitted  to  the  court61  or  filed62  are 
punishable.  Abuse  of  the  trial  court  may  properly  be  deemed  contrary  to  the 
administration  of  justice  °3  when  used  on  appeal  and  so  with  attacks  on  the 
court  officers  of  the  lower  court.64  Writing  letters  to  the  court  designed  to 
influence  his  conduct  in  the  pending  litigation  65  or  to  upbraid  him  for  past 
conduct  °°  may  also  be  punished,  but  merely  writing  to  the  opposing  attorney 


53.  In  re  Xevitt,  117  Fed.  448,  54  C.  C.  A. 
622   (1902). 

54.  State  v.  Shepherd,  177  Mo.  205,  76  S. 
W.  79    (1903). 

55.  1  Chamberlavne,  Evidence,  88  205-212. 

v  *      OO 

56.  State  ex  rel.  Stewart  v.  Reid,  118  La. 
827,  43  So.  455    (1907).     In  re  Chartz   (Nev. 
1905),    85    Pac.    352. 

In  a  certain  case  defendant,  an  attorney  of 
the  Supreme  Court  of  Nevada,  in  a  petition 
for  rehearing  of  a  cause  in  which  the  Su- 
preme Court  had  held  a  statute  limiting  the 
hours  of  labor  constitutional,  stated  that  in 
hi?  opinion  the  decisions  favoring  the  power 
of  the  state  to  limit  the  hours  of  labor  on 
the  ground  of  the  police  power  of  the  state 
were  all  wrong,  were  written  by  men  who 
have  never  performed  manual  labor,  and  by 
politicians  and  for  politics,  and  that  they 
did  not  know  what  they  wrote  about.  Such 
a  statement  was  regarded  as  constituting  a 
contempt  of  Supreme  Court,  which  was  not 
purged  by  defendant's  disavowal  of  any  intent 
to  commit  a  contempt  and  by  his  apology. 
In  re  Chartz  (Xev.  1905)  85  Pac.  352. 

Davies  v.  State  (Ark.  1905),  84  S.  W.  633. 

State  ex  rel.  Stewart  v.  Reid,  118  La.  827, 
43  So.  455  (1007)  district  attorney. 

Hill  v.  Crandall.  52  111.  70    (1869). 

57.  Holman  v.  State.  105  Ind.  513.  5  X.  E 
5.16    H885);  U.  S.  v.  Patterson,  26  Fed.  509 
i 


58.  Sharon  v.  Hill,  24  Fed.  726  (1885)    (at- 
torney ) . 

59.  Marcum  v.   Hargis,  31  Ky.  Law.  Rep. 
1117,  104  S.  W.  693    (1907);  Com,  v.  Clark, 
13  Pa.  Co.  Ct.  439    (1893). 

60.  Indiana.—  Dodge  v.  State,  140  Ind.  284, 
39   X.   E.   745    (1894). 

Iowa. —  Russell  v.  French,  67  Iowa  102,  24 
X.  W.  741  (1885). 

North  Dakota. —  State  v.  Crum,  7  N.  D.  299, 
74  X.  \V.  992  (1898). 

61.  Lamberson  v.  Superior  Court  of  Tulare 
County   (Cal.  1907),  91  Pac.  100. 

62.  Lamberson  v.  Superior  Court  of  Tulare 
County   (Cal.  1907),  91     Pac.  100;  Sommers 
v.    Torrey,    5    Paige    54,    28    Am.    Dec.    411 
(1835)  :    U.  S.  v.  Church,  6  Utah  9,  21  Pac. 
503,  524   (1889).     Where  the  papers  are  filed 
in  the  ordinary  course  of  the  proceedings,  it 
will  not  be  assumed  that  the  attorney  filing 
them  acted  in  bad  faith.     Tracy  v.  State,  28 
Ohio  Cir.  Ct.  R.  453    (1906)    (motions). 

63.  Sears  v.  Starbird,  75  Cal.  91,  16  Pac. 
531,    7    Am.    St.    Rep.    123     (1888).     In    re 
Thompson,  46  Kan.  254.  26  Pac.  674   (1891)  ; 
In  re  Dalton,  46  Kan.  253,  26  Pac.  673  ( 1891 ) . 

64.  In    re    Breck,    4    Fed.    Cas.    Xo.    1,823 
(1876). 

65.  State  v.  Johnson    ^Ohio    (1908),  83  N. 
E.    702. 

66.  State  v.  Waugh.  53  Kan.  688,  37  Pac. 
165    (1894);    In  re   Pryor,    18   Kan.   72,   26 


§  101  COURT  AXD  JURY;  COURT.  52 

criticizing  the  court  is  not  objectionable  as  it  is  not  calculated  to  influence  the 
court."7 

§  101.  [Functions  of  Judicial  Office];  Compel  Obedience  to  Directions;  Admin- 
istrative Orders.08 —  The  directions  of  a  presiding  judge,  regarding  any  matter 
pertaining  to  the  administration  of  justice  or  the  use  of  the  judicial  machinery 
by  which  it  is  sought  to  attain  it,  are  to  be  promptly  and  unreservedly  obeyed? 
In  the  event  of  a  refusal,  it  is  within  the  power  and  it  may  become  the  duty 
of  the  judge  to  enforce  his  order. 

Enforcement  of  Rights. —  Closely  analogous  to  this  requirement  of  obedi- 
ence to  an  order  of  the  court  relating  to  the  administration  of  justice,  is  that 
which  arises  where  an  order  is  made  in  favor  of  one  of  the  parties  against  the 
other  in  vindication  of  a  right  previously  ascertained  to  exist;  —  or  provi- 
sionally assumed  for  administrative  purposes,  as  where  a  preliminary  order  is 
made,  by  way  of  injunction  or  otherwise. 

Civil  Contempts. —  Where  the  order  is  made  in  connection  with  relief 
granted  a  party,  as  part  of  a  right  established  by  him,  as  where  a  defendant  is 
ordered  to  comply  specifically  with  the  terms  of  a  contract  which  he  is  found 
to  have  made,  a  failure  to  obey  such  an  order  is  a  civil  contempt.  In  other 
words,  a  person  who  fails  or  refuses  to  do  something  which  he  has  been  or- 
dered to  do,  or  does  something  that  he  has  been  ordered  not  to  do,  for  the  bene- 
fit of  the  opposite  party  to  a  cause,  is  guilty  of  a  civil  'contempt,  and  the  object 
of  the  punishment  is  to  coerce  the  performance  of  an  aet  remedial  in  its 
nature.69 

Criminal  Contempts. —  Should  it  happen,  however,  that  the  act  which  a 
person  is  ordered  to  do  is  one  which  affects  the  due  and  orderly  administration 
of  justice,  rather  than  applies  to  the  rights  of  the  parties,  the  dignity  of  the 
court  itself  is  involved  and  an  entirely  different  situation,  viewed  from  a  moral 
or  .social  standpoint,  is  developed.  The  interests  of  society  demand  that  such 
an  order  should  be  enforced  in  its  own  behalf,  i.e.,  by  punishment.  Such  a 
contempt  is  a  criminal  one.  In  all  cases  where  such  an  offense  is  claimed,  an 
element  of  wilful  intent  may  well  be  required. 

Advice  of  Counsel. —  Advice  of  counsel  is  no  defense  to  a  proceeding  for 
contempt  of  court ;  although  where  the  party  said  to  be  in  contempt  is  a  lay- 
man and  not  an  officer  charged  with  the  enforcement  of  the  law  the  fact  may 
be  considered  in  mitigation.70 

Notice  Necessary. —  In  either  case  the  person  to  be  affected  by  proceedings 
in  contempt  must  have  had  notice  of  the  issuance  of  the  order.71 

Am.   Rep.  747    (1877);   Matter  of  Walace,  4  69.  Ex   parte  Clark,   208   Mo.    121,   106   S. 

Moore  P.   C.   N.   S.    140,   L.   R.    1    P.   C.   283,  W.  090    (1907). 

36  L.  J.  P.  C.  9,  15  Wkly.  Rep.  533,  16  Eng.  70.  Coffin  v.  Burstein,  74  X.  Y.  S.  274.  68 

Reprint  269    (1866).  App.  Div.    (1902);   Royal  Trust  Co.  v.  Wash- 

67.  Fellman   v.   Mercantile   Fire   &   Marine  burn,    etc.,   Ry.    Co.     (Wis.    1902),    113    Fed. 
Ins.  Co.,  116  La.  723,  41  So.  49    (1906).  531. 

68.  1  Chamberlayne,  Evidence,  §  213.  71.  State    v.    McGahey    (X.    D.    1903),   97 


53  EXECUTIVE  FUNCTIONS.  §§  102,  103 

Impossibility  of  performance,  not  caused  by  the  fault  of  the  person  in 
question  is  an  excuse.72 

Jurisdiction. —  lu  all  proceedings  for  the  enforcement  of  a  judicial  order, 
the  fact  that  the  court  making  the  order  had  jurisdiction  is  an  important  pre- 
liminary fact  to  be  affirmatively  shown.73  If  the  court  has  jurisdiction,  the 
order  must  be  obeyed  though  it  may  have  been  improvidently  or  erroneously 
granted-74 

£  102.  [Functions  of  Judicial  Office] ;  Attorneys.75 —  A  practitioner  who  coun- 
sels and  advises  the  commission  of  an  act  contrary  to  the  dignity  of  the  court  is 
deservedly  deemed  guilty  of  the  same  offense,  as  he  who  follows  his  advice.76 
Counsel  must  at  once  desist  from  speaking  for  a  client  when  ordered  by  the 
court  to  do  so.77 

Advice  given  in  good  faith  does  not,  however,  subject  the  attorney  to  punish- 
ment. A  lawyer  has  the  right  to  advise  his  client  as  to  the  validity  of  an 
order  of  court,  or  of  a  writ  issued  under  its  authority,  so  far  as  this  affects  the 
client's  interests:  and  his  advice  to  the  effect  that  such  order  or  writ  is  illegal 
and  void,  if  given  in  good  faith,  will  not  render  him  liable  for  contempt,  be- 
cause of  an  error  in  judgment.  But  he  is  guilty  of  contempt  if  he  goes  beyond 
the  right  to  advise  in  matter  of  law  and,  actuated  by  a  spirit  of  resistance, 
counsels  or  conspires  with  his  client  or  others  to  disobey  an  order  of  court  and 
obstruct  its  enforcement.78 

§  103.   [Functions  of  Judicial  Office] ;   Others  Subject  to  Directions.79 —  The 

duty  to  obey   the  orders  of  the  court  extends   to  corporations   and  to  their 

X    \V.  865      It  has  even  been  held  that  where  378  (1906)  :  Swedish-American  Telephone  Co. 

disobedience   to   a   decree   is   not   wilful,   and  v.    Fidelity   &    Casualty    Co     of    Xew    York, 

does  not  clearly  appear  to  have  arisen  from  208  111.  562,  70  X.  E.  768  (1904;  Pike  v.  Frost 

an    intent   to   set   at  naught   or   bid   defiance  fWis    1005),  130  Fed.  865.     See  also  Russell 

thereto,    the   power   to   punish    for   contempt  v.    Lumber   Co.,    102   Ga.   563,   29   S.    E.   271 

cannot    be    properly    exercised.     Kahlbon    v.  (1897). 

People,    101    111.    App.    567     (1902).     A    con-  75.    1   Chamberlayne,  Evidence.  §§  214-220. 

tempt  must  be  wilful,  and  cannot  arise  from  76.  People  v.  Tenth  Judicial   Dist.   Ct.,  29 

mere   inability.     Moseley    v     People.    101    111.  Colo.  182,  68  Pac.  242   (1901):  Lowenthal  v. 

App.    564    (1902).     If   a    person    has    actual  Hodge,   120  X.   Y    App.  Div.   304,    105  X.  Y. 

knowledge  of  an  order  of  court,  he  is  liable  Suppl.  120    (1907).     See  Territory  v.  Clancy, 

for  the  consequences  of  violating  it.  although  7  X.  M.  580,  3.7  Pac.  1108   (1894). 

he  has  not  been  formally  served  with  it.     In  77.  EJC  parte  Shortridge    (Cal.  App.   1.907), 

re  Wilk   (X.  Y.  1907)    155  Fed.  943.  90   Pac    478. 

Personal    service    has,    however,    been    re-  78.  Anderson    v.    Comptois,    109    Fed.    971. 

quired.     Grant  v.  Greene.   106  X.   Y.   S.   532,  48  C.  C.  A.  1    i 1901 i  :  In  re  Dubose.  109  Fed. 

121    App.  Div.  756    (1907).  971.   48   C.   C.   A.    1    (1901).     [Judgment  af- 

72.  McHenry    v.    State     (Miss.    1907),    44  firmed  on  rehearing  1 11  Fed.  998.  50  C.  C.  A. 
Stfuth.   831.  76.]     See  also  Wells  v.  Com..  21  Grat.  500, 

73.  Early    v.    People.     117     111.    App.    608  508    (1871). 

(1905).  79.  1  Chamberlayne,  Evidence.  §§  221-226. 

74.  Meeks  v.  State.  80  Ark.  579,  98  S.  W. 


§  104 


COUKT  AND  JURY;  COURT. 


54 


officers,80  and  to  municipal  81  or  unincorporated  82  associations  to  court  offi- 
cers 83  and  clerks  of  court  84  or  other  attendants,  to  sheriffs  85  or  constables  or 
to  jurors.80  The  power  also  extends  to  the  conduct  of  proceedings  before  in- 
ferior tribunals87  or  to  boards88  or  to  the  general  public.sy  The  court  also 
has  control  of  witnesses  and  may  enforce  their  attendance  t(0  or  may  require 
them  to  produce  documents  as  directed,"1  to  be  separated  >J~  or  to  be  sworn.93 

§  104.  [Functions  of  Judicial  Office] ;  Protect  the  Course  of  Justice.94 —  The 
presiding  judge  will  protect  the  purity  and  unobstructed  course  of  justice  as 
a  matter  of  paramount  importance.  -More  insulting  to  the  dignity  of  a  court 
of  justice  than  any  disorderly  disturbance  of  its  outward  proceedings,  or  the 
most  contemptuous  refusal  to  obey  the  will  of  its  minister  presiding  at  the 


80.  Sercomb  v.  Catlin,   128  111.  550,  21   N. 
E.  606,  15  Am.  St.  Rep.  14?    (1889)  ;   Una  v. 
Dodd,    39    N.    J.    Eq.    173    (1884);    Davis   v. 
New  York,  2  Duer  451    (1853). 

81.  Marson  v.  City  of  Rochester,  185  N.  Y. 
602,  78  N.  E.  1106  (1906)   [affirming  97  N.  Y. 
Suppl.  881J ;  Marson  v.  City  of  Rochester,  112 
X.    Y.    App.   Div.   51,    97    X.    Y.    Suppl.    881 
<1906). 

82.  Patterson    v.     Wyoming    Valley    Dist. 
Council,  31  Pa.  Super.  Ct.  112   (1906). 

83.  In  re  Birdsong,  39  Fed.  599,  4  L.  R.  A. 
628    (1889). 

State  v.  O'Brien,  87  Minn.  161,  91  N.  W. 
297  (1902). 

84.  State  v.  Simmons,  1   Ark.  265    (1839); 
In  re  Contempt  by  Two  Clerks,  91   Ga.   113, 
18  S.  E.  976    (1893)  ;   Ex  p    Thatcher,  7  111. 
167    (1845);    Territory  v.   Clancey,   7    N.   M. 
580,  37  Pac.  1108  (1894). 

Cross  v.  State,  11  Tex   App.  84   (1881) 

85.  Arkansas. —  In  re  Lawson,  3  Ark.   363 
(1840). 

Georgia. —  Hunter  v.  Phillips,  56  Ga.  634 
(1876). 

86.  In  re  Summerhayes,  70  Fed.  769  (1895). 
Georgia. —  State     v.     Helvenston,     R.     M. 

Charlt.  48    (1820). 

Indiana. —  Murphy  v.  Wilson,  46  Ind.  537 
(1874). 

New  Jersey. —  Crane  v.  Sayre,  6  N.  J.  L.  110 
(1822). 

yew  York.— Ex  p.  Hill,  3  Cow.  355   (1824). 

87.  California.—  In  re  Rogers,  129  Cal.  468, 
62  Pac.  47    (1900). 

88.  Spokes  v.  Banbury,  etc.,  Bd.  of  Health, 
11   ,Tur.    (N.   S.)    1010,  35  L.  J    Ch.    105,   13 
L.    T.   Rep.   '(N.    S.)    453    (1865)     [affirming 
L.   R.   1    Eq.  42,   14  Wkly.  Rep.   128]. 

89.  Orman   v.   State,   24   Tex.   App.   495,   6 
S.   W.   544    (1887). 


State  v.  Doty,  32  N.  J.  L.  403.  90  Am.  Dec. 
671  (1868);  State  v.  Keene,  11  La.  596 
(1837);  Thomas  v.  Gwynne,  8  Beav.  312 
( 1845 )  ;  McCartney  v.  Simonton,  Ir.  R.  5  Eq. 
594  (1843). 

90.  Baldwin  v.  State,  126  Ind.  24,  25  N.  E. 
820    (1890);    State   v.   Newton,   62    Ind.   517 
(1878);   Tredway  v.  Van  Wagenen,  91  Iowa 
556,  60  X.  W.   130    (1894). 

91.  The  documents  should  be  both  relevant 
and  material. 

California. —  Ex  p.  Zeehandelaar,  71  Cal. 
238,  12  Pac.  259  (1886). 

Kansas.— Davis'  Petition,  38  Kan.  408,  16 
Pac.  790  (1888).  Compare  In  re  Merkle,  40 
Kan.  27,  19  Pac.  401  (1888). 

Montana. —  In  re  MacKnight,  11  Mont.  126, 
27  Pac.  336,  28  Am.  St.  Rep.  451  (1891). 

\ew  lork. —  Matter  of  Leich,  65  N.  Y. 
Supp.  3,  31  Misc.  671  (1900):  Matter  of 
Odell,  19  N.  Y.  St.  259,  6  Dem.  Sur.  344 
(1887). 

Pennsylvania. —  Rauschmeyer  v.  Bank,  2  L. 
T.  (N.  S.)  67  (1880). 

92.  California. —  People    v.    Boscovitch,    20 
Cal.   436    (1862). 

Georgia. —  Hoxie  v.  State,  114  Ga.  19,  39 
S.  E.  944  ( 1901 ) . 

Ohio.—  Dickson  v.  State,  39  Ohio  St.  73 
(1883). 

Texas. —  Cross  v.  State,  1 1  Tex.  App.  84 
(1881). 

Canada. —  Sadlier  v.  Smith,  14  U.  C.  L.  J. 
(X.  S.)  30  (1877). 

93.  Ex  p.   Stice,   70   Cal.   51,    11    Pac.   459 
(1886);    Heard    v.    Pierce,    8    Cush.    338,    54 
Am.  Dec.  757  (1851)  ;  Com.  v.  Roberts,  2  Pa. 
L.  J.  Rep.  340.  4  Pa.  L.  J.  126  (1841). 

94.  1  Chamberlayne,  Evidence,  §§  227,  228. 


o3  EXECUTIVE  FUNCTIONS.  §§  105, 106 

trial,  is  any  attempt  to  corrupt  or  debauch  the  moral  quality  of  justice  itself. 
The  judge  will  be  prompt  to  resent  and  punish  so  grave  an  offense  against 
those  interests  of  society  of  which  he  is  guardian.  Xo  person  whatever  will 
be  permitted  to  assail  in  public  addresses,  or  otherwise,  the  motives  and  char- 
acter of  the  judges  of  courts  in  such  a  manner  as  to  bring  the  administration  of 
justice  into  contempt. '('J  From  this  point  of  view,  a  charge  against  a  judge 
may  be  none  the  less  objectionable  because  it  is  true.90 

Intent  not  Material. —  If  the  effect  of  an  intentional  act  is  to  embarrass  the 
orderly  administration  of  justice,  the  fact  that  the  actor  disclaims  having  had 
any  such  purpose  or  desire  is  not  important.97 

§  105.  [Functions  of  Judicial  Office] ;  Attorneys.98 —  Any  attorney  who  wil- 
fully obstructs  the  course  of  justice,  even  by  a  nonfeasance,"  as  where  he 
.contumaceously  absents  himself  from  court,1  may  be  summarily  treated.  A 
lawyer  who  advises  a  course  which  results  in  contempt  is  himself  guilty  of 
that  offense.2  Indeed,  the  professional  knowledge  of  an  attorney  renders  any 
assault  on  the  integrity  of  justice  especially  heinous.3 

In  general,  where  an  attorney  is  pursuing  in  good  faith  what  he  supposes 
to  be  his  right  in  a  court  of  justice,  he  is  not  guilty  of  contempt  though  he 
falls  into  error  and  violates  rules  of  court  and  statutes  not  penal.  To  consti- 
tute contempt  in  such  a  case,  there  must  be  something  in  the  circumstances 
under  which  the  act  is  done  that  is  disrespectful  to  the  judge  or  a  hindrance  of 
the  administration  of  the  affairs  of  the  court.  The  act  must,  moreover,  be 
done  wilfully  and  for  an  illegitimate  or  improper  purpose.4 

§  106.  [Functions  of  Judicial  Office] ;  Court  Officers.5 —  A  court  will  protect 
officers  and  appointees  exercising  powers  under  it  from  indignities  offered  to 
them  in  the  discharge  of  their  official  duty  by  attacking  them  6  or  by  attempt- 
ing to  bribe  them.7  So  newspaper  attacks  on  grand  jurymen  8  or  attempts  to 

95.  U.  S.  v.  Gehr,  116  Fed    520   (1902).  4.  Hunt  v.   State,  27   Ohio   Cir.   Ct.    R.    16 

96.  Tracy  v.  *tate,  28  Ohio  Cir.  Ct.  R.  453       (1904). 

(1906).  5.  1   Chamberlayne,    Evidence,   §§  230-237. 

97.  Terry  v.  State  <  Nebr.  1906),  110X.  W.  6.  O'Xeal      ( Fla.     1903 1,     125     Fed.     967; 
733;  King  v.  Charlier   .Can.  1903),  Rap.  Jud.  Ex    parte    McLeod,    120    Fed.     130     (1903). 
Que.    12   B.  R.   385  The  highest  consideration  of  the  public  good 

98.  1  Chamberlayne,  Evidence,  §  229.  demands  that  the  courts  protect  their  officers 

99.  Ex  parte  Clark,  208  Mo.  121,  106  S.  W.  against  revenges  induced  in  consequence  of  the 
990   (1907).  performance     of     their    duties,     as    well     as 

1.  In  re  Clark,  126  Mo.  App.  391.  103  S.  W.       against  violence  while  engaged  in  the  actual 
1105    (1907).     The   absence   from   the   court-       discharge  of  such  duties.     Ex  parte  McLeod, 
room  of  an  attorney,   to  the  delay  and  em-       120    Fed     130    (1903). 

barrassment  of   a  trial,   if   it   amounts   to   a  7.  Sinnott   v.    State,    11    Lea,   281     (1883). 

contempt.  See  also  Keppele  v.   Williams,   1   Dall.  29,    1 

2.  People    v.   District    Court    of   Tenth   Ju-  L.  ed    23    (1776)    (pocketing  venire), 
dicial    District,    29    Colo     132.    6S    Pac.    242  8.  Allen  v.   State,   131   Tnd.  599.   30  N.   E. 
(1901).  109.3     (1892):    Fishhack    v.    State,    131    Ind. 

3.  Seastream     v.     Xew    Jersey     Exhibition  304.  30  X.  E.  1088   (1892). 

Co.   (X.  J.  Ch.  1905),  61  A.  1041  Matter  of  Tyler,  64  Cal.  434,   1    Pac.  884 


Jj  107  COURT  AND  JURY;  COURT.  50 

influence  jurymen  by  discussions  about  a  pending  case  °  or  by  attempting  to 
bribe  them  U)  will  be  punished  by  the  court.  Neither  can  a  juryman  be  per- 
mitted to  disqualify  himself  by  expressing  an  opinion  011  a  pending  case.11 
So  where  a  lower  officer  like  a  coroner  seeks  to  deceive  the  court  by  presenting 
a  fictitious  claim  this  is  an  obstruction  to  justice.12 

§  107.  [Functions  of  Judicial  Office] ;  Embarrassing  the  Administration  of 
Justice.13 —  Any  publication  concerning  a  pending  cause  or  regarding  a  matter 
likely  to  become  a  subject  of  judicial  inquiry,  which  in  any  way  tends  to  em- 
barrass u  the  orderly  administration  of  justice  will  be  deemed  an  offense 
against  the  dignity  of  the  court.15  To  charge,  for  example,  the  supreme  court 
of  a  state  and  certain  of  its  judges  with  having  been  influenced  by  corrupt 
motives  in  their  rulings  in  causes  still  pending  for  rehearing,  is  obviously  calcu- 
lated to  bring  justice  into  contempt.16  It  is  not  material,  in  this  connection, 
whether  the  statements  made  are  true  17  or  false;  or  whether,  if  false,  they  were 
by  reason  of  intention  or  inadvertence,18  or  that  the  assault  was  directed  at  the 
members  of  the  court  and  that  the  latter  were  not  affected  by  it.19  The  pro- 
tection is  not  designed  for  the  personnel  of  the  court,  but  for  the  dignity  of 
judicial  administration.  The  existence  of  a  pending  suit  which  the  publication 
may  affect,  while  a  usual  incident  in  the  mischief,  is  not  one  absolutely  essential 
to  liability  for  publication.  The  true  object  of  the  court's  action  is  the  pro- 
tection from  public  assault  of  the  administration  of  justice.  The  following 
distinction  has  properly  been  taken :  Contempts  relating  to  a  pending  cause 
may  either  consist  in  abusing  parties  concerned  in  cases  pending  in  court,  or  in 
prejudicing  mankind  against  persons  before  the  cause  is  heard,  while  con- 

(1884).     See  also  Bergh's  Case,  16  Abb.  Pr.  (1903),  2  K.  B.  432,  89  Law  T.  439,  52  Wkly. 

(N.   S.)    266    (187,)):    In  re  Van   Hook    (N.  Rep.  i,*5,  67  J.  Pac.  421    (1904). 

Y.   1818),  3  City  Hall  Rec.  64.  It  is  not  material,  in  the  matter  of  liabil- 

9.  Baker  v.  State,  82  Ga.  776,  9  S.  E.  743,  ity,  that  the  cause  is  not  pending  nor  to  be 
14  Am.  St    Rep.   192,  4  L.  K.  A.  128   (1889)  ;  tried   at  a   time   then   determined.     But   the 
Drady  v.  Dist.  Court  of   Polk  County    ( Iowa,  circumstance  that  the  matter  was  to  be  heard 
1905).-    102   X.   VV.    115:    In  re  Gorham.    129  judicially  at  a  time  then  unascertained  may 
N    C    481,  40  S.  E.  311    i  1901)  ;  Davidson  v.  be  relevant  upon   the  question   of  a  suitable 
Manlove,  2  Cold.  346   (1865).  punishment  for  the  offense.     Globe  Newspaper 

10.  Hurley  v.  Com.,  188  Mass.  443,  74  N.  E.       Co.    v.    Com.,    188   Mass.   449,    74   N.    E.    682 
677     (19051;    Nichols    v.    Judge    Super     Ct.        (1905). 

(Mich.    1902),    89    N.    \V.    691;    Langdon    v.  15.  Globe  Newspaper  Co.  v.  Com.,  188  Mass. 

Judges  of  Wayne  Cir.  Ct.,   76   Mich    358,  43  449,  74  N.   E    682    (1905);   In  re  Providence 

N.  W.  310   118*89):  Gandy  v.  State,  13  Nebr.  Journal  Co.    (R.    I.    1907),   68   Atl.   428. 

445,   14  N    \V.   143    (1882);    U.  S.  v.  Carroll,  16.  People  v.   News-Times  Pub.   Co.    (Colo. 

147    Fed    947    (1906).  1906),   84    Pac.   912. 

11.  U.   S.  v.   Devaughan,  25  Fed.   Cas.  No.  17.  Hughes  v    Terr.    (Ariz.   1906),  85  Pac. 
14,952,  3  Cranch  C.  C.  84    (1827).  1058;    People  v    News-Times  Pub.  Co.    (Colo. 

12.  Ex  parte  Toepel    (Mich.   1905),  102  N.  1906),  84  Pac.  912. 

W   369,  11  Detroit  Leg   N.  759.  18.  In    re    Providence   Journal    Co.    (R.    I. 

13.  1     Chamberlayne,     Evidence,     §§    238-      1907),  68  Atl.  428. 

244.  19.  People  v.  News-Times  Pub.  Co.    (Colo. 

14.  R.    v.    Parke,    72    Law    J.    K.    B.    839       1906),  84  Pac.  912. 


57  EXECUTIVE  FUNCTIONS.  §  108 

tempts  consisting  of  scandalizing  the  court  itself  need  not  relate  to  a  pending 
suit.20 

So  the  circulation  in  the  conimunijty  of  stories  calculated  to  influence  the 
outcome  of  litigation  21  or  efforts  at  intimidation  22  is  a  grave  indignity  against 
justice.  The  press  has,  however,  a  right  to  publish  a  correct  report  of  judicial 
proceedings.23  The  newspaper  may  be  guilty  of  a  contempt  although  it  is 
published  in  a  different  place  from  that  of  the  trial  if  it  circulates  at  the  place 
of  trial.24 

For  a  litigant  to  seek  by  any  means  to  avoid  the  due  and  lawful  effect  of  the 
process  of  a  court  to  whose  judgment  he  has  become  subject  richly  merits  re- 
buke. Thus,  when  one  court  has  made  an  order  in  a  cause  pending  before  it, 
for  a  party  to  institute  similar  proceedings  in  another  court  in  order  to  pre- 
vent the  enforcement  of  the  prior  order  is  an  insult  to  the  court  first  obtaining 
jurisdiction.25 

§  108.  [Functions  of  Judicial  Office] ;  Service  of  Process.26 —  A  court  will  re- 
quire that  the  due  and  regular  service  of  its  process  should  not  be  impeded, 
delayed  or  obstructed,27  by  those  who  have  notice  of  the  facts.28  Delaying  a 
messenger  of  a  court  will,  therefore,  be  resented  by  the  judge.29  Counseling 
and  advising  disobedience  or  resistance  to  the  commands  of  such  a  writ  is  repre- 
hensible as  an  insult  to  the  cause  of  judicial  administration.3"  Personal  vio- 
lence inflicted  upon  one  who  is  serving  the  process,  because  he  is  doing  so,  is  an 
affront  to  the  court  out  of  which  it  issues.31 

20.  State    v.    Shepherd,    177    Mo.    205,    76  44   L.   K.   A.    159    (1899);    In  re   Sturoc,   48 
b.   W.   79    (1903).  X-  H.  428,  97   Am.  Dec.  626    (1869);   Myers 

21.  Sew  Hampshire  — In  re  Sturoc,  48  N.  v.  State,  46  Ohio  St.  473,  22  X.  E.  43,  15  Am. 
H.   428,   97   Am.   Dec.   626    (1869);    Tenney's  St.  Rep.  638   (1889). 

Case,  23  X.  H.  162    (1851).  25.  Terry  v.  State  (Nebr.  1906),  110  X.  YV. 

\ew  Jersey. —  In   re  Cheeseman,   49   X.   J.  733. 

L.  115,  6  Atl.  513,  60  Am.  St.  Rep.  596  (188(3).  26.  1  Chamberlayne,   Evidence,   §   245. 

tiouth  Dakota. —  State  v.  Edwards,  15  S.  D.  27.  California. —  De    Witt    v.    Fresno    Co. 

383,  89  X.  W.  1011    (1902).  Super.  Ct.,  47  Pac.  871    (1897). 

22.  State  v.  Bee  Pub.  Co.,  60  Xebr.  282,  83  Massachusetts. —  Clark     v.     Parkinson,     10 
N.  \\    204,  50  L.  R.  A.  195   (1900)  ;  Burke  v  Allen   133.  87  Am.  Dec.  628    (1865). 
Territory,  2  Okla.  499,  37   Pac.  829    (.1894)  -.  -Veir   York.—  People  v.  Gilmore,  26  Hun   1 
Mackett   v.    Herne   Bay,    24    \\kly.    Rep.    845  (1881);    Conover    v.    Wood,    5    Abb.    Pr.    84 
(1876).     The  threat   employed   may   U-   that  (1857). 

of  popular  disapproval.     People  v   Wilson.  64  United    States. —  Alberston    v.    The    T.    I. 

111.   195,   16  Am.  Dec.  528    (1872).  Sevius.  4J>  Fed.  927    (1892) 

23.  McClatchy    v.    Sacramento    Co     Super  28.  State  v    District  Court  of  Seventh  Ju- 
Ct ,   119  Cal.  413,  51   Pac.   696,   39   L.   R.  A.  licial  Dist.,  2<»  Mont.  230.  74  Pac.  412  (1903). 
691    (1897).  29.   Ex  p    Page,  1  Rose  1    (1810). 

Stuart  v.  People,  4  111.  395    (1842)  ;   In  re          30.  King  v.  Barnes.  113  X.  Y.  476,  21  X   E. 

Press-Post,   6   Ohio   S.   &    C.    PI.    10,   3   Ohio  182.  415.  23  X.  Y.  St.  263   (1889)    [affirming 

X.   P.    180    (1896).  51   Hun   550.   4   X.   Y.   Suppl.   247.  22   X.   Y. 

24.  State   v.   Judge   Civ    Dist    Ct.,   45   La.  St.    47.    51,   54    (1889)];    In   re   Xoyes,    121 
Ann.   1250,   14  So.  310,  40  Am.  St.   Rep.  282  Fed.  209,  57  C.  C.  A.  445   (1902). 

(1893) -.  Telegram  Xewspaper  Co  v.  Com  .  172          31.   Price   v.    Hutchinson    (Eng.),   L.   R.    9 
Mass.  294,  52  X.  E   445,  70  Am.  St.  Rep.  280,       Eq    534,   18   Wkly.    Rep.   204    (1870). 


§§  109,110          COUET  AND  JURY;  COURT.  58 

§  109.  [Functions  of  Judicial  Office] ;  Witnesses.32 —  The  witnesses  have  a 
right  to  be  protected  against  the  use  of  threatening  language  or  insults  33  or 
against  arrest  34  while  attending  court  or  while  going  to  or  from  the  court  house 
or  against  attempts  at  bribery.35  The  witness  may  himself  be  guilty  of  con- 
tempt by  false  swearing  36  which  is  a  grave  insult  to  the  court.  Other  forms  of 
obstructing  justice  are  by  intimidating  3T  a  witness  or  by  preventing  a  witness 
duly  summoned  from  attending  3S  and  giving  his  testimony  or  by  advising  him 
to  leave  the  jurisdiction  39  or  by  refusing  to  produce  a  clerk 40  or  other  person 
under  his  control. 

§  110.  [Functions  of  Judicial  Office];  Enforcement  of  Contempt  Proceedings.41 
—  As  mentioned  elsewhere,  the  executive  powers  of  the  court  are  most  fre- 
quently ascertained  and  vindicated  upon  proceedings  for  contempt,  so  called. 
The  proceeding  is  a  special  one,  without  direct  connection  with  the  matter  in 
which  it  occurs.42  Xo  court  is  required  ex  debito  justitice  to  find  a  person  in 
contempt  and  award  punishment  for  it.  The  matter  is  one  of  administration. 
Long  delay  in  applying  for  relief  may  furnish  ground  for  declining  to  act.43 
Being  to  ascertain  guilt  and,  if  found,  to  award  punishment  for  it,  the  pro- 
ceeding partakes  of  the  nature  of  a  criminal  trial.44  The  complaint  requires 
equal  particularity  of  statement,45  and  proof  of  guilt  should  be  clear  and  satis- 
factory.40 A  contempt  proceeding  is  summary,  and  the  extent  of  the  hearing 
as  to  questions  of  law  rests  in  the  discretion  of  the  court,  though  one  charged 
with  contempt  has  the  right  to  be  heard  in  his  defense.47 

32.  1  Chamberlayne,  Evidence,  §§  246-252.       Swab. -6  Tr.  517   (1861)  ;  Re  Young,  137  N.  C. 

33.  U.  S.  v.  Carter,  25  Fed.  Cas.  Xo.  14,740,       552,  50  S.  E.  220   (1905). 

3   Cranch    C.   C.   423    (1829);    U.    S.   v.   Em-  38.  Montgomery  v.  Palmer,  100  Mich.  436, 

erson,    25    Fed.    Gas.    No.    15,050,    4    Cranch  59  N.  W.   148    (1894). 

C.  C.  188  (1831)  ;  Welby  v.  Still  (Eng.  1892),  39.  Whittem  v.  State,  36  Ind.  196   (1871)  ; 

66  L.  T.  Rep.    (X.  S.)   523.  In  re   Whetstone,   9    Utah    156,   36   Pac.    633 

34.  Smith   v.    Jones,    76    Me.    138,   49    Am.  (1893). 

Rep.   598    (1884);    State   v.   Buck,   62   N.   H.  40.  Green  v.  Hill,  3  Del.  Ch.  92    (1866). 

670    (1883).     See    also    Butler    v.    People,    2  41.  1  Chamberlayne,    Evidence,   §   253. 

Colo.  295   (1874).  42.  In  re  Depue,  185  X.  Y.  60,  77  X.  E.  798 

35.  U.    S.   v.   Carroll,    14   Fed.   947    (1906:  (1906). 

Fisher   v.   McDaniel,   9    Wyro.   457,   64    Pac.  Therefore,   it   is  no   defense   to   such  pro- 

1056    (1901).  ceedings  that  the  prior  conduct  of  the  main 

36.  Beattie    v.    People,    33    111.    App.    651  action    has    been    irregular.     Christensen    v. 
(1889)  ;  Gibson  v.  Tilton  (Md.  1829),  1  Bland  People,  114  111.  App.  40   (1904). 

3,52,  17  Am.  Dec.  306:  Ricketts  v.  State  (Tenn.  43.  Matheson  v.  Hanna-Schoellkopf  Co.,  122 

1903),  77  S.  W.  1076;  Berkson  v.  People,  154  Fed.   836    (1903). 

111.  81.  39  X.  E.  1079   (1894)  :   Bernheimer  v.  44.  U.  S.  v.  Richards.  1  Alaska  613  (1902). 

Kelleher  (X.  Y.  1900).  31  Misc.  464,  64  X.  Y.  45.  Back  v.  State   ( Xebr.  1906),  106  X.  W. 

Suppl.   409;    In  re   Rosenburg,   90   Wis.   581,  787.     But  a  statute  allowing  for  criminal  ap- 

63   X.  W.   1065,  64  X.  W.  299    (1895)  :In  re  peals  does  not  apply  to  judgments  enforcing 

Fellerman.  149   Fed.  244    (1906):   In  re  Gos-  the  dignity  of   the  court.     State  v.   Peralta, 

lin,   180   X.   Y.   505,   72   X.   E.   1142    (1904);  115  La.  530,  39  So.  550   (1905). 

Seastream  v    Xew  Jersey  Exhibition  Co.    (X.  46.  Wells   v.    Dist.    Court   of   Polk   County 

J.  Ch.   1905).  01    Atl.    1041.  (Iowa  1905),  102  X.  W.   106. 

37.  Shaw  v.  Shaw.  S  Jur.    (X.  S. )    141,  31  47.  State  v.  Xicoll,  40  Wash.  517,  82  Pac. 
L.  J.  P.  M.  35,  6  L.  T.  Rep.    (X.  S.)   477,  2  895    (1905). 


59  EXECUTIVE  FUNCTIONS.  §§  111-113 

§  111.  [Functions  of  Judicial  Office] ;  Civil  and  Criminal  Cases.48 —  Civil  con- 
tempts have  been  defined  as  being  such  contempts  as  affect  a  private  person,  as, 
for  instance,  where  a  party  refuses  to  obey  an  order  of  court  which  will  benefit 
such  private  persons.49 

Criminal  contempts  are  those  which  are  committed  in  presence  of  the  court 
and  disturb  its  administration  of  justice  either  physically  and  directly,  as  by 
disorderly  conduct,  or  morally  and  indirectly  by  bringing  the  administration 
of  justice  into  public  disgrace.  Criminal  contempts  are  all  acts  committed 
against  the  inajesty»of  the  law,  or  against  the  court  as  an  agency  of  the  govern- 
ment, and  in  which,  therefore,  the  whole  people  are  concerned.50 

§  112.  [Functions  of  Judicial  Office];  Direct  and  Constructive.51 — Direct  Con- 
tempts.—  The  administrative  power  and  dignity  of  the  court  necessarily  involve 
the  right  of  punishing  summarily  for  offenses  against  justice  committed  in  the 
immediate  presence  and  hearing  of  the  judge,52  or  so  near  as  to  interrupt  pro- 
ceedings before  him.53  These  are  called  direct  contempts.54  The  judge  needs 
no  evidence ;  he  is  himself,  in  such  cases,  the  percipient  witness ;  55  should 
pleadings  be  deemed  advisable,  they  may  be  of  the  briefest  and  simplest  de- 
scription.50 

Constructive  Contempts. — Constructive  contempts,  on  the  other  hand,  may 
be  defined  as  those  arising  from  matters  not  occurring  in  court,  but  which  tend 
to  degrade  or  make  impotent  the  authority  of  the  judge,  or  which  tend  to 
impede  or  embarrass  the  administration  of  justice.57  In  dealing  with  con- 
tempts not  committed  in  the  presence  of  the  judge,  the  offender  must  be  brought 
before  the  court  by  a  rule  or  some  sufficient  process.58 

§  113.  [Functions  of  Judicial  Office] ;  Constructive  Presence  of  Judge.59 —  The 

court  is  said  to  be  present  wherever  during  its  sessions,  the  judge,  court  officers, 

48.  1  Chamberlayne,  Evidence,  §  254.  in  the  sight  and  hearing  of  the  judge.     Fell- 

49.  State  v.  Shepherd.  177  Mo  205,  76  S.  W.  man  v.  Mercantile  n\  &  M.  Ins.  Co.,   116  La. 
79     (1903)       Contempt    proceedings    in    con-  733,  41  So    53    (1906).     A  court  may  punish 
nection    with    equity    processes    as    for    the  for  a  direct  contempt  without  issue  or  trial 
violation  of  an  injunction  are  civil   in   their  in    any    form.     Burdett    v.    Com.,     103    Va. 
nature  and  a  deposition  may  be  used      David-  838,  48  S.  E.  878   (1904) 

son  v.   Munsey    i  Utah   1905),  80  Pac    743.  Venue. —  In  a  prosecution  for  contempt  in 

50.  State  v    Shepherd,   177   Mo    205,  76  S.  the   presence  of   the  court,  defendant  is   not 
\V.  79    (1903).  entitled    to    a    change    of    venue    because    of 

51.  1   Chamherlayne,   Evidence.   §   255  alleged    prejudice      Connell    v.    State    (Xebr. 

52.  Illinois  —  Ferriman  v.  People,   128   111.  1907  i    114  N.  W.  294. 

App.  230   (1906):  55.  Oordon  v.   State    (Xebr.   1905),   102  X. 

Indiana.—  Mahoney  v  State,  72  X  E.  151  W.  458. 

(1904).  56.  Ferriman  v.  Peple,  128  111.  App.  230 

Kansas.—  State  v.  Anders,  68  Pac.  668  (1906). 

(1902).  57.  O'Xeil  v.  People,  113  111.  App.  195 

53.  Ex  parte  Clark,  208  Mo.  121,  106  S.  W.  (1904). 

990    (  1907.  58.  Burdett  v.  Com.,  103  Va.  838,  48  S.  E. 

54.  The  court  can  punish  for  a  direct  con-       878    (1904). 

tempt    only    where    the    offense    took    place          59.  1  Chamberlayne,   Evidence,  §  256. 


§§  114-116          COURT  AND  JUKY;  COURT.  *    60 

jurors  aud  other  persons  in  attendance  for  the  performance  cf  judicial  or 
ministerial  functions  in  aid  of  judicial  proceedings,  are  present,  engaged  in 
their  respective  duties,  in  the  part  of  the  courthouse  reserved  to  their  use.00 

§  114.  Judge  Sitting  as  a  Jury.01 —  With  exceptions  due  to  differences  in 
intellectual  equipment  and  a  consequent  absence  of  danger  of  being  misled  by 
certain  classes  of  evidence  liable  to  be  overestimated  by  an  untrained  mind,'12 
the  rules  which  govern  the  action  of  a  jury  apply  equally  to  a  judge  sitting 
instead  of  one.  Thus,  a  verdict  will  be  directed  where  but  one  outcome  of  a 
hearing  would  be  rational.03  There  must  be  a  finding  on  'every  material  fact 
alleged  in  the  complaint  and  controverted  by  the  answer  necessary  to  support 
the  judgment  rendered.04  Where  the  evidence  is  uncontradicted,  the  party  is 
entitled  to  definite  and  direct  findings  with  reference  thereto.05 

§  115.  [Judge  Sitting  as  a  Jury] ;  Rulings  of  Law.00 —  While  there  is  a  certain 
appearance  of  incongruity  in  the  spectacle  of  a  judge  solemnly  laying  down 
rules  of  law  to  himself  as  a  jury  to  guide  his  deliberations  as  to  matters  of  fact, 
it  is  within  the  right  of  a  litigant  to  demand  that  he  do  so.07  provided  there  is 
sufficient  evidence  to  render  a  proposition  applicable  to  the  case.08  On  trial 
by  the  court,  a  party  asking  a  ruling  correct  in  law  has  a  right  to  know  whether 
in  deciding  the  case  against  him  the  judge  acted  on  the  rule  of  law  stated.09 
Where  a  decision  rests  on  one  of  two  alternatives,  one  adjudged  under  a  cor- 
rect ruling,  and  the  other  under  an  incorrect  one,  the  decision  cannot  be  sus- 
tained.70" 

§  116.  [Judge  Sitting  as  a  Jury];  Administrative  Questions.71 — Where  the 
judge  is  satisfied  as  to  the  evidence  he  is.  not  obliged  to  listen  to  argument,72 
but  he  may  if  he  wishes  take  a  view.1"  The  court  deals  with  the  weight  of 

60.  1      Com.   v.  Clark,   13   Pa.  Co.   Ct    4.1''  65.  Lackmann  v.  Kearney,  142  Cal.  112,  75 
(1893);    U.    S.    v.    Anonymous,    21    Fed     701        Pat-.  668    (1904). 

(1SS4).     A   claim   to  occupy   a   room   in   the  66.   1   Chamber layne,  Evidence,  §  259. 

courthouse  as  a  matter  of  right,  coupled  with  67.  Murphy    v.    Smith,    112    111     App.    404 

retention  of  possession  cannot  be  deemed  an  (1904):    White   v.   Black.    115   Mo    App.   28, 

insult  to  the  order  of  a  commissioner's  court  90  S.  \V.  1153  (  1905)  ;  E.  E.  Souther  Iron  Co. 

which  requires  the  tenant  to  vacate.     Watson  v.   Laclede  Power  Co.,   109  Mo.  App.  353,  84 

v.   Scarbrough    (Ala.    1'iOfii,  40  So.   672.  S.  VV.  450    (1904). 

See  Ex  part e  Hedden   <  Nev.  1907).  90  Pac.  68.   Hayes  v    Metropolitan  St.   Ry.  Co,  84 

737.  X.  Y.  Suppl   271    (1903). 

61.  1   Chamberlayne,  Evidence.  §  257  69.  -laquith   v    Morrill,   191   Mass.   415,   78 

62.  In  the  trial  of  an  action  by  the  court  X.   E.   93    (1906) 

without  a  jury  there  is  no  necessity  for  the  70.  Jaquith   v    Morrill.    191    Mass.   415,  78 

rigid    insistence   upon    the   rules   of   evidence  X.    K.    93    (1906). 

which  would  otherwise  be  proper.     Shelley  v.  71.   i      Chamherlayne,     Evidence,     §§    264, 

Wescott.  23  App    D.  (..   135    (1904).  265 

63.  Infra,  §§    184  et  seq.  72.  Barnes  v.  Benham,  13  Okl.  582,  75  Pac. 

64.  Bell    v.    Adams     (Cal.    1907) .    90    Pac.  1130    (1904). 

118;    Shuler   v.   Lashhorn,    67    Kan     694,    74  73.   Hatton  v    f!resr<r    (Cal.  App    1906),  88 

Pac.  264  (1903):  Crowley  v.  Crowley,  72  N.  Pac.  592;  Atlantic  &  B  Ry.  Co  v.  City  of 
H.  241,  56  Atl.  190  (1903).  Cordele,  125  Ga.  373,  54  S.  E.  155  (1906); 


61  ADMINISTRATION.  §§  117,  118 

the  evidence  in  the  same  way  that  a  jury  would  deal  with  it 74  and  on  appeal 
the  only  question  is  whether  the  verdict  is  one  which  may  be  justified  in  reason 
from  the  facts  found.75  The  court  should  carefully  distinguish  between  find- 
ings of  fact  and  rulings  of  law  70  to  preserve  the  rights  of  the  parties  on  appeal 
and  the  parties  are  entitled  to  separate  findings  of  fact  and  rulings  of  law  on 
all  material  issues  as  to  which  they  request  such  findings.77 

§  117.  Evidence  as  a  Matter  of  Administration.78 —  In  no  branch  of  judicial 
procedure  is  the  proportion  of  administration  naturally  and  normally  so  great 
as  in  the  law  of  evidence.  In  none  are  the  elements  characteristic  of  adminis- 
tration so  prominent  as  here.  Administration,  for  example,  is  guided  by  sound 
reasoning.  Thus  reason  is  the  controlling  influence  in  the  law  of  evidence. 

//  cannot  be  doubted  that  in  the  law  of  evidence  is  a  large  element  of  posi- 
tive or  substantive  law.  Xor  is  it  questionable  that  a  still  larger  admixture 
of  procedural  rules  having  the  force  of  law  must  be  regarded  as  part  of  it. 
But,  in  a  special  sense,  and  to  an  extent  beyond  that  which  is  true  in  case  of 
other  forms  of  procedure,  the  law  of  evidence  is  a  matter  of  administration. 

§  118.  Stare  Decisis  as  Applied  to  the  Law  of  Evidence.79 —  The  objection  to 
any  proposed  exercise  of  administrative  power,  that  no  case  has  gone  so  far  in 
a  particular  jurisdiction,  may  easily  be  accorded  undue  importance.  The 
motto  of  stare  decisis  is  of  and  should  concern  only  the  substantive  law.  Xo 
question  can  properly  arise  as  to  the  propriety  of  following  precedent  in  pass- 
ing upon  the  substantive  rights  of  the  parties,  including  those  relating  to  estab- 
lished rules  of  procedure  as  distinguished  from  those  of  practice  or  adminis- 
tration. Xothing  but  confusion  could  result,  uncertainty  as  to  all  tenures  of 
property,  were  any  other  course  generally  followed.  But  it  is  otherwise  with 
regard  to  administration.  A  litigant  has,  in  the  nature  of  things,  no  better 
right  to  insist  that  a  particular  course  be  pursued  in  arriving  at  truth  by  the 
use  of  reason  than  he  would  have  that  his  judges  shall  or  shall  not  wear  gowns, 
blatters  of  administration,  rules  of  evidence,  are,  properly  considered,  purely 
utilitarian,  mere  methods  of  doing  something  else.  In  this,  indeed  the  parties 
may  have  rights,  but  not  in  the  method  by  which  it  is  done.  This  is  more 
properly  a  subject  of  direct  judicial  control,  of  rules  of  court,  or  even  the  mere 
establishment  of  a  practice. 

Blending  Substantive  Law  with  Administration. —  But  recognition  of  the 

Bigham   v.  Clubb    (Tex.   Civ.  App    1906),  95  411,    90    App.    Div.    553     (1904):    Pittshurg 

S    W.  675  Stove    &    Range    Co     v.    Pennsylvania    Stove 

74.  Allis  v.  Hall,  76  Conn.  322.  56  Atl.  637  Co.  208  Pa    37.  57  Atl.  77    (1904). 
(1904K  77.  Contaldi  v.  Erriohetti.  79  Conn.  273,  64 

75.  Kenworthy   v.   Mast,    141    Cal.   268,   74  Atl.  211    (1906^:   Wood  v.  Broderson    (Idaho 
Pac    *41    <1903).  1906)    So  Pac.  490:   State  v.  Baird,  13  Idaho 

76.  Mn«elman  v.  Musselman,  140  Cal.  197.  29.  89   Pao.  298    (1907) 

73   Pa.-    <24    '1903):  Kent  v.  Common  Conn-  78.   1   Chamberlayne.    Evidence,   §   266. 

cil     »f   City   of   Binghamton,   86   N.   \.   Supp  79.   1  Chamberlayne.   Evidence.   §   267. 


§  119  COURT  AND  JURY;  COURT.  62 

fact  that  no  legal  right  exists  to  any  particular  exercise  of  an  administrative 
power  apparently  ceases  when  jurisprudence  comes  to  deal  with  the  admissions 
of  evidence  or  rulings  as  to  the  probative  weight  of  particular  inferences.  The 
interbleudiug  of  substantive  la\v  with  the  rules  of  practice  or  administration  is 
apt  to  occur  when  the  significant  ruling  is  made  that  u  evidence  is  admissible  " 
or  "  not  admissible  "  to  prove  a  particular  fact ;  that  it  is  a  *'  presumption  of 
law  "  that  certain  inferences  are  correct;  that  a  jury  "  would  be  justified  ''  in 
finding  from  certain  facts  a  given  result.  Here  this  blending  has  most  fre- 
quently taken  place.  It  has  ended  by  largely  obscuring  the  very  important  and 
essential  principle  of  judicial  administration  on  which  it  originally  rested,  the 
free  hand  of  the  court  in  dealing  with  matters  of  evidence.  For  it  necessarily 
resulted  when  a  proposition  of  substantive  law  was  thus  blended  with  or  made 
to  assume  the  garments  of  a  rule  of  evidence,  that,  whatever  might  be  the  proper 
claim  of  the  litigant  in  the  part  which  was  really  a  rule  of  administration,  he 
undoubtedly  had  legal  rights  in  that  portion  of  the  blended  whole  which  was 
substantive  law.  If  the  two  could  be  separated,  the  legal  rights  might  be  made 
to  attach  to  the  substantive  law  alone. 

§  119.  Recapitulation.80 —  To  recapitulate  this  brief  outline  of  the  judge's 
functions,  it  may  be  said  that  these  powers  are  of  three  general  classes  or  de- 
scriptions: (1)  Judicial  functions  which  specially  concern  the  enforcement 
of  the  rules  of  law,  the  ascertainment  of  the  existence  of  facts  and  the  applica- 
tion of  the  rule  of  law  to  the  facts  so  ascertained ;  (2 )  administrative  powers 
which  concern  the  manner  in  which  the  rules  of  law,  substantive  or  procedural 
or  the  usages  of  practice  are  to  be  conditioned  in  scope  and  operation  by  the 
higher  social  objects  of  litigation;  and,  (3)  executive  and  police  powers  con- 
ferred for  the  purpose  of  enabling  the  judge  to  protect  the  dignity  of  his  office, 
the  public  respect  due  to  it  and  the  purity  of  justice  itself.  It  is  further  to  be 
observed  that  the  essential  and  fundamental  consideration,  so  far  as  relates  to 
the  law  of  evidence,  is  not  as  to  whether  a  rule  of  law  which  controls  the 
action  of  the  judge  is  substantive  or  procedural ;  but  as  to  whether  there  is  a 
rule  on  this  subject,  or  there  is  none,  i.e.,  as  between  law,  on  the  one  hand,  and 
administration  on  the  other.  The  presiding  judge  announces  the  rule  of  sub- 
stantive law  and  applies  it  to  the  facts  or  allows  or  requires  the  jury  to  do  so, 
according  to  their  respective  duties.  The  judge  is  bound  by  and  applies  the 
rules  of  procedural  law  in  the  same  way.  In  exercising  powers  of  admini- 
tration  the' sole  procedural  rule  and  condition  is  that  rruson  must  be  exerci  >•••.. 
other  control  and  direction  being  exerted  by  broad  principle-  or  canons  de- 
signed for  the  doing  of  justice,  which  it  is  the  special  object  of  administration 
to  attain.  In  judging  of  the  reasonableness  of  the  court's  administrative 
action,  the  existence  of  any  custom  or  usage  of  practice  relating;  to  it  or  any 
similar  administrative  questions,  may  properly  be  considered.  It  may  be 

80.  1  Chamberlayne,   Evidence,   §  268. 


63  RECAPITULATION.  §  119 

noted  that  the  executive  or  police  powers  of  the  presiding  judge  are  but  specific 
illustrations  of  his  general  functions  of  administration. 

Applying  these  broad  classifications  to  the  subject  of  the  law  of  evidence, 
it  becomes  clear  that  while  a  large  admixture  of  substantive  law  is  present 
within  its  boundaries,  and  a  still  greater  proportion  of  procedural  rules,  either 
by  statute  or  judicial  legislation,  which  also  have  the  force  of  law,  that,  in 
essence  and  by  necessary  consequence  of  the  objects  which  it  seeks  to  attain 
and  the  variety  of  means  by  which  it  endeavors  to  reach  them,  the  law  of  evi- 
dence is  a  branch  of  judicial  administration.  As  such,  it  is  properly  con- 
trolled, not  by  precedent,  but  by  these  canons  or  principles  to  the  consideration 
of  which  the  inquiry  is  soon  to  advance. 

Before  entering  upon  this  inquiry,  it  seems  appropriate,  however,  to  con- 
sider, in  the  succeeding  chapter,  certain  of  the  procedural  rules  and  adminis- 
trative principles  connected  with  what  is,  so  far  as  the  law  of  evidence  is  con- 
cerned, probably  the  most  dominating  and  characteristic  factor  in  an  English 
trial  at  common  law  —  the  institution  of  the  jury. 


CHAPTER  V. 

COURT  AND  JURY:  JURY. 

The  growth  of  the  jury  system,  120. 

Function  of  the  jury ;  jury  confined  to  the  issue,  121. 

Comment  on  facts,   122. 

English  and  Federal  courts,  123. 
the  American  minority,  124. 
American  majority,  125. 

assumption  of  facts,  126. 

refusal  of  assumptive  instructions,  127. 

uncontroverted  facts,  128. 

weight  and  credibility,  129. 

when  comment  is  permitted,  130. 

customary  cautions,  131. 
Subordination  of  judge  to  jury,  132. 

Granting  of  new  trials;  verdicts  against  reason  or  weight  of  evidence,  133. 
action  of  appellate  courts;  palpable  confusion,  134. 
technical  errors  as  to  evidence,  135. 
substantive  law,  136. 
English  rule;  harmless  error,  137. 
American  majority,  138. 
Federal  courts,  139. 
criminal  cases,  140. 
a  purely  voluntary  situation,  141. 
futile  legislation,  142. 
technical  inerrancy  required,  143. 
American  minority,  144. 

prejudice  from  error,  145. 
Taking  jury's  opinion,  146. 

§  120.  The  Growth  of  the  Jury  System.1—  The  modern  jury  system  is  a  his- 
torical outgrowth  of  certain  early  crude  forms  of  procedure  which  were  not 
really  trials  at  all  but  tests  through  which  the  party  went  to  prove  his  claim 
to  facts  which  had  nothing  to  do  with  the  test  itself.  There  was  for  example 
the  irinl  bij  witnesses,  which  was  a  proceeding  in  which  the  party  produced 
witnesses  or  backers,  called  secta.  Another  form  was  proof  by  bargain  wit- 
nesses who  were  persons  selected  in  advance  to  prove  the  nature  of  a  con- 
templated transaction. 

1.  1  Chamberlayne,  Evidence,  §§  269-274. 

64 


65  HISTORY  OF  JURY.  §§  121,  122 

Another  mode  of  trial  was  wager  of  law  or  com  purgation  where  the  proof 
was  also  entirely  one-sided  and  the  party  produced  certain  backers  who  swore 
that  his  oath  was  a  true  one.  These  were  both  forms  of  trial  by  ordeal  which 
flourished  until  the  thirteenth  century  and  consisted  in  suitors  undergoing 
certain  forms  of  torture  to  prove  their  case.  Tria  by  battle  was  introduced 
bv  the  Normans  and  consisted  in  a  physical  contest  by  the  suitors  themselves 
or  by  their  champions. 

The  institution  of  the  jury  itself  came  gradually  and  at  first  through 
leaving  to  the  freemen  of  the  district  a  disputed  question  and  depending  on 
their  common  knowledge  of  the  facts.  One  form  of  this  procedure  was 
known  as  the  Frankish  Inquisition  where  the  judges  summoned  those  who 
were  likely  to  know  about  a  matter  in  controversy  to  tell  what  they  knew. 
The  next  step  was  giving  a  suitor  the  absolute  right  to  demand  a  trial  by 
inquisition,  or  "  assize  "  as  it  was  popularly  called.  One  of  the  difficulties 
of  the  jury  system  was  that  for  a  long  time  the  accused  or  defendant  could 
not  be  forced  to  submit  to  trial  by  jury,  and  various  expedients  including 
torture  were  employed  to  force  such  submission.  The  first  form  of  the 
assize  was  known  as  the  grand  assize  selected  from  among  the  knights 
with  great  formality  and  these  were  supplemented  for  certain  purposes  by  the 
Petty  Assize  composed  of  freemen  who  knew  the  facts  in  controversy. 

The  final  stage  in  the  development  of  the  jury  is  the  introduction  of  wit- 
nesses and  allowing  the  jury  to  make  findings  based  on  their  statements.  This 
introduces  the  real  modern  function  of  the  jury  which  is  to  ascertain  the  facts, 
and  the  great  difference  between  the  ancient  and  modern  juryman  sufficiently 
appears  in  the  fact  that  the  modern  juryman  is  disqualified  if  he  has  any 
relations  with  the  parties  which  might  influence  his  judgment.2 

§  121.  Function  of  the  Jury;  Jury  Confined  to  the  Issue.3 — "  This  function  of 
ascertainment  is  one  which  the  jury  is  well  adapted  to  discharge;  and  a  very 
useful  contribution  to  the  administration  of  justice  is  thus  effected  by  the 
introduction  of  the  average  common  sense,  experience  and  standards  of  con- 
duet  prevalent  in  the  community  for  the  purpose  of  determining  what  is  the 
truth  regarding  disputed  matters  of  fact  with  which  the  jurors  are  familiar. 

§  122.  Comment  on  Facts.4 —  A  difference  of  judicial  opinion  and  practice 
exists  as  to  whether  the  court,  in  discharge  of  its  duty  to  promote  the  attain- 
ment of  substantial  justice,  is  at  liberty  while  recognizing  the  right  of  the 
jury  to  judge  as  to  the  truth  of  the  facts,  including  the  credibility  of  witnesses 
and  the  general  weight  of  evidence,  to  endeavor  to  assist  them  by  his  com- 
ments in  these  and  other  particulars.  In  the  normal  and  typical  discharge 
of  the  jury's  function  of  ascertaining  truth,  it  would  have  the  benefit  of  the 

2.  Hufnagle  v.  Delaware  &  H.  Co.,  227  Pa.  3.  1  Chamberlayne,  Evidence,  §  275. 
476,  76  Atl.  205.  40  L.  R.  A.  (N.  S.)  982  4.  1  Chamberlayne,  Evidence,  §  276. 
(1910)  (employee  of  litigant  disqualified). 


§§  123-125  COURT  AND  JUKY:  JURY  66 

suggestions  and  comments  of  the  court,  which  while  not  affecting  their  auton- 
omy and  independence  of  action,  furnished  them  help  from  a  trained  and  dis- 
interested mind,  controlled  by  the  wider  social  interests  of  litigation  and 
enriched  by  long  professional  experience  in  dealing  with  questions  which  the 
jury  are  usually  approaching  for  the  first  time.  Such  was  trial  by  judge 
and  jury  at  common  law. 

§  123.  [Comment  on  Facts] ;  English  and  Federal  Courts.5 —  The  common  law 
relation  of  judge  and  jury  in  this  particular  continues  to  be  the  practice 
of  the  English  judges,  a  fact  which  assists  largely  to  account  for  the  very 
satisfactory  efficiency  of  the  system  of  jurisprudence  over  which  they  pre- 
side. 

Federal  Courts. —  Such  also  is  and  for  many  years  has  been  the  practice  of 
the  judges  of  the  Federal  courts  of  the  American  Union.6  In  these  courts  the 
judge  is  permitted  to  comment  on  the  weight  of  the  evidence,7  provided  the 
jury  be  distinctly  and  cogently  informed  that  it  is  mere  advice  and  sugges- 
tion which  they  are  entitled  to  disregard. 

§  124.  [Comment  on  Facts] ;  The  American  Minority.8 —  The  Federal  courts 
do  not  stand  entirely  alone  among  the  tribunals  of  America  in  preserving 
the  common  law  landmarks  as  to  the  respective  provinces  of  court  and  jury, 
but  the  English  and  Federal  rule  is  still  followed  in  some  form  in  Connecti- 
cut,9 Minnesota,10  and  in  Pennsylvania.11 

§  125.  [Comment  on  Facts] ;  American  Majority.12 —  The  great  majority  of 
the  American  states  have  in  their  constitutions  and  statutory  legislation  turned 
"  trial  by  judge  and  jury  "  as  it  existed  at  common  law  into  "  trial  by  jury  " 
a  very  anomalous  and  modern  type  of  judicial  procedure.  In  this  conception 
of  the  proper  position  of  a  presiding  jiidcre,  his  duty  is  merely  to  preserve 
order  in  the  courtroom,  rule  as  requested  upon  sufficient  points  of  evidence 
or  substantive  law  to  enable  the  defeated  party  to  take  an  appeal  to  a  higher 
court ;  and,  having  done  this,  simply  turn  the  case  over  to  the  joint  control 
of  counsel  acting  as  masters  of  ceremony  and  of  the  jury  sitting  as  arbitrators 
between  the  litigants.13 

In  pursuance  of  the  line  of  thought  above  referred  to  as  dominating  a  major- 
ity of  American  courts,  a  judge  is  forbidden  to  comment  upon  the  facts  of 

5.  1   Chamberlayne,  Evidence,  §  277.  9.  Sackett    v.    Carroll,    80    Conn.    374,    68 

6.  Simmons  v.  United  States,  142  U.  S.  148,       Atl.  442    (1908). 

155     (1891):    U.    S.    v.    Hall,    44    Fed.    864  10.   Ronness  v.   Felsin<r,  97  Minn.  227,   106 

(1890):  Lovejoy  v.  U    S.  128  U.  S.  171.  173,  N.   \V.  909    (190f>).  . 

8   Sup.   Ct.   R.   77    (1888);    United   States  v.  11.  Sperry   v.   Seidel,   218    Pa.    Ifi,   66   Atl. 

Philadelphia,  etc.,  Co..  123  U.  S.  T13   (1887).  853    (1907). 

7.  Vicksburff  R.  Co.  v.  Putnam,   118  U.  S.  12.  1   Chamberlayne,   Evidence,   §   281. 
545,  553,  7  Sup.  1    (1886).  13.  Illinois.—  Frame  v.  Badger,  79  111.  441 

8.  1  Chamberlayne,  Evidence,  §§  278-280.  (1875). 


67  COMMENT  ON  FACTS.  §§  126-128 

any  given  case  in  instructing  or  otherwise  addressing  the  jury,14  or  even  in 
their  hearing  intimating  the  opinion  he  hajs  formed  from  the  evidence;  and 
a  caution  to  disregard  this  observation,  addressed  directly  to  the  jury,  may 
weli  be  regarded  as  ineffective  for  the  purpose.15  The  error  is  rendered  the 
more  prejudicial  where  a  judge  incorrectly  states  to  the  jury  that  there  is  no 
evidence  to  a  given  effect  ;16  or  assumes  that  there  is  evidence  of  a  particu- 
lar fact  where  in  reality  there  is  none.17 

§  126.  [Comment  on  Facts] ;  Assumption  of  Facts.18 —  The  judge  will  not 
give  expression  to  any  idea  which  could  only  exist  properly  in  his  mind 
if  the  truth  of  a  controverted  fact  were  proved  or  disapproved.19  In  like  man- 
ner, a  judge  cannot  assume  that  evidence  has  been  introduced  which  has 
not,  in  fact,  been  received;20  nor  that  there  is  no  other  evidence  on  a  given 
point.21 

§  127.  [Comment  on  Facts] ;  Refusal  of  Assumptive  Instructions.22 —  It  fol- 
lows that  the  judge  will  not  give  a  charge  at  the  request  of  counsel  which 
presents  the  feature  of  assuming  the  existence  or  nonexistence  of  certain 
facts.23 

§  128.  [Comment  on  Facts] ;  Uncontroverted  Facts.24 —  The  administrative 
reason  why  a  judge  is  not  at  liberty  to  instruct  the  jury  on  the  basis  of  an 
assumption  of  the  existence  of  a  disputed  fact,  is  that  so  doing  implies  an 
intimation  to  the  jury  as  to  what  effect  the  evidence  on  that  point  has  had 

14.  Loveman  v.   Birmingham  Ry..  L.  &  P.      Consol.  Ry.  Co.  v.  Gregory,  122  111.  App.  607 
Co.    (Ala.    1907),    43    So.    411;    Indianapolis        (1905). 

Traction    &    Terminal    Co.    v.    Richer     (Tnd.  20.  Brazis   v.    St.    Louis   Transit   Co.,    102 

App.    1907),   80   X.   E.    170;    Rubinovitch   v.  Mo.  App    224,  76  S.  W.  708   (1903). 

Boston  Elevated  Ry.  Co.   (Mass    1906).  77  N.  21.   Duncan   v.    St.    Louis   &  S.    F.    R.   Co. 

E.   895;    Corrigan   v.   Funk,   96   N.   Y.    Supp.  (Ala.    1907),   44    So.    418.     This   prohibition 

910,    109    App.    Div.    846     (1905)  ;    Keen    v.  extends  to  an  announcement  that  there  is  no 

Keen,  90  Pac.   147,   10  L.  R.  A.    (N.  S.)    504  evidence  on  a  given  point.     Patten  v.  Town 

(1907).  of  Auburn.  41  Wash.  644,  84  Pac.  594  (1906). 

15.  Davis  v.  Dregne  (Wis.  1903),  97  X.  W.  22.   1  Chamberlayne,  Evidence,  §§  283,  284. 
512.  23.  Western  Coal   &   Mining  Co.  v.   Burns, 

16.  Rose  v.  Kansas  City,  125  Mo.  App   231,  84    Ark.    74,    104    S.    W.     (1907);    Kelley   v. 
102  S.  W.  578    (1907)  ;  McLaughlin  v    Syra-  Town  of  Torrington.  80  Conn.  378,  68  Atl.  855 
cuse     Hapid    Transit    Ry.     Co.,     115     X.    Y.  (1908);    Lewter  v.   Tomlinson,   54   Fla.   215, 
App.  Dh.  774,   101  X.   1.  Suppl.   196   (1906)  44     So.     935     (1907):     Xorthern    Ohio     Ry. 
Statement  of  an  obvious  and  uncontroverted  Co.    v.    Rigby,    69    Ohio    St.    184,    68    X.    E. 
inference  carries  no  prejudice.     Webb  v.   At-  1046     (1903).     Requests    intimating    to    the 
lantic  Coast  Line  R.  Co..  76  S.  C.  193.  56  S.  jury    the    inference    to    be    drawn    from    the 
E.  954,  9  L.  j?.  A     (XT.  S.)    1218    (1907).  facts  therein  carefully  set   out  in  detail   are 

17.  Steltemeier    v     Barrett,    115   Mo     App.  properly    refused      Insurance    Co.    of    Xorth 
";>3.  91  S.  W.  56   (1905):  Texas  &  Louisiana  America    v,    Leader.    121    Ga.   260.    48    S.    E. 
Lumber  Co.   v.   Rose    (Tex.  Civ.   App.   1907),  972    (1904):    Picard   v.   Beers    (Mass.    1907), 
I -13  S.  W.  444.  81    X*.  E.  246:    Weaver  v.   Southern  Ry.  Co., 

18.  1    Chamberlayne.  Evidence.  §  282.  76  S.  C.  49.  56  S.  E.  657    (1907). 

19.  Atlantic    &    R.    Ry.    Co.    v.    Hattaway,  24.  1  Chamberlayne,  Evidence,   §  284. 
126  Ga    333,  .V>  S    ,;    21    (1906);   Springfield 


§§  129,130  COURT  AND  JURY:  JURY  68 

on  his  mind.  This  makes  such  an  instruction  a  comment  upon  the  evidence 
within  the  prohibition  of  the  substantive  or  procedural  law  in  the  majority 
of  the  American  states.25  An  instruction,  however,  may  properly  assume 
the  existence  of  facts  where  the  evidence  with  respect  to  them  is  conclusive 
and  uncontroverted.20  The  same  result  follows  where  a  fact  is  admitted.27 
The  court  may  even  legitimately  assume  that  a  fact  exists  where  it  has  been 
proved  beyond  the  range  of  controversy.28 

The  elements  of  damage  universally  recognized  by  the  courts  may  be  stated 
where  the  fact  'of  injury  is  not  disputed.-9  It  is.  however,  prejudicial 
error  for  the  court,  in  a  personal  injury  action,  to  state  to  the  jury,  in  his 
charge,  his  calculation  of  the  amount  of  damages  sustained  by  plaintiff  by 
loss  of  employment.30 

§  129.  [Comment  on  Facts] ;  Weight  and  Credibility.31 —  The  judge  will  not 
in  these  jurisdictions,  be  permitted  to  give  the  jury  his  impression  as  to  the 
probative  force  of  the  testimony  given  by  a  witness,  or  any  set  of  witnesses,32 
the  probability  of  their  story  :5:!  or  the  general  weight  of  the  evidence,3"4  includ- 
ing the  credibility  of  those  who  testify.35  He  cannot  intimate  to  the  jury 
as  to  what  inference  he  draws  from  the  evidence  as  to  the  truth  of  any  issue 
in  the  case.36  Nor  can  he  express,  directly  or  indirectly,  his  views  as  to  the 
good  faith  of  the  parties.37 

§  130.  [Comment  on  Facts] ;  When  Comment  is  Permitted.38 —  Practical  con- 
venience has  established  certain  limitations  upon  the  scope  of  the  administra- 
tive or  procedural  rule  which  forbids,  in  a  majority  of  American  jurisdic- 
tions, a  judge  to  comment  on  the  evidence.  He  must,  at  least,  hold  the 

25.  North   Georgia  Milling  Co.   v.  Bender-  77  Conn.  4lil,  59  Atl.   499    (1904);   Belt  Ry. 
son  Elevator  Co.,   130  Ga.   113,  60  S.  E.  258  Co.  of  Chicago  v.  Confrey,   Ill    111.  App.  473 
(1008).  (1903):    Hayes  v.  Moulton    (Mass    1907),  80 

26.  W.  A.  Greer  &  Co.   v.  Raney,   120  Ga.  X    E.  215;  hnboden  v.  Imboden's  Estate  (Mo. 
290,  47  S.  E.  939   (1904)  :  Holton  v.  Cochran,  App.   1905),   *6   S.   VV.  263. 

208  Mo.  314,  106  S.  W.  1035  (1907):  Lowns-  34.  A  orth  Carolina.— Hancock  v.  West- 
dale  v.  Gray's  Harbor  Boom  Co.,  36  Wash.  ern  Union  Tel.  Co,  142  N.  C.  163,  55  S.  E.  82 
198,  78  Pao.  904  (1904).  (1906). 

27.  Shults  v.  Shults,  229  111.  420,  82  N.  E.  South     Carolina.—  McGrath     v      Piedmont 
312    (1907).  Mut.  Ins.  Co.,  74  S.  C.  69,  54  S.  E.  218  (1906). 

28.  Shafer  v    Russell   (Utah  1905),  70  Pac.  35.  Lingle  v.  Scranton  Ry.  Co.,  214  Pa.  500, 
559:    Halverson    v     Seattle    Electric    Co,    35  63  Atl.  890    (1906). 

Wash.  600,  77  Pac    1058    (1904).  36.   Douglas    v     Metropolitan    St.    Ry.    Co., 

29.  Illinois   Cent,    R.    Co.   v.    Prickett,   210  119  X.   Y.   App.   Div.   203,   104   X.   Y.   Suppl. 
111.' 140,   71    X.   E.   435    (1904):    Jennings  v.  452    (1907):    Ruffin   v.   Atlantic   &   N.   C.   R. 
Edgefield  Mfg.  Co.r  72  S.  C.  411,  52  S.  E.  113  Co.,  142  X    C.  120,  55  S.  E.  86  (1906)  ;  Louis- 
(1905).  ville  &  X.  R.  Co.  v.  Bohan,  116  Tenn.  271,  94 

30.  Heller  v   Donellan.  90  N.  Y.  Suppl.  352,  S.  W.  84    (1906). 

45  Misc.   Rep.  355    (1904).  37.  Rondinella    v.    Metropolitan    Life    Ins. 

31.  1   Chamberlayne   Evidence,  §  285.  Co.,   24   Pa.   Super.   Ct.  293    (1904);   Rich  v. 

32.  Lingle  v.  Scranton  Ry.  Co.,  214  Pa.  500,  Victoria   Copper   Min.   Co.,    147   Fed.   380,   77 
63  Atl.  890  (1906).  C.  C.  A.  558    (1906). 

33.  Xorman  Printers'  Supply  Co.  v.  Ford,  38.  1  Chamberlayne,   Evidence,   §   286. 


69  COMMENT  ON  FACTS.  §  131 

scales  and  tell  the  jury  how  to  strike  a  balance  and  recognize  one  when 
struck.  While  the  judge  is  restrained  from  intimating  to  the  jury  an  idea 
of  how,  were  he  a  juryman,  he  would  apply  the  reasoning  faculty  to  the 
evidence  or  the  law  to  the  facts,  no  objection  exists  to  his  leading  the  jury 
up  to  their  task  of  logical  or  legal  reasoning  and  suggesting  its  nature  to 
them.39 

§  131.  [Comment  on  Facts] ;  Customary  Cautions.40 —  While,  as  is  said  else- 
where 40a  a  presiding  judge  is  restrained'  in  a  majority  of  American  state 
jurisdictions  from  commenting  on  the  weight  of  the  evidence  in  the  case 
on  trial  or  as  to  the  credibility  of  the  witnesses  by  which  it  is  given,  it  would 
be  an  error  to  conclude  that,  even  in  these  states,  judges  are  absolutely  pre- 
vented from  commenting  upon  the  evidence. 

General  cautions  as  to  the  relative  probative  weight  to  be  given  oral  admis- 
sions would  seem  legitimate,  and  even,  occasionally,  necessary.  So,  where 
an  instruction  as  to  the  relative  probative  value  of  admissions  as  contrasted 
with  that  of  self-serving  statements  by  a  party  as  a  witness  would  amount 
to  a  comment  on  the  evidence,  it  is  to  be  refused.41 

A  judge  also  may  properly  caution  a  jury  against  one  whom  they  shall 
find  has  willfully  attempted  to  deceive  them.42  In  instructing  a  jury  it  is 
not  objectionable  to  inform  the  jury  that  testimony  concerning  verbal  state- 
ments of  others  should  be  received  with  great  caution ;  that  the  repetition 
of  oral  statements  is  subject  to  imperfection  and  mistake;  that  such  kind  of 
testimony  should  be  scanned  closely;  and  that,  where  a  witness  can  only 
give  what  he  thinks  was  the  substance  of  what  was  said,  the  weight  to  be 
given  to  such  testimony  depends  largely  upon  the  strength  of  memory 
and  intelligence  of  the  witness.  This  does  not  invade  the  province  of  the 
jurv.43 

The  court  may  properly  instruct  the  jury  as  to  the  mental  attitude  in  which 
properly  to  approach  the  consideration  of  "  expert "  evidence  44  or  the  infer- 
ence of  observers,45  or  of  the  misleading  nature  of  photographs  in  estimating 
distance 46  or  the  court  may  instruct  that  positive  testimony  is  more  to  be 
believed  than  negative  if  the  qualification  is  added  that  the  witnesses  are  of 
equal  credibility.47  The  court  may  also  comment  on  the  probative  force  of 

39.  Central  of  Georgia  Ey.   Co.  v.  Harper,          44.  Infra,  §§  808  et  seq. 

124  Ga.  836,  53  S.  £.  391    (1906).  45.  Ellis  v.  Republic  Oil  Co.    (Iowa   1906), 

40.  1  Chamberlayne,  Evidence,  §  287.  110  X.  W.  20. 

40a.  Supra,  §  125.  46.  McLean  v.  Erie  R.  Co.   (X.  J.  1904),  57 

41.  2  Brown  v.  Quincy,  0..  etc..  R    Co.,  127       Atl.  1132. 

Mo.  App.  614,  106  S.  W.  551    (1908).  47.  Southern  Ry.   Co.  v.  O'Bryan,   119  Ga. 

42.  Sanders  v.   Davis    (Ala.    1907),   44   So.  147,  45  S.  E.  1000  (1903)  ;  Central  of  Georgia 
979;    Alabama    Steel   &    Wire   Co.    v.    Griffin  Ry.  Co.  v.  Sowell,  3  Ga.  App.   142,  59  S.  E. 
(Ala.   1907),  42  So.  1034.  323    (1907);    Cleveland,   C.,   etc.,   Ry.   Co.   v. 

43.  Pumorlo  v.  City  of  Merrill  (Wis.  1905).  Schneider,    40   Tad.    App.    38,    82    X.    E.   538 
103  N.  W.  464.  (1907). 


§  132  COURT  ANT>  JURY:  JURY  70 

various  witnesses 48  as  on  their  experience 49  or  probable  bias 50  or  on  the 
weight  to  be  attached  to  the  relative  numbers  of  witnesses  on  each  side.51  He 
may  also  explain  to  them  the  relative  value  of  written  and  oral  evidence  52  and 
may  point  out  to  them  the  issues  °3  without  singling  out  or  unduly  emphasizing 
the  contentions  of  either  side.54  He  may  also  use  such  illustrations  as  serve 
to  explain  the  evidence  55  and  explain  the  meaning  of  scientific  or  legal  terms  56 
or  may  properly  correct  a  mistake  of  counsel  or  any  other  person  in  stating 
the  evidence.57 

§  132.  Subordination  of  Judge  to  Jury.58 —  The  American  tendency  to  sub- 
ordinate the  power  and  prestige  of  the  judge  to  the  supremacy  of  the  jury, 
by  clothing  them  with  power  to  apply  the  law  to  the  facts,  without  comment 
by  the  court  as  to  the  facts ;  and  to  exercise  other  powers  of  judicial  adminis- 
tration, seems  of  extremely  doubtful  value  to  the  cause  of  jurisprudence,  not 
only  on  account  of  the  bulk  of  the  tribunal  from  which  unanimous  action 
is  expected  but  for  various  other  reasons  among  which  are  (1)  The  fact  that 
the  mental  operations  of  a  jury  are  largely  guided  by  emotion  while  those 
of  the  judge  are  dominated  by  reason;  (2)  That  while  the  jury  have  special 
experience  of  life  in  general,  the  judge  has  a  valuable  technical  knowledge 
of  the  psychology  of  the  courtroom  which  would  materially  assist  the  correction 
of  the  jury's  action ;  and,  in  view  of  the  judge's  right  to  set  aside  a  verdict  if, 
in  his  opinion,  unreasonable  or  against  the  weight  of  the  evidence,  helpful 
also  in  procuring  a  speedy  termination  of  litigation;  (3)  That  the  jury,  as 
a  general  rule,  adopt  the  personal  interests  of  litigation,  as  the  basis  of  their 
action,  while  the  judge  represents  the  higher  and  more  valuable  interests  of 
society  in  the  efficient,  correct  and  speedy  attainment  of  justice  through  the 
administration  of  law. 

Yet  the  time  is  certain  to  arrive  when  the  jurisprudence  of  America  will 
stop  long  enough  to  take  a  full  look  over  its  shoulder  for  the  purpose  of  deter- 
mining whether  the  danger  from  which  it  is  so  persistently  running  away  is 

48.  Strickler  v.  Gitchel,  14  Okl.  523,  78  Pac.  357    (1906);    Johnson   County   Sav.   Bank  v. 
94    (1904).  Walker,  7!>  Conn.  348.  Go  Atl.  132   (1906). 

49.  Indianapolis  Northern  Traction   Co.  v.  53.  McChire  v.  Lenz    (Ind.  App.   1907),  80 
Dunn   (Ind.  App.  1905),  76  X.  R.  269.  X.  E.  988. 

50.  Kirkpatriok    v.    Allemannia     Fire    Ins.  54.  Jones  &.  Adams  Co.  v.  George,  227   Til. 
Co.,  92  X.   V.  Supp.  466.   102   App.  Div.   327  64,  SI   N*.  E.  4  (1907)   [rerersinri  125  111.  App. 
(1905)  :  Kavanaugh  v.  City  of  Wausau  (Wis.  *503   (1906)]:  Oalvert  Bank  v.  J.  Katz  &  Co., 
1904),   98   X.   W.   550;    Strasser   v.   Goldberg  61  Atl.  411   (1905)  ;  Morrell  v.  Lawrence,  203 
(\Vis.   1 904  I,  98  X.  W.  554.  Mo.   363,   101   S.  W.  571    (1907);    Galveston, 

51.  Kozlowski  v.  City  of  Chicago,   113  111.  etc.,  Ry.  Co.  v.  Wallis   (Tex.  Civ.  App.  1907), 
App.    513    (1904):    Hammond,    etc..    Klectric  104  S*.  W.  418. 

Ry     Co.    v.    Antonia     (Ind.    App.    1908).    83  55.  Feddeck  v.  St.  Louis  Car  Co.,  125  Mo. 

X.    E.    766.     See    W.    H.    Stubbing*    Co.    v.  App.  24,  102  S.  W.  675   (19071. 
World's   Columbian    Exposition   Co.,    110    111.  56.  Union  Traction  Co.  v.  Bick   (Tnd.  App. 

App.  210  (1903)  ;  Indianapolis  St.  Ry.  Co.  v.  1907),  81   X.  E.  617   ("car  plant"). 
Schomberg    (Ind.  App.   1904),  71   X.   E.  237.  57.  State  v.  Lane  (Or.  1906),  84  Pac.  804. 

52.  Lee  v.  Williams,  30  Pa.  Super.  Ct.  349,          58.  1  Chamberlayne,  E\'idence,  §§  300-306: 


71  STEW  TRIALS.  §§  133, 134 

a  real  one  or  a  memory  to  which  no  present  reality  corresponds;  to  decide 
calmly  whether  a  judge  elected  under  universal  suffrage  by  a  popular  vote  at 
short  intervals  presents  the  same  danger  to  popular  liberty  that  was  threat- 
ened by  Mr.  Justice  Buller  or  the  Court  of  High  Commission;  and  whether 
society  has  not  a  vital  interest  under,  above  and  beyond  the  interest  of  the 
litigants  themselves  that  law  should  be  speedily  and  justly  administered. 

§  133.  Granting  of  New  Trials;  Verdicts  Against  Reason  or  Weight  of  Evi- 
dence.59—  Normally  and  properly,  the  presiding  judge  should  set  aside  a  verdict 
rendered  in  a  trial  before  him  where  he  finds  that  the  jury  have  failed  to  exer- 
cise the  reasoning  faculty,  where  their  verdict  cannot  be  defended  as  the  act  of 
rational  men.60  Trial  courts  have  been  sustained  in  going  further  and  set- 
ting aside  verdicts  as  against  the  weight  of  the  evidence,  because  the  testimony 
and  other  proofs,  while  they  might  justify,  in  point  of  reason,  the  verdict 
of  the  jury,  would,  in  the  opinion  of  the  presiding  judge,  with  greater  reason, 
have  warranted  the  opposite  conclusion.61 

A  judge  may,  indeed,  be  justified  in  allowing  a  verdict  to  stand  though  he 
himself  would  not  have  reached  it  on  the  evidence.62 

In  an  appellate  court  the  question  of  the  propriety  of  the  trial  judge's  action 
commonly  assumes  not  the  form  of  asking  whether  the  verdict  of  the  jury 
can  be  sustained,  in  point  of  reason,  which  was  the  question  presented  to  the 
trial  judge;  but  takes  the  form  of  asking;  Can  the  action  of  the  trial  judge 
be  sustained  in  point  of  reason  ? 63  This  seems  entirely  correct,  as  a  mat- 
ter of  principle.  The  question  is,  in  reality,  one  of  law.64  The  appellate 
court,  not  having  heard  the  evidence  or  seen  the  witnesses,  will  not  reverse 
the  action  of  the  trial  judge  if  there  is  evidence  on  which  it  can  reasonably  be 
sustained.65 

§  134.  [Granting  of  New  Trials] ;  Palpable  Confusion.66 —  The  effort  to  recon- 
cile these  antagonistic  conceptions,  that  of  a  jury  whose  finding  is  conclusive 
as  to  matters  of  fact,  and  to  whose  wisdom  a  very  marked  deference  is  cou- 

59.  1  Chamberlayne.  Evidence.  §§  307-310.       Ulman  v.  Clark,  100  Fed.  1S3   (1900).     "The 

60.  Birdseye's  Appeal,  77  Conn.  623  (1905).       maxim  at  present  adopted  [is]  this,  that   (in 
The  court  may  always  disregard  evidence      all   oases   of  moment)    where   justice   is   not 

which    is    contrary    to    recognized    scientific  done   upon    one    trial,    the    injured    party    is 

principles.     So   the   appellate   court   may   re-  entitled  to  another."     1  Black.  Comm.  387. 

verse   a   verdict    for   the   plaintiff   where   the  62.  Reeve     v.     Dennett.      137     Mass.     315 

only    evidence    of    negligence    was    that    the  (1884):   Dickerson  v.   Payne,  06  X.' J    L.  35 

defendant  turned  the  water  into  its  pipes  and  (1001)  :   McCord   v.   R    R.  Co.,   134  N.   C.  53 

the    plaintiff's    faucet    was    found    open    as  (1903). 

it    is    clear   that    the   water    could    not    have  63.  Bishop  v.  Perkins.  19  Conn.  300  ( 1848)  ; 

turned    the   faucet   which   was   of   the   screw  Capital  and  Counties  Bank  v.  Henty,  7  App. 

variety.     Louisville  Water  Co.  v.  Lally.   168  Cas.   770    (1882). 

Ky.  348,  182  S.  W.  186,  L.  R.  A.  1916.  D  300  64.   Infra.   §    188. 

(1916).  65.  Ruffner  v   Hill.  31    u     Va.  428   (1888). 

61.  Ureen   v.    Soule,    145    Cal.    96    (1904);  66.  1  Chamberlayne.  Evidence,  §§  311,312. 
Coal,  etc.  Co.  v    Stoop.  56  Kan.  426   H896)  ; 


§§  135-137          COUET  AND  JUEY:  JURY  72 

tinuallj  paid,67  with  an  autocratic  power  of  the  judge  to  set  the  results  of 
this  wisdom  aside,  practically  at  his  option,  as  the  only  condition  which  will 
make  trial  by  jury  even  "  tolerable,"  naturally  leads  to  some  conflict  in 
statement  on  the  part  of  the  courts.68  Certain  tribunals  state  the  scientific 
rule,  of  permitting  a  rational  verdict  to  stand,  with  great  precision.69  On  the 
other  hand,  the  position  of  an  arbiter  as  to  where  the  preponderance  of  the 
evidence  rests  has  been  authoritatively  assigned  to  the  trial  judge ;  7U  in  other 
words,  where  two  courses,  both  rational,  are  open  to  the  jury,  it  is  the  right 
of  the  court  to  compel  them  by  vetoing  the  other,  to  adopt  the  one  which 
he,  rather  than  they,  may  happen  to  prefer. 

§  135.  [Granting  of  New  Trials];  Technical  Errors  as  to  Evidence.71 — The 
same  duty  of  enforcing  the  rules  of'  correct  reasoning  which  presses  upon  the 
trial  judge  in  his  administrative  relation  to  the  jury  rests  upon  all  revising 
or  appellate  tribunals  in  passing  upon  the  action  of  trial  judges  or  inferior 
courts.  Sound  reasoning  is  the  legal  standard  of  proper  conduct,  whether  in 
a  court  of  any  relative  position  or  outside,  in  the  world  of  affairs.  The  need 
for  it  is,  in  reality,  a  requirement  of  law.  That  a  verdict  will  not  be  dis- 
turbed where  sound  reason  has  been  exercised,  truth  ascertained,  and  sub- 
stantial justice  done,  is  the  rule  of  administration  adopted  in  England.  In 
the  United  States  the  more  technical  rule  is  frequently  observed  that  error 
in  law,  departure  from  precedent,  being  shown,  a  verdict  will  be  set  aside  and 
a  new  trial  granted;  —  regardless  of  whether  substantial  justice  has  or  has 
not  been  done.  If  the  game  has  not  been  correctly  played,  the  fact  that  it 
turned  out  as  it  should  is  not  material.  It  must  be  played  over. 

§  136.  [Granting  of  New  Trials] ;  Substantive  Law.72 —  Wherever,  under  the 
confusion  and  blending  of  the  rules  of  substantive  law  with  those  of  pro- 
cedure or  practice  to  which  reference  is  elsewhere  made  a  ruling  of  a  trial 
court,  though  apparently  one  as  to  a  question  of  evidence,  really  involves  a 
decision  as  to  substantive  law,  a  more  technical  rule  may  properly  be  applied 
to  the  action  of  the  trial  judge.  Wherever  the  admissibility  of  a  fact  is  con- 
ditioned, not  upon  its  logical  effect  to  prove  a  given  fact,  but  upon  whether 
•the  ultimate  facium  prnlxindum  which  it  is  offered  as  tending  to  prove  is,  as 
matter  of  law,  constituent  of  the  right  or  liability  asserted  in  the  action, 
obviously  the  court  is  dealing  with  a  question  of  substantive  law,  however  dis- 
guised by  the  phraseology  in  which  it  is  stated. 

§  137.  [Granting  of  New  Trials];  English  Rule;  Harmless  Error.73 — Where 
it  appears  that  substantial  justice  has  been  done,  or,  as  the  phrase  goes,  the 

67.  Capital  Traction  Co.  v.  Hof,  174  U    S.  69.  Pleasants   v.    Fant,   22   Wall.    116,    122 
13    (1809).  (1874). 

68.  R.   K.  Co.  v.  Ryan.  49  Kan,  1    (1892)  ;  70.  Clark  v.  Ry.  Co.,  37  Wash.  537   (1905). 
Williams  v.  Townsend,  15  Kan.  563    (1875);  71.   1   Chamberlayne,   Evidence,   §   312. 

v.  Adams,  26  S.  C.  105  (1886).  72.   1   Chamberlayne.   Evidence.   §   313. 

73.   1   Chamberlayne,  Evidence,  §§  314-319. 


73  NEW  TRIALS.  §§   138-140 

[trial]  judge  "  is  satisfied  with  the  verdict,"  no  reversal  will  be  had,  on 
account  either  of  the  erroneous  admission  or  rejection  of  evidence;  —  espe- 
cially where  it  appears  that  adding  or  subtracting  the  evidence  in  question 
would  not  alter,  or  should  not  alter,  the  result. 

Thus,  a  new  trial  wil  not  be  granted  in  England  on  account  of  the  admis- 
sion of  objectionable  testimony  where  unexceptional  evidence  to  the  same 
effect,  sufficient  to  sustain  it,74  has  been  given. 

In  a  similar  way,  where  an  English  appellate  court  feels  that  a  correct 
result  has  been  reached,  reason  has  been  exercised  and  justice  done,  no  new 
trial  will  be  granted  on  account  of  a  rejection  of  evidence,  however  competent 
in  itself,  which,  under  the  exercise  of  sound  reasoning,  would  not  have  altered 
the  result.75 

§  138.  [Granting  of  New  Trials] ;  American  Majority.76 —  Jn  a  majority  of 
the  American  jurisdictions  the  more  technical  rule  to  the  effect  that  every 
improper  ruling  regarding  the  admissibility  of  evidence  should  be  ground 
for  a  new  trial,  was  at  once  adopted  and  steadily  maintained.77 

§  139.  [Granting  of  New  Trials];  Federal  Courts.78 — The  early  rule 
announced  by  the  Supreme  Court  of  the  United  States  in  dealing  with  the 
granting  of  new  trials  for  technical  error  of  the  trial  court  in  the  admission 
or  rejection  of  evidence  was  entirely  unexceptional ;  —  endorsing,  as  it  did, 
the  scmnd  rule,  that  the  use  of  reason  by  lower  courts  is  the  standard  of  require- 
ment to  be  imposed  by  an  appellate  tribunal.79  In  later  years,  however,  few, 
if  any,  courts  have  applied  the  erroneous  rule  of  administration  adoj  ted  in 
this  matter  by  state  tribunals  with  greater  relentlessness  and  indifference  to 
social  consequences  than  the  Supreme  Court  of  the  United  States.80 

§   140.  [Granting  of  New  Trials] ;  Criminal  Cases.81 —  If  the  action  of  Ameri- 

74.  R.  v.  Ball,  R.  &  R.  133   (1907).  Lingenfelter,    42    Neb.    728,  60    N.    W.    1022 

75.  "If  the  evidence  had  been  admitted,  it  (1894)     (material   contradiction);    Cutler   v. 
could  have   made   no   difference,   at  least   it  Skeels,  69  Vt.  154,  37  Atl.  228    (1897)    (im- 
ought  not  to  have  made  any  in  the  verdict."  proper  remark  of  counsel  on  his  argument). 
R.    v    Teal,    11    East   311     (1809)    per    Lord  78.  1  Chamberlayne,  Evidence,  §  321. 
Ellenborough,  C.  J.     The  same  rule  has  been  79.  M'Lanahan  v.  Ins.  Co.,  1  Pet.  170,  183 
adopted  in  equity.     Pemberton  v.  Pemberton,  (1828). 

11  Ves.  50,  52   ( 1805)  ;Barker  v.  Ray,  2  Russ.  80.  Carver  v.  U.  S.,  160  U.  S.  553,  16  Suppl. 

76   (1826)  ;  Bullen  v.  Michel,  4  Dow  297,  319,  388  (1896)    (reversed  164  U.  S.  694,  17  Suppl. 

330   (1816).     "  The  true  consideration  always  228. 

is  whether  upon  the  whole  there  appears  to  "  It   is   elementary   that   the   admission   of 

be    such    a    case    as    enables    the    judge,  in  illegal    evidence    over    objection    necessitates 

equity  satisfactorily  to  administer  the  equi-  a  reversal."     Waldron  v.  Waldron,  156  U.  S. 

ties  between  the  parties  without  the  assist-  380,   15  Suppl.  383    (1894). 

ance  of  another  trial."     Lorton  v.  Kingston,  The  United  States  Supreme  Court  shows  a 

5  Cl.  &  F.  269,  340   (1838)  per  L.  C.  Gotten-  later   tendency   to    adopt   the    sounder   view. 

ham  Motes  v.  U.  S.,  178  U.  S.  458,  20  Suppl.  993 

76.  1  Chamberlayne,   Evidence,   §   320.  (1899). 

77.  Louisville  &  N.   R.  Co.  v.  Miller,    109  81.  1  Chamberlayne,  Evidence,  §   322. 
Ala.  500,  19  So.  989    (1896);   Carpenter  v. 


§§  141-143          COURT  AND  JUKY:  JUKY  74 

can  courts  of  last  resort  in  dealing  with  rulings  on  evidence  deemed  improper 
is  devoid  of  scientific  justification,  still  more  impressive  is  their  practice 
in  criminal  matters.  The  rule  is  carried  so  far  that  even  where  the  error 
is  clearly  immaterial,  having  had,  as  the  court  admit,  u  no  reference  what- 
ever to  the  guilt  or  innocence  of  the  defendant ;  "  82  or  where  the  verdict  was 
warranted  by  the  other  evidence,83  a  reversal  is  granted. 

A  typical  statement  of  this  view  is  that  of  Judge  Miller  of  Louisiana :  84 
"  The  admission  of  illegal  evidence  in  a  civil  case  is  comparatively  unim- 
porlant.  .  .  .  But  in  a  criminal  case  ...  it  is  for  the  jury  to  convict,  and 
it  is  presumed  to  act  on  all  the  evidence  submitted.  ...  It  is  the  right  of  the 
accused  to  be  tried  on  legal  evidence  alone.  .  .  .  The  conviction  must  be  by 
legal  evidence  only." 

§  141.  [Granting  of  New  Trials;  Action  of  Appellate  Courts;  Technical  Errors 
as  to  Evidence ;  American  Majortiy] ;  A  Purely  Voluntary  Situation.85 —  Judges 
speak  of  a  "  presumption  "  of  prejudice  from  an  erroneous  admission  or  rejec- 
tion of  evidence.  The  term  "  presumption  "  connotes  the  idea  of  logic  enforced 
by  procedural  law ;  —  that,  by  a  rule  of  law  an  inference  of  fact  is  given  a 
prima  fxcie  effect  in  the  absence  of  evidence  to  the  contrary.  In  point  of  fact, 
neither  law  nor  logic,  legal  or  logical  reasoning,  are  in  the  least  involved  in 
this  so-called  presumption  of  prejudice  from  error.  There  is  no  "  presump- 
tion,'' properly  speaking ;  at  most  there  is  but  a  pure  "  assumption  "  of  admin- 
istration. With  the  observation  of  this  fact,  the  entire  theory  of  the  "  rule  " 
falls.  As  a  matter  of  administration,  which  is  based  on  and  tested  by  reason 
alone,  the  assumption  is  entirely  indefensible.  A  court  of  justice  cannot 
within  the  bounds  of  reason,  so  administer  legal  rules  as  to  recognize  and  pro- 
tect the  right  to  commit  injustice.  Viewed  from  the  standpoint  of  adminis- 
tration, the  desired  end  is  already  attained,  the  verdict  is  a  just  one. 

§  142.  [Granting  of  New  Trials] ;  Futile  Legislation.86 —  Even  the  legislature 
has  found  itself  impotent  to  control  the  insistence  of  the  appelate  judges  upon 
reversals  for  technical  error  in  matters  of  evidence.  So  deep-rooted  is  the 
feeling  that  a  new  trial  should  follow  any  slip,  however  slight,  in  this  connec- 
tion, that  statutes  providing  a  sounder  rule  have  been  customarily  disregarded 
by  the  courts.87 

§  143.  [Granting  of  New  Trials] ;  Technical  Inerrancy  Required.88 —  The 
impressive  feeling  of  the  American  appellate  courts  that  they  must  reverse 

82.  People    v     Bell.    53    Cal.    110     (1878)  85.  1   Chamherlayne,   Evidence,  §   323. 
(contradicting  proof  that   a   murderer's   vie-  86.    1   Chamherlayne.  Evidence.  §§  324.  325 
tim  was  habitually  profane).  87.  People   v.    Strait,    154    X.    Y.    165,    47 

83.  State  v.   Jefferson,   125  X.   C.   712,  34  X.  E   1090  (1897)  :  Kohl  v  State,  59  X.  J.  L. 
S.  E.  648   (1899).  445.  37  Atl.  73  (1897).     See  however,  Ruther- 

84.  State  v.  Callahan,  47  La.  Ann.  497,  15  ford  v.  Com,  78  Ky.  639,  643  (1880). 
So.  50    (1895).  88.  1  Chamberlayne,  Evidence,  §  326. 


75  NEW  TKTAT.S.  §§   144,  145 

if  error,  however  far  from  the  substantial  merits,  has  occurred,  has  been  else- 
where noticed.  It  all  apparently  proceeds  on  the  theory  that  certain  rules 
of  law  must  be  followed,  regardless  of  consequences.  It  involves  a  require- 
ment of  absolute  inerrancy  on  the  part  of  a  trial  judge.  He  must,  at  the  peril 
of  justice,  comply  absolutely  with  every  technical  requirement  of  the  law  of 
evidence  —  working  out,  in  the  hurry  and  other  embarrassments  of  a  nisi  prius 
trial,  a  result  to  which  the  greater  calm  and  leisure  of  an  appellate  court  will 
not  enable  them  to  find  any  possible  exception.  When  the  number  of  admin- 
istrative problems,  accentuated  by  the  desire,  of  counsel  to  "  get  error  into  the 
record,"  is  considered,  the  unfairness  of  this  to  a  trial  judge  is  obvious.  A 
practically  impossible  standard  is  erected.  Penalty,  reversal.  Kesult,  delay 
and  expense  to  litigants;  disrespect  for  law.89 

rlhe  result  is  a  general  breakdown  in  the  effectiveness  of  criminal  procedure 
to  deal  with  crime,  general  lawlessness  and  popular  contempt  for  the  work 
of  the  courts.  Happily  England,  where  democracy  is  not  without  an  enor- 
mous influence  in  government,  has  wisely  escaped  much  of  this.  In  America, 
justice  steadily  awarding  injustice  rather  than  sacrifice  a  jot  or  title  of  the 
legal  formality  by  which  it  is  hampering  itself  is  by  no  means  an  impressive 
spectacle. 

§  144.  [Granting  of  New  Trials] ;  American  Minority.90 —  In  a  minority  of  the 
American  jurisdictions  the  rule,  originally  adopted  and  finally  established  in 
England,  that  the  improper  admission  or  rejection  of  evidence  would  not  be 
permitted  to  set  aside  a  verdict  which  did  substantial  justice,  has  been  employed. 
Many  valiant  protests  against  the  majority  rule  have  been  registered  by  dis- 
senting judges,  whose  opinions  normally  carry  weight.91 

§  145.  [Granting  of  New  Trials] ;  Prejudice  from  Error.92 —  In  these  juris- 
dictions, the  so-called  "  presumption  "  of  prejudice  from  error  does  not  obtain. 
When  the  verdict  is  a  just  one,  these  courts  naturally  fail  to  see  either  (1) 
why  there  should  be  any  need  of  presumption  in  the  matter;  or,  (2)  why, 
if  presumption  is  to  be  indulged  at  all  it  should  be  assumed  or  presumed 
that  a  party  is  prejudiced  by  a  just  verdict. 

If  the  record  shows  all  the  facts,  the  reasonableness  of  the  decision  is  a 
matter  of  law.  It  is  this  question  of  law  which  is  the  appropriate  duty  of  the 
appellate  court  to  resolve.  The  verdict  reached  being  the  correct  one,  reason 
clearly  has  been  used  and  the  verdict  should  stand.93  Where  the  facts  thus 

89.  See  Davis  v.   State,   51   Xebr.   301,   70  Lipscomb  v.  State,  75  Miss.  559,  23  So.  210, 
N.  W.  984    (1897).  228   (1898). 

90.  1  Chamberlayne.  Evidence,  §  327.  92.  1   Chamberlayne,  Evidence,  §§  328-330. 

91.  People    v.    Stanley,    47    Cal.    113,    119  93.  "  The  judgment  was  manifestly  for  the 
(1874),  per  Wallace,  J. :    People  v.  Koerner,  right  party;  and  where  such  is  the  case,  the 
154   N.    Y.    355,   48    N.   E.    730    (1897),    per  judgment  will  not  be  reversed  because  some 
Haight,   J. ;    State   v.   Musgrave.    43   W.   Va.  incompetent  testimony  was  admitted."     Gard- 
672,  28  S.  E.  813    (1897),  per  Brannon,  J.;  ner   v.    E.   Co.,    135   Mo.    90,    36   S.    W.   214 


§  146  COUKT  AND  JUEY:  JUKY  76 

appear,  it  would  seem  that  the  necessity  for  assumption  or  presumption 
as  to  what  should  be  taken  to  be  the  case  in  the  absence  of  evidence,  does  not 
arise. 

§  146.  Taking  Jury's  Opinion.94 —  The  judge,  in  discharging  his  own  duty, 
may  take  the  opinion  of  the  jury;  giving  it  such  weight  as  he  deems  proper, 
lie  may,  in  like  manner,  ask  their  view  as  to  the  meaning  of  a  document.95 
Where  a  trial  by  jury  is  not  a  constitutional  or  statutory  right,  but  the  court 
seeks  the  aid  of  the  jury  in  determining  questions  of  fact,  it  may  adopt,  modify 
or  disregard  their  findings.90  This  convenient  practice  has  the  sanction 
of  statute  in  certain  jurisdictions.97  The  judge  may,  however,  prefer  the 
shorter  procedure  of  leaving  the  entire  question  to  the  jury  under  appropriate 
instructions  as  to  what  rule  of  law  they  should  apply  in  the  event  of  their 
contingent  findings  of  fact.98 

(1896).     These  courts   follow  the  same  rule  L.    R.    B.    D.   619,    627,   34    W.    R.    208,    210 

in  equity'  (Dowie  v.   Droscoll,   203   111.   480,  (1885). 

(jri    N.    E.    56    (1903)    or    in   criminal    cases.  96.  Kelly    v.    Home   Sav.    Bank,    92    N.    Y. 

Where  the  ruling  "could  not  properly  have  Suppl.   578,    103   App.   Div.    141    (1905). 

changed  the  result,  then  he   [defendant]  was  97.   Willeford  v.  Bell    (Cal.  1897),  49  Pac. 

not  aggrieved  by  the  ruling."     State  v.  Beau-  66,  7;   Maier  v.  Lillebridge   (Mich.   1897),  70 

det,  53  Conn.  536,  539,  4  Atl.  237   (1885).  N.   W.   1032. 

94.  1  Chamberlayne,   Evidence,   §  331.  98.  Hawea  v.  Forater,  1  M.  &  R.  368  (1834). 

95.  Stewart  v.  Merchant,  etc.,  Ins.  Co.,  16 


CHAPTER  VI. 

PRINCIPLES  OF  ADMINISTRATION;  A.  PROTECT  SUBSTANTIVE  RIGHTS. 

Principles  of  administration,  147 

protection  of  substantive  rights,  148. 
riyht  to  prove  one's  case,  149. 

•right  to  use  secondary  evidence,  150. 
documents,   151. 
probative  documents,  152. 
means  of  communication,  153. 
interpreters,  154. 

deaf  mutes,  etc.,  155. 
scope  of  right,  156. 

limited  to  proof  of  res  gestae,  157. 
order  of  stages,  158. 

right  to  open  and  close,  159. 
plaintiff  as  actor,  160. 
defendant  as  actor,  161. 

code  and  common  law  pleadings;  admissions,  162. 
proceedings  in  rem,  163. 
variations  in  order  of  evidence,  164. 
evidence  in  chief,  165. 
actor,  166. 
non-actor,  167. 
order  of  topics,  168. 

conditional  relevancy;  bearing  apparent,  169. 

bearing  not  apparent,  170. 
right  to  test  adversary's  case,  171. 
cross-examination,  172. 
rebuttal,  173. 
actor,  174. 
wse  o/  experts,  175. 
anticipatory  rebuttal,  176. 
non-actor,  177. 
subsequent  rebuttal,  178. 
use  o/  reason,  179. 

should  prevent  jury  from  being  misled,  180. 
guessing  not  permitted,  181. 
striking  out  prejudicial  evidence,  182. 
withdrawal  of  jury,  183. 

77 


PROTECT  SUBSTANTIVE  RIGHTS.  78 

preventing  irrational  verdicts,  184. 
directing  verdicts,  185. 

relation  to  grant  of  new  trial,  186. 

relation  to  motion  in  arrest  of  judgment,  187. 

a  matter  of  law,  188. 

general  rules,  189. 

scintilla  of  evidence  not  sufficient,  190. 

motion  equivalent  to  a  demurrer  to  evidence,  191. 

direction  against  the  actor,  192. 

direction  in  favor  of  actor,  193. 

time  for  making  motion,  194. 

direction  on  opening,  195. 
party  moving  may  be  required  to  rest,  196. 
nominal  or  actual  verdicts,  197. 
effect  of  waiver,  198. 
action  of  appellate  courts,  199. 

effect  of  rulings  on  evidence,  200. 
judge  sitting  as  jury,  201. 
right  to  judgment  of  court  or  jury,  202. 

performance  of  functions  by  judge,  203. 

waiver,  204. 

general  right  to  jury  trial;  witnesses  not  permitted  to  reason, 

205. 

a  strongly  entrenched  right,  206. 
Federal  Constitution,  207. 
State  Constitution,  208. 
scope  of  common  law,  209. 

judicial  powers  reserved,  210. 
statutory  construction;  criminal  cases,  211. 

waiver  forbidden,  212. 
incidental  hearings,  213. 
special  proceedings,  214. 
statutory  proceedings,  215. 
in  what  courts  right  can  be  claimed,  216. 
who  may  claim  right,  217. 
reasonable  limitations  permitted;  demand,  218. 
minor  criminal  offenses,  219. 
payment  of  jury  fees,  220. 
restricted  appeals,  221. 

unreasonable  limitations  unconstitutional,  222. 
waiver  and  estoppel,  223. 
right  to  confrontation,  224. 
waiver,  225. 


79  PRINCIPLES  OF  ADMINISTRATION.  §§  147-149 

§  147.  Principles  of  Adminintration.1 —  The  exercise  by  judges  of  the  broad 
and  somewhat  ill-defined  powers  of  administration  connected  with  the  judicial 
office  is  necessarily  governed  rather  by  principles  than  by  rules.  These  prin- 
ciples in  turn  are  naturally  somewhat  indeterminate,  eluding  complete  and 
definite  statement.  They  grow  out  of  and  are  guided  by  the  accurate  judicial 
instinct,  the  appreciation  of  highly  intellectual  skilled  observers  as  to  what 
should  be  the  ultimate  results  of  litigation. 

Conveniently  epitomized,  these  broad  canons  of  judicial  administration  may 
be  said  to  be  four: 

A.  Protection  of  Substantive  Rights. 

B.  Furtherance  of  Justice. 

C.  Expediting  Trials. 

D.  Perfecting  Substantive  Law. 

The  operation  of  these  canons  of  administration  may  conveniently  be  con- 
sidered in  this  order. 

§  148.  [Principles  of  Administration] ;  Protection  of  Substantive  Rights.2— 
The  primary  principle  of  judicial  administration  regarding  the  admission  of 
evidence  is  to  preserve  during  the  course  of  the  trial  the  fundamental  rights  of 
the  parties..  This  principle  is  justly  deemed  paramount  to  all  others. 

It  will  be  expedient,  however,  to  consider  the  right  as  separable.  A  party 
may  claim  to  be  entitled  to  insist  (1)  that  he  be  given  a  reasonable  opportu- 
nity to  prove  his  case  or  establish  his  defense;  (2)  that  he  be  accorded  fair, 
reasonable  opportunity  to  test  the  affirmative  case  relied  on  by  his  opponent ; 
(3)  that  both  branches  of  the  tribunal  shall  employ,  in  the  discharge  of  their 
respective  functions,  processes  of  correct  reasoning;  (4)  that  he  be  granted  a 
trial  by  judge  or  jury,  or  both,  according  to  the  established  course  of  legal  pro- 
ceedings ;  —  each  branch  of  a  mixed  tribunal  discharging  the  duty  of  judging 
imposed  upon  it  by  law;  (5)  that  he  be  allowed  to  confront  the  witnesses 
against  him. 

§  149.  Right  to  Prove  One's  Case.3 —  The  substantive  law  secures  to  every 
litigant  a  fair  opportunity  to  prove,  in  the  best  method  at  his  command,  and 
at  a  designated  time,  the  substance  of  his  contention.  In  other  words,  the 
party  seeking  the  assistance  of  the  court  should  be  enabled  to  lay  his  case  before 
the  appropriate  tribunal ;  —  while  it  is  equally  the  right  of  his  adversary  to 
unfold  the  substantial  part  of  his  defense  at  an  appropriate  time  before  the 
same  tribunal.  To  this  end,  as  to  the  object  of  the  entire  proceedings,  all  rules 
of  administration  regarding  the  admission  of  evidence  are  subservient. 

The  right  of  a  party  to  a  reasonable  opportunity  of  proving  his  case  implies 
the  right  to  have  it  tried  in  such  a  manner  as  to  enable  him  to  present  his  con- 
tention with  reasonable  fullness.  The  right  may  be 'considered,  (a)  as  it 

1.  1  Chamberlayne,  Evidence,  §  332.  3.  1  Chamberlayne,  Evidence,  §§  334-338. 

2.  1  Chamberlayne,  Evidence,  §  333. 


§§  150,  151  PROTECT  SUBSTANTIVE  KIGIITS.  80 

applies  to  the  matter  as  to  which  proof  may  be  offered;  (b)  the  means  by 
which  these  matters  are  established;  (c)  as  to  the  scope  of  the  right;  (d)  the 
order  of  the  stages  at  which  it  should  be  enforced;  (e)  the  order  of  topics  at 
each  stage. 

The  right  of  a  party  to  prove  his  case  may  fairly  require  that  his  counsel  be 
permitted  to  testify.  If  so,  this  will  be  allowed.4  The  court  may  impose 
conditions, 'e.g.,  that  the  counsel  withdraw  from  the  case. 

§  150.  [Right  to  Prove  One's  Case] ;  Right  to  Use  Secondary  Evidence."' —  Good 
faith  to  the  tribunal,  and  fair  play  to  his  adversary  require  that  original  ob- 
servers, original  documents,  facts  rather  than  reasoning  should  be  presented 
to  the  court.  But  if  a  necessity  for  using  secondary  evidence  is  shown,  the 
principle  of  administration  now  under  consideration  permits  the  use  of  evi- 
dence of  that  grade ;  —  although  possessing  less  probative  force. 

This,  by  far  the  most  important  in  practical  effect,  of  all  aspects  of  the 
principle  permitting  proof  of  a  party's  case,  is  the  pel-missive,  indulgent  por- 
tion of  the  "  best  evidence  rule  "  which  qualities  and  conditions  the  mandatory 
section  of  that  rule  —  also  enforced  as  an  administrative  principle.  The 
principle  of  administration  under  consideration  is  thus  seen  to  be  intimately 
involved  with  the  familiar  "  Best  Evidence  Rule."  As  commonly  stated,  the 
"rule"  contains  these  two  distinct,  though  connected  propositions:  (1)  The 
best  evidence  which  the  nature  of  the  case  permits  must  always  be  presented ; 
(2)  when  the  best  evidence  of  which  the  case  is  susceptible  is  presented  it  will  be 
admitted.  The  second  half  is  the  principle  of  administration  under  considera- 
tion. 

§  151.  [Right  to  Prove  One's  Case] ;  Documents.6 —  Loss,  destruction,  inabil- 
ity to  find,  or  other  sufficient  reason  for  failing  to  produce  an  original  docu- 
ment having  first  been  satisfactorily  established,  the  party's  right  to  prove  his 
cause  authorizes  or  requires,  as  the  case  may  be,  that  he  be  permitted  to  prove 
its  contents  by  parol  evidence.  \rerbal  precision  is  not  required,7  as  a  demand 
to  that  effect  would  be  subversive  of  the  indulgence  itself.8  In  case  a  docu- 

4.  Greenfield  v.   Kaplan,  52  Misc    (N.  Y.)  Due  and  proper  execution  must  be  affirma- 
132,   101    N.   Y.   Suppl.   567    (1906).  tively  proved.     A  reasonable  latitude,  neither 

5.  1   Chamberlayne,   Evidence,   §§   ,'139,  340.  assenting  to  vagueness  on  the  one  hand,  nor 

6.  1  Chamberlayne,    Evidence,   §§    341-346.  imposing  strictness  with  which  it  is  impossi- 

7.  In  proving  the  contents  of  a  lost  instru-  ble  to  comply  on  the  other,  is  observable   in 
ment,   it   is   sufficient   to   show   who  executed  this  connection; — as  in   cases  involving  the 
it  and  to  whom  it  was  executed,  the  time  of  requirements    for    proof   of    contents    of   lost 
execution,  the  consideration  and  the  property  or  otherwise  unavailable  instruments.     Short- 
conveyed,   or   the   subject-matter   of   the  con-  er  v.  Sheppard.  33  Ala.  648   (1859);  Hawley 
tract.     Harrell  v.   Enterprise  Sav.  Bank,   183  v.  Hawley,  1ST  111.  351,  58  N.  E.  332  (1900)  ; 
111.538,56  N.  E.  63   (1900).  Barley   v.    Byrd,   95    Va.    316,   28    S.    E.    329 

If  the  consideration  of  a  deed  be  stated       (189,7). 

in    it   the   parol    evidence  -of    contents    must  8.  Perry   v.    Burton,    111    111.    138    (1884) 

include  proof  of  that  fact,  as  it  is  a  material       (deed), 
part  of  the  deed.     Capell  v.   Fagan    (Mont. 
1904),  77  Pac.  55. 


81 


RIGHT  TO  PEOVE  CASE. 


151 


ment  is  constituent,  i.e.,  is  one  of  those  which  in  themselves  constitute  or  create 
legal  results,  wills,  etc.,  proof  of  contents  by  parol  testimony  must  be,  upon 
natural  grounds  of  public  policy,  particularly  comprehensive  and  exact. 

Bills  of  jSale, —  The  contents  of  a  bill  of  sale  must  be  proved  to  a'  reasonable 
certainty  by  clear  and  satisfactory  evidence  as  to  all  material  parts.'J 

Contracts, —  A  contract  originally  reduced  to  writing  may  be  a  constituent 
document.  Its  contents  should  be  proved  with  fullness  and  precision.1'* 

Deeds. —  In  case  of  a  deed,  in  the  language  of  an  early  Indiana  decision,11 
"  The  property  conveyed,12  the  estate  created,13  the  conditions  annexed,14  the 
signing,15  sealing  10  and  delivery,  are  required  to  be  proved  with  reasonable 
certainty  by  witnesses  who  can  testify  clearly  to  its  tenor  and  contents."  17 

Negotiable  Instruments. —  Negotiable  instruments  18  and  other  commercial 
specialties  must  be  proved  with  great  particularity,  as,  in  respect  practically 
to  all  parts  of  the  paper,  a  close  approach  to  verbal  precision  is  permitted  by 
the  nature  of  the  document.19 

Public  records  do  not  require  for  proof  of  contents  by  parol  any  other  or 
different  rule  than  is  applied  to  private  instruments.  The  substance  of  the 
contents  of  public  documents,20  in  all  material  particulars,21  must  be  proved 
when  the  original  is  lost,  destroyed  or  is  for  some  other  reason,  practically 
unavailable.  Verbatim  testimony  is  not  necessary.22 


9.  Hooper    v.    Chism,     13    Ark.    496,    501 
(1853);    Brown   v.    Hicks,    1    Ark.    233,    243 
(1838).     . 

10.  Shouler  v   Bonander,  80  Mich.  531,  535, 
45  N.  W.  487    (1890)     (agreement);    Ross  v. 
Williamson,  14  Ont.  184  (1387)    (agreement). 

A  party  who  negligently  loses  a  contract 
cannot  be  allowed  to  put  in  a  copy  according 
to  a  recent  case.  Missouri  Oklahoma,  etc., 
Co.  v.  West,  Qkl.  151  Pac.  212.  Tt  would 
seem  however  that  the  exclusion  should  be 
confined  to  cases  where  the  loss  was  collusive 
or  intentional,  and  that  there  is  no  sound 
reason  now  for  the  early  rule. 

11.  Thompson  v.  Thompson,  9  Ind.  323,  333 
U857). 

12.  The  courses  of  the  description  are  not 
essential.     Jackson   v.   M'Vey,    18   John.    (X. 
Y.)    330,   333    (1820). 

13.  A  lease,  or  surrender  stand  in  the  same 
position    in    relation    to    proof    of    contents. 
Doe  v.  Jack,  1  All.  N.  Br.  476   (1840). 

14.  "  It    should    be   made    satisfactorily    to 
appear  what  were  the  substantial  conditions 
and  covenants."     Rector  v.  Rector,  8  111.   105, 
122    (1S46). 

15.  Elyton    Land    Co.    v.    Denny,    108    Ala. 
553,  561,  18  So.  561   (1895)  :  Neely  v.  Carter, 
96   Ga.    197,   23   S.   E     313    (1895). 


16.'  Seals. —  For  some  consideration  ab  to 
how  far  a  record  copy  should  show  the  exist- 
ence of  a  seal  upon  an  original  instrument 
requiring  a  seal  for  its  validity,  see  Strain 
v.  Fitzgerald,  128  N.  C.  396,  38  S.  E.  929 
(1901). 

17.  Kenniff   v.    Caulfield,    140   Cal.    34,   73 
Pac.  803   (1903). 

18.  Bond    v.    Whitfield,    32    Ga.    215,    217 
(1861)    i  bill  of  exchange)  ;  Statemv.  Peterson, 

29  N.  C.  556,  40  S.  E.  9   ( 1901 ) . 

19.  But  see  Bell  v.  Young,  3  Grant   (Pa.) 
\T5    (1854)     (amount  of  a  note;   about  $80; 
ibove  $70  received). 

20.  Sturtevant      v.      Robinson,      18      Pick. 
(Mass.)    175,    179    (1836)     (writ);    Cunning- 
ham v.   R.  Co.,  61  Mo.  33,  36    (1875). 

\Yhere  the  original  order  of  publication 
in  a  tax  proceeding  has  been  Idfet  the  files 
of  the  newspaper  in  which  it  was  published 
are  admissible  to  prove  it.  Miller  v.  Kea- 
ton.  260  Mo.  708,  168  8.  W.  1140,  L.  R.  A. 
1915  C  690  (1914). 

21.  In   case   of   familiar   and   formal   docu- 
ments, a  mere  abstract  may  suffice.     Brown- 
ing v.  Flanagin,  22  N.  J.  L.  567,  571    (1849) 
(writ). 

22.  Com.   v.   Roark,  8   Cush.    (Mass.)    210, 
213    (1851). 


§§  152,153  PROTECT  SUBSTANTIVE  EIGHTS. 

Wills. —  The  maximum  of  strictness  in  requirement  as  to  proof  of  contents 
is  made  in  the  case  of  wills.  That  the  contents  of  a  lost  will  may,  in  a  proper 
case,  be  established  by  parol  is  beyond  question.23  The  rule  that  the  substance 
of  all  material  portions  of  the  instrument  must  be  proved  is  equally  applicable 
in  the  case  of  wills  as  in  that  of  other  constituent  instruments.  A  peculiarity 
of  this  class  of  documents  is  that  the  complexity  of  provision  is  frequently  so 
great  and  the  interdependence  of  the  several  parts  is  so  intimate  that  prac- 
tically all  parts  of  a  will  are  *'  material,"  within  the  meaning  of  the  rule. 

§  152.  [Right  to  Prove  One's  Case] ;  Probative  Documents.24 —  The  contents  of 
other  than  constituent  documents  may  be  shown  by  any  appropriate  evidence,20 
including  that  of  a  witness  who  can  testify  directly  from  memory  or  from  a 
recollection  suitably  refreshed  by  the  use  of  appropriate  memoranda,  includ- 
ing the  use,  as  part  of  the  testimony  of  the  witness  of  a  memorandum  which 
revives  no  present  recollection  but  which  the  maker  swears  to  have  been  accu- 
rate when  made. 

With  letters,20  books  of  account  27  and  other  non-constituent  documents,28 
verbal  precision  is  less  requisite  than  in  case  of  constituent  documents ;  29 — 
though,  of  course,  highly  desirable,  where  it  may  be  had.  The  substance  30  of 
any  portions  relevant  to  the  inquiry  will,31  as  a  rule,  be  deemed  sufficient. 

Letters  as  Contracts. —  Where  letters  are  relied  on  to  establish  a  contract, 
the  same  particularity  of  proof  in  regard  to  essential  parts  is  required  as  in 
case  of  more  formal  instruments  designed  for  that  purpose.32  The  effect  of  a 
letter  is  to  be  distinguished  from  its  substance.  That  a  witness  should  be  per- 
mitted to  state  the  effect  of  the  document  would  be,  in  certain  cases,  to  substi- 
tute his  conclusion  for  that  of  the  jury  in  point  of  law,33  or  fact. 

§  153.  [Right  to  Prove  One's  Case] ;  Means  of  Communication.34 —  The  regular 
and  satisfactory  means  of  communication  between  the  witness  and  the  tribunal 

23.  Sugden  v.  St.  Leonards,  L.  R.,  1  P.  D.  29.  Tobin  v.  Shaw,  45  Me.  331,  349  (1858) 
154    (1876).  (letter;    "So   far   as    she    recollected,"    suffi- 

24.  1  Chamberlayne,  Evidence,  §§  347,  348.  cient). 

25.  Hardy's    Trial,    24    How.    St.    Tr.    681  Some  real  recollection,  however,  is  requi- 
(1794).  site. —  A  witness  who  "  thought  he  might  per- 

26.  Case  v.  Lyman,  66  111.  220,  233  (1872)  ;  haps  state"  the  contents  of  a  letter  was  held 
Strange  v.  Crowley,  91  Mo.  287,  294,  2  S.  W.  to   have  been   properly   rejected.     Graham  v. 
421   (1886)  ;  Poague  v.  Spriggs.  21  Gratt.  220.  Ohrystal,  2  Abb.  App.  C.  263    (1865). 

231    (1871).  30.  Camden  v.  Belgrade,  78  Me.  204,  3  Atl. 

27.  Mayson  v.  Beazley,  27  Miss.  106  (1854)       652    (1886). 

(abstract    sufficient).  31.  People  v.  McKinney,  49  Mich.  334,  336, 

28.  Camden  v    Belgrade,  78  Me.  204,  3  Atl.  13  N.  W.  619    (1882)  ;   Sizer  v.  Burt,  4  Den. 
652    (1886)     (marriage   certificate):    Wilker-  426,  429    (1847)    (memorandum  of  claim), 
son   v.   Allen,   67   Mo.   502,   510    (1878)     (ad-  32.  Elwell    v.    Walker,    52    Iowa   256,    261, 
vertisement) .  3  N.  W.  64   (1879)    (antenuptial  agreement). 

Where  way-bills  have  been  lost  it  is  error  33.  Baltimore  v    War,  77  Md.  593,  603.  27 

to  exclude  letter  press  copies  of  them.     Barker  Atl.   85    (1893)     (that  a   letter   was   an   "  or- 

v.   Kansas  City  Mexico  &  Orient  R.   Co.,   88  der"). 

Kan.  767.  129  Pac.  1151,  43  L.  R.  A.   (N.  S.)  34.  1  Chamberlayne,  Evidence,  §§  349,  350. 
1121    (1913). 


b3  EIGHT  TO  PBOVE  CASE.  §§  154,  155 

is  that  the  witness  should  address  the  judge  or  jury  in  the  oral  language  to 
which  they  are  accustomed  and  which  they  understand.  But  should  a  witness 
not  understand  the  vernacular,  should  he  be  a  deaf  inute,  were  it  to  prove  that 
an  important  document,  constituent  or  probative,  is  in  a  foreign  tongue,  the 
present  right  permits  a  party  to  insist  upon  offering  interpreters,  translations 
or  any  other  reasonable  substituted  means  of  communication  of  thought  be- 
tween the  witness  or  declarant  and  the  court. 

§  154.  [Right  to  Prove  One's  Case] ;  Interpreters.35 —  The  power  to  appoint 
interpreters  is  frequently  conferred  in  express  terms  by  statute,36  though  such 
an  act  is  merely  declaratory  of  the  existence  of  a  common  law  administrative 
power  of  the  judge.37  Unless  this  administrative  power  is  unreasonably  exer- 
cised, the  result  will  not  be  revised  by  an  appellate  court.38  The  interpreter  is 
subject  to  cross-examination  as  to  his  qualifications,39  and,  unless  found  to  be 
disqualified,  in  the  court's  opinion,  by  reason  of  relationship  to  the  parties  40 
or  other  bias,41  the  office  may  be  discharged  by  any  competent  witness.42 

The  interpreter  must,  however,  understand43  or  have  a  fair  knowledge44 
of  both  languages  as  spoken;  but  it  is  not  necessary  that  he  should  be  able  to 
read  English  as  written.45 

§  155.  [Right  to  Prove  One's  Case] ;  Deaf  Mutes,  etc.46 —  The  witness  may 
understand  English  and  still  be  unable,  by  reason  of  some  organic  imperfec- 
tion, to  express  himself  in  words.  He  may,  for  example,  be  a  deaf  mute ;  and, 
as  such,  confined  to  the  use  of  signs.  The  necessity  for  it  being  shown,  the 
signs  he  makes  must  be  translated  into  language  by  an  interpreter  47  skilled  in 
the  code  of  signs  employed  by  the  witness.48 

35.  1  Chamberlayne,  Evidence,  §§  351-354.  41.   State  v.   Thompson,   14  Wash.  285,   44 

36.  California    Code    C.    P.    §    1884     ("any       Pac.  533   (1896). 

person  a  resident  of  the  proper  county  "  may  42.  South   Carolina. —  State  v.   Weldon,  39 

be    selected):     People    v.    Morine,    138    Cal.  S.   C.   318,   17   S.   E.   688    (1893);    People  v. 

626,  72  Pac.  166   (1903);  Schall  v.  Eisner,  58  Thiede.    11    Utah    241,    39    Pac.    837     (1895) 

(Ja.    190    (1S77);    Rev.   Stat.    (Ind.)    1897,   §  (juror);    State  v.   Thompson,   14  Wash.  285, 

508;    Skaggs  v.   State,   108    Ind.   57,  8   X.   E.  44  Pac.   533    (1896)     (witness). 

695    (188G)     (the   number   of   interpreters   is  43.  People   v.   Constantino,    153   N.   Y.   24, 

discretionary  with  the  court);   Com    v.  San-  47  X.  E.  37  <1897). 

eon,  67  Pa.  St.  822    (1871).  44.  Skaggs  v.   State,   108   Ind.  53.  8  X.  E. 

37.  Schall   v.   Eisner,   58   Ga.    190    (1877);  695    (1886).     The   witness   need   not   be   one 
Livar  v.  State,  26  Tex.  App.  115  (1888).     The  exceptionally   well    skilled   to   act   as   an   in- 
consent  of  the  opposite  party  is  not  necessary.  terpreter.     Skaggs   v.    State,   108   Ind.   53,   8 
Mennella  v.  Metropolitan  St.  Ry.  Co.,  86  X.  Y.  .\.   E.  695    (1886). 

Suppl.  930.  43  Misc   5   (1904).  45.  Central,    etc.,    Ry.    Co.    v.    Joseph,    125 

38.  Kozlowski  v.   City  of  Chicago,   113  111.       Ala.  313.  28  So.  35    (1899). 

App.   513    (1904).  46.   1   Chamberlayne.  Evidence.  §§  355.  356. 

39.  People  v.  John.   137   Cal.   220,   89  Pac.  47.   People  v.  Weston,  236  111.  104,  86  N.  E. 
1063   (1902)  ;  Schearer  v.  Harber,  36  Ind.  536  188    (1908)  ;   Skaggs  v.  State,  108  Ind.  53,  8 
(1871);    In    re    Wiltsey's    Will     (Iowa),    98  X.  E.  695    (1886),  A  second  interpreter  may 
X.   W.  294    (1904).  be  another  deaf  mute.     Skaggs  v.  State,  108 

40.  State   v.   Thompson.   14   Wash.   285.   44  Tnd.  57,  8  X    E.  695   (1886);  State  v.  Burns, 
Pac    553    (1896);   Barber,  etc,  Co.  v    Odasz,  78   N.  W.   681    (1899). 

57  U.  S  App    129,  85  Fed.  754  (1898).  48.  Writing  by  a  deaf-mute  has  been  sug- 


§§   156,  157  PROTECT  SUBSTANTIVE  RIGHTS.  84 

The  same  considerations  apply  to  a  witness  who  cannot  speak  on  account  of 
shock  49  or  who  is  of  tender  years  50  or  bashful.51 

§  156.  [Right  to  Prove  One's  Case] ;  Scope  of  Right.52 —  The  scope  of  a  party's 
case,  which  is  protected  by  the  administrative  principle  under  consideration,  is 
such  as  will  cover  the  proof  of  all  facts  as  to  which  at  any  stage  of  the  case  he 
has  the  burden  of  evidence.53  In  other  words,  it  extends  to  proof  of  every 
fact  which  he  needs  or  on  which  he  relies  to  establish  his  claim  or  defense.  It 
is  the  positive,  affirmative  evidence  on  which  he  rests  his  position ;  —  as  distin- 
guished from  evidence  testing  or  rebutting  the  affirmative  case  against  him,  the 
right  of  introducing  which  is  elsewhere  considered. 

Evidence  in  Chief  or  in  Rebuttal. —  The  difference  between  these  two  classes 
of  facts,  those  covered  by  the  scope  of  the  first  and  those  covered  by  that  of  the 
second  of  the  party's  legal  rights  in  a  judicial  trial  is  obvious.  The  first  set  of 
facts  is,  -as  it  were,  placed  originally  by  the  actor  in  the  scale  to  establish  a 
prime  facie  case  54  or  by  the  non-actor,55  to  make  an  equilibrium  in  a  civil,  or 
a  reasonable  doubt  in  a  criminal  one,  as  the  case  may  be,  by  means  of  a  de- 
fense. The  second  set  of  facts  are  those  adduced  at  a  later  stage  of  the  trial 
by  these  respective  litigants,  in  order  to  maintain  their  contentions  by  off- 
setting any  unfavorable  inferences  arising  from  facts  first  introduced  by  the 
adversary  at  the  last  preceding  stage.  The  original  case  of  either  party  is 
covered  by  his  evidence  in  chief.  The  evidence  which  antagonizes  that  pro- 
duced by  his  opponent,  is  evidence  in  rebuttal. 

§  157.  [Right  to  Prove  One's  Case] ;  Limited  to  Proof  of  Res  Gestae.56 —  The 
right  to  insist  upon  presenting  to  a  tribunal  the  best  evidence  within  the  pro- 
ponent's power  is  subject  to  a  procedural  qualification  of  great  importance. 
The  right  does  not  apply  equally  to  all  branches  of  a  party's  case.  His  claim 
is  confined  to  proof  of  the  res  gestce,  or  more  properly  to  such  facts  found  infer- 
entially  or  in  specie  among  the  res  gestce  as  are  constituent.  Where  direct 
proof  of  the  res  gestce  is  unattainable,  he  may,  as  of  right,  establish  probative 

gested  as  a  preferable  substitute  for  signs.  53.  Infra,  §§  402  et  seq. 
Morrison  v.  Leonard,  3  C.  &  P.  127  (1827).  "This  burden,  however,  which  [in  a  crim- 
But  the  better  reasoning  seems  to  be  with  the  inal  case]  was  simply  to  meet  the  prima  facie 
cases  which  deny  such  a  modification  of  the  case  of  the  government,  must  not  be  con- 
usual  rule.  State  v.  De  Wolf,  8  Conn.  98  founded  with  the  preponderance  of  evidence, 
(1830);  State  v.  Howard,  118  Mo.  127,  144,  the  establishment  of  which  usually  rests 
24  S.  W.  41  (1893).  upon  the  plaintiff."  Lnited  States  v.  Denver, 

49.  Roberson  v.  State  (Tex.  Cr.  1899)  49  S.  etc.,  R.  Co,   191   U.   S.   84,  92,  24  Supp.   Ct. 
W.  398.  33,   35,   36    (1903). 

50.  Lord   Mohun's   Trial,    12   How.   St.   Tr.  54.  Infra,  §   409. 

950    (1692).  55.  Actor  in   this  treatise  will  be  used  as 

51.  Connor   v    State,   25   Ga.   515    (1858);  designating  the  party  having  the  burden  of 
Earl  of  Wintowns  Case,  15  How.  St.  Tr.  804,  proof:    non-actor,   or  reus,  as   indicating  his 
861    (1716).  opponent. 

52.  1  Chamberlayne,  Evidence,  §  357.  56.    1   Chamberlayne,   Evidence,   §   358. 


85  RIGHT  TO  PROVE  CASE.  §§  158,  159 

facts,  from  which,  as  circumstantial  evidence,  the  existence  of  the  res  gestce 
or  constituent  facts  may  be  inferred. 

The  ultimate  possible  relations  of  any  fact  are  infinite  in  number.  For  the 
practical  purposes  of  a  trial  lines  or  perhaps  more  properly,  circles  of  logical 
relevancy  must  be  drawn  upon  the  proposition  in  issue  as  a  quasi  center.  The 
circles  are  two;  and  precisely  where  each  circle  shall  be  drawn  is  necessarily 
determined  by  an  exercise  of  administrative  power.  When  these  circles  are 
formed,  within  the  first  will  lie  the  facts  which  must  be  considered ;  within  the 
second  are  properly  placed  facts  which  may  be  investigated.  Beyond  lie  irrele- 
vant facts,  which  should  not  be  investigated.  The  first  circle  includes  res  gestce 
or  constituent  facts.  The  second  embraces  those  which  are  relevant  but  not 
constituent.  Outside  the  second  circle,  are  the  irrelevant,  nonprobative  facts. 

In  other  words,  the  right  of  a  party  is  to  prove  the  res  gestce  or  constituent 
facts;  by  direct  proof  if  and  so  far  as  in  his  power;  by  probative  facts  so  far 
as  he  is  forced  to  resort  to  these. 

§  158.  [Right  to  Prove  One's  Case] ;  Order  of  Stages.57 —  The  order  in  which 
evidence  may  be  introduced  is  within  the  administrative  power  of  the  presiding 
judge.  His  action  must  be  reasonable,  in  view  of  all  the  circumstances  of  the 
case,  including  the  existence  of  any  rule  of  practice  on  the  observance  of  which 
the  parties  may  have  relied,  the  reasons  upon  which  such  a  rule  of  practice  has 
been  founded,  the  action  of  other  judges  on  similar  states  of  fact  and  the  like. 
If  the  action  is  reasonable  it  will  be  sustained,  though  each  judge  of  an  appel- 
late court  would  himself  have  acted  otherwise  under  the  same  state  of  facts. 

§  159.  [Right  to  Prove  One's  Case] ;  Right  to  Open  and  Close.58 —  At  each 
stage  of  a  judicial  trial,  by  a  fairly  uniform  practice,  the  parties  alternate ;  - 
the  litigant  who  has  the  right  to  open  and  close  preceding  at  each  stage  and 
being  immediately  followed  by  his  opponent.     This  continues  until  neither 
party  has  further  relevant  facts  to  present  for  consideration. 

Plaintiff  Has  Right. —  In  certain  jurisdictions  as,  Alabama,59  California,60 
Maryland,61  and  Massachusetts62  the  rule  of  practice,  except  so  far  as  modi- 
fied by  statute,  is  that  the  plaintiff  invariably  opens  and  closes,  regardless  of 
the  state  of  the  pleadings.  With  these  infrequent  exceptions,  however,  the 
rules  of  practice  award  the  right,  from  obvious  considerations  of  fairness,  to 
the  party  having  the  burden  of  proof.63 

The  right  may  be  waived,  and  a  waiver  of  the  right  to  open  implies  the 

57.  1  Chamberlayne,   Evidence,  §   359.  10)  25   (1848).     See  also  Yingling  v.  Hesson, 

58.  1   Chamberlayne,    Evidence,   §   360.  16  Md.   112,   121    (1860). 

59.  Chamberlain   v.   Gaillard,   26   Ala.   504  62.  Dorr  v.  Tremont  Bank,   128  Mass.  349 
(1855).  (1880).     See  also  Bradley  v.  Clark,  1  Cush. 

60.  Benham  v.  Rowe,  2  Cal.   387,  56  Am.  (Mass.)  293  (1848). 

Dec.  342   (1852).  63.  Semler    Milling   Co.   v.    Fyffe,    127    111. 

61.  Townsend    v.    Townsend,    7    Gill     (Md.       App.   514    (1906). 


PROTECT  SUBSTANTIVE  RIGHTS.  86 

waiver  of  the  right  to  close  where  the  other  party  omits  argument.64  Who  is 
actor  is  a  question  which,  under  the  common  law  system,  would  be  decided 
upon  an  inspection  of  the  pleadings."1' 

§  160.  [Right  to  Prove  One's  Case] ;  Plaintiff  as  Actor .«« —  Should  the  plaintiff 
have  the  burden  of  proof  on  any  issue,"7  including  that  of  damages,08  or  if, 
there  being  several  defendants,  he  is  found  to  have  the  burden  of  proof  as  to 
any  of  them,"9  he  will  be  accorded,  as  a  rule,  the  right  to  open  and  close  the 
entire  case.70 

§  161.  [Right  to  Prove  One'fc  Case];  Defendant  as  Actor.71 — A  defendant's 
confession,  in  order  to  confer  on  him  the  privileges  of  the  actor  to  open  and 
close  must  as  in  other  cases,  be  full  and  complete  as  to  the  existence  of  sufficient 
constituent  of  component  facts  to  constitute  a  prima  facie  case  in  the  plaintiff. 
A  partial  confession  is  not  sufficient.72  Xor  is  this  right  lost  because  the 
plaintiff  fails  to  introduce  any  evidence  on  his  own  behalf.73  At  common  law, 
unless  defendant  by  his  pleadings  admits  plaintiff's  cause  of  action  and  relies 
on  affirmative  defenses,  he  is  not  entitled  to  open  and  reply.74  Where  the 
defendant  is  actor,  he  will  receive,  as  a  rule,  the  right  to  open  and  close.75 

§  162.  [Right  to  Prove  One's  Case];  Code  and  Common  Law  Pleading;  Admis- 
sions.76—  Under  common  law  pleading,  when  a  defendant,  by  not  denying,  ad- 
mitted all  the  material  allegations  of  the  plaintiff's  declaration,  the  burden  of 
proof  was  assumed  by  the  defendant.77  Under  code  pleading  the  rule  takes  on 
the  following  form :  The  defendant  may  acquire  the  right  to  open  and  close  by 
admitting  all  the  material 78  allegations  of  the  plaintiff's  complaint 79  and  assign- 
ing an  affirmative  defense.80  Probably  the  same  right  accrues  to  him  by  making 
the  same  admissions  at  the  trial.81 

64.  St.   Louis  &   S.   F.    R    Co.   v.   Johnson  74.  Leesville  Mfg    Co    v.  Morgan  Wood  & 
(Kan.  1906),  86  Pac.  156.  Iron  Works,  75  S.  C.  342,  55  S.  E.  768  (1906). 

65.  Beale-Doyle  Dry  Goods  Co.  v.   Barton,  75.  Gibson    v.    Reiselt,    123    111.    App.    52 
80  Ark.  326,  97  S.  W.  58   (1906).  (1905).     Shaffer     Bros.     v.     Warren,     (Iowa 

66.  1  Chamberlayne.  Evidence,  §  362.  1905)   102  N.  W.  497. 

67.  Taylor  v.  Chambers,  2  Ga.  App.  178,  58  76.   1  Chamberlayne,  Evidence,  §§  364,  365. 
S.  E.  369  ( 1907 ) .  77.   Infra,  §  396. 

68.  Geringer  v.   Novak,   117   111.   App.   160  78.  List  v   Kortepeter,  26  Ind.  27   (1866); 
(1904).  Murray  v.  New  York,  etc.,  Co.,  85  N.  Y.  236 

69.  Clodfelter     v.     Hulett,     92     Ind.     426  (1881). 

(1883).     See  also  Sodousky  v.  McGee,  4  J.  J.  79.  Fairbanks     v.     Irwin,     15     Colo.     366 

Marsh.    (Ky  )    267    (1830).  (1890)  ;  Jackson  v.  Delaplaine,  6  Hous.  (Del.) 

70.  A    co-defendant    who    pleads    affirma-  358    (1880);    Osgood   v.   Grosellose,    159    111. 
tively  has,   however,   been  granted  the  same  511,  42  N.  E.  886  (1896). 

right  as  if  he  were  sole  defendant.     Sodousky  80.  An   argumentative   denial   though   af- 

v.  McGee,  4  J.  . J.  Marsh.  (Ky.)  267  (1830).  firmative   in    form,    is   not   sufficient.     There 

71.  1  Chamberlayne,  Evidence.  §  363.  must   be   an   explicit   admission.     Robbins   v. 

72.  Southern  Ry.  Co.  v.  Smith,  102  S.  W.  Spencer,  121   Tnd    594,  22  N.  E.  660   (1889). 
232,  31  Ky.  L.  Rep.  243   (1907).  See  also  Turner  v.  Cool,  23  Tnd.  56    (1864)  ; 

73.  Dickey  v.  Smith,  127  Ga.  645,  56  S.  E.  Bradley  v.  Clark,  1  Cush.  (Mass.)  293  (1848). 
756  (1907).  81.  Campbell     v.     Roberts,     66     Ga.     733 


87  RIGHT  TO  PROVE  CASE. 

• 

Again  the  plaintiff  may  in  his  reply  or  perhaps  by  verbal  admissions  at  the 
trial  concede  the  existence  of  the  affirmative  facts  relied  upon  by  the  defendant 
in  his  answer,82  and  so  retain  the  right  to  open  and  close,  but  he  must  make 
his  admissions  clear  and  comprehensive,  leaving  nothing,  no  matter  how  incon- 
sequential, to  be  proved  by  plaintiff  in  order  to  establish  a  prima  facie  case.83 
For  example,  where  a  plaintiff  charges  gross  negligence,  a  defendant  cannot 
acquire  a  right  to  open  and  close  by  admitting  simple  negligence.84 

§  163.  [Right  to  Prove  One's  Case] ;  Proceedings  in  Bern.85 —  On  proceedings 
in  rem  he  who  concedes  that  his  adversary  is  entitled  to  succeed  unless  he  can 
show  that  he  is  himself  entitled  to  do  so,  has  the  right  of  an  actor.  Where,  in 
in  a  claim  case,  the  claimant  admits  that  the  plaintiff  has  a  prima  facie  case, 
he  will  be  deemed  to  have  acquired  the  right  to  open  and  close.86 

§  164.  [Right  to  Prove  On^'s  Case] ;  Variations  in  Order  of  Evidence.87 —  If  he 

think  proper,  a  presiding  judge  may  receive  a  relevant  fact  at  any  time  prior  to 
final  judgment ;  88 —  provided  that  when  evidence  is  offered  at  a  stage  at  which 
alone  it  can  be  effective  for  the  purpose  for  which  it  is  offered  the  discretion  of 
the  presiding  judge  does  not  extend  to  declining  to  receive  it  until  a  later 
stage.  In  other  words,  the  order  of  evidence  is  a  matter  of  administrative 
control ;  it  is,  as  is  usually  said,  "  within  the  court's  discretion."  8*  So  long 
as  the  action  of  the  trial  court  is  reasonable,  it  will  stand.90  A  judge  may  in 
any  case  reject  tenders  of  evidence  for  the  non-actor  made  before  the  actor  has 
rested  his  case.91 

In  all  cases  of  variation,  good  reasons  must  be  furnished.92     No  concession 

(1881)  ;  City  of  Aurora  v.  Cobb,  21  Ind.  492  case  that  the  proponent  has  the  burden  and  ia 

(1863).     But   compare   Wigglesworth   v.   At-  the  actor  throughout  the  hearing.     Where  all 

kins,  5  Cush.   (Mass.)   212   (1849)  ;  Lake  On-  claimants  stand  on  an  equal  footing  the  allot- 

tario  Nat.  Bank  v.  Judson,  122  N.  Y.  278,  25  ment  of  the  order  of  argument   is  purely  a 

N.  E.  367   (1890).     See  contra,  Lake  Ontario  matter  of  administration.     Sorensen  v.  Soren- 

Nat.  Bank  v.  Judson,  122  N.  Y.  278,  25  N.  E.  sen,    (Neb.  1904)   98  N.  W.  837- 

367    (1890).  87.   1  Chamberlayne,  Evidence,  §§  367,  368. 

82.  Cilley   v.   Preferred   Ace.   Ins.   Co.,    187  88.  Western    Union    Tel    Co.    v.    Bowman, 
N.   Y.  517,  79   X.  E.   1102    (1907)    [affirming  (Ala.  1904)   37  So.  493;  Van  Camp  v.  City  of 
109  N.  Y.  App.  Div   394,  96  N    Y.  Suppl.  282  Keokuk,   (Iowa  1906)    107  N.  W.  933;  Pharr 
(1905)].  v.   Shadel.    (La.   1905)    38  So.  914:   Knapp  v. 

83.  Southern  Ry.  Co  in  Kentucky  v   Steele,  Order  of  Pendo,  36  Wash.  601,  79  Pac.  209 
28  Ky.  L.  Rep.  764.  90  S.  W.  548   U906).  (1905). 

84.  Illinois  —  Edwards  v.  Hushing,  31   111.  89.  Alquist    v.     Eagle    Ironworks,     (Iowa 
App.  223   (1888).  1904)    101    N    W.  520. 

loica. —  Viele  v.  Germania  Ins  Co.,  26  Burnside  v  Town  of  Everett,  186  Mass.  4, 

Iowa  9,  96  Am.  Dec.  83  (1868).  71  N.  E  82  (1904). 

Xorth  Carolina?—  Love  v.  Dickerson,  85  90.  McBride  v.  Steinweden,  72  Kan.  508, 

N.  C.  5  (1881).  83  Pac.  822  (1906) 

United  States.—  Hall  v.  Weare,  92  U.  S.  91.  Bowen  v.  White,  26  R.  I.  69,  58  Atl.  252 
728,  738  (1875).  (1904). 

85.  1   Chamberlayne,  Evidence.  §  366.  92.  Cincinnati.  X.  O.  &  T.  Ry.  Co.  v.  Cox, 

86.  Turner  v   Elliott.  127  Ga.  338,  56  S  E.        (Tenn    1906)    143  Fed    110;   Wilkie  v.  Rich- 
434   (1907).     It  is  the  sounder  rule  in  a  will      mond  Traction  Co.,  (Va.  1906)  54  S.  E.  43. 


PROTECT  SUBSTANTIVE  RIGHTS. 


88 


will  be  given  to  evidence  which  is  immaterial,93  or  simply  cumulative.94 
Among  administrative  reasons  is  that  of  expediting  trials.90  In  judging  of 
the  reasonableness  of  the  action  of  the  trial  judges,  the  existence  of  certain 
regular  stages  approved  in  practice  is  a  consideration  of  much  importance. 
Variations  require  explanation,  i.e.,  the  assignment  of  an  administrative  rea- 
son. On  the  other  hand,  the  preservation  of  the  established  order  requires  no 
defense  or  explanation. 

§  165.  [Right  to  Prove  One's  Case] ;  Evidence  in  Chief.96 —  A  party  on  his 
original  case  may  introduce  evidence  appropriate  only  to  rebuttal.97  On  the 
other  hand,  the  actor  may  supplement  his  evidence  in  chief  at  that  stage.98 
Either  party  may  be  permitted  to  do  this  not  only  after  his  case  has  been  stated 
by  him  to  be  closed,99  and  after  both  parties  have  rested  their  respective  cases,1 
but  after  one  party  has  rested  and  the  other  declined  to  introduce  any  evidence.2 
Nor  is  it  even  material  that  a  motion  for  a  verdict  3  or  nonsuit  has  been  made,4 
or  even  allowed  5  or  refused.6  Xor  have  the  limits  of  the  judge's  power  in  this 
respect  yet  been  reached.  Although  the  practice  should  be  discouraged  as  a 
rule,7  additional  evidence  may,  in  the  interests  of  justice,  be  received  even  after 
counsel  have  concluded  their  arguments,8  the  case  been  taken  under  advisement 
by  the  court,9  or  the  judge  has  given  his  charge  to  the  jury.10  Nor  is  even  this 
the  extent  of  administrative  power.  A  party  may  ask  and  be  permitted  to 
introduce  new  evidence  even  after  the  jury  have  retired  to  deliberate  as  to 
their  verdict;  X1  and  in  fact,  it  is  said,  at  any  time  before  they  are  discharged 


93.  Potsdam  Electric  Light  &  Power  Co.  v. 
Village  of  Potsdam,  9")  N.  Y.  Suppl.  551,  112 
App.  Div.  810  (1906). 

94.  In  re  Walker's  Estate,    (Cal.  1905)   82 
Pac.  770. 

95.  Bartlett  &  King  v.  Illinois  Surety  Co., 
(Iowa  1909)   119  N.  W.  729. 

96.  1  Chamberlayne,  Evidence,  §§  369-371. 

97.  Stephens  v.  Elliott,  36  Mont.  92,  92  Pac 
45    (1907).     See  Witnesses. 

98.  Blair   v.   State,  69  Ark.  558.  64   S.  W. 
948    (1901);    Hathaway    v.    Hemingway,    20 
Conn.   191,  195    (1850). 

99.  Hartrick  v.  Hawes.  202  111.  334,  67  N.  E. 
13   (1903)    [affirming  judgment,  103  111.  App. 
433   (1902)].     Cathcart  v   Rogers,  115  la.  30, 
87  N.  W.  738    (1901).     Com.  v.  Biddle,  200 
Pa.  640.  50  Atl    262   (1901). 

1.  Watson  v.  Barnes,  125  Ga.  733,  54  S.  E. 
723   (1906). 

2.  Pocahontas    Collieries    Co.    v.    Williams, 
105  Va.   708,  54   S.   E.   868    (1906):    Reiff  v. 
Coulter,  (Wash.  1907)  92  Pac.  436 

3.  Bridger  v.  Exchange  Bank,  126  Ga.  821, 


56  S.  E.  97    (1906);  Cathcart  v.  Rogers,  115 
Iowa  30,  87  N.  W.  738  ( 1901 ) . 

4.  Hill  v.  City  of  Glenwood,    (Iowa  1904) 
100  N.  W.  522;  Richardson  v.  Agnew,  (Wash. 
1907)  89  Pac.  404 

5.  Penn  v.  Georgia,  S.  &  F.  Ry.  Co.,  129  Ga. 
856,  60  S.  E.  172  (1908). 

6.  Dorr    Cattle    Co.    v.    Chicago    &    G.    W. 
Ey.  Co,    (Iowa   1905)    103  X.   W.   1003;    An- 
derton    v.    Blais,    28    R.    I.    78,    65    Atl.    602 
(1906). 

7.  Law  v.  Merrills,  6  Wend.    (N.  Y.)    268, 
281    (1830). 

8.  Dyer  v.  State,  88  Ala.  225,  229,  7  So.  267 
(1889).     See  also  Western  Union  Tel.  Co.  v. 
Bowman,  (Ala.  1904)  37  So.  493. 

9.  Gross  v.  Watts,  206  Mo.  373,  104  S    W. 
30  (1907). 

10.  Dyer  v.  State,  88  Ala.  225,  229,  7  So. 
267    (1889);    Braydon  v.   Goulman,    1    T.  B. 
Monr.   115    (1824). 

11.  McComb  v.   Ins    Co.,   83   Iowa   247,   48 
N.  W.  1038    (1891)      Van  HUBS  v.  Rainbolt, 
2  Coldw.  139,  141   (1865). 


£9  EIGHT  TO  PROVE  CASE.  §   165 

by  order  of  court;  12 —  though  at  law,13  as  distinguished  from  equity,14  no  such 
permission  would  probably  be  accorded  after  the  verdict 15  or  other  final  adju- 
dication.16 

The  principles  are  the  same  whether  the  evidence  offered  is  by  a  new  wit- 
ness 17  or  by  the  further  examination  of  one  who  has  already  testified.18 

Should  the  court  admit  the  evidence  out  of  course,  the  right  of  the  opponent 
to  meet  and  test  it  is  obvious.19 

Opening  of  Case  for  Limited  Purpose. —  This  opening  of  a  case  for  the 
purpose  of  receiving  new  evidence  is  not  of  necessity  a  general  opening  of  the 
case  for  all  purposes.  Its  effect  may  be  limited  to  furnishing  an  opportunity 
for  introducing  the  specific  fact  alleged.20 

Reason  Required. —  So  long  as  this  administrative  power  to  vary  the  order 
of  evidence  is  exercised  with  reason,  its  exercise  will  not  be  revised.21 

The  higher  interests  of  the  furtherance  of  justice,22  which  it  is  the  appropri- 
ate function  of  the  court  to  regard  in  the  discharge  of  its  administrative  func- 
tions, supervenes  as  soon  as  the  legal  right  of  the  party  to  a  reasonable  oppor- 
tunity to  present  his  case,23  or  test  that  of  his  opponent,24  has  been  met  in  the 
course  of  the  trial.  The  order  of  evidence,  in  this  sense,  is  within  the  admin- 
istrative power  of  the  presiding  judge.25 

The  maximum  of  concession  will  be  extended  where  the  evidence  which  the 
party  asks  to  supply  is  of  a  formal  nature,  or  where  it  has  been  assumed  that 
it  has  been  shown,  that  its  existence  is  not  controverted  or  that,  as  matter  of 
law,  it  could  not  be  controverted ;  26  or  where  the  evidence  offered  is  already 
in  the  case  in  another  form.27  This  may  be  done  up  to  the  time  when  the 
jury  retire.28 

12.  "According   to  the  course   of   practice  Atl.  419   (1904);  Bridger  v.  Exchange  Bank, 
and    common    justice,    before    them    in    their  126   Ga.   821,   56   S.   E.   97    (1906).     The   re- 
several  Courts,  upon  trial  by  jury,  as  long  as  striction  originally  imposed  by  the  Court  upon 
the  prisoner  is  at  the  bar  and  the  jury  not  the   testimony   to   be   admitted   may,    in   the 
sent  away,  either  side  may  give  their  evidence  judge's  discretion,  itself  be  removed  by  subse- 
and    examine    witnesses    to    discover    truth."  quent  order.     Ailing  v.   Weissman,   77   Conn. 
Answer  of  judges   in   Lord  Stratford's  Trial,  394,  59  Atl.  419  (1904). 

Lords'  Journals,  April  10,  1642.  21.  Hill  v.  City  of  Glenwood,   (Iowa  1904) 

13.  Meadows   v.    Ins.   Co.,   67    Iowa    57,   24       100  N.  W.  522. 

N.  W.  951    (1885).  22.   Infra,  §  226. 

14.  Clavey  v    Lord,  87  Cal.  413,  416,  419,  23.   Supra.  §§  149  et  seq 
25  Pac.  493    (1891).  24.  Supra,  §§  171  et  seq. 

15.  iSee,   however,    Bahnsen  v.   Horwitz,   90  25.     Ellison    v.    Branstrator,    153    Ind.    54 
N.  Y.  Suppl.  428  (1905).  N.   FT    433    (1899)  :   Hess  v.  Wilcox,  58  Iowa 

16.  Commercial   Bank  v.  Brinkerhoff,    (Mo.  380,  383,  10  N.  W.  847    (1882) 

App.  1905).  So  S.  W.  121.  Kansas.—  Wilson  v.   Hays'  Ex'r,   109  Kan. 

17.  Rucker    v     Eddings,    7    Mo.    115,    118  321,  58  S.  W.  773   (1900);  Webb  v.  State,  29 
nH41).  Ohio  St.  351,  356   (1876). 

18.  Rucker    v.    Eddings,    7    Mo.    115,    118  26.   Browning    v.    Huff,    2    Bail.    174,    179 
<1H41).  (1831). 

19.  Bersrman  v.  London  &  L.  Fire  Ins.  Co.,  27.  Kane  v.  Kane,  35  Wash.  517,  77  Pac. 
•-U  Wash    398,  75  Pac.  989  (1904).  842    (1904). 

20.  Ailing  v.  Weissman,  77  Conn    394,  59  28.  "  Where    mere   formal   proof   has   been 


§§  166,167  PROTECT  SUBSTANTIVE  RIGHTS.  90 

The  minimum  of  administrative  indulgence  will  be  shown  where  the  course 
of  the  trial  has  developed  a  fatal  weakness,  unconsidered  by  the  party 
now  offering  the  evidence,  and  where  the  latter 29  or  other  interested  or 
friendly  person  is  offered  as  a  witness  for  the  purpose  of  repairing  the  diffi- 
culty.30 

§  166.  [Right  to  Prove  One's  Case];  Evidence  in  Chief;  Actor.31 — It  will  be 
convenient,  therefore,  to  assume  as  universal  that  which  is  so  general  and  say 
that  the  party  having  the  burden  of  proof  —  the  actor,  as  he  may  be  shortly 
called  —  after  making  such  an  "  opening  "  as  is  permitted  or  deemed  advis- 
able, first  presents  his  case  to  the  jury.  He  calls  and  examines  his  witnesses  — 
the  stages  of  whose  examination  present  a  matter  for  separate  consideration  32 
—  submits  his  documents,  exhibits  to  the  perception  of  the  court,  any  article, 
animate  or  inanimate,  which  is  in  any  way  relevant,  and  rests  his  case.  This 
is  his  evidence  in  chief.  It  should  contain  every  fact  necessary  to  the  estab- 
lishment of  a  prima  facie  case,33  it  covers  the  entire  res  yestce  out  of  which  the 
right  or  liability  claimed  or  asserted  arises. 

§  167.  [Right  to  Prove  One's  Case] ;  Nonactor.34 —  His  adversary  —  the  non- 
actor,  the  reus  —  whose  only  burden  in  proof  in  civil  cases  is  the  creation  of 
an  equilibrium  or,  in  criminal  cases,  establishing  a  reasonable  doubt,35  at  the 
close  of  the  actor's  evidence  in  chief,  becomes  entitled  to  an  opportunity  to 
present  his  case,  by  way  of  defense.36  Before  doing  so,  a  preliminary  ques- 
tion should  be  resolved:  Has  the  actor  presented  to  the  court  a  prima  facie 
case?  In  other  words,  has  he  produced  such  evidence  in  favor  of  his  conten 
tion  that  the  jury,  or  judge,  as  the  case  may  be,  would  be  justified  as  reason- 
able men  in  acting  in  accordance  with  it '?  This  point  is  raised  by  a  request 
for  a  ruling  upon  the  basis  that  such  is  not  the  case.  The  court  may,  upon 
suitable  terms,  rule  as  to  such  a  motion. 

If  the  result  is  adverse  to  the  actor,  that  is  the  end  of  the  case.     Otherwise, 
i.e.,  if  the  point  is  not  raised  or  not  sustained,  the  nonactor  proceeds.     He 
"  opens  "  his  case  to  the  jury,  calls  his  witnesses,  who  are  examined  at  the- 
same  successive  stages  as  those  of  his  opponent.37   produces  his   documents, 
offers  for  inspection  such  articles  as  may  be  deemed  relevant ;  and,   in  turn 
rests  his  case.     This  is  his  evidence  in  chief,  his  case  in  reply.     The  non- 
omitted,  courts  have  allowed  witnesses  to  be          32.   See  Witnesses,  Infra,  §  1171  et.  seq. 
called   or  documents  to  be   produced  at   any          33.  Southern  Ry.  Co.  v.  Gullatt,  (Ala.  1907) 
time  before  the  jury  retire,  in  order  to  supply       43  So.  577. 

it"     Rucker    v.    Eddinps,    7    Mo.    115,    118  34.   1  Chamberlayne,  Evidence,  §  373. 

(1841).  35.  Infra,  §  4SO. 

29.  Lewis  v.  Helm,  (Colo.  1907)  flO  Pac.  97;  36.  The  rights  of  co-defendants  to  be  heard 

Commercial    Bank  v.   BrinkerhofT,    (Mo.  App.       with  respect  to  the  contentions  of  each  other 
1905)   85  S.  \Y.  121.  are   considered    in    (Jrundy    v.    Janesville,   84 

30    Law    v     Merrills,    6    Wend.    268,    281       Wis.  574,  54  X.  W.  1085  (1893)  :  R.  v.  Cooke, 
(1830).  1  C.  &  P.  322   (1824). 

31.    1  Chamberlayne.  Evidence,  §  372.  37.  See  Witnesses  §  1171  et.  seq 


91  RIGHT  TO  PROVE  CASE.  §§   168, 1GP 

actor's  evidence  in  chief  should  contain  proof  of  all  facts  necessary  to  meet 
the  claim  of  right  or  liability  advanced  by  the  actor.38 

At  this  [joint  it  is  open  to  the  actor  to  ask  for  a  ruling  to  the  effect  that  his 
original  prima  facie  case  has  not  been  impaired  and  that,  consequently,  there 
is  nothing  for  the  jury  to  try.  He  may,  in  other  words,  ask  the  court  to  rule 
that  the  jury  could  rot,  as  reasonable  men,  find  otherwise  than  in  favor  of 
his  contention. 

§  168.  [Right  to  Prove  One's  Case] ;  Order  of  Topics.39 —  While  it  is  not  dis- 
puted that  what  is  preliminary  should  precede  in  proof  that  which  is  subse- 
quent in  point  of  time,40  or  causation,  counsel  claim  and  customarily  exercise 
the  right  to  open  their  cases  to  the  jury  in  any  order  of  topics  which  seems  to 
them  effective  for  their. purpose.  In  connection  with  the  order  of  topics,  an 
administrative  question  is  presented  to  the  court  which,  unless  it  should  appear 
that  the  issue  is  likely  to  be  befogged  or  the  jury  misled,  will  usually  be  exer- 
cised by  leaving  the  matter  to  the  determination  of  the  parties.  This  order  is 
not  commonly  disturbed  by  the  court,  where  the  facts  alleged  are  relevant,  un- 
less as  adopted  it  is  obviously  unfair  or  prejudicial.41  Therefore,  the  order 
in  which  counsel  may  see  fit  to  offer  evidence  of  the  respective  topics  covered 
by  their  contentions  at  any  particular  stage  of  the  proof,  is  largely  left  to  the 
unhampered  option  of  counsel.42  They  have  the  right  to  call  witnesses  at  the 
appropriate  stage  in  proof  of  relevant  topics  in  any  order  they  may  see  fit,  in 
the  absence  of  general  or  special  regulation  —  as  that  requiring  a  party  who 
declines  to  go  out  with  his  witnesses  to  testify  before  they  do.43  This  right 
connotes  liberty  of  placing  the  topics  in  any  order  which  he  desires.  The  re- 
verse is  equally  true  —  that  the  right  to  vary  the  order  of  topics  connotes  that 
of  calling  witnesses  in  any  order  which  may  seem  judicious. 

§  169.  [Right  to  Prove  One's  Case] ;  Conditional  Relevancy;  Bearing  Apparent.44 
—  The  right  of  counsel  to  present  facts  in  any  order  of  topics  is  also  subject  to 
the  very  important  qualification  that  it  should  affirmatively  appear,  or  be  made 
to  appear,  that  the  fact  offered  in  any  case  is  relevant.  Where  the  actual  or 
potential  relevancy  is  obvious,  on  its  face,  the  party  as  of  right  may  introduce 
it ;  —  though  it  be  not,  unless  .supplemented  by  other  evidence  sufficient  to 
warrant  a  finding  in  his  favor.4'"  But  where  the  relevancy  of  the  fact  offered 

38.  Hathawav     v.     Hemin<rvvay,     20    Conn.  be     of     no     avail     without     further     proof." 
191,    195    (1850).  branch  Bank  v.  Kinder.  5  Ala.  9,  12   (1843). 

39.  1  Chamberlayne.  Evidence,  §  374.  42.  McDaneld  v.  Logi.  143  111.  487,  32  X.  E 

40.  White    v.    Wilmington    City    Ry.    Co.,  423  (1892) 

(Del.  Super    1906)    63   Atl    931  43.  Barkley  v.   Bradford,   100  Ky.   304,   38 

41.  -  It  is  certainly  the  privilege  of  a  party  S.  W.  432  (1896)  ;  demons  v.  State,  92  Tenn. 
to    present    his    testimony    in    the    mode    his  282,  288,  286.  21  8.  W.  525  (1892). 
judgment  or  fancy  may  dictate:   and.  if  rele-  44.   1  Chamberlayne,  Evidence.  §  375. 
vant.  it  cannot  be  objected  to,  although  it  may  45.  Adams  v.  Adams,  29  Ala.  433    (1856). 

Earnhardt  v.  Clement,  49  S.  E.  49  (1904). 


§  170  PROTECT  SUBSTANTIVE  RIGHTS.  92 

is  dependent  upon  proof  of  other  facts,  a  somewhat  different  situation  is  pre- 
sented, though  the  logical  bearing  is  obvious. 

The  court  is  custodian  of  the  time  of  the  tribunal.  In  discharge  of  its  ad- 
ministrative function  to  expedite  trials,46  it  is  quite  justified  in  insisting  that 
time  be  not  fruitlessly  consumed.  If  evidence  is  offered  which  will  be  of  no 
consequence  unless  another  fact  be  also  shown  to  have  existed,  ample  warrant 
is  furnished  for  requiring  some  satisfactory  assurance,  before  admitting  the 
fact  offered,  that  evidence  will  at  some  time  be  furnished  as  to  the  existence 
of  the  conditioning  fact.47  In  other  words,  if  proof  of  two  facts  is  essential 
to  the  relevancy  of  either,  the  court  may  well  insist  upon  knowing  that  both 
are  to  be  shown  before  he  admits  proof  as  to  either  of  them.48  Still,  the  party 
evidently  can  prove  only  one  of  these  facts  at  a  time,49  and  cannot  reasonably 
be  required  to  prove  all  his  facts,  even  those  inseparably  connected,  by  a  single 
witness.50  He  may,  in  general,  present  either  fact  he  chooses  first ;  and,  if 
the  fact  so  selected  has  an  apparently  logical  bearing  upon  the  truth  of  some 
proposition  in  issue,51  if  connected  with  it  later  in  an  appropriate  manner,52 
the  evidence  is  competent ;  53 —  though  standing  alone  it  is  irrelevant. 

§  170.  [Right  to  Prove  One's  Case] ;  Bearing  not  Apparent.54—  Where  the 
actual  or  potential  relevancy  of  the  statement  or  other  fact  offered  is  not  ap- 
parent, the  court  may  well  ask  the  assurance  of  counsel  as  to  proof  of  connect- 
ing facts,  and,  if  the  information  is  not  satisfactory,  may  require  immediate 
proof  of  the  connecting  facts  as  a  condition  for  admitting  the  statement  orig- 
inally offered.55  With  such  an  assurance  the  court  will,  as  a  rule,  rest  con- 
tent,56 and -the  evidence  is  admitted  de  bene  —  provisionally  —  to  be  con- 
nected later,57  by  evidence  which  will  render  it  relevant.58  If  the  connection 
is  not  made,  if  the  appropriate  fact  is  not  proved,  the  remedy  is  to  have  the  fact 
already  introduced  in  evidence  stricken  oat,59  and  this  has  been  deemed  a  suf- 

46.  Infra,  §  304.  55.   Hagan  v.  McDermott,   (Wis.  1908)    115 

47.  Bashore  v.   Mooney,    (Cal.   App.   1906)        -V  W.  138. 

87  Pac.  553:  Kenniff  v.  Caulfield,  140  Cal.  34,  56.  Wilson  v.  Jernigan,  57  Fla.  277.  49  So. 

73  Pac.  803   i  1903).  44   (1909)  ;  Lanier  v.  Hebard,  123  Ga.  626,  51 

48.  Rogers     v.     Brent,     10     111.     573,     587  S.  E.  632   (1905 );  Ellis  v.  Thayer,  183  Mass. 
(1841M;   Sloan  v.  Sloan,   (Or.   1904)    78  Pac.  309,  67  N.  E.  325  (1903). 

893.  57.  Hoffman   v.   Harrington,  44  Mich.   183, 

49.  Palmer  v.  McCafferty,  15  Cal.  334,  335  184,   6   N.   W.   225    (1880).     Pennsylvania.— 
(1860);    Rogers    v.    Brent,    10    HI.    573.    587  American  Car,  etc.,  Co.  v.  Alexandria  Water 
(184!)).  Co.,  218  Pa.  542,  67  Atl.  861    (1007). 

50.  Rogers  v.  Brent.  10  111.  573.  587  (1849).  58.  McCoy    v.    Watson,    51    Ala.    466.    467 

51.  Rogers  v   Brent,  10  111.  573,  588  (1849).  (1874);   Bischof  v.  Mikels,  147   Ind.   115.  46 

52.  Weidler  v.   Farmers'  Bank,   11   S.  &  R.  K  E.  348   (1897).     Cramer  v.  Burlington,  4Sf 
(Pa.)   134,  140  (1824).  Iowa  315,  319   (1875). 

53.  Palmer  v.  McCafferty,  15  Cal.  334,  335  Minnesota. —  Lane  v.  Agric.  Soc.,  67  Minn. 
(1860)  ;  Rogers  v.  Brent,  10  111.  573,  587,  588  65,  69  N.  W.  463  (1896). 

(1S49)  ;  Ming  v.  Olster,  195  Mo.  460,  92  S.  W.  59.  Hix  v.   Gulley,    124   Ga.   547,   52   S.   E. 

898    (1906)  890    (1905).     Rogers   v     Brent,    in    111.    573, 

54.  1   Chamberlayne,  Evidence,  §  376.  587    (1849).     Dorr  Cattle  Co.    v.   Chicago  & 

G.  W.  Ry.  Co.,  103  N.  W.  1003  (1905). 


93  EIGHT  TO  TEST  ADVEKSARY.  §§   171,  172 

ficient  protection  to  the  rights  of  the  adverse  party,60  or  as  a  fair  risk  of  litiga- 
tion.01 If  the  motion  to  strike  out  is  not  made,  the  objection  to  the  admission 
itself  is  regarded  as  waived.62 

§  171.  Right  to  Test  Adversary's  Case.63 — The  right  to  test  an  oppo- 
nent's case  which  is  conferred  on  every  litigant  by  substantive  law  is  of  an 
importance  to  him  which  makes  its  denial  or  unreasonable  curtailment  con- 
trary to  the  principle  of  judicial  administration  now  under  consideration. 
This  right  of  testing  is,  in  the  normal  course  of  judicial  proceedings,  exercised 
by  the  parties  at  two  principal  stages,  (a)  on  cross-examination,  and  (b)  on 
rebuttal. 

§  172.  [Right  to  Test  Adversary's  Case] ;  Cross-examination.64 —  The  right  to 
a  reasonable  opportunity  for  cross-examination,  at  an  appropriate  stage,  and  in 
relation  to  matters  then  open  for  consideration,65  is  undisputed  in  any  quarter. 
The  right  to  cross-examine  is,  however,  conditioned  by  the  existence  of  a  direct 
examination.  No  right  exists  in  the  absence  of  direct  examination.  A  party 
has  no  just  legal  claim  to  insist  upon  cross-examining  a  witness  whom  his  ad- 
versary has  merely  called  and  sworn.06  The  rule  as  to  the  right  of  cross-ex- 
amination in  a  criminal  °7  case  is  the  same  which  is  applied  to  a  civil  OJS  one;  — 
although  what  is  reasonable  as  to  scope  in  any  particular  instance  may  be  af- 
fected by  the  nature  of  the  proceeding  in  which  the  question  arises.69  The 
right  of  cross-examination  in  criminal  cases  has  also  been  conferred  by  consti- 
tutional provisions.70 

60.  Palmer  v.  McCafferty,  15  Cal    334,  335  discovery    of    truth    and    in    furtherance    of 
(1860)  ;   Alexander  v.  firover,  190  Mass.  462,  justice,  and  not  be  so  restricted  as  to  defeat 
77  N.  E.  487    (  1906)  ;   Haigh  v.  Belcher,  7  C.  these  ends."     Prussian  Nat.  Ins.  Co   v.  Empire 
&  P.  389,  390    (1836).  Catering  Co.,    113    111.    App.    67    (1904),   per 

61.  O'Brien    v.    Keefe,    175    Mass.    274,    56  Vickers,  J.,  citing  Hanchett  v.  Kimbark,  118 
N.  E.  588  (1900).  111.  121    (1886). 

62.  Alexander  v.  Grover,  190  Mass.  462,  77  66.  Harris  v.  Quincy,  O.  &  K.  C.  Ry.  Co., 
N.  E.  4S7   (1906).  115   Mo.    App.    527,   91    S.    W.    1010    (1906): 

63.  1  Chamberlayne,  Evidence,  §  377.  Aikin  v.  Martin.  11  Paige  499   (1845) 

64.  1  Chamberlayne,  Evidence,  §  378.  67.  Howard  v.  Com.,  25  Ky.  L.  Rep.  2213, 

65.  City  of  Chicago  v.  Marsh,  238  111.  254,  80   S.   W.   211    (1904)    [rehearing  denied,  26 
87  N.  E.  319    (1909).     The  supreme  court  of  Ky.   L.   Rep.    36,   81    b.    W.    704]:    People   v 
isorth  Dakota  states  a  familiar  and  conceded  Billis,  110  N.  Y.  Suppl.  387,  58  Misc   Rep.  150 
rule  of  procedure  in  saying:  State  v    Foster.  (1908). 

(N.  D.  1905)    105  X.  W.  938,  per  Young,  J.—  68.  Nickelson  v.  Dial,  93  Pac.  606    (190B). 

"An  opportunity  to  cross-examine  is  a  matter  Sullivan  v.  Fugazzi,   193  Mass.  518.  79  N.  E. 

of  right,  but  the  latitude  and  extent   of  the  775    (1907). 

cross-examination  rests  largely  in  the  discre-  69.  Bight    of   co-defendants. —  In    a    crirn- 

tion  of  the  presiding  judge,  and  he  may  place  inal  case,  where  two  co-defendants  are  being 

'  a  reasonable  limit  upon  the  time  which  shall  tried  together,  it  has  been  held  bad  adminis- 

be  allowed   for   the  examination   or   cross-ex-  tration  to  require  that  the  counsel  for  only 

animation    of   a    witness'"     The    limitations  one   of   the   defendants    should    cross-examine 

upon  this  exercise  of  discretionary  power  are  the  state  witnesses.     People  v.  Bill's.  110  N. 

thus  stated  by  the  Illinois  Court  of  Appeals:  Y.  Suppl    387,  58  Misc.  Rep.  150   (1908).      . 

— "  This  discretion  should  be  exercised  for  the  70.  Wray  v.  State,  (Ala.  1908)  45  So.  697. 


§§   173,  174  PROTECT  SUBSTANTIVE  EIGHTS.  94 

§  173.  [Eight  to  Test  Adversary's  Case];  Rebuttal.71 — A  party  has  a  legal 
right  not  only  to  test  by  cross-examination  or  otherwise,72  the  case  made  by  his 
opponent,  at  any  stage;  it  is  a  further  part  of  the  right,  at  present  under  con- 
sideration, that  he  should  be  at  liberty  to  introduce  evidence  to  offset  any  af- 
firmative matter  on  which  his  opponent  relies.  In  other  words,  each  litigant 
has  a  right  to  rebuttal^3  Whenever  a  party  at  a  particular  stage  of  rebuttal, 
original  or  subsequent,  introduces  to  the  attention  of  the  tribunal  new  matter, 
it  becomes  the  right  of  his  opponent  to  introduce  evidence  to  meet  it.  Should 
the  opponent,  at  this  stage,  in  turn  set  up  new  matter,  or  a  new  aspect  of  old 
matter,  the  right  to  a  subsequent  stage  of  rebuttal  to  meet  it  enures  to  the 
benefit  of  the  original  pleader ;  —  and  so  on,  until  the  supply  of  relevant  facts 
is  exhausted. 

Testing  on  Rebuttal. —  But  the  litigant  may  not  only  introduce  at  this  stage 
facts  which  tend  directly  to  meet  and  disprove  those  set  up  by  his  opponent; 
he  may  introduce  evidence  which  tests  them  and  merely  minimizes  or  destroys 
their  probative  force. 

Scope  of  Rebuttal. —  The  object  of  rebutting  evidence  is  to  meet,  antagonize 
or  confute  new  facts  introduced  by  the  adverse  party  at  the  next  previous 
stage,'4  whether  given  by  himself,75  or  by  his  other  witnesses7"  or  on  cross- 
examination:77 —  mere  reassertion  of  the  propositions  advanced  on  the  evi- 
dence in  chief  not  being  permitted  at  this  stage.78  The  facts  offered  in  re- 
buttal being  in  their  nature  deliberative,79  strong  probative  force  is  not  essen- 
tial to  adinissibility;  s" — although  some  evidentiary  cogency,  actual  or  poten- 
tial, must  be  made  to  appear.81  On  the  other  hand,  no  test  of  admissibility  is 
furnished  by  the  fact  that  the  rebutting  evidence  tends  to  strengthen  the  case 
made  by  the  evidence  in  chief  in  a  civil  or  criminal  s2  case.  That  is,  directly 
or  indirectly,  the  object  of  any  rebuttal. 

§  174.  [Right  to  Test  Adversary's  Case] ;  Actor.83 —  If  the  actor  fail  at  the  end 
of  the  nonactor's  case  to  move  for  a  verdict  in  his  own  favor;  or  if,  when  such  a 
motion  is  made,  it  has  been  overruled ;  the  actor  has  reached  the  stage  of  re- 

71.  1   Chamherlayne.   Evidence.   §   370.  76.  Cross  v.  State,   (Ala,  1!K)0)   41  So   875. 

72.  Supra,  §  172.  77.  Thomas   v.    State.    (Ala.    11107)    43   So. 

73.  "  Kehuttinjj  evidence  means  not  merely  371      Roberts    v     Terre    Haute    Electric    Co., 
evidence    which    contradicts    the   evidence   on  ( Tnd.   App    1006)   7(5  X.  E    S!).)   [denied  peti- 
the  opposite  side,  hut   evidence   in   denial   of  tion  for  rehearing.  76  \.  K.  323   (1905)]. 
some    affirmative    fact    which    the   answering  78.   State   v.   Kelly.   77   Conn.   260,  58   Atl. 
party    is    endeavoring    to    prove."     State    v.  705    (1004).     Hal  I  wood  Cash  Register  Co.  v. 
Fourchy,   51    T.a.    Ann.   22S.   240.   25   So.    109,  Rollins.  62  Atl.  380    (1005). 

114    I  1800).  79.    Xi/pra,  §  34. 

74.  Pronskovitch  v.  Chicago  &  A.  TJv.  Co..  80.  State   v.   C.allajrher,    14   Idaho   «56,   94 
232  Til.  13f>.  83  \    E.  545  <  1908)       Alpena  Tp.       Pac.  581    (190SK 

v    Mainville,   153   Mich.  732.   117   X.  \V.  338,  81.  Wojtylak  v.  Kansas  &  T.  Coal  Co..  188 

15  Detroit  Lejr.  X.  605   (19081.  Mo   260.  87  S.  \V.  506   (1905)  :  People  v.  Cas- 

75.  Wells  v.  Gallagher,    (Ala.  1905)    39  So.  cone.  185  X   Y.  317.  78  X".  E.  287   (1906). 
747:  State  v.  Beckner.  194  Mo.  281,  91  S.  W.  82.  State  v.  Howard.  (La.  1908)  45  So.  260. 
892    (1906)     (self  defense).  83.   I  Chamherlayne.  Evidence.  §  380. 


95  EIGHT  TO  TEST  ADVEESABY.  §§  175, 176 

buttal.  The  evidence  in  chief  of  the  nonactor,  as  is  characteristic  of  the  gen- 
eral position  of  one  who  will  succeed  if  he  but  offsets  the  case  against  him, 
has  consisted  largely  of  what  practically  amounts  to  rebuttal  in  the  average 
instance.84  But,  so  far  as  the  actor  is  concerned,  the  first  opportunity  for 
rebuttal  occurs  at  the  close  of  the  nonactor's  case.  He  is  not  entitled  to  re- 
iterate his  evidence  in  chief,  nor  to  reaffirm  what  his  antagonist  has  denied, 
or  to  introduce  evidence  which  he  should  have  offered  as  part  of  his  original 
case.85  All  this  may  be  done  by  leave  of  court ;  86  but,  in  the  average  instance, 
to  permit  it  would  amount  to  trying  the  case  over  again  by  the  use  of  cumula- 
tive evidence. 

The  normal  scope  of  rebuttal  is  that  it  should  meet  the  new  matter  given  in 
the  nonactor's  evidence  in  chief ;  87  nor  is  it  material  that  the  nonactor  should 
have  interpolated  part  of  his  case  into  the  actor's  evidence  in  chief.88  His 
rights  at  this  stage  are  confined  to  attacking  the  inferences  from  this  new 
matter.89 

§  175.  [Right  to  Test  Adversary's  Case] ;  Use  of  "  Experts."  90 —  Where  a  non- 
actor  introduces  expert  testimony  in  support  of  his  position,  the  actor  may,  as 
a  rule,  introduce  similar  evidence  on  rebuttal.91 

§  176.  [Right  to  Test  Adversary's  Case] ;  Anticipatory  Rebuttal.92 —  Where 
the  position  of  the  nonactor  is  known  to  the  actor,  a  very  natural  impatience 
is  often  shown,  especially  by  inexperienced  practitioners,  to  come  at  once  to 
the  real  point  upon  which  the  issue  will  ultimately  turn,  by  means  of  what 
may  be  called  an  "  anticipatory  rebuttal."  93  It  is,  however,  clear  that  a  fact 
is  not  competent  in  an  actor's  evidence  in  chief  merely  because  it  may  be  re- 
ceived upon  rebuttal,  when  that  stage  is  reached.94  In  general,  therefore, 
such  anticipatory  rebuttal  is  excluded ;  —  except  by  leave  of  court. 

84.  Supra,  §  166.  88.  Bade   v.   Hibbard    (Or.    1908),   93   Pac. 

85.  Wilkinson  v.  State,  44  So.  611    (1907)        364. 

(diagram)  ;  Patterson  v.  San  Francisco  &  S.  The  interpolation  itself  may  not  be  per- 
il. Electric  Ry.  Co.,  147  Cal.  178,  81  Pac.  531  mitted.  McGregor  v.  Oregon  R.  Co.,  (Or. 
(1905).  1908)  93  Pac.  465. 

86.  Birmingham  Ry.,  Light  &  Power  Co.  v.  89.  Hoggson  &  Pettis  Mfg.  Co.  v.  Sears,  77 
Mullen,    138    Ala.    614,    35    So.    701     (1903).  Conn.   587.   60   Atl     1^3    (1905).     Mueller   v. 
Minard  v.  West  Jersey  &  S.  Ry    Co.,  64  Atl.  Rebhan.  94  111.  142,  150    (1879).     Bazelon  v. 
1054     (1906).     Hall    v.    Wagner,    97    X.    Y.  Lyon.   128  Wis.  337,   107  N.  W.  337    (1906). 
Suppl.  570,  111  App.  Div.  70   (1906).  90.  1  Chamberlayne.  Evidence,  §  381. 

87.  American   Car  &  Foundry  Co.   v.  Alex-  91.  Guenther    v.    Metropolitan    R.    Co.,    23 
andria   Water  Co..  21s   Pa.  542,  67   Atl.   861  App.  D   C.  493   (1904)  :  William  Grace  Co.  v. 
(1907).     Morgan    v.    Hendricks,   80   Vt.    284,  Larson,  227  111.   101.  81  X.  E.  44   (1907)    [af- 
67    Atl.    702     (1907).     Evidence    offered    by  firming  129  111.  App.  290  ( 1906)  ]. 
plaintiff  in  rebuttal  which  rebuts  no  evidence  92.   1  Chamberlayne,  Evidence,  §  382. 
offered    by   defendants   is    properly    excluded.  93.   Atlas  Lumber  &  Coal  Co.  v.  Flint,    (S. 
Saucier  v.  New  Hampshire  Spinning  Mills,  72  D.  1905)   104  X.  W.  1046. 

X.  H.  292,  56  Atl.  o*5  ( 1903) .  94.  Maurice  v.  Hunt,  80  Ark.  476,  97  S.  W. 

664  (1906). 


§§   177-179  PKOTECT  SUBSTANTIVE  RIGHTS.  96 

§  177.  [Right  to  Test  Adversary's  Case] ;  Nonactor.05 —  At  the  close  of  the 
actor's  stage  of  rebuttal,  the  burden  of  evidence  9C  returns  to  the  nonactor  to 
rebut,  as  it  were,  the  actor's  rebuttal.  The  opportunity  to  meet  rebuttal  is, 
.for  purposes  of  distinction,  -called  the  surrebuttal.  The  rights  of  the  nonactor 
on  surrebuttal  are  analogous  to  the  rights  of  the  actor  on  rebuttal.97  He  is  not 
at  liberty,  without  leave  of  court,98  to  reaffirm,  the  allegation  of  his  evidence  in 
chief.  The  stage  for  that  is  past.99  His  rights  are  entirely  in  connection 
with  the  new  matter  introduced  by  the  actor  on  his  rebuttal.  He  may  directly 
deny  the  existence  of  those  facts  or  set  up  other  facts  inconsistent  with  their 
^effect,  supplementing  facts ;  l  or  he  may  attempt  to  discredit  this  new  matter 
or  the  witnesses  by  which  it  is  sought  to  establish  it. 

§  178.  [Right  to  Test  Adversary's  Case] ;  Subsequent  Rebuttal.2 —  An  actor 
may  be  permitted  3  to  exercise,  at  the  stage  of  re-rebuttal,  as  regards  the  wit- 
nesses and  new  facts  set  up  by  the  nouactor  on  surrebuttal.  the  same  rights  as 
were  exercised  by  the  latter  at  that  stage.  If  new  matter  appears  in  the  re- 
rebuttal  the  nonactor  becomes  entitled  to  a  re-surrebuttal,  where  the  rights  are 
similar  to  those  on  surrebuttal,  mutatis  mutandis;  —  and  so  on,  in  alternating 
stages  to  which  specific  names  are  not,  as  a  practical  matter,  usually  assigned. 

§  179.  Right  to  the  Use  of  Reason.4 — "  At  the  outset,  and  for  centuries  after 
the  beginnings  of  our  law  as  an  established  system  there  was  no  clear  concep- 
tion of  Substantive  Law  as  such.  The  whole  legal  theory  was  embodied  in 
forms  of  remedy.  Ceremonies  had  been  embalmed  as  primary  and  immutable 
principles  of  law.  Forms  and  modes  of  procedure  stood  in  the  place  of  sub- 
stantive rights ;  nor  could  justice  see  beyond  them  or  above  them/'  5  In  the 
slow  evolution  of  legal  institutions  of  Englishmen  the  use  of  reason  has  suc- 
ceeded the  application  of  the  more  formal  tests  with  which  our  ancestors  were 
familiar. 

A  Substantive  Right  to  Reason. —  In  an  attempt,  at  the  present  day,  to  de- 
termine the  truth  of  a  proposition  of  fact  by  the  use  of  reason,  it  is  one  of  the 
inherent  fundamental  rights  of  the  parties  to  insist  that  this  test  should  be 

95.  1  Chamberlayne,  Evidence,  §  383.  99.   Baum  v.  Palmer,  165  Ind.  513,  76  N.  E. 

96.  Infra,  §§  40'2'et  seq.  108   (1905) 

97.  Connecticut. —  Leiden  v.  Allen,  61  Conn.  1.  Cooke  v.- Loper,    (Ala.   1007)    44  So.  78; 
173,  2.3  Atl.  963    (1891).  Duckworth  v.  Duckworth,   (Md.  1JI03)   56  Atl. 

/ llin ois  —  Willa rd  v.   Pettitt,   153    111.  663,  490;     Maloney    v.     King,     (Mont.     1904)     76 

39  X    E    991    (1895),  Pac    4 

Michigan. —  Devonshire  v.  Peters,  104  Mich  2.    1   Chamberlayne.  Evidence,  §  384. 

501,  63  X.  W.   973    (1895).  3.   State  v    Alford.  31   Conn.  40,  46    (1862). 

Pennsylvania. — Koenig    v.    Bauer,    57    Pa.  4.   1  Cliamberlayne.  Evidence.  §  385. 

168,  172  (1868).  5.  Hepburn,     The     Development     of     Code 

Vermont. —  Pratt   v.    Rawson,    40   Vt.    183,  Pleading.     Salmond,    Jurisp  .     (2d    ed.)    451. 

188   (1868).  For  some  consideration  of  forma  of  trial  in 

98.  Crosby  v.  Wells,  73  X.  .T.  L,.  790.  67  Atl.  England  antecedent  to  the  use  of  reason,  see 
295    (1907);    Wysong  v..  Seaboard    Air    Line  supra,  §  120. 

Ry.(  74  S.  C.  1,  54  S.  E.  214   (1906). 


97  RIGHT  TO  EEASON.  §§  180-182 

reason  alone  and  that  the  test  should  be  properly  applied.  The  presiding  jus- 
tice should  so  discharge  his  adnr'nistrative  functions  in  dealing  with  the  ad- 
mission of  evidence  as  to  preserve  this  right. 

§  180.  [Right  to  the  Use  of  Reason] ;  Should  Prevent  Jury  from  Being  Misled.6 
—  In  enforcing  the  use  of  reason  upon  the  jury,  the  court  will  be  vigilant  to 
prevent  the  use  of  any  evidence  or  argument  which  will  tend  to  mislead  them ; 
or  to  replace  reason  as  a  guide  by  any  form  of  emotionalism.7 

Thus  a  bitter  attack  by  one  party  or  witness  on  another  party  may  justify 
the  court  in  withdrawing  the  case  from  the  jury.8  If  counsel  insist  on  asking 
irrelevant  questions  the>  court  may  require  him  to  dictate  them  out  of  the  pres- 
ence of  the  jury.9  So  appeals  to  sympathy  as  by  testifying  from  a  stretcher  10 
or  by  showing  wounds  to  the  jury  should  be  avoided. 

Many  of  the  rules  of  evidence,  procedural  or  administrative,  e.g.,  excluding 
hearsay,1"3  rejecting  inference — "opinion,"  as  it  is  called11 — and  the  like, 
have  been  adopted  and  are  being  enforced,  with  the  very  object  of  protecting  the 
jury  from  being  misled.  Similarly,  where  the  undisputed  circumstances  show 
that  the  testimony  of  a  witness  cannot  by  any  possibility  be  true,  it  is  the  duty 
of  the  court  to  withdraw  such  testimony  from  the  jury.12 

§  181.  [Right  to  the  TJse  of  Reason] ;  Guessing  not  Permitted.13 —  The  jury 
will  not  be  permitted  to  guess.  Where  they  cannot  reason  to  a  conclusion  in- 
volving the  necessity  of  judicial  action,  they  must  decline  to  act.  It  is  the 
administrative  duty  of  the  court  to  enforce  this  rule.  It  is,  for  example,  error 
to  submit  a  cause  to  a  jury  where  the  evidence  only  enables  the  latter  to  guess 
as  to  which  one  of  the  several  causes  produced  a  certain  result.14 

§  182.  [Right  to  the  Use  of  Reason] ;  Striking  Out  Prejudicial  Evidence.15— 
Where  inadmissible  evidence  has  been  received  and  is  of  such  a  nature  as  to 
prejudice  the  party,  the  court  will,  in  general,  grant  a  motion  to  strike  it  out 
of  the  record.  Of  this  nature  would  be  prejudicial  hearsay.16  The  same 
course  may  properly  be  followed  where  the  evidence  is  irrelevant.17  The  fact 
that  the  probative  force  of  evidence  is  seriously  impaired  by  cross-examina- 
tion ls  or  in  some  other  similar  way  furnishes  no  ground  for  striking  it  out. 

6.  1  Chamberlayne,  Evidence.  §  386.  11.  Infra.  §  672. 

7.  Union  Pac.  R.  Co.  v.  Field,   (  U.  S.  1905)  12.  Wolf   v.   City   Ry.   Co.    (Or.    1907),   91 
6!)  C.  C.  A.  536,  137   Fed.  14.  Pac.   460. 

8.  Hale    v.     Hale,    32    Pa.    Super.    Ct.    37  13.   1  Chamberlayne.  Evidence,  §  387. 
(1<)06).  14.  Fuller    v.    Ann    Arbor    R.    Co,    (Mich. 

9.  Marcum    v.    Hargis,    31    Ky.    Law    Rep.  1905)   12  Detroit  Leg.  N.  348,  104  N.  W.  414. 
1117,   104  S.  \V.  693    H907).  15-   1  Chamberlayne,  Evidence,  §  388. 

10.  Blanohard  v.  H'olyoke  St.  Ry    Co..  186  16.  Skinner   Mfg.   Co.   v.  Dowville,  54  Fla. 
Mass.  582.  72  X.  E.  94  (1904).     Blanchard  v.       251,  44  So.  1014   (1907). 

Holyoke  >t.  Ry.  Co.,  186  Mass.  582.  72  X.  E  17.  Johnston   v    Beadle,    (Cal.   App.    1907) 

94  (1904).     Felsch  v.  Babb   (Neb.  1904),  101  91  Pac.  1011. 

N.  W.  1011.  18.   Platt  v.  Rowand,  54  Fla.  237,  45  ISo.  32 

lOa.  Infra,  §  859.  ( 1907  ) . 


§  183  PROTECT  SUBSTANTIVE  EIGHTS.  98 

Nor  will  this  course  be  adopted  merely  on  the  ground  that  the  evidence  is 
insufficient.™ 

Irresponsive-ness. —  Where  an  answer  is  irresponsive,  either  party  may 
move  to  strike  it  out.20  But  here,  as  in  other  cases  where  objection  to  the 
reception  of  evidence  is  taken,  the  objecting  party,  to  secure  consideration  in 
an  appellate  court,  will  be  required  to  obtain  a  ruling  upon  the  question  by 
the  trial  judge.  If  the  ruling  is  adverse  to  him,  he  may  then  except.21 

Objection  must  have  been  made  to  an  obvious  incompetent  question  if  the 
motion  to  strike  out  is  to  be  urged  as  a  matter  of  right.22  But  where  the  evi- 
dence has  been  admitted  without  objection,  the  judge  is  under  no  obligation  to 
strike  out  cumulative  testimony  on  the  same  point.23  But  this  proceeds  upon 
the  ground  of  waiver,  in  failing  to  assert  a  legal  right  at  the  proper  time.  If 
nothing  in  the  question  appears  objectionable,  no  rights  are  lost  by  failing  to 
object  to  it,  if  a  motion  to  strike  out  is  promptly  made.24  On  a  general  objec- 
tion and  motion  to  strike  out,  if  any  part  of  the  evidence  is  competent,  the 
motion  will  properly  be  overruled.25 

Where  evidence  is  improperly  admitted  it  may  be  withdrawn  if  the  evidence 
is  not  very  material  and  the  error  corrected  but  if  the  evidence  is  of  a  material 
character  arid  is  calculated  to  affect  the  jury  the  withdrawal  of  the  same  from 
their  consideration  would  not  heal  the  vice  of  its  admission.26 

§  183.  [Right  to  the  Use  of  Reason] ;  Withdrawal  of  Jury.27 —  Where  an  argu- 
ment 011  any  point  if  conducted  in  the  presence  of  the  jury  would  tend  to  mis- 
lead them,  they  may  be  required  to  withdraw.28  The  court  is  to  judge,  as  a 
question  of  administration,  whether  it  be  preferable,  in  the  interests  of  justice, 
to  order  such  a  withdrawal  and  have  the  same  thing  gone  over  by  counsel  in 
his  argument  to  the  jury ;  or,  on  the  contrary,  to  expedite  the  trial  29  by  having 
the  entire  matter  discussed  in  their  presence  in  the  first  instance.  Counsel 
have  no  right  to  have  the  court  adopt  the  latter  course.3" 

19.  1'latt  v.   Rowand,  54   Fla.   237,   45   So.  24.  Johnston   v.   Beadle    (Cal.   App.    1907), 
32    (1907).                                                                           91   Pac.    1011;   Skinner  Mfg.  Co.  v.  Dowville, 

20.  Kramer    v.    llaeger    Storage,    etc.,    Co.,       54  Fla.  351,  44  So.  1014   (1907). 

108  X.  V.  Suppl.  1,  123  App   Div.  316  (1908).  25.  Platt  v.  Rowand.  54  Fla.  237,  45  So.  32 

21.  Sheldon  v.  Wright,  80  Vt.  298,  67  Atl.  (1907)  ;  Darrin  v.  \Vhittingham,   (Md.  J.907) 
807    (1907).     In  the  taking  of  testimony  the  68  Atl.  269;  Galveston,  etc.,  Ry.  Co.  v.  Janert, 
occasional    ejaculation    of   the   word    "  excep-  (Tex.  Civ.  App.  1008)    107  S.  W.  963. 

tion  "  is  in  the  nature  of  a  running  and  un-  26.  Andrews   v.   State.  64  Tex.  Crim.   Rep. 

favorable   comment   on    the  proceedings,   and  2,   141   S.   \V.  220,  42  L.   R.   A.    (-X    S.)    747 

nothing  more.      It  raises  no  question  for  the  (1911  i. 

decision  of  the  court  and  reserves  nothing."  27.    1  Chamberlayne.  Evidence,  §  389. 

Sheldon  v.  Wright.  80  Vt.  298,  304    (1907)  28.   Henrietta  Coal  Co.  v.  Campbell,  211  111. 

22.  fnira.—  Aughey  v.  Windrem,  114  X.  W.  216.  71   X.   E.   863    (1904). 
1047     i 1908).     Darrin    v.    Whittingham,    68  29.  Jnfrn,  §§  304  et  se</. 

Atl.  269   i  1907).  30.  Rice  v.  Dewberry,  (Tex.  Civ.  App.  1906) 

23.  Skinner  Mfg    Co.  v.  Dowville,  54   Fla.       93  S.  W.  715. 
251,  44  So.  1014    (1907). 


99  RIGHT  TO  EEASON.  §§   184-186 

§  184.  [Right  to  the  Use  of  Reason] ;  Preventing  Irrational  Verdicts.31 —  As 
is  stated  more  at  length  elsewhere,32  the  justice  presiding  at  a  jury  trial  may 
direct  a  verdict  for  either  party,  when  a  contrary  finding  could  not,  as  a  matter 
of  reason,  be  sustained  by  the  evidence/53  The  judge,  being  charged  with  the 
duty  of  enforcing  upon  the  jury  the  use  of  the  reasoning  faculty,  may  also  set 
aside  a  verdict  which  is  irrational,  either  as  a  matter  of  logical 34  or  legal  35 
reasoning. 

Actions'  for  a  penalty  follow  the  same  rules.  In  such  a  case  a  verdict 
against  the  defendant  has  been  ordered. 'M 

§  185.  [Right  to  the  Use  of  Reason] ;  Directing  Verdicts.37 —  But  a  result 
which  it  would  be  the  administrative  duty  of  the  court  to  nullify  as  irrational 
and  therefore  illegal  by  awarding  a  new  trial,38  the  judge  may  properly  look 
upon  as  something  which  it  is  his  administrative  duty  to  prevent.  He  may, 
therefore,  intervene  either  on  motion  or  sua  sponte,  at  an  earlier  stage  by 
withdrawing  the  case  from  the  jury  and  directing  a  verdict  against  one  of  the 
parties/59 

§  186.  [Right  to  the  Use  of  Reason] ;  Relation  to  Grant  of  a  New  Trial.40— 

As  a  verdict  by  a  jury  may  properly  be  set  aside  by  the  presiding  judge  if 
reason  has  not  been  exercised  41  and  as  a  verdict  will  be  directed  where  only 
one  conclusion  is  logically,  i.e.,  legally  permissible,42  it  may  properly  be  said, 
the  test  being  the  same,  that  where  the  court  would  be  constrained  to  set  aside 
a  verdict  for  a  party  complaining,  it  would  be  justified  in  directing  a  verdict 
in  his  favor..43  It  is  stating  the  same  proposition  to  say  that  a  verdict  will  be 
ordered  when  the  evidence  at  the  trial,  with  all  the  inferences  which  the  jury 
could  justifiably  draw  from  it,  is  so  insufficient  to  support  a  verdict  that  were 
it  returned  it  would  be  set  aside.44  . 

In  jurisdictions,  on  the  contrary,  where  new  trials  may  be  granted  because 
the  verdict  is  against  the  weight  or  preponderance  of  the  evidence,45  a  jury 
cannot  be  ordered  to  return  a  verdict  where  there  is  enough  evidence  to  warrant 

31.  1    Chamberlayne,   Evidence,   §   390.  37.   1   Chamberlayne,   Evidence,   §  391. 

32.  Infra,  §§  191  et  seq.  38.  Supra,  §  133. 

33.  Wilson    v.    Alcatraz    Asphalt    Co.,    142  39.  School  Furniture  Co.  v.  Warsaw  School 
Cal    1S2,  75  Pac.  787    (1904).     Kelly  v.-  Ins.  Dist.,  122  Pa.  St.  494  (1888). 

Co.,    126    111.    App.    528     (1906).     Young    v  40.   1    Chamberlayne,   Evidence,  §   392. 

Chandler,   102   Me.  251,   66   Atl.  539    (1!»06).  41.  Supra,  §  133. 

Harrison  Granite  Co.  v.   Pennsylvania  R.  Co.,  42.   Infra,  §  36. 

145   Mich.   712,    108   N.   W.    1081,    13   Detroit  43.    Illinois  Cent.  R.  Co.  v.  Bailey,  222  111. 

Leg.  X.  (i31    (1906).     Loper  v.  Somers.  71  N.  480,  78  N.  E.  833   11906). 

J.     L.    657.    61     Atl.    85     (1905).     Guild    v.  44.  Chicago  Hardware  Co.  v.  Matthews,  124 

Pringle,  145  Fed.  312   (1906).  111.  App.  89   (1905)  -.  Anderson  v.  Cumberland 

34.  Xw/mj.  §  36,  Telephone  &  Telegraph  Co.,    (Miss.   1905)   38 

35.  Supra,  §  36.  So.  786 ;   Cobb  v.  Glenn  Boom  &  Lumber  Co., 

36.  Gilhreath    v.    State,     (Tex.    Civ.    App.  (W.  Va.  1905)   49  S.  E.  1005. 
1904)  82  S.  W.  807.  45.  Supra,  §  133. 


§§   187-189  PROTECT  SUBSTANTIVE  RIGHTS.  100 

them,  as  a  matter  of  reason,  in  finding  otherwise ;  although  the  court  fully  in- 
tends, the  weight  of  the  evidence  being  determined  in  his  mind,  that  if  the  jury 
return  any  other  verdict  than  the  one  he  is  asked  to  order  he  will  set  it  aside.46 

§  187.  [Right  to  the  Use  of  Reason] ;  Relation  to  Motion  in  Arrest  of  Judg- 
ment.47—  Where  a  defect  exists  in  the  declaration  or  similar  pleading  which  is 
of  such  a  character  as  to  be  ground  for  a  motion  in  arrest  of  judgment,  it  is 
proper  to  move  to  withdraw  the  case  from  the  jury  on  the  same  ground.48  On 
such  a  motion  based  on  a  defect  in  the  declaration,  matters  of  evidence  and. 
facts  proved  cannot  be  considered.49 

§  188.  [Right  to  the  Use  of  Reason] ;  A  Matter  of  Law.50—  As  the  duty  of 
the  jury  is  to  reason  correctly,  and  as  it  is  the  substantive  right  of  the  party  to 
insist  that  this  reasoning  be  exercised,51  a  ruling  as  to  what  is  or  is  not  ra- 
tionally possible  for  the  jury  to  do  is,  in  reality,  ruling  on  a  matter  of  law.52 
In  other  words,  whether  there  is  any  evidence  upon  which  the  jury  could  rea- 
sonably determine  as  to  the  truth  of  a  matter  in  issue  is  a  question  of  law  for 
the  court;53  if  there  is,  it  must  be  left  to  them.54  But,  in  general,  a  matter 
about  which  there  is  no  controversy  in  the  evidence  should  not  be  left  to  the 
jury.55 

The  question  is  however  complicated  by  the  fact  that  the  jury  is  not  bound 
to  believe  uncontradicted  evidence  admitted  without  objection.56 

§  189.  [Right  to  the  Use  of  Reason] ;  General  Rules.57 —  It  is  not  necessary 
to  submit  a  cause  to  a  jury,  unless  there  is  evidence  which  will  warrant  a 
verdict  in  favor  of  the  party  producing  it.u8  As  a  rule,  where  the  evidence 

46.  yew  York. — Marshall  v.  City  of  Buffalo,  Tennessee. —  Norman   v.   Southern   Ry.   Co., 
176  N.  Y.  545,  68  X.  E.  1119   (1903).     Lehew       104  S.  W.  1088   (1907). 

v.  Hewitt,  138  N.  C.  6,  50  S.  E.  459    (1905).  United  Mates.—  Minnesota  &  D.  Cattle  Co. 

Weir  v.   Seattle   Electric  Co.,  41    Wash.   657,  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  147  Fed.  463, 

84  Pac.  597    (1906).  77  C.  C.  A.  607    (1906). 

47.  1   Chamberlayne,   Evidence,   §  393.  53.   Universal  Metal  Co.  v.  Durham  &  C.  R. 

48.  Grace  &  Hyde  Co.  v.  Sanborn,  124  111.  Co.,  145  X.  C.  293,  59  S.  E.  50   (1907)  :  Bos- 
App.  472   (1906)    [affirmed  in  225  111.  238,  80  well  v.  First  Nat.  Bank,   (Wyo.  1907)  92  Pac. 
N.  E.  88].  624  [rehearing  denied  93  Pac.  661]. 

49.  American   Car  &   Foundry  Co.  v.   Hill,  54.  Pigeon  v.  Lane,  80  Conn.  237,  67  Atl. 
226  111.  227,  80  X.  E.  784    (1907)    [affirming  886   (1907). 

128  111.  App.  176  (1906)].     See  Rasco  v.  Jef-  Illinois.—  Clark    v.    Chicago    R.,    etc.,    Ry. 

ferson,    (Ala.    1905)    38    So.    246.     Owens   v.  Co.,  231   111.  548,  83  X.  E.  286   (1907).  Paine 

Lehigh    Valley    Coal   Co.,    115    111.    App.    142  v.    Kelley,    83    X.    E.    8     (1907).     Powers    v. 

(1904).  Miller,   107   X.  V.   S.  960,   123  App.  Div.  396 

50.  1  Chamberlayne,  Evidence,  §  394.  (1908). 

51.  Infra,  §§  179  et  seq.  55.   Keene    v.    Newark    Watch    Case,    etc. 

52.  Illinois.—  Libby,    McNeil    &    Libby    v.  Co.,  188  N.  Y.  598,  81  N.  E.  1167   (1907)   [a/- 
Banks, 209  111.  109.  70  N.  E.  599   (1904)    [af-  firming  judgment,  98  N.  Y.  S.  68,   112  App. 
firming  110  111    App   330   (1903)].  Div.  7   (1906)]. 

Maryland.—  Baltimore  &  O.  R.  Co.  v.  Belin-  56.  Collins  v.  Casualty  Co.,  Mass.  112  N.  E. 

ski,  67  Atl.  249   (1907).  634,  L.  R.  A.  1916  E  1203   (1916) 

yorth    Carolina. —  Campbell    v.    Everhart,  57.  1    Chamberlayne,   Evidence.   §   395. 

139  N.  C.  503,  52  S.  E.  201   (1905).  58.  Lynch  v.  Englehardt,  Winning,  Davison 


101  RIGHT  TO  REASON.  §§  190,191 

on  material  points  is  conflicting,  a  verdict  cannot  be  ordered ;  59  unless,  indeed, 
although  there  is  technically  a  conflict,  the  evidence  on  one  side  is  of  so  con- 
clusive a  character  that  the  court  would  set  aside  a  verdict  rendered  in  oppo- 
sition to  it.00 

§  190.  [Right  to  the  Use  of  Reason];  Scintilla  of  Evidence  Not  Sufficient.01— 
It  is  not  at  the  present  day  sufficient  to  prevent  ordering  a  verdict  that  the 
party  against  whom  the  ruling  is  asked  may  have  been  able  to  furnish  some 
little  evidence  in  support  of  his  contention.02  The  earlier  law  allowed  the 
jury  to  act  if  a  scintilla  63  of  proof  were  furnished ;  and  thfe  same  proposition 
is  still  occasionally  announced.04  In  general,  however,  it  is  well  settled  that 
a  scintilla  is  no  longer  sufficient.05  It  is,  indeed,  quite  frequently  said  that  a 
verdict  cannot  be  ordered  if  there  is  any  evidence.66  But  this  is  not  the  real 
meaning  of  those  who  announce  the  rule.  It  should  be  completed  by  adding 
to  the  words  "  any  evidence  "  the  phrase  "  from  which  the  jury  might  reason- 
ably find  in  its  favor."  67 

§  191.  [Right  to  the  Use  of  Reason] ;  Motion  Equivalent  to  a  Demurrer  to 
Evidence.08 —  A  motion  to  direct  a  verdict  is  in  effect  a  demurrer  to  the  evidence 
of  the  opposing  party;  and  in  passing  on  the  same  the  court  should  consider  as 
established  all  the  facts  proved  and  all  inferences  which  can  be  logically  and 
reasonably  drawn  from  the  evidence  submitted  by  the  party  against  whom  the 
order  is  asked.69 

Mercantile  Co.,  1  Neb.   (Unof.)  528,  96  N.  W.  least  particle.     The  doctrine  that  where  there 

524    (1901).  is   any   evidence,   however   slight,   tending   to 

59.  Wileox  v.  Evans  &  Pennington,  127  Ga.  support  a  material  issue,  the  case  must  go  to 
580,  56  S.  E.  635    (  1907)  ;  City  of  Chicago  v.  the  jury,  since  they  are  the  exclusive  judges  of 
Jarvis,  226   111.   614,   80   X.   E.    1079    (1907).  the    weight    of    the    evidence.     Black.,    Law 
Hummer  v.  Lehigh  Valley  R.  Co,  65  Atl.  126  Diet. 

(1906).     Reilly  v.  Troy  Brick  Co.,  184  N.  Y.  64.  Louisville,  H.  &  St.  L.  Ry.  Co.  v.  Hall, 

399,  77   N.   E.  385    (1906).  29  Ky.   Law   Rep.  584,  94  S.  W.   26    (1906). 

Pennsylvania. —  Raymer   v.   Standard   Steel  65.  Gipe    v.    Pittsburgh,    etc.,    Ry.    Co.,    82 

Works,  216  Pa.  St.   101,  64  Atl.  902    (1906).  N.  E.  471    (1907).     Cromley  v.  Pennsylvania 

It  is  not  within  the  province  of  the  judge,  on  R.  Co.,  211   Pa.  429,  60  Atl.  1007    (1905). 

a  motion  to  withdraw  a  case  from  the  jury,  to  West   Virginia. —  Dye   v.   Corbin,   53   S.   E. 

weigh  the  evidence,  and  ascertain  where  the  14"   (1906). 

preponderance    is,    but    his    duty    is    limited  I'nited  States. —  New  York   Cent    &  H.  R. 

strictly  to  determining  whether  there  is  or  is  R.    Co.   v.   Difendaffer,    (111.    1903)    125    Fed. 

not  evidence  legally  tending  to  prove  the  fact  893. 

affirmed.     Woodman  v.  Illinois  Trust  &  Sav-  66.   Frank   Parmelee  Co.   v.   Wheelock,  224 

ings  Bank,  211  111.  578,  71  N.  E.  1099  (1904)  111.    194,    79    X.    E.    652     (1906).     Scofield'g 

60.  Harriss  v.  Howard,  126  Ga.  325.  55  S  Adm'x  v.  Metropolitan  L.  Ins.  Co.,  79  Vt.  161, 
E.   59    (1906).     Dederick   v    Central    R.   Co..  64  Atl.  1107    (1906). 

65  Atl.  833   (1907).     Clark  v.  Slaughter.  129  67.  Hillsborough    Grocery    Co.    v.  .Leman, 

Wis.  642,  109  X.  W.  556   (1906).  (Fla.  1906)   40  So.  680. 

61.  1    Chamberlayne,   Evidence.   §   396.  68.  1  Chamberlayne,  Evidence.  §  397. 

62.  OfiFutt    v.    Columbian    Exposition,    175  69.  Gibson  v.  Fidelity  &  Casualty  Co.,  232 
111.  472,  51  N.  E.  651   (1898).  III.  49,  83  N.  E.  539   (1908). 

63.  A    spark;     a    remaining    particle;    the  • 


§§  192,193 


PROTECT  SUBSTANTIVE  EIGHTS. 


§  192.  [Right  to  the  Use  of  Reason] ;  Direction  Against  the  Actor.70 —  fre- 
quently this  power  of  the  court  is  employed  against  the  party  having  the  burden 
of  proof  on  the  issue,  the  actor.  As  was  said  in  Ryder  v.  H  ombwell,11  and  cited 
with  approval  in  later  cases,72  "  There  is,  in  every  case  ...  a  preliminary 
question  which  is  one  of  law,  viz.,  whether  there  is  any  evidence  on  which  the 
jury  could  properly  find  the  question  for  the  party  on  whom  the  onus  of  proof 
lies.  If  there  is  not,  the  judge  ought  to  withdraw  from  the  jury  and  direct 
a  nonsuit,73  or  verdict  for  the  defendant,  if  the  onus  is  on  the  plaintiff,74  or 
on  the  contrary  direct  a  verdict  for  the  plaintiff  if  the  onus  is  on  the  defend- 
ant." 75  The  simplest  situation  which  can  be  presented  is  where  the  actor 
produces  no  evidence  in  support  of  his  contention  7G  or  of  a  material  portion 
of  it,77  evidence  so  slight  that  no  reasonable  man  could  act  in  accordance  with 
it ;  78  or  it  appears  without  contradiction  that  a  conclusive  defense  to  it 
exists:79 

§  193.  [Right  to  the  Use  of  Reason] ;  Direction  in  Favor  of  Actor.80 —  By  a 
parity  of  reasoning,  where  the  party  having  the  burden  of  proof  produces  to 
the  tribunal  a  case  so  completely  proved,  established  by  such  credible  witnesses, 
and  beyond  the  range  of  controversy  to  such  an  extent  sl  that  the  only  rational 
course  for  the  jury  to  pursue  would  be  to  render  a  verdict  in  favor  of  it,  or 
where  the  actor  proves  a  prima  facie  case  and  the  nonactor  introduces  no  evi- 

75.  Baxley  Tie  Co.   v.   Simeon  &  Harper, 
1  Ga   App   670,  57  S.  E    1090  ( 19C7 )  :  McCall 
v.  Herring,  118  Ga.  522,  45  b.  E.  442   I  1903)  ; 
Crosby  v.  Wells,  73  N.  J.  L.  790,  67  Atl.  295 
( 1907*) . 

76.  Jennings  v    Ingle,  73  N.  E.  945  (1905)  ; 
La  Rue  v.  Lee,  60  S.  E.  388  ( 1908) . 

Where  one  of  several  counts  of  a  declara- 
tion is  unsustained  by  the  evidence,  the  jury 
may  be  instructed  to  disregard  that  count. 
Portsmouth  St.  R.  Co.  v  Feed's  Adm'r,  102 
Va.  662,  47  S.  E  850  (1904). 

77.  Agnew  v.  Montgomery,    (Neb.  1904)   99 
,\.  \V.  820  ) 

78.  Illinois. —  Continental     Nat      Bank     v. 
Metropolitan    Nat.    Bank,    107    111.   App.   455 
(1903). 

79.  Peckinpaugh  v.  Lamb,    (Kan.  1905)    79 
Pac.  673    (modification). 

80.  1  Chamberlayne,  Evidence,  §  399. 

81.  McKnight  v    Parsons,  (Iowa  1907)    113 
N.  W.  858. 

Evidence  which  a  party  cannot  dispute 
because  it  is  supplied  by  his  own  witnesses 
has  for  many  purposes,  the  same  effect  as  evi- 
dence which  cannot  he  disputed  because  it  ia 
true.  American,  etc..  Bank  v.  New  York,  etc., 
Co.,  148  N.  Y.  698,  43  N.  E.  168  (1896). 


Hanaen  v.  Kline,  113  N.  W.  504  (1907): 
Avery  v.  Union  Pac.  R  Co.,  85  Pac. 
600  I  1901!)  ;  Acker,  Merrall  &  Condit  Co.  v. 
McGaw,  106  Md.  536,  68  Atl.  17  (1907); 
Underfeed  Stoker  Co.  v.  Hudson,  etc.,  Brew- 
ing Co.,  70  N.  J.  L.  649,  58  Atl.  296  (1904)  ; 
Hirsch  v  American  Diet.  Tel.  Co.,  90  N  Y. 
Suppl.  464  (1904). 

Wisconsin. —  McCune  v.  Badger,  105  N.  W. 
667  (1905). 

70.  1  Chamberlayne,  Evidence.  §  398. 

71.  L.  R.  4  Ex.  32    (necessaries  for  an  in- 
fant)   (186S). 

72.  Bridges  v   North  London  Ry.  Co.,  L.  R. 
7  H.  L.  218   (1874). 

73.  See  also  Brooker  v.  Scott,  11   M.  &  W. 
67   (1843)    (necessaries  for  an  infant). 

74.  Illinois.—  Hartlctt    v.    Wabash    R.    Co., 
220  111.   163.  77  N.  E.  96    ( 190(i  I . 

Maine. —  Young  v.  Chandler,  102  Me.  251, 
66  Atl.  r>.'H>  (1906);  Romaine  v.  New  York, 
N.  H.  &  H  R.  Co..  86  N  Y.  Suppl.  248,  91 
App  Div.  1  (1904)  ;  Comm'rs.  of  Marion  Co. 
v  (  lark.  94  T.  S.  2'<8.  284  (1876). 

Certain  States  forbid  the  court  to  exercise 
this  function.  The  ruling  is  based  upon  a 
misconception  of  the  province  of  the  jury. 
Dalton  v  Poplar  Bluff,  173  Mo.  39,  72  S.  W. 
1068  (1902). 


103  EIGHT  TO  REASON.  §§  194,  195 

deuce  whatever  82  the  court  may  direct  the  jury  to  find  in  accordance  with  the 
evidence  submitted  to  them.83 

In  a  criminal  case  the  court  is  not  at  liberty  to  order  a  verdict  for  the  prose- 
cution.84 

§  194.  [Right  to  the  Use  of  Reason] ;  Time  for  Making  Motion.85 —  When  the 
original  case  of  the  actor  is  closed,  the  uouactor  may  test  its  sufficiency  by  a 
request  to  direct  a  verdict  in  his  own  favor.*0  On  the  other  hand,  the  court 
may  postpone  the  decision  of  the  motion  until  all  the  evidence  is  introduced 
by  both  sides.8'  The  matter  is  one  of  administration;88 — largely  concerned 
at  all  times,  with  the  expediting  of  trials.89  It  is  too  late  to  move  for  a  ver- 
dict after  the  stage  of  argument  and  among  the  requests  for  rulings  and  in- 
structions by  the  court  to  the  jury.90 

§  195.  [Right  to  the  Use  of  Reason];  Direction  on  Opening^ l — An  adminis- 
trative device  of  occasional  value  in  expediting  causes  is  for  the  presiding  judge 
to  rule,  sua  sponte,  or  on  request,  at  the  close  of  the  opening  to  the  jury  made 
by  the  actor's  counsel,  that  the  jury  could  not,  on  these  facts,  find  in  his  favor. 
Great  care  must,  however,  be  exercised  by  the  court  in  seeing  that  the  course 
does  not  foreclose  the  party  from  the  use  of  any  probative  fact  or  argument. 
If,  after  all  suitable  administrative  precautions  against  injustice  have  been 
taken,  the  court  still  feels  that  the  jury  could  not  rationally  find  in  favor  of 
the  actor's  contention,  the  judge  may  properly  order  a  verdict  against  the 
actor  on  his  own  statement  of  it.  But  it  must  affirmatively  be  made  plain  that 
the  actor  has  no  case.92 

82.  Village  of  Franklin   Park   v.  Franklin,  85.  1  Chamberlayne,  Evidence.  §  400. 

231  111.  380,  83  X.  E.  '214   (19(17).  86.  Grooms    v.    Xeff    Harness    Co.,     (Ark. 

\ew    Jersey. —  United    States    Fidelity    &  19<>6)    'J6  S.  W.   135.     See  also  Crean  v    Mc- 

Guaranty  Co.  v.  Donnelly,  Gl  Atl   445   (1905.)  Mahon,  106  lid.  507,  68  Atl.  265   (1907). 

-Vetr    York. —  Harding    v.    lionian    Catholic  87.  White    v.    Wilmington    City    Ry.    Co., 

Church  of  St.  Peter,  188  X.  V.  631,  SI  X.  E.  i.Del.  Super    1906)   63  Atl.  931. 

1165    (1907)     [judgment   affirmed,   99    X.    Y.  88.  Gates  v.  Union  R.  Co.,  27  R.  I.  499,  63 

Suppl.  945,  113  App    Div.  (5*5   .1906)].  Atl.  675    (1906). 

83.  Georgia. —  Williams  Mfg.  Co.  v.  Warner  89.   Infra,  §§  544  et  ser/. 

Sugar  Refining  Co.,  125  Ga.  408,  54  S.  E  95  90.  Ewen  v.  Wilbor,  208  111.  492,  70  X.  E 

(1906).  575^(19041  [affirming  99  111.  App.  132 

Illinois. —  Marshall  v.  Gross,  etc.,  Co.,  184  (1001)]:  Foy  v.  City  of  Winston,  135  X.  C. 

Ill  421,  56  X.  E.  807  (1900).  439,  47  S.  E.  466  (1904). 

\ew  York. —  Harding  v.  Roman  Catholic  Suggestion  by  Court.  The  judge  may  per- 

Church  of  St.  Peter.  99  X.  Y.  Suppl.  945,  113  ceive  that,  assuming  everything  the  party 

App  Div.  685  (1906).  asking  relief  alleges  in  his  pleadings  to  be 

i'nited  States. —  Leach  v  Burr.  1R8  U.  S.  true,  there  is  no  aspect  of  the  matter  in  which 

,r>iO.  23  Sup.  393  (1902).  See  contra.  Annis-  he  is  entitled  to  recover.  If  so.  the  court 

ton.  etc,  Bank  v.  Committee.  121  X  C.  106,  may  surest  the  difficulty,  sua  sponte  and 

109,  28  S.  E.  134  i  1897) .  entertain  a  motion  to  direct  a  verdict  Robin- 

84.  People   v.    Warren,    122    MHi     541.    SI  son  Humphrev  Co   v   Wiloox  County.  129  Ga. 
N.  W.  360  (and  cases  cited)    (1^99)  :  Sparf  v.  104,  58  S.  E.  644   (1907). 

U    S,  156  U.  S.  51.  177,  15  Sup.  273   (1894)  91.   1  Chamherlayne.  Evidence.  §  401 

But   see  contra,  Com.   v.   Alagee,   12   Cox   Cr.  92.   Brown  v    District  of  Columbia.  29  App. 

549  (1873)  D.  C.  273    (1907).     Where  in  an  action  for 


§§  196-198  PROTECT  SUBSTANTIVE  EIGHTS.  10-i 

§  196.  [Right  to  the  Use  of  Reason] ;  Party  Moving  May  Be  Required  to  Rest.93 
—  By  an  analogy  to  the  rule  employed  by  the  court  in  dealing  with  demurrers 
to  evidence,94  a  party  moving  that  the  action  be  withdrawn  from  the  jury 
should  rest  his  case,  introducing  no  evidence.  It  was  early  contended  that  by 
introducing  evidence  on  his  own  behalf  a  party  waived  the  right  to  make  a 
motion  to  withdraw.95  While  this  has  not  prevailed  generally,110  time  of  pass- 
ing upon  a  motion  to  withdraw  from  the  jury  is  clearly  a  question  of  adminis- 
tration, and  the  presiding  judge  may  decline  to  act  on  such  a  motion  until 
after  the  entire  evidence  has  been  introduced,97  unless  the  party  moving  shall 
be  willing  to  rest  his  case,  foregoing  the  privilege  of  introducing  evidence  on 
his  own  behalf.98 

§  197.  [Right  to  the  Use  of  Reason] ;  Nominal  or  Actual  Verdicts.99 —  If  the 
reason  for  directing  a  verdict  against  the  actor  be  the  weakness  of  his  case,  the 
proper  verdict  is  one  of  nonsuit  l  or  default ;  especially  where  the  nonactor 
produces  no  sufficient  evidence  in  support  of  his  own  contention.2  On  the 
other  hand,  should  the  result  be  due  to  the  affirmative  strength  of  the  nonactor's 
case,  he  is  entitled  to  a  verdict  in  his  own  favor.  ' 

§  198.  [Right  to  the  Use  of  Reason] ;  Effect  of  Waiver.3 —  Failure  to  »aise  a 
question  as  to  the  sufficiency  of  the  evidence  to  warrant  a  verdict  for  a  par- 
ticular party  before  the  evidence  is  closed  amounts  to  a  waiver  of  the  objec- 
tion.4 A  previous  request  to  direct  a  verdict  does  not  preclude  a  party  from 
requesting  to  have  the  case  submitted  to  the  jury ;  5  but  such  a  course  may 
constitute  a  waiver  of  the  motion  to  withdraw.6  A  motion  to  direct  a  verdict 

wrongful    death,    the    opening    statement    of  97.   Kaley    v.    Van    Ostrand,     (Wis.    1908) 

plaintiff's  case  by  her  counsel  was  defective  114  N.  W.  817;   Robertson  v.  Perkins,  129  U. 

only  in  that  it  fell  short  of  stating  facts  suf-  S.  233   (1888). 

ficient  to  warrant  plaintiff's  recovery,  but  no  98.   Columbia,   etc.,  Ry.  Co.   v.  Hawthorne, 

fact   indicating  a  complete  defense,  or  show-  144  U.  S.  202  (1891). 

ing  affirmatively  that  there  was  no  cause  of  99.   1  Chamberlayne,  Evidence,  §  403. 

action,   \vas  stated,  it  was  error  to  direct  a  1.  Equitable   Mfg.   Co.  v.  J.   B.  Davis  Co., 

final  judgment  on  the  merits  for  defendant  on  130  Ca.  67,  60  8.  E.  262   (1908). 

such  statement.     Redding  v.  Puget  Sound  Iron  2.   Rothenberg    v.     Rosenberg,     108    N.    Y. 

&    Steel    Works,    3(5    \\ash.    642,   79    Pac     308  Suppl.  678,  57  Misc.  653    (1908). 

(1905).  3.   1  Chamberlayne,  Evidence,  §  404. 

93.  1  Chamberlayne,  rvid-nce,  §  402.  4.   El  well   v.   Roper,  7:   N.  H.  585,  58  Atl. 

94.  Supra,  §§  59  et  se</.  507     (1904).     This    has    been    put    into    the 

95.  Barahask  v.  Rabat,  91  Md.  53,  46  Atl.  somewhat  misleading  form  of  saying  that  a 
3.'!"    (1900);   State  v.  Groves.   119  X.  C.  822,  failure  to  move  to  dismiss  the  complaint  at 
824,  25  S.  E.  819   (1896)  ;   Purnell  v    Ry    Co.,  the  close  of  plaintiff's  case,  or  of  the  whole 
122  N.  C.  832.  835,  29  S.  E.  953   (1898).     But  case,  is  an  admission  that  there  is  a  question 
see  North  Carolina  Stat.  1899.  c.  131.  of  fact.     Rapp  v.  Hutchinson   Stair  Elevator 

96.  Stephen  v.  Scott,  43   Kan.  285    M890).  Co.,  87  N.  Y.  Suppl.  459    (1904). 

*'  The  defendant,  by  putting   in    its   evidence  5.  Seddon    v.    Tagliabue,    98    N.    Y.    Suppl. 

took  the  chance  of  aiding  the  plaintiffs  case:  236,  50  Misc.   156    M906). 

but  it  is  not  thereby  deprived  of  the  right  to  6.   Chicago  L'nion  Traction  Co.  v.  O'Donnell, 

ask   the  court   to  direct  a   verdict   on   all   of  113  111.  App.  259   (1904)    [affirmed  in  211  111. 

the   evidence."     Weber   v.    Kansas   City,   etc.,  349,  71  N.  E.  1015]. 

Co.,  100  Mo.  194  (1889). 


105  RIGHT  TO  REASON.  §§  199-201 

in  favor  of  the  moving  party  may,  until  acted  upon,  be  itself  withdrawn.7 
Where  the  judge  has  acted  on  the  motion,  it  is  then  too  late  to  withdraw  it  and 
ask  fov  a  jur\  trial.8 

§  199.  [Righ'  to  the  Use  of  Reason] ;  Action  of  Appellate  Courts.9 —  The 
order  directing  a  verdict  being  a  ruling  on  matter  of  law  10  the  appellate  court 
may  pass  upon  it  as  upon  other  questions  of  a  legal  nature.11  Where  it  has 
been  ruled  by  the  trial  court  that  there  is  no  sufficient  evidence  to  support  a 
verdict  for  the  actor  and  the  appellate  court  differs  in  opinion,  error  may  be 
declared. 

§  200.  [Right  to  the  Use  of  Reason] ;  Effect  of  Rulings  on  Evidence.12 —  The 
irrationality  of  finding  in  favor  of  a  given  contention  may  have  been  caused 
by  the  fact  that  the  presiding  judge  has  made  rulings  which  have  had  the 
effect  of  excluding  important  portions  of  the  party's  proof.  But  in  an  appel- 
late court  these  rulings  on  the  admissibility  of  evidence  are  themselves  open, 
in  most  cases,  to  review.  An  order,  holding  erroneous  a  rejection  of  impor- 
tant evidence,  may  involve  in  it  the  ruling  of  the  trial  court  directing  a  ver- 
dict against  a  contention  which  was  rendered  irrational,  i.e.,  illegal  of  adop- 
tion, as  the  basis  of  the  court's  action  by  reason  of  the  rejection.  The  trial 
judge  may  anticipate  the  action  of  the  appellate  court  by  refusing  to  consider 
in  ordering  a  verdict  any  evidence  already  improperly  admitted.13 

§  201.  [Right  of  the  Use  of  Reason] ;  Judge  Sitting  as  a  Jury.14 —  WThere  a 
judge  sits  as  a  jury  for  the  determination  of  issues  of  fact,  a  party  is  as  clearly 
entitled  to  the  use  by  him  of  the  reasoning  faculty  as  he  would  be  entitled  to 
insist  upon  its  exercise  by  a  jury.  It  is  not,  for  example,  reaonable  that  a 
judge  so  sitting  should  reject  evidence  upon  a  material  issue  on  the  ground 
that  it  is  cumulative,15  and  then  deciding  that  issue  in  favor  of  the  other  side. 
Where  but  one  rational  conclusion  can  be  drawn  from  the  evidence  a  party 
may  properly  move  that  a  verdict  be  directed  by  the  judge  in  favor  of  that  re- 
sult, as  he  might  do  in  a  jury  case.16  If  there  be  such  evidence  that  a  finding 

7.  Cravath  v.  Baylis,  99  N.  Y.  Suppl.  973,          10.  Supra,  §  188. 

113  App.  Div.  666  (1906).  11.  Sunderland  v.   Cowan,    (Md.    1907)    67 

8.  Solomon  v.  Levine,  54  Misc.   (N.  Y.)  270,       Atl.  141. 

104  N.  Y.  Suppl.  443    (1907).     Counterclaim.  12.   1   Chamberlayne,  Evidence,  §  406. 

—  Where  defendant  pleaded   a  countercFaim,  13.  Townsend    v.    Greenwich    Ins.    Co.,    178 

and  on  the  conclusion  of  plaintiff's  evidence  N.  Y.  634,  71   X.   h.   1140    (1904)    [affirming 

procured  an  order  directing  a  verdict  for  de-  86  N.  Y.  App.  Div.  323,  83  N.  Y.  Suppl.  909 

tendant  on   plaintiff's  cause  of  action,  he  is  (1903)]. 

not  entitled  thereafter  to  introduce  evidence  14.    1  Chamberlayne,  Evidence,  §  407. 

of  his  counterclaim,  as  the  order  concluded  the  15.   Brown  v.   Cohen,  96  N.  Y.   Suppl.   116 

trial,  and  defendant  by  moving  for  a  directed  (1905). 

verdict  waived  a  hearing  on  his  counterclaim.  16.  Foskett,  etc.,  Co.  v.  Swayne,  70  Conn. 

Miller  v.  McGannon,   (Neb.  1907)    113  N.  W.  74,  38  Atl.  893    (1897);  Lee  v.  Callahan,  84 

170.  N.  Y.  Suppl.  167   (1903). 

9.  1  Chamberlayne,  Evidence,  §  405. 


§§  202-204  PROTECT  SUBSTANTIVE  RIGHTS.  106 

of  fact  might  rationally  have  been  made  in  either  way,  it  is  error  to  dismiss, 
summarily,  the  action.1'  Where  there  is  a  conflict  in  the  testimony,  the  court 
must  judge,  of  necessity,  as  to  the  credibility  of  the  witnesses.18 

§  202.  Right  to  Judgment  of  Court  or  Jury.ia —  A  party  has  a  right  under 
the  substantive  law  to  insist  not  only  that  each  branch  of  the  mixed  tribunal 
of  judge  and  jury  shall  exercise  correct  reasoning  in  connection  with  his  case 
—  that  all  their  acts  shall  be  reasonable  or  reasoned  acts ;  2o  his  right  extends 
to  a  demand  that  the  reasoning  faculty  shall  be  applied  to  any  particular  por- 
tion of  his  case  by  that  part  of  the  tribunal  to  which  the  law  has  assigned  its 
consideration.  In  the  enjoyment  and  exercise  of  this  right  it  is  the  adminis- 
trative duty  of  the  presiding  judge  to  protect  the  litigant. 

§  203.  [Right  to  Judgment  of  Court  or  Jury] ;  Performance  of  Functions  by 
Judge.21 —  A  party  is  entitled  to  insist  upon  a  discharge  by  the  presiding  jus- 
tice of  his  customary  judicial  functions.  It  is  the  litigant's  right  to  ask  that 
the  court  pass  upon  the  competency  of  evidence.22  The  judge,  therefore,  will 
exercise  his  duty  of  making  preliminary  findings  of  fact;  he  will  not  delegate 
this  power  to  the  jury.  Nor  will  he,  in  general,  so  discharge  his  administrative 
duties  as  to  leave  questions  of  law  to  them.2:!  So  the  construction  of  a  written 
contract  cannot  properly  be  left  to  the  jury.2^  Still,  where  no  difference  of 
opinion  can  well  arise  as  to  the  meaning  of  the  rule  of  law,  no  serious  adminis- 
trative error  has  been  committed  where  the  jury  are  referred  to  the  law  rather 
than  directed  as  to  it.  Tt  is  not  error,  therefore,  when  an  ordinance  has  been 
duly  proved,  and  its  terms  are  plain,  for  the  court  to  charge  the  jury  that  they 
are  to  determine  what  the  ordinance  is,  and  whether  it  has  been  violated.25 

§  204.  [Right  to  Judgment  of  Court  or  Jury];  Waiver.26 — The  right  of  in- 
sistence upon  discharge  of  functions  by  the  appropriate  branch  of  the  tribunal 
may  be  waived,  either  expressly,  or  by  conduct.2' 

17.  Ness  v.  March.  (Minn.  1905)   104  N.  W.  20.  Xupra,  §§  179  et  seq. 

242;    Weisberger  v.  Martin,  86   X.   Y.  Suppl.  21.   1    Chamberlayne,   Evidence,   §  409. 

115   (1904).     Such  a  ruling  does  not  amount  22.  Com.    v.    Culver,    126    Mass.    464,    466 

to  a  withdrawal   by  the  judge  from  himself  (1879);   Bartlett  v.  Smith,  11   M.  &  W.,  483 

as  a  jury  of  any  portion  of  the  evidence  in  the  ( 1843 ) . 

case.  Kansas  City  ex  rel.  Neill  v  Askew,  23.  Chicago,  etc..  Ry.  Co.  v  Walker,  127 
105  Mo.  App.  84,  79  S.  \V.  483  (1904).  In  an  111.  App.  212  (1906)  ;  Outhouse  v.  Baird,  106 
action  tried  to  the  court,  it  has  no  right  to  JN.  Y.  S.  246,  121  App.  Div.  556  (1907)  ;  Trace- 
dismiss  the  same  without  findings  on  the  well  v.  Wood,  County  Court, — ,  52  S.  E. 

ground  that  plaintiff  has  failed  to  establish  185   (1905). 

a  cause  of  action,  except  where  the  evidence  24.   Standard  Mfg.  Co.  v.  Slaughter,  122  111. 

for  plaintiff  would  not  have  justified  findings  App.  479   (1905) 

in  his  favor.     Ness  v.  March,    (Minn.   1905)  25.  Thomasson   v.   Southern   Ry.,   72   S.   C. 

104  N.  W.  242.  1,  51  S.  E    443    (1905). 

18.  Miller  v.  Piatt,  33  Pa.  Super.  Ct.  547  26.   1    Chamberlayne,   Evidence,   §  410. 
(1907).  27.  Thus,   for   example,   the  right  to  treat 

19.  1  Chamberlayne,  Evidence,  §  408.  the  question  of  contributory  negligence  aa  one 


107  RIGHT  TO  JURY.  §§  205-207 

§  205.  [Eight  to  Judgment  of  Court  or  Jury] ;  General  Right  to  Jury  Trial ; 
Witnesses  not  Permitted  to  Reason.28 —  It  is  an  essential  part  of  this  right  to 
insist  upon  performance  of  judicial  function  by  the  appropriate  branch  of  the 
mixed  tribunal  that  the  judge  should  not  only  protect  his  own  province  of 
judging  from  invasion  by  the  jury  and  himself  refrain  from  interfering,  by  an 
extension  of  his  own  province,  from  invading  -the  field  of  the  jury's  judicial 
action ;  he  is  also  required  to  protect  his  own  reasoning  function  and  that  of 
the  jury  from  invasion  by  the  exercise  on  the  part  of  witnesses  of  their  reason- 
ing faculties  —  their  "opinions,"  so-called.  It  is,  therefore,  within  the  scope 
of  the  present  principle  of  administration  that,  except  in  case  of  reasonable 
necessity,  the  province  of  the  jury  in  drawing  the  final  inferences  of  fact  should 
not  be  invaded  by  the  inference,  conclusions  or  judgment  of  witnesses.29 

§  206.  [Right  to  Judgment  of  Court  or  Jury] ;  A  Strongly  Entrenched  Right.30 
—  Entirely  apart  from  this  principle  of  administration,  which  forbids  wit- 
nesses to  reason,  except  so  far  as  is  necessary,  and,  in  a  sense,  behind  and 
above  it,  stands  the  substantive  right  of  a  litigant  to  a  trial  by  jury.  Within 
its  appropriate  scope,  few  of  the  rights  of  a  litigant  are  so  strongly  entrenched 
in  the  substantive  law.  The  original  conception  of  the  right  to  a  trial  by  jury 
is  of  ancient  date  and  a  matter  of  gradual  evolution,  in  which  no  distinct  steps 
are  traceable.31  The  right  was  claimed  and  conceded  prior  to  Magna  Charta,32 
and  it  was  confirmed,  as  is  commonly  supposed,  by  that  famous  historical  docu- 
ment.33 The  American  colonists  took  it  from  England  as  the  palladium  of 
the  liberties  of  Englishmen.34 

§  207.   [Right  to  Judgment  of  Court  or  Jury] ;  Federal  Constitution.35 —  The 

provisions  of  the  Constitution  of  the  United  States  relating  to  the  right  of  trial 
by  jury,  extend  only  to  common  law  actions  in  the  federal  courts.36  The  consti- 
tutional guaranty  does  not  apply  to  causes  in  equity  or  admiralty ;  37  or  af- 
fect proceedings  in  the  state  courts.38  The  interpretation  limiting  the  right 

of    law    is   waived   where   the   defendant   has  34.   Denver  v.  Hyatt,  28  Colo.  129,  63   Pac. 

caused  such  question  to  be  submitted  to  the  4l»«i   (J900)  ;  McHae  v.  Grand  Rapids,  etc.,  R: 

jury  as  one  of  fact.     Chicago  City  Ry.  Co.  v.  Co.,  93  Mich    399,  53  X.  W.  561,  17  L.  R.  A. 

Nelson,  116  111.  App.  609   (1904)  750   (1892). 

28.  1  Chamber  lay  ne,  Evidence,  §  411.  35.  1  Chamberlayne,  Evidence,  §§  413-418. 

29.  Infra,  §§  672  et  seq.  36.  The  courts  of  the  United  States  include, 

30.  1  Chamberlayne,  Evidence,  §  412.  however,  as  the  term  is  used  in  this  connec- 

31.  Michigan. —  McRae    v.    Grand    Rapids,  tion,  those  of  the  District  of  Columbia.     Capi- 
etc,  R.  Co,  93  Mich.  399,  53  N.  W.  561,   17  tal  Traction  Co.  v.  Hof,  174  U.  S.  1,  19  Sup. 
L.  R.  A.  750   (1892).  St.  580,  43  L.  ed.  873  (1898). 

\ew  Jersey. —  Brown  v.  State,  62  N.  J.  L.  37.  Home  Tns.  Co.  v.  Virginia-Carolina,  etc., 

666,  42  Atl.  811   (1899).  Co,  109  Fed.  681    (1901)  :   Motte  v.  Bennett, 

32.  People  v.   Harding,   53   Mich    48,  481,  17  Fed.  Cas.  No.  9,884,  2  Fish.  Pat.  Cas.  642 
18  N    W.  555,  19  N.   vv.  155,  51  Am.  Rep.  95  (1S49). 

(1884)  38.  Foster  v.  Jackson,  57  Ga.  206    (1876). 

33.  Bron-n  v.  M:>tp.  ft-2  V   J.  L.  666.  42  Atl.  \ew    York— Jn    re    Newcomb,    18    N.    Y. 
811    ,  is-Hi'  .   Pv,>"-.m    Inry  Tr  §  24:  4  Black-       Suppl    16   i  1*91)  :  Hall  v.  Armstrong.  65  Vt. 
stone  Comm.  349                                                             421,   26  Atl.   592,   20  L.   R.   A.   366    (1893); 


§§  208,209 


PROTECT  SUBSTANTIVE  RIGHTS. 


108 


so  guaranteed  as  confined  to  cases  where  a  jury  might  have  been  claimed  at 
common  law,  has  been  adopted  in  the  federal  as  well  as  in  the  state  courts.39 
Such  provisions  do  not,  in  the  least,  abridge  the  right  of  the  states  to  deal  with 
the  question  of  trial  by  jury  as  they  may  see  tit.40 

The  term  "jury,"  as  used  in  the  Federal  Constitution,  is  the  common  law 
petit  jury  of  twelve.  Providing  a  jury  of  a  smaller  number,  e.g.,  six,41  is 
not  a  compliance  with  this  provision. 

§  208.  [Right  to  Judgment  of  Court  or  Jury] ;  State  Constitutions.42 —  In  all 
state  constitutions  the  right  to  a  trial  by  jury  is  regarded  as  existing  and  the 
constitution  purports  only  to  forbid  making  change.  The  fundamental  rule 
is  that  where  the  right  existed  to  a  trial  by  jury  at  the  time  of  the  adoption  of 
the  constitution,  it  exists  at  the  present  time,43  and  not  otherwise.44 

§  209.  [Right  to  Judgment  of  Court  or  Jury] ;  Scope  at  Common  Law.45 —  At 
common  law  the  function  of  the  jury  is  confined  to  an  issue.46  The  right  to  a 
trial  by  jury  was,  as  a  rule,  restricted  to  actions  at  law  in  which  there  was  an 
issue  of  fact  raised  by  means  of  pleadings.47  In  actions  at  law  in  contract, 
tort,  replevin,  real  actions,4**  and  the  like,  where  the  use -of  a  jury  was  cus- 
tomary at  common  law,  the  right  is,  as  a  rule,  secured  to  litigants  by  American 
constitutions  or  other  statutes,  state  or  federal. 

Venue. —  Trial  by  jury  means  trial  by  jury  in  the  county  where  the  alleged 
offense  was  committed.49 

Court  May  Allow  Jury  Trial. —  That  the  judge  may,  in  exercise  of  his 


Pearson  v.  Yewdall,  95  U.  S.  294,  24  L.  ed.  436 
(1877). 

39.  The    right    io   trial   by   jury   does    not 
extend  to  consular  courts.  In  re  Ross,  140  U. 
S.   453,    11    Sup.   Ct.   897.  35   L.   ed.  581    [af- 
firming 44  Fed.  1S5  (  1890)    ( 1891 )  ] ;  but  does 
apply  to  criminal  cases,   Bettge  v.  Terr.,   17 
Okl    85,   87    Pac    897    <M)06):    and   to   cases 
removed  from  the  State  courts  to  the  Federal 
courts,   Phillips  v    Moore,   100  U.  S.  208,  25 
L.  ed.  603    (1879).     It  does  not  apply  how- 
ever   to    special    proceedings    which    did    not 
exist  at  common   law  as   the  exportation   of 
Chinamen,  U.  S.  v.  Ngum  Lun  May.  153  Fed. 
209   (19071. 

40.  Keith   v    Henkleman,   173   Til.    137,   50 
N.  E.  692   (1898)  :  Shaw  v.  Silverstein,  21  R. 
I.  500,  44  Atl.  931    (1899). 

United  Mates. —  Pearson  v.  Yewdall,  95  U. 
S.  294,  24  L.  ed.  436   i  1877). 

41.  Oius  v.  United  States,    (Alaska  1905) 
141  Fed.  956,  73  C   C.  A.  272. 

42.  1  Chamberlayne,  Evidence,  §§  419,  420. 

43.  East  Kingston  v.  Towle,  48  N.  H.  57, 
97  Am.  Dec.  575,  2  Am.  Rep.  174  (1868). 


Pennsylvania. —  Rhines  v.  Clark,  51  Pa.  St. 
96  (1865) 

44.  People  v.  City  of  Alton,  233  111.  542,  84 
N.  E.  664  (1908). 

45.  1  Chamberlayne,  Evidence,  §§  421,  423. 

46.  .S'upm,  §  121. 

47.  Pennsylvania. —  Clone    v.    ArletTi,    162 
Pa.  St.  550,  29  Atl.  862   (1894). 

Xouth  Carolina. —  Gregory  v.  Ducker,  31 
S.  C.  141,  9  S.  E.  780  (1889). 

48.  Lee  v.  Conran,  213  Mo.  404,  111  S.  W. 
1151    (1908)    (alluvial  deposits.) 

Compulsory  References. —  The  judicial  ma- 
chinery at  the  time  of  the  adoption  of  various 
state  constitutions  included  a  provision  for 
the  ordering  of  a  compulsory  reference  where 
there  is  a  Ions  and  complicated  account. 
Such  an  order,  therefore,  does  not  violate  the 
right  to  trial  by  jury.  Roughton  v.  Sawyer, 
(X.  C.  1907)  56  S.  E.  480;  Smith  v.  Kunert, 
(X.  D.  1908)  115  N.  W.  76. 

49.  People  v.  Brock,  149  Mich.  464,  112  N. 
W.  1116,  14  Detroit  Leg.  N.  506  (1907). 


109  RIGHT  TO  JURY. 

administrative  powers,  employ  a  jury  in  cases  where  such  a  trial  cannot  be 
claimed  as  of  right,  is  undoubted.5" 

§  210.   [Right  to  Judgment  of  Court  or  Jury] ;  Judicial  Powers  Reserved.51— 
The  power  of  the  presiding  judge  to  set  aside  verdicts,52  order  nonsuits  3:!  or 
other  verdicts,54  award  sentence55  and  perform  the  other  functions  of  his  judi- 
cial office,  are  not,   in  the  absence  -of  express  provisions,51'   affected  by  these 
enactments  regarding  jury  trial. 

The  }>ower  of  Ihe  cowt  to  perform  its  ordinary  common  law  judicial  func- 
tions, e.g.,  receive  pleas  of  guilty,57  determine  the  nature  of  the  offense  thus 
admitted.5*  instruct  jury  as  to  grades  of  crime,59  and  the  like.00  is  not  affected 
by  the  constitutional  guaranty  of  a  jury  trial.  Such  a  right  is  not  violated 
because  few  of  the  same  race  as  the  accused  were  put  on  the  jury.61  No  right 
to  a  jury  trial  is  infringed  by  permitting  the  judge,  rather  than  the  jury,  to 
determine  on  the  punishment  for  crime."2 

The  riyht  of  an  appellate  court  to  order  a  lower  court  to  impose  a  lesser 
sentence  than  that  of  which  the  accused  stands  convicted  is  not  inconsistent 
with  a  right  to  trial  by  jury.  Such  a  court  may  lawfully,  for  example,  reduce 
a  conviction  of  murder  in  the  second  degree  to  one  of  manslaughter.'53 

§  211.  [Right  to  Judgment  of  Court  or  Jury] ;  Criminal  Cases.04 —  A  person 
cannot  be  punished  either  by  fine,  imprisonment  or  committal  to  an  institu- 
tion for  reformatory  purposes,65  without  a  trial  by  jury — in  any  case  where, 
at  common  law,  a  person  so  accused  would  have  had  a  right  to  claim  a  jury.06 

50.  McLean   v.   Tompkins,    IS    Abb.   Pr.   24  62.  State  v.  Eubanks,  199  Mo.  122,  97  S.  W. 
(18.57.1  876    (1906). 

51.  I  Cliamberlayne,  Evidence,  §§  424-428.  63.   Darden  v.  State,  80  Ark.  295,  07  S.  W. 

52.  Supra,  $§  133  et  seq.  449   (1906). 

53.  Bohn   v    Pacific  Electric  Ry.  Co.    (Cal.  64.    1  Cliamberlayne,  Evidence,  §§  426-428. 
App.  l!>07)   91   Pac.  11.5;   Xew  England  Trust  65.  Pugh  v.  Bowden.  54  Fla.  31>2,  45  So.  499 
Co.  v.  Boston  Elevated  Ry.  Co.,  181  Mass.  223,  (190?).     The  power  to  commit  an  infant  to 
"t't  X    K.  7(59   (1906).  a  reformatory  institution  has.  however,  been 

54.  Tilley  v.  Cox,  119  Ga.  867.  47  S.  E.  219  held  to   be  not  so  much   in   the  nature  of  a 
(1904i  :   (tunn  v.  Union  R.  Co.,  27  R.  I.  320,  criminal  as  of  an  equitable  nature.     Aceord- 

62  A.  118  ;  190.5).  iii'/ly  the  accused  has  no  right  to  a  jury  trial. 

55.  Ex  parte  Brown,  39  Wash.  160,  81  Pac.  Dinson  v.  Drosta.   (  Ind.  App.  1907)   80  X    E. 
552    (190.5).  32.     Such  a  proceeding  is  not  so  much  a  trial 

56.  Reed  &  McCormiek  v.  Gold  (Va.  1903).  as  an  effort  to  prevent  the  necessity  for  one. 
45  S.  E.  86^   (hear  demurrers  to  evidence).  Accordingly,  a   jury  is  not  required.     Com    v. 

57.  Hoilibaugh   v.    Hehn,    (Wyo.    1905)    79  1-isher.  2*13  Pa.  48.  62  A.  19<<    (190.5):   State 
Pac.   1044.  v.    Packenham,    40    Wash.    403,   82    Pac.    597 

58.  People  v.  Chew  Lan  Ong,  141   Cal.  550,  (1905). 

75  Pac    186   (1904).  66.   Hughes  v   State.  29  Ohio  Cir.  Ct.  R   237 

59.  State  v.  McPhail.  39  Wash.  199.  SI  Pac.        (1907).     It  has  been  held  that  any  statute. 
683    (1905).  which    subjects    an    individual    to    a    greater 

60.  Barry  v.  Tniax.   (N.  D    1904)   65  L.  R.       punishment  for  crime  without  the  verdict  of  a 
A.    762,    99    N.    W.    769  (order    change    of      jury  than  it  was  understood  at  the  time  of 
venue).  the  adoption  of  the  state  constitution   could 

61.  Miera   v.   Territory,  (N.   M.    1905)    81       be  thus  inflicted,  is  void.     Wilmarth  v.  King, 
Pac.  586.  74  X.  H.  512,  60  Atl.  889  (1908). 


§§  212-215  PROTECT  SUBSTANTIVE  RIGHTS.  110 

As  may  be  seen  elsewhere,67  the  legislature  may  provide  otherwise  in  case  of 
misdemeanors  and  minor  offenses."8  But  unless  it  has  seen  fit  to  do  so,  the 
right  attaches  in  all  such  instances.60 

§  212.  [Right.to  Judgment. of  Court  or  Jury] ;  Waiver  Forbidden.711 —  The  de- 
fendant is  not  at  liberty  to  waive  such  a  right.'1  80  strong  a  course  is,  how- 
ever, intended  only  for  the  protection  of  the  accused  in  cases  of  serious  felony. 
He  may  effectively  make  such  waiver  in  cases  of  misdemeanors,  minor  offenses,72 
or  the  like.T;! 

§  213.  [Eight  to  Judgment  of  Court  or  Jury] ;  Incidental  Hearings.74 —  The 
jury  are  not  concerned  with  hearing's  prior,  incidental  or  subsequent  to  the 
trial  of  the  issue,  as  in  case  of  motions  7r>  or  of  proceedings  following  the 
judgment. TC 

§  214.  [Right  to  Judgment  of  Court  or  Jury] ;  Special  Proceedings.77 —  Where, 
at  common  law,  a  party  was  entitled  to  a  trial  by  jury,  as  in  case  of  quo 
warrant o,~s  contempt,'9  writ  of  mandate,8"  or  proceedings  of  a  similar  nature, 
he  will  be  regarded  as  having  the  same  right  under  the  statutory  or  constitu- 
tional provisions. 

§  215.   [Right  to  Judgment   of   Court   or  Jury] ;   Statutory   Proceedings.81— 
Novel  and  special  modes  of  trial  such  as  the  assessment  of  damages  on  condem- 
nation proceedings,82  the  ascertainment  of  extra  lateral  mining  rights,88  de- 

67.  Infra,  §  219.  pleadings,  be  triable  by  a  jury,  one  has  been 

68.  Bray  v.  State,   (Ala.  1904)   37  So.  250;       allowed.     Drea  v.  Carrington,  32  Or.  St.  595 
Bowles  v.  District  of  Columbia,  22  App.  D.  C.        (1877). 

321   (1903)  ;  Kubach  v   State,  25  Ohio  Cir.  Ct.  76.  Banning    v.    Taylor,    24    Pa.    St.    289 

K.  488   (1904).  (1855);   McGehee  v.   Brown,  3  La.  Ann.  272 

69.  City    of    Vineland   v.    Denoflio,    (N.    J.  (1848),    settling    exceptions-.    Richardson    v. 
1907)  65  Atl.  837.  City  of  Centerville,    (Iowa   1908)    114  N.  W. 

70.  1  Chamberlayne,  Evidence,  §  427.  1071    (attorney's  fee)  ;   P'orrester  v.  Boston  & 

71.  State  v.  Rea,   101   N.   W.  507    (1904)  ;  M.  Consol.  Copper  &  Silver  Min.  Co.,  29  Mont. 
Jennings  v.  State,  114  N.  W.  492   (1908).  397.   74    Pac.    1088    (1904). 

72.  Georgia. —  Moore  v.  State,   124  Ga.  30,  77.  1   Chamberlayne,   Evidence,   §   432. 

52  S.  E.  81    (1905)  ;  Jacobs  v.  People,  218  111.  78.  Metz    v.    Maddox,    189    X.    Y.    4(i(t.    82 

500,    75    X.    E.    1034     (1905).     Simmons    v.  N.  E.  507    (1907)    [order  reversed,  105  X.   V. 

State,  75  Ohio  St    .S4fi.  7!)  X.  E.  555    (1906).  S.  702].     A  right  to  a  jury  may  be  claimed 

73.  Otto  v.  State   (Tex.  Cr.  App.  1905)    87  on  an  issue  of  fact.     Louisiana  &  Xorthwcst 
S.   W.   698    (Local   Option  Law).     £ee  U.   S.  R.  Co.  v   State  (Ark.  1905) ,  88  S.  >V.  559. 
Praeger,  149  Fed.  474   (1907),  court  martial;  79.  O'Neil    v.    People,    113    ill.    App.    195 
Broadwell  v.  United  States,  195  U.  S.  65.  Adv.  (1904):    Drady    v.    District    Court    of    Polk 
S.  U.  S.  826,  24  S.  ft.  49  L.  ed.   (1904),  sale  County,   102  X.  W.   115    (1905). 

of  oleomargarine:  Kanorowski  v.  People,  113  80.  Xelson  v.  Steele   (Idaho  1906),  88  Par-. 

111.  App.  468    (1904),  bastardy.  95. 

74.  1  Chamberlayne,  Evidence,  §§  429-431.  81.  1  Chamberlayne,  Evidence,  §  433. 

75.  Logansport,   etc.,    R.   Co.  v.   Patton,   51  82.  Tngram    v.    Maine    \Yater    Co.,    98    Me. 
Ind.  487   (1875)  :  Pasour  v.  Lineberger,  90  N.  566,    57    Atl.    893     (1904);    State    v.    Jones, 
C.  159   (1884)  :   Banning  v.  Taylor.  24  Pa.  St.  139  X.  C.  613,  52  S.  E.  240   (1905). 

289  (1855).     Where,  however,  a  motion  raises  83.  TTickey   v.    Anaconda    Copper   Min.   Co. 

the  same  issue  of  fact  as  would,  if  stated  upon       (Mont    1905),  81  Pac.  806. 


Ill  EIGHT  TO  JURY.  §§  216,217 

structiou  of  intoxicating  liquor  intended  for  illegal  sale,84  and  the  like  8?  may 
or  may  not  have  the  incident  of  a  right  to  a  jury  trial,  as  the  legislature  may 
determine. 

§  216.  [Right  to  Judgment  of  Court  or  Jury] ;  In  what  Courts  Right  can  be 
Claimed.*'5 —  Only  in  a  "court  "  as  that  term  was  commonly  understood  at  the 
common  law,  when  the  provisions  regarding  jury  trials  were  adopted,  can  such 
a  trial'be  lawfully  demanded  at  the  present  time.  The  fact  that  a  body  of  men 
as  arbitrators'"  are  exercising  judicial  powers  confers  no  right  to  a  trial  by 
jury.  A  right  to  trial  by  jury,  as  usually  limited,  extends  to  all  courts  of 
general  jurisdiction  and  record  which  proceed  according  to  the  course  of  the 
common  law.*8  Thus  in  courts  of  admiralty,89  courts  martial,90  divorce  courts,91 
equity  92  or  probate  93  as  no  jury  was  employed  at  common  law,  so  no  just 
claim  to  one  on  the  part  of  a  litigant  exists  under  the  constitutional  guaranties. 

§  217.  [Right  to  Judgment  of  Court  or  Jury] ;  Who  May  Claim  Right.94 —  The 

condition  of  the  scope  of  the  right  to  a  trial  by  jury,  as  it  existed  at  the  time 
of  the  adoption  of  the  constitution,  limits  not  only  the  classes  of  actions  in 
which,  in  the  absence  of  express  regulation,  the  right  may  be  claimed,  and  the 
court  in  which  such  right  may  be  exercised,  but  also  the  classes  of  legal  persons 
who  may  properly  claim  to  exercise  it.95  For  instance,  where  the  state  had, 
at  common  law,  no  right  to  claim  a  jury  trial  in  certain  proceedings,  none  may 
be  properly  demanded  by  it  under  the  constitution.915  Parties  subsequently 
joined  to  a  pending  suit  have  the  same  right  to  a  jury  trial  as  was  enjoyed  by 
the  primary  parties.  Such  was  the  original  rule.97 

Cities,  town  and  other  municipal  corporations  are  not  entitled  to  claim  a 
jury  trial,  as  they  possessed  no  right  to  one  at  the  time  of  the  adoption  of  the 
constitution.98 

84.  Kirkland  v.   State    (Ark.    1904),   78   S.  92.  Ross  v.  New  England  Mut.  Ins   Co.,  120 
W.   770.  Mass.  113   (1876)  :  Tucker  v.  Edison  Electric 

85.  Parmelee  v.   Price,  208   111.  544,   70  N.  Illuminating  Co.  of  New  York,  184  N.  Y  548, 
E.    725     (in<)4)     (liability    of    stock-holder);  76   N   E..    1110    (1906);    Frank's   Appeal,   59 
Ingram  v.   Maine  Water  Co..  98  Me.   566,  57  Pa.  St.  190    (1868). 

Atl.  80.S    (1!)D4)    (mills  and  mill  dams).  93.   Fay  v.   Vanderford,   154  Mass    498,  28 

86.  1   Chamherlayne,  Evidence.  §§  434-446  N.   E.   681    (1891);    Frierson   v.   Jenkins,   75 

87.  Barker  v.  Jackson,  2  Fed.  Cas.  No   989,  S.  C.  471,  55  S.  E.  800   (1906)  :  In  re  Welch, 
1    Paine   559    (1826).  09  Vt    127.   37   Atl.  250    (1896). 

88.  Vauyhn  v.  Scade,  30  Mo   600   (1860)  94.   1  Chamherlayne.  Evidence.  §§  447-449. 

89.  Gillet   v.    Pierce,    Brown    Adm    553,    10  95.  Harris    v.    Wood.    6    T.    B     Mon.    641 
Fed.  Cas.  No.  5,437   (1875)  ;  Clark  v.  U.  S.,  2  (1828)  -.   Dowell  v.  Boyd.  3  Smedes  &  M.  592 
Wash.     (U.    S.)    519.    5    Fed.    Cas.    No.    2837  (1844). 

(1811).  96.  In  re  New  State  House,   19   R    I.   326. 

90.  Merriman    v.     Bryant.     14    Conn.    200       33  Atl.  448    (1895). 

(1841);      Hawson     v.     Brown.     IS     Me      216  97.  Lacroix    v.    Menard.    3    Mart     (N.    S.) 

(1^41):   State  v.  Wasrener.  74  Minn    51S.  77  339.  15  Am.  Dec.  161    (1825). 

\    W    424.  73  Am.  St    Kep.  369,  42  L.  R.  A.  98.  Stone    v     Charlestown.    114    Mass.    214 

749   (ISOSi)  (1*73):    Kimhall   v.    Brid<rewater.   62   N.   H. 

91.  Tiet/el    v.    Tietzel.    107    N.    Y.    Suppl  694   ( 1882)  ;  State  v.  Jersey  City,  38  N   J.  L. 
S7S.   122  App.  Div.  873    (1907). 


§§  218-221  PROTECT  SUBSTANTIVE  RIGHTS.  112 

The  power  of  the  legislature  to  extend  the  right  to  new  classes  of  legal 
persons  cannot  be  doubted. <Ji) 

§  218.  [Right  to  Judgment  of  Court  or  Jury] ;  Reasonable  Limitations  Per- 
mitted; Demand.1 — The  legislature  may,  with  entire  propriety,  require  a  liti- 
gant to  avail  himself  of  a  right  to  jury  trial  under  reasonable  conditions.  It 
may,  for  example,  properly  be  provided  that  one  entitled  to  a  jury  trial  should 
specifically  demand  it,2  within  a  limited  reasonable  time.  Unless  application 
for  a  jury  is  made  within  the  time  specified,  the  right  will  be  deemed  to  have 
been  waived/'  A  similar  result  may  be  prescribed  by  statute.4  Failure  to 
claim  in  time  as  to  certain  of  several  defendants  is  not  cured,  as  to  them,  by 
a  seasonable  claim  made  by  the  others.5 

When  one  party  seasonably  claims  a  jury  trial  he  preserves  the  rights  of 
both  parties  and  cannot  later,  by  withdrawing  his  claim  or  waiving  it,  prevent 
a  jury  trial,  unless  his  opponent  also  consents.6 

§  219.  [Right  to  Judgment  of  Court  or  Jury] ;  Minor  Criminal  Offenses.7— 
Misdemeanors  may,  in  the  discretion  of  the  legislature,  be  tried  without  a 
jury.8 

§  220.  [Right  to  Judgment  of  Court  or  Jury] ;  Payment  of  Jury  Fees.9 —  It  is 
not  unreasonable  that  a  party  who  claims  a  jury  should  be  required  to  deposit 
a  reasonable  sum,  not  exceeding  the  amounts  actually  paid  the  jury,  as  a  con- 
dition precedent  to  the  allowance  of  his  right  to  a  jury  trial  in  a  municipal 10 
or  other  inferior  court.  The  same  requirement  may  be  made  on  each  continu- 
ance of  such  a  jury  trial  granted  at  the  request  of  a  party.11 

§  221.  [Right  to  Judgment  of  Court  or  Jury] ;  Restricted  Appeals.12 —  It  is  a 
reasonable  regulation  upon  the  right  to  a  jury  trial  that  a  court  of  first  instance 

259     (1876);    Darlington    v.    New    York,    31  Misc.     (X.    Y.)    614,    104    N.    Y.    Suppl.    867 

M.  Y.  164,  88  Am.  Dec.  248,  28  How.  (1907). 

99.  In  re  New  State  House,   19  R.  I.  326,  6.   Elmore   v.   New  York   City   Ry.   Co.,   51 

33  Atl.  448    (1895).  Misc.    (N.   Y.)    675.    100   N.    Y.    Suppl.    1019 

1.  1  Chamberlayne,  Evidence,  §§  450,  451.  (1906);    Allwortli    v.    Interstate   Consol    Ry. 

2.  Maddux    v.    Walthall,    141    Cal     412,   74  Co..  27  R.  I.  106,  60  Atl.  834   (1905). 

Par    1026  (1903)  :  Miller  v.  Georgia  R    Bank,  7.  1  Chamberlayne.  Evidence,  §§  452,  453. 

120  Ga.   17,  47   S.   E    525    (1904):    People  v.  8.  People  v.  Flaherty,  119  N.  Y.  App    Div. 

Halwig,  84  N.  Y.  Suppl.  221,  41  Misc.  Rep  227  462,  104  X.  Y.  Suppl.   173    (1907). 

(1903).  9.   1  Chamberlayne,    Evidence.    §    454. 

3.  Hammond  v.  State    (Ala.   1908),  45   So.  10.  Williams    v.    Gottschalk,    231    111.    175, 
654;    Stafford   v.   State    (Ala.    1908),   45    So.  83    X.    E.    141     (1907)     ($6):    Humphrey    v. 
673;    Mills  &  Williams  v.   Ivey,   3   Ga.   App  Eakley,  72  X.  J.  L.  424,  60  Atl.  1097    (1905) 
557,  60  S.  E.  299'  (1908).  [affirmed    in    65    Atl.    1118     (1907)];    Cohen 

4.  Ross  v.   McCaldin,    (107   N.  Y.   S.   381,  v.  New  York  City  Ry.  Co.,  106  N.  Y.  Suppl. 
123  App.  Div.  13   (1907):  Ettlinger  v.  Trus-  561,    121    App.   Div.  ,803    (1907)     ($4.50   per 
tees  of  Sailors'  Snug  Harhor,  etc.,  107  N.  Y.  S.  day). 

779,  122  App.  Div.  681   (1907).  11.  Cohen  v.  New  York  City  Ry    Co,   106 

5.  Spencer    v.    Adams    Dry   Goods    Co.,    54       N.  Y.  Suppl.  561.  121   App.  Div    803   (1907). 

12.   1   Chamberlayne,   Evidence.   §   455. 


113  RIGHT  TO  JURY.  §§  222-224 

should  hear  and  determine  issues  of  fact,  in  civil  actions  involving  a  limited 
amount,  in  quasi  criminal  actions,  as  those  for  forfeiture  of  liquor  kept  con- 
trary to  law,13  and,  in  criminal  cases,  on  misdemeanors  or  minor  crimes;  14 — 
provided  that  the  party  is  given,  as  of  right,  an  appeal  to  a  higher  court  in 
which  a  trial  by  jury  is  preserved  to  him.  Under  both  the  state  and  federal  13 
constitutions,  such  an  appeal  does  not  satisfy  the  right  under  consideration  in  a 
case  of  treason,  felony  or  other  serious  crime.  While  this  appeal  must  be  as 
of  right,  it  need  not  be  unconditioned  or  unlimited.  The  legislature  may  pro- 
vide certain  reasonable  restrictions.  For  -example,  the  appellant  may  be  re- 
quired to  content  himself  with  a  hearing  upon  the  matters  which  he  specifies  on 
his  appeal.10 

§  222.  [Right  to  Judgment  of  Court  or  Jury] ;  Unreasonable  Limitations  Tin- 
constitutional.17 —  The  constitutional  provision  is  violated  by  any  monetary 
qualification  likely  to  prove  an  unreasonable  impediment  upon  the  right  to  a 
jury  trial;  e.g.,  that  the  claim  must  amount  to  at  least  $50. 18 

§  223.  [Right  to  Judgment  of  Court  or  Jury] ;  Waiver  and  Estoppel.19 —  A 
waiver  may  be  created  not  only  by  express  agreement,20  but  by  failure  to  claim 
a  jury  at  a  proper  time,  neglecting  to  appear  at  the  trial,21  or  otherwise  evi- 
dencing an  intention  not  to  claim  a  jury.22 

§  224.  Right  to  Confrontation.23 —  Prominent  among  rights  with  which  the 
substantive  law  has  endowed  a  litigant  is  that  of  confrontation;  —  the  privi- 
lege of  meeting  the  witnesses  against  him  face  to  face.  In  other  words,  the 
object  to  be  secured  is  that  the  witness  should  give  his  evidence  in  presence  24 

13.  Stahl  v.  Lee   (Kan.  1905),  80  Pac.  983.       Hams   v.    Weeks,   70   8.    C.    1,   48    S.    E.    619 

14.  Little  v    State,   123  Ga.   503,  51   S.   E.       (1904). 

501    (1905);    Stone   v.   City   of    Paducah,   27  21.  Cerussite  Min.   Co.  v.   Anderson    (Colo. 

Ky.    L.    Hep.    717,    86    S.    W.    531     (l!Wf>):  A— i.  1903) ,  75  Pac.  158. 

State  v.    Lytle,    138   X.   C.   738,   51    S.   E.   66  22.  Juvinall   v.  Jamesburg  Drainage  Dist., 

(1905);   Bettge  v.  Terr.,  17  Okl.  85,  87   Pac.  204    111.    106,    68    X.    E.    440    (1903);    Albe- 

897    (1906).  marie  Steam  Xav.  Co.  v.  Worrell,   133  X.   C. 

15.  Hettge  v.  Territory,  17  Okl.  85,  87  Pac.  93,  45  S.  E.  466    (1903). 

897   (1906).  23.   1    Chamberlayne.  Evidence,  §§  456-461. 

16.  Mead  v.  Cutler   (Mass.  1907),  80  N.  E.  24.  The  meaning  of  "presence,"  or  "face 
496.  to   face "   in   this   connection   has   received   a 

17.  1  Cliamberlayne,   Evidence,   §   456.  common  sense  construction.     It  does  not  re- 

18.  De    Lamar   v     Dollar,    128    Ga     57,    57  quire   that   the   witness    shoiild    look   at   the 
S.    E.    85    (1907).  party.     He  may  look  in  another  direction,  as 

19.  1   Chamberlayne,  Evidence,  §  457.  to    the    Court,    while    giving    his    testimony. 

20.  Lindstrom  v.  Hope  Lumber  Co.    ( Idaho  As  was  said  to  Earl  Stafford,  who  complained 
1906),  88  Pac.  92;   Maass  v.   Rosenthal,   109  that   a    witness    had    averted    his    face    from 
X. -Y.  Suppl.  917,  125  App.  Div.  452    (1908).  him:     "My    lord,    do   you   see   the   witness; 

Implied  agreement  as  a  consent  to  a  ref-  .  that    is   enough   for   face  to   face."     Earl    of 

erence  may  have  the  same  effect.     Reynolds  v.  Stafford's   Trial.   7    How.   St.   Tr.    1293,    1341 

Wynne,  111  N.  Y.  Suppl    248.  127  App.  Div.  (1680).     A  mere  temporary  absence  from  the 

69    (1908);   Bruce  v.  Carolina  Queen  Consol.  court   room   of   the   witness   while   testifying 

Min.  Co.    (N.  C.   1908),  61   S.  E.  579;   Wil-  should  not  be  deemed  an   infraction  of  the 


§  225  PROTECT  SUBSTANTIVE  EIGHTS.  114 

of  the  adverse  party.25  The  rule  was  not,  however,  intended  to  change  any 
existing  rule  of  law  and  does  not  prevent  the  use  of  evidence  of  a  kind  where 
there  can  from  its  nature  be  no  confrontation,  as  in  case  of  depositions  or  excep- 
tions to  the  hearsay  rule. 

§  225.  [Right  to  Confrontation] ;  Waiver.-0 —  The  constitutional  protection 
may  be  waived  by  a  party,2'  as  where  he  fails  to  object  to  evidence  offered  in 
contravention  of  it ;  28  or,  even  more  clearly,  where  a  party,  who  would  other- 
wise be  aggrieved  expressly  consents  to  its  reception.2" 

Constitution,     Skaggs  v.  btate,  108  Ind.  571  644   (1898)  ;  State  v.  Mitchell,  119  N.  C.  784, 

JN.  E.  695    (1886).  25  S.  E.  783    (1869). 

25.  \\oodside  v.  State,  2  How.  (Misa.)   665  28.  State  v.  Rogers,  119  N.  C   793,  26  S.  E. 
(1837);  State  v.  Houser,  26  Mo   437   (1858).  142. 

26.  1  Chamberlayne,   Evidence,,  §  462.  29.  Ruiz  v.  Terr.,   10  N.  M.   120,  61   Pac. 

27.  State  v.  Olds,  106  Iowa  110,  76  N.  W.  126    (1900). 


CHAPTER  VII. 

PRINCIPLES  OF  ADMINISTRATION:      B.     FURTHERANCE  OF  JUSTICE. 

Furtherance  of  justice,  226. 

primary  evidence  required,  227. 

grading  of  primary  evidence,  228. 

evidence  by  perception,  229. 

written  and  oral  evidence,  230. 
not  a  question  of  probalire  force,  231. 
extent  of  administrative  action,  232. 
necessity  for  using  secondary  evidence,  233. 

grounds  of  necessity;  witnesses  or  documents,  234r. 
degrees  of  secondary  evidence,  235. 
how  objection  is  taken,  236.    . 
"  best  evidence  "  as  a  rule  of  procedure,  237. 
"  best  evidence  "  rule,  at  the  present  time,  238. 

present  scope  of  rule,  239. 

a  sole  surriral,  240. 

a  vanishing  rule,  241. 

hearsay,  242. 

attesting  witnesses,  243. 
completeness  demanded,  244. 

oral  statements;  proponent,  245. 

admissions  and  confessions,  246. 
oral,.  247. 

confessions,  248. 

independent  relevancy,  249. 

res  fjestae  an  exception,  250. 
oral  statements ;  opponent,  251. 

probative  effect,  252. 

right  of  initiative,  253. 

former  eridence,  254. 

independent  relevancy,  255. 
documents;  proponent;  independent  relevancy,  256. 

judgment,  257. 

general  practice,  258. 

depositions,  259. 

admissions,  260. 

public  records,  261. 

115 


FURTHERANCE  OF  JUSTICE.  116 

executive ,  262. 
legislative,  263. 
judicial,  264. 
pleadings  at  law,  265. 
pleadings  in  chancery,  266. 
statutory  interrogatories,  267. 
judgments,  268. 
verdicts,  2(55). 
executions,  270. 
Wi7?s  and  probate  papers,  271. 
private  records,  272. 
opponent;  independent  relevancy,  273. 
incorporation  by  reference,  274. 
obligation  to   introduce  into   evidence  resulting  from  demand  and 

inspection,  27.~>. 
prevent  surprise,  276. 

new  /m//  /or  newly  discovered  evidence,  277. 
action  of  appellate  courts,  278. 

amendment  of  pleadings,  27(.». 
decisions  on  dilatory  pleas,  280. 
testimony,  281. 

production  of  documents,  282. 
£ime  and  ;>?ace  of  /tearing,  283. 
surprise  must  be  prejudicial,  284. 
protection  against  unfair  treatment,  285. 
unfair  comment,  286. 

incidental  comment  permitted,  287. 
unreasonable  comment,  288. 
comments  on  law,  289. 
influence  of  spectators,  290. 
misquoting  eridenee,  291. 
reprimanding  counsel,  292. 
reprimanding  a  party  or  his  witnesses,  293. 
e/fer£  o/  waiver,  294. 
protect  witnesses  from  annoyance,  295. 
cross-examination,  296. 

a  reasonable  limitation,  297. 
judge  may  interrogate  witnesses,  298. 
tn  order  to  elicit  material  facts,  299. 
range  o/  inquiry,  300. 
judge  may  call  additional  witnesses,  301. 
judge  should  hold  balance  of  indulgence  even,  302. 
judge  should  require  full  disclosure,  303. 


117  PRINCIPLES  OF  ADMINISTBATION.  §  226. 

expedite  trials,  304. 

judge  should  aim  to  give  certainty  to  substantive  law,  305. 

action  of  appellate  court;  judicial  function  of  trial  judge;  substantive 

law,  306. 
findings  of  fact,  307. 

facts  conditioning  admissibility ,  308. 

competency  of  witnesses,  309. 
administrative  function  of  trial  judge,  310. 
executive  function  of  trial  judge,  311. 

all  intendments  made  in  favor  of  trial  judge,  312. 
powers  of  an  appellate  court,  313. 
modification  of  action,  314. 

§  226.  Principles  of  Administration;  Furtherance  of  Justice.1 — Boni  judicis 
est  ampliare  justitiam.  It  is  in  furtherance  of  justice  which  constitutes  the 
characteristic  and  essential  quality  of  the  ideal  judge.  Only  in  proportion  as 
an v  magistrate  manifests,  effectuates  or  embodies  justice  does  he  become  ideal. 
In  this  way  alone  is  the  highest  obligation  of  the  judiciary  to  the  nation,  state 
or  the  community  fulfilled.  The  administrative  power  of  the  court  extends  not 
only  to  protecting  the  dignity  and  due  regularity  of  judicial  proceedings  and 
so  determining  the  course  of  the  trial  as  to  protect  the  substantive  legal  rights  of 
the  parties.  It  will  go  further  and  provide  that  litigation,  as  it  affects  the 
parties,  shall  result  in  the  attainment  of  substantial  justice  and  in  as  speedy  a 
manner  as  is  consistent  with  a  careful  attempt  to  gain  it. 

To  secure  substantial  justice  to  the  parties  is  avowedly  the  object  of  the  pro- 
cedure under  consideration  and  the  motive  or  object  with  which  the  court  exer- 
cises its  wide  administrative  powers.  In  addition  to  its  function  of  regulating 
the  orderly  course  of  the  trial  itself,  the  judge  may,  in  pursuance  of  these  ad- 
ministrative powers,  intervene  directly  to  secure  the  ends  of  justice.  Certain 
of  the  more  prominent  canons  under  which  the  presiding  judge  exercises  his 
powers  may  be  stated.  (1)  He  will  insist  that  the  primary  evidence  of  any 
probative  or  constituent  fact  in  the  possession  or  control  of  the  proponent  shall 
be  produced  to  the  tribunal.  (2)  He  will  demand  for  himself,  or  permit  a 
party  to  obtain  on  request,  a  complete  presentation  of  the  case  as  a  whole,  or 
in  respect  to  any  particular  branch  of  it.  (3)  He  will  protect  a  party  from 
surprise  or  other  unfair  advantage,  and  witnesses  from  annoyance.  (4)  He 
may  insist  on  bringing  out  any  fact  deemed  by  him  essential  to  a  just  decision ; 
either  by  suggesting  its  existence  to  counsel  or  by  personally  asking  questions 
designed  to  elicit  the  truth.  (5)  In  certain  jurisdictions,  he  will  comment  if 
necessary  on  the  evidence  for  the  guidance  of  the  jury ;  and  may,  in  most  cases, 

1.   1   Chamberlayne,  Evidence.  §  463.  cannot  stop  to  try  the  collateral  issue  as  to 

Evidence      illegally      obtained. —  Evidence  how    evidence    was    obtained.     State    v.    Sut- 

may   he   admissible   though   obtained   by   un-  ter,  71  W.  Va    .371,  76  S.  E.  811,  43  L.  R.  A. 

lawful  search  or  by  an  illegal  entry.     Courts  (N.  S.)    399    (1912). 


§§    227,228  FUKTHEKANCE    OF    JUSTICE.  118 

call  additional  witnesses  to  the  s"ame  end.  (6)  He  will  hold  the  balance  of 
indulgence  even  between  the  parties ;  —  according  to  both  any  privilege  con- 
ferred upon  either.  (7)  So  far  as  not  restrained  by  substantive  or  proced- 
ural law,  he  will  require  that  a  party  or  witness  make  a  full  disclosure  of  all 
material  facts.  (8)  lie  will  suggest  amendments  of  pleadings  or  changes  in 
method  of  presentation  calculated  to  bring  the  truth  into  a  clearer  light. 

§  227.  [Furtherance  of  Justice] ;  Primary  Evidence  Required.'2—  A  funda- 
mental and  far-reaching  canon  of  administration  is  to  the  effect  that  primary 
evidence  will  be  preferred  to  secondary.3  As  will  appear  later,4  this  canon  of 
administration  was,  in  its  inception,  treated  as  a  rule  of  procedure ;  —  which, 
to  a  limited  extent,  it  still  continues  to  be.  As  commonly  phrased,  the  rule  is 
stated  by  saying  that  the  best  evidence  must  be  produced  which  the  nature  of 
the  case  admits.5 

§  228.  [Primary  Evidence  Required] ;  Grading  of  Primary  Evidence.6 —  1.  As 
between  direct  evidence  of  any  fact  and  circumstantial  proof  of  that  fact,  the 
direct  evidence  is  deemed  primary.  This  is  the  basis  of  the  preference  for 
direct  as  compared  with  circumstantial  evidence.  Tt  is  also  the  foundation,  in 
part,  upon  which  the  rules  as  to  res  inter  alios  actae  7  have  been  formulated. 

2.  As  between  the  judicial  evidence  of  one  who  knows  or  has  observed  a 
fact,  and  proof  of  an  extrajudicial  statement  by  the  knower  or  observer,  the 
judicial  evidence  is  primary.  This  is  the  administrative  principle  underlying 
the  exceptions  to  the  rule  against  hearsay  8  and  which  ought,  in  principle,  to 
apply  to  the  entire  operation  of  the  hearsay  rule.9 

2.  1  Chamherlayne,  Evidence,  §§  464,  465.  6.  1   Chamberlayne.   Evidence,   §   466. 

3.  The  distinction  between  primary  and  sec-  7.  Infra,  §§  1008  et  seq. 
ondary   evidence   is    one    in    degree   of   close-  8.  Infra,  §§  880  et  seq. 

ness,  in  logical  relation,  to  the  fact  to  be  9.  The  "  hearsay  rule  "  sustains  an  anom- 
proved.  The  distinction  is  necessarily  in  alous  relation  to  that  requiring  the  "  best " 
large  measure  arbitrary :  and,  as  commonly  evidence.  Like  that  requiring  production  of 
drawn,  indicates  a  relation  to  the  fact  which  an  original  constituent  instrument  (infra,  § 
is  the  immediate  subject  of  the  evidence  the  482),  the  rule  excluding  hearsay  is  a  regu- 
factum  probans  rather  than  to  its  effect  on  lation  of  substantive  law  relating  to  pro- 
the  truth  of  the  ultimate  proposition.  In  cedure,  or,  if  the  phrase  be  preferred,  a  rule 
other  words,  the  evidence  to  establish  a  pro-  of  procedure.  Unlike  the  procedural  rule 
bative  fact  may  be  primary,  while  that  to  as  to  documents,  however,  the  hearsay  rule 
prove  a  constituent  one  may  be  secondary.  presents  the  unusual  feature  that,  so  far 
Speaking  generally,  it  may  be  said  that  as  given  full  operation,  it  absolutely  and  arbi- 
evidence  which  a  presiding  judge  is  required  trarily  excludes  the  unsworn  statements  cov- 
to  admit  as  a  matter  of  course,  without  ered  by  it.  No  secondary  evidence  is  permit- 
calling  on  the  producer  to  explain  the  absence  ted,  however  great  the  proponent's  necessity, 
of  any  other  method  of  proving  the  fact,  is  On  the  other  hand,  the  established  exceptions 
primary.  Other  evidence  is  secondary.  to  the  hearsay  rule,  pedigree,  declarations 

4.  Infra,  §§  237  et  seq.  against    interest,    and    the    like,    present    the 

5.  Illinois. —  Vigils    v     O'Bannon,    118    Til.  administrative    feature   of    furnishing   secon- 
334,  8  N.  E.  778   (J886  [reversing  19  111.  App.  dary  evidence  in  the  absence  of  the  primary. 
241] ;  Kain  v.  Larkin,  131  N.  Y.  300.  30  X   E.  (Infra,    §    895.)      The   hearsay   rule   becomes 
105   (1892)    [reversing  17  X.  Y.  Suppl.  223].  harmonious    with    the    rest    of    the    law    of 


119  PBIMAEY  EVIDENCE.  §§  229,230 

3.  In  proving  the  contents  of  a  constituent  document,  the  production  of  the 
original  writing  for  the  inspection  of  the  court  is  deemed  primary  evidence  as 
compared  with  proof  by  copy  or  any  verbal  testimony  as  to  its  contents.     This 
application  of  the  principle  is  apparently  best  regarded  as  part  of  the  substan- 
tive law  relating  to  documents  and  will  be  considered  in  connection  with  that 
important  medium  of  proof.     As  is  said  elsewhere,10  the  present  scope  of  the 
"  best  evidence  rule/'  viewed  as  one  of  procedure,  is  practically  limited  to 
prcof  of  the  contents  or  execution  of  constituent  documents. 

4.  As  between  evidence  of  the  physical  phenomena  covered  by  actual  obser- 
vation and  the  inference  of  an  observer  as  to  the  existence  of  a  fact  which  these 
phenomena  appear  to  him  to  establish,  the  phenomena  themselves  are  the  pri- 
mary evidence.     This  administrative  principle  is  at  the  basis  of  the  so-called 
"  opinion  evidence  "  rule,  excluding  the  unnecessary  use  by  a  witness  of  the 
reasoning  faculty,11  and  will  be  considered  more  fully  in  that  connection. 

§  229.  [Primary  Evidence  Required] ;  Evidence  by  Perception.12 —  As  has  been 
said,13  the  establishment  of  a  grade  of  primary  evidence  is  more  or  less  arbi- 
trary. It  has  been  suggested,  for  example,  that  the  evidence  gained  by  the 
direct  perception  of  the  tribunal  is  more  cogent  than  any  other  method  of 
showing  the  same  facts;  that,  therefore,  so  long  as  the  person  or  object  in 
question  can  be  brought  before  the  court,  no  other  inferior  evidence  should  be 
received.14  This  has  been  repudiated.15 

§  230.  [Primary  Evidence  Required] ;  Written  and  Oral  Evidence.16 —  It  is 
probable  that  no  distinct  administrative  principle  regards  written  evidence  as 
primary,  and  oral  evidence  as  secondary.  As  a  question  of  probative  weight,  it 
is  not  doubtful  that  the  document  is  much  to  be  preferred.  But  it  will,  in  most 
instances,  probably  be  found  that  the  requirement  of  written  evidence  of  a 
given  fact  is  due  rather  to  the  substantive  law  than  to  that  of  administration. 

But  as  between  two  alternative  methods  of  proving  a  fact,  neither  being  for- 
bidden by  any  act  of  law,  there  seems  no  principle  of  administration  to  the 
effect  that  the  one  embodying  the  use  of  writing  must  be  regarded  as  primary.17 

evidence  by  treating  it  as  a  requirement  of  16.   1  Chamberlayne,  'Evidence,  §§  468-470. 

primary   evidence  —  analogous   to   that   regu-  17.  For  example,  while  the  original  agree- 

lating  proof  of  the  contents  of  a  constituent  ment  of  the  parties  must  by  rule  of  substan- 

document  —  and,  when  so  regarded,  is  essen-  tive   law   be   produced   in   proof   of   any   fact 

tially  sane  and  beneficial:  while,  as  a  bar  to  asserted,    as    primary    evidence    of    its    con- 

the  introduction  of  relevant  testimony,  it  has  tents,   in   any   litigation   between  the  parties 

no  adequate  justification  in  reason.  on    the    document,    no    such    requirement    is 

10.  Infra,  §  239.  made   in   an   action   between   a   party   and   a 

11.  Infra,  §§  672   et  seq  stranger.     See  Documentary   Evidence,  infra, 

12.  1  Chamberlayne,  Evidence,  §  467.  §  1048  et  seq.     So  while  ownership  of  a  chat- 

13.  Supra,  §  228.  tel    may    be    established    by    exhibition    of   a 

14.  Greenleaf  on  Evid  document,    it    may    also    ue    shown    by    oral 

15.  Q.   v.   Francis,    L.    R.   2,   C.   C.   R.    128  testimony.     Fay   v.    Davidson,    13   Minn.   .523 
(1874):  Lucas  v.  Williams,  66  L.  T.  R.  706  (1868)    (steamboat):  McMahon  v.  Davidson, 
(1S92).  12  Minn.  357    (1867).     The  lading  of  goods 


§§  231-233  FURTHERANCE  OF  JUSTICE.  120 

§  231.  [Primary  Evidence  Required];  Not  a  Question  of  Probative  Force.18— 
The  fact  that  other  primary  evidence  is  more  probative  than  the  primary  evi- 
dence offered,  is  no  ground  for  excluding  that  actually  produced.  The  "  best 
evidence "  rule  relates  rather  to  admissibility  than  to  weight.1'*  In  other 
words,  the  rule  of  administration  does  not  attempt  to  distinguish,  in  point  of 
admissibility,  between  different  classes  of  relevant  facts;  —  provided  it  re- 
gard them  as  primary.20 

§  232.  [Primary  Evidence  Required] ;  Extent  of  Administrative  Action.21— 
That  the  court  is  justified,  unless  a  suitable  necessity  for  receiving  it  is  shown, 
in  rejecting  the  secondary  evidence  tendered,  in  refusing  a  continuance  for 
the  purpose  of  securing  the  primary,  seems  clear.  That  the  judge  may  further 
properly  call  the  attention  of  the  jury  to  any  unfavorable  inferences  which 
arise  from  the  fact  of  suppressing  the  truth,  is  equally  unquestioned.  Here 
it  would  seem  that  the  court  must  stop.  It  cannot  dismiss  the  case  itself  with- 
out hearing  on  the  merits  and  as  unprejudiced  a  consideration  of  the  substan- 
tial equities  of  the  party's  case  as  is  possible  to  persons  upon  whom  an  impo- 
sition has  been  attempted. 

§  233.  [Primary  Evidence  Required] ;  Necessity  for  Using  Secondary  Evi- 
dence.22—  Unless  a  litigant  is  able  to  show,  to  the  reasonable  satisfaction  of  the 
judge,  that  it  is  necessary  for  him  to  use  secondary  evidence,  he  will  be  re- 
quired to  produce  the  primary.  Wherever  such  a  necessity  is  shown,  he  will 
be  permitted  to  use  the  secondary,23  if  otherwise  competent.24  Hearsay,  never- 
theless, will  not  be  received  as  secondary  evidence ;  25 —  the  most  startling 
anomaly  in  the  English  law  of  evidence. 

may  be  proved  by  oral  testimony  though  a  bank's  officers  receiving  his  money.     The  evi- 

bill  of  lading  exist.     Giraudel  v.  Mendiburne,  dence,  therefore,  is  equally  admissible.     Zang 

3  Mart.  X.  S.   (La.)  509   (1825).  v.  Wyant,  25  Colo.  551,  56  Pac.  565,  71  Am. 

18.  1  Chamberlayne,  Evidence,  §  471.  St.   Rep.    145    (1898).     One  who  saw  an  oc- 

19.  Indiana. —  Hewitt    v.    State,    121    Ind.  currence  from  a  distance  though  but  little  of 
245,  23  N    E.  83   (1889).  it,  is  equally  competent,  if  not  quite  as  credi- 

New  Hampshire. —  Roberts  v.  Dover,  72  N.  ble,  as  a  witness  who  with  excellent  powers 

H.,  147  55  Atl.  895  (1903);  Canfield  v.  John-  of   observation    and    a   retentive    memory,    is 

son,  144  Pa   St.  61,  22  Atl   974  (1891).  able  to  state,  with   absolute  indifference  be- 

20.  Roberts  v.  Dover.  72  N.  H.  147,  55  Atl.  tween  the  litigants,  the  entire  set  of  happen- 
895    (1903).  ings  in  his  immediate  proximity. 

For   example,   an   admission,  by   a  rule  of  21.   1  Chamberlayne,   Evidence.   §   472. 

procedure,  is  made  primary  evidence      Infra,  22.   1   Chamberlayne,   Evidence,   §   473. 

§§    1232   et  seq.     It   follows,   so   far   as   this  23.  Binney  v.  Russell.  109  Mass.  55  (1871); 

canon    is   concerned,   that   such   a   statement  Langdon    v.    New    York,    133    N.    Y.    628,   31 

is    equally   admissible,   though    often    not    so  N.  E.  98    (1892)    [affirming  59  Hun  434,   13 

probative,   as   the   direct   evidence   of   a   per-  N   Y.  Suppl.  864];  Inman  v.  Potter,  18  R.  I. 

cipient  witness  to  the  fact  stated  by  the  ad-  111.  25  Atl   912  (1892). 

mission.     Thus,  the  book  of  deposits  kept  by  24.  Prince  v.  Smith,  4  Mass.  455    (1808)  : 
a  bank,  though  made  from  slips  kept  by  an-  Niles  v   Totman,  3  Barb.  (N.  Y.)  594  (1848) 
other  clerk  is  quite  as  much  primary  evidence  25.  Nichols  v.  Kingdom  Iron  Ore  Co.,  56  N 
as  to  the  state  of  a  depositor's  account,   as  Y.  618   (1874).     See  also  Domschke  v.  Metro- 
is    the    depositor's    pass    book    kept    by    the  politan  El.  R.  Co.,  148  N.  Y.  337,  42  N.  E.  804 


121  PRIMARY  EVIDENCE. 

This  necessity  may  arise  at  either  of  two  stages  of  the  proponent's  case: 
(1)  that  of  establishing  a  prima  facie  case,  or,  if  the  proponent  is  not  also  the 
actor, 2li  in  creating  an  equilibrium  in  a  civil  or  a  reasonable  doubt  in  a  crim- 
inal case;  or  (2)  at  the  stage  when  it  is  necessary  for  the  proponent  to  main- 
tain the  situation,  either  of  proof  or  doubt  which  he  has  succeeded  in  establish- 
ing. The  necessity  arising  at  the  former  stage  may  properly  be  designated  as 
the  necessity  for  establishing ;  that  arising  at  the  latter  stage  seems  more  prop- 
erly called  the  necessity  for  corroboration. 

§  234.  [Primary  Evidence  Required];  Grounds  of  Necessity;  Witnesses  or 
Documents.27 —  Reasons  for  resorting  to  secondary  evidence  are  numerous. 

A  witness  may  be  dead,  sick,  insane,  he  may  be  a  resident  of  parts  unknown 
beyond  the  reach  of  legal  process.  In  case  of  a  document  the  primary  evidence 
may  have  been  lost,  destroyed  or  be  beyond  the  reach  of  process. 

Difficulty  of  Proof,  Subject-Matter. —  Other  reasons  may  justify  the  court 
in  employing  secondary  evidence.  The  necessity  for  using  it  may  be  inherent 
in  the  nature  of  the  subject-matter;  —  as  where  the  facts  are  ancient.28 

§  235.  [Primary  Evidence  Required] ;  Degrees  of  Secondary  Evidence — 
Though  the  rule  seems  to  be  laid  down  broadly  in  England  that  there  are  no 
degrees  in  secondary  evidence  the  current  of  authority  is  otherwise  in  this 
country.29 

• 

§  236.  [Primary  Evidence  Required];  How  Objection  is  Taken.30— -  The  party 
objecting  that  the  evidence  offered  is  not  primary,  must  affirmatively  show  that 
the  evidence  produced  by  the  proponent  is  secondary,  that  there  is  primary 
evidence  in  existence  and  that  it  is  within  the  power  of  the  proponent  to  pro- 
duce it.31  The  objecting  party  is  bound  to  show  not  only  the  existence  of 
primary  evidence  within  the  control  of  the  proponent  of  the  secondary,  but  also 
that  this  primary  evidence  is  material  and  relevant  to  the  truth  of  the  proposi- 
tion in  issue ;  32  and  that  the  exclusion  sought  will  assist  in  the  just  determina- 
tion of  the  cause.33  For  the  administrative  or  procedural  requirement  of  the 
best  evidence  applies  only  to  probative  or  constituent  facts.  It  does  not  cover 
those  that  are  deliberative  ">4  or  what  may  be  called  collaterally  relevant  facts,35 

(1806)   [reversing  74  Hun  442.  26  X.  Y   Suppl.  Lamb  v.   Moberly,   3   T.   B.   Mon.    (Ky.)    179 

840]  (1326);    Clifton   v.    Litohfield.    106   Mass.   34 

26.  Infra.  §  159.  (1870)  :  Doe  v.  Morris.  12  East  237   ' 1810). 

27.  1   Chamberlayne,  Evidence,  §§  474-478.  33.  Donahue  v.    McCosh,   70   Iowa   733.   30 

28.  Bogardus   v.   Trinity  Church,   4   Sandf.  X.  \V    14   H886)  :  Den  v.  Hamilton,  12  X.  J. 
Ch.   (X.   Y.)   633    (1847)  L     109    (1830 1:    Simmons   Hardware    Co.    v. 

29.  Cummings    v.    Pennsylvania    Fire    Ina.  Greenwood  Bank,  41   S.  C.  177.  19  S.  E.  502, 
Co.,  153  Iowa  579,  134  X.  W.  79.  37  L,  R.  A.  44    Am.    St.   Rep.   700    (1893). 

(X.  S.)   1169   (1912).  34.  Xxpra,  %  34. 

30.  1   Chamberlayne,   Evidence.   §   479.  35.   Xew   Jersey    Zinc.   etc..   Co.   v.   Lehigh 

31.  Roberts  v.  Dover,  72  X.  H.  147,  55  Atl.  Zinc,  etc  .  Co  .  59  X.  J.   L.   189,  35  Atl.  915 
895  (1903).  (1896);    McFadden  v.  Kingabury,  11  Wend. 

32.  Ware  v    Morgan,  67  Ala.  461    (1880);  (N.  Y.)    667    (1834). 


§§  237,238  FURTHERANCE  OF  JUSTICE.  122 

i.e.,  circumstances  which  are  not  in  the  direct  line  of  proof  of  the  constituent 
facts. 

§  237.  [Primary  E/idence  Required];  "Best  Evidence"  as  a  Rule  of  Proced- 
ure.36—  The  insistence  upon  the  primary  grade  of  evidence  in  proving  proba- 
tive or  constituent  facts  is  by  no  means  a  universal  procedural  rule  applicable 
as  a  general  test  to  all  questions  as  to  the  admissibility  of  evidence.  A  rule 
of  this  nature  was  much  favored  during  the  formative  period  of  the  law  of 
evidence. 

But  the  attempt  of  English  judges  37  and  text-writers,38  in  the  eighteenth 
century  to  formulate  a  scientific  procedural  rule,  that  the  best  evidence  of 
which  a  case  was  capable  was  in  all  instances  to  be  required,  and,  if  produced,, 
received  as  sufficient,  necessarily  failed  and  was  abandoned ;  39 —  for  reasons 
which,  in  part,  appear  hereafter.40 

§  238.  [Primary  Evidence  Required] ;  "  Best  Evidence  Rule  "  at  the  Present 
Time.41 —  It  is  not  difficult  to  understand  why  the  "best  evidence  rule"  as  a 
rule  of  evidence,  failed  to  attain  the  vogue  which  its  advocates  hoped  and 
apparently  anticipated.  As  qualified  by  the  words  "  within  his  power  "  a  re- 
quirement that  the  proponent  of  evidence  produce  the  most  probative  proof,  is 
really  a  precept  of  caution,  a  canon  of  administration.  Regarded  as  a  rule  of 
procedure,  it  is  unworkable.  As  each  case  arises,  what  shall  be  deemed  the 
most  probative  evidence  in  proponent's  power  must  be  decreed  upon  the  special 
facts,  effect  must  be  accorded  to  certain  considerations  which  is  denied  to 
others,  the  wealth  of  the  parties,  their  opportunities  for  securing  information, 
the  seriousness  of  the  matter  in  controversy,  all  should  be  examined.  No  pro- 
cedural rule  could  adjust  such  details.  Only  a  precept  of  administration  could 
be  effective  under  these  circumstances. 

ft  is  Inj  no  means  invariably  required,  as  a  rule  of  procedure,  that  a  party 
should  not  suppress  testimony  of  a  higher  probative  force  than  that  which  he 
presents;  —  that  he  should  conceal  nothing  of  help  to  the  tribunal  in  its  search 
for  truth.  Except  in  the  limited  cases,  shortly  to  be  mentioned,42  he  may  do 
as  he  pleases  about  keeping  back  from  the  tribunal,  not  only  the  best  evidence  he 
has  but  the  best  possible  evidence,  if  he  is  content  to  pay  the  penalty  estab- 
lished for  doing  so.  The  judge  does  not,  as  he  well  might  under  his  adminis- 

36.  1   Chamberlayne,  Evidence,  §  481.  admit  of  shall  always  be  required,  if  possible 

37.  Yilliers  v.   Villiers,  2   Atk.   71    (1740),  to  be  had;  but  if  not  possible,  then  the  best 
per    Lord    Hardwicke.     "  That    all    common-  evidence  that  can  be  had  shall  be  allowed." 
law   courts   ought   to   proceed   upon   the  gen-  3  Black  Comm.  368. 

eral    rule,    namely,    the    best    evidence    that  39.   Queen    v.    Francis.    L.    R.    2    C.    C.    R. 

the  nature  of  the  case  will  admit,  I  perfectly  128     M874)  ;    Lucas    v.    Williams,    66    L.    T. 

agree  "  Rep.  706. 

38.  '•  The     one     general     rule,     that     runs  40.   Infrrt.  §  238. 

through  all  the  doctrine  of  trials  is  this,  that  41.    1    Chamberlayne,   Evidence,   §   481. 

the  best  evidence  the  nature  of  the  case  will  42.  Infra,  §  239. 


123  PKIMAKY  EVIDENCE.  §§  239-241 

trative  powers,  block  his  way  in  so  doing.  The  u  rules  of  the  game  "  of  litiga- 
tion in  general  permit  concealment,  both  in  civil  and  criminal  cases,  if  the 
litigant  prefers  to  pay  the  price  for  doing  so.  Ln  many  cases  the  only  penalty 
is  a  logical  one;  —  the  presumptio  contra  spoliatorem,  as  it  is  occasionally 
called.43  An  inference  arises,  as  a  matter  of  logical  necessity,  that  he  who 
thus  refuses  to  produce  the  decisive  evidence  undertakes  to  defraud  justice 
because  the  more  conclusive  testimony,  if  produced,  would  operate  less  favor- 
ably upon  his  contention  than  does  the  less  probative  proof  on  which  he  prefers 
to  rely.44 

§  239.  [Primary  Evidence  Required] ;  Present  Scope  of  Rule.45 —  As  a  rule  of 
procedure  the  requirement  of  the  best  evidence  never  was  enforced  to  its  full 
extent  as  stated  by  its  formulators ;  nor,  for  the  reasons  just  given,  could  it 
have  been  thus  applied  with  any  advantage  to  the  cause  of  justice.  As  a  rule 
denitely  regulating  the  admissibility  of  a  class  or  species  of  evidence,  the  pres- 
ent scope  of  the  mandatory  portion  of  the  "  best  evidence  rule  "  is  limited  to 
proof  of  the  contents  of  constituent  documents  in  actions  between  the  parties 

thereto. 

/ 

§  240.  [Primary  Evidence  Required] ;  A  Sole  Survival.46 —  He  who  is  to  prove 
the  contents  of  a  writing  must  produce  the  writing  itself  or  account  satisfac- 
torily to  the  court  for  his  failure  to  do  so;  —  as  a  condition  precedent  to  per- 
mission to  use  any  less  probative  form  of  proof. 

It  is  probable  that  the  survival  of  this  solitary  application  of  the  best  evi- 
dence rule  as  a  rule,  is  due  to  a  controlling  influence  entirely  extrinsic  to  it- 
self ;  —  the  existence  of  a  substantive  conventional  right  in  each  party  to  a 
constituent  document  of  insisting  not  only  that  its  ascertained  purport  should 
not  be  varied  by  outside  evidence  (which  is  the  nucleus  of  the  "  parol  evidence 
rule"),  but  also  that  in  ascertaining  this  purport  the  actual  document  should 
be  the  sole  evidence  of  its  contents :  —  which  is  the  present  form  of  the  "  best 
evidence  "  rule  viewed  as  one  of  procedure  rather  than  as  a  principle  of  admin- 
istration. 

§  241.  [Primary  Evidence  Required] ;  A  Vanishing  Rule.47 —  While,  therefore, 
the  broad  principle  of  the  "  best  evidence  rule."  in  the  sense  that  primary  evi- 
dence will  be  required  wherever  attainable,  is  operative  and  gaining  force  and 
extension,  the  line  of  operation  of  the  "  best  evidence  rule  "  as  a  rule  of  pro- 
cedure, has  dwindled  to  very  narrow  proportions.  As  the  sole  survival  of  the 
procedural  rule  is  this  moribund  requirement  that  in  proving  the  contents  of  a 
written  instrument  between  the  parties  to  it,  the  original  must  be  produced  or 

43.  Infra.  §§  430  et  seq.  U.  S.  v.  Reyburn,  6  Pet.  (U.  S.)  352,  8  L.  ed. 
Omnia  praesumnntur  contra  spoliatorem. —      424  (1832). 

as  is  the  common  adage.  Broom's  Legal  Max-  45.   1  Chamberlayne.   Evidence,   §   482. 

ims   (7th  ed.),  p    717  46.  1   Chamberlayne,   Evidence,   §   483. 

44.  Fitzgerald  v   Adams,  9  Ga.  471  (1851)  ;  47.  1  Chamberlayne,  Evidence.  §§  484,  485. 


§§  242-245  FURTHERANCE  OF  JUSTICE.  124. 

its  absence  accounted  for,  the  requirement  itself  may  well  be  regarded  from 
the  standpoint  of  the  modern  law  of  evidence,  as  is  elsewhere  suggested,  as 
but  an  instance  of  the  general  administrative  canon  that  primary  evidence  is 
to  be  preferred  to  secondary. 

§  242.  [Primary  Evidence  Required] ;  "  Best  Evidence  Rule  "  at  the  Present 
Time.48 —  The  rule  against  hearsay,  in  its  inception  at  least,  constituted  a  pro- 
hibition attaching  to  a  witness  rather  than  to  the  derivative  character  of  what 
he  said.  Under  the  early  procedure  a  person  who  could  not  state  something 
to  the  jury  which  he  had  seen  or  heard  simply  did  not  come  within  the  class  of 
persons  designated  as  witnesses.  Two  branches  of  the  law  of  evidence  come 
from  this  single  root  —  the  rule  against  hearsay  49  and  that  excluding  "  opin- 
ion "  evidence.50  Neither  he  who  could  state  only  what  some  one  had  told 
him  nor  the  person  who  could  say  merely  what  he  inferred  were  witnesses,  as 
the  term  was  then  understood. 

§  243.  [Primary  Evidence  Required];  Attesting  Witnesses.51 — For  reasons 
similar  to  those  affecting  proof  of  the  contents  of  documents,  it  may  fairly  be 
assumed  that  the  rule  of  procedure  which  requires  that  where  the  execution  of 
an  instrument  is  attested  by  the  signature  of  a  subscribing  witness  in  any  pro- 
ceedings based  on  the  instrument,  its  execution  must  be  proved  by  the  evidence 
of  such  subscribing  witness,  is  not  so  much  an  example  of  the  best  evidence 
rule  as  an  independent  regulation  of  substantive  law,  ratifying  the  assumed 
convention  of  the  parties. 

§  244.  [Furtherance  of  Justice] ;  Completeness  Demanded.52 —  Fairness  may 
mean  completeness.  The  preservation  of  good  faith  by  the  parties  frequently 
assumes  the  form  of  a  requirement  by  the  court  that  the  complete  meaning  of 
an  oral  statement  or  the  entire  purport  of  a  document  should  be  placed  before 
the  jury. 

§  245.  [Completeness  Demanded];  Oral  Statements;  Proponent.53 — From  the 
standpoint  of  the  proponent  of  the  evidence,  the  party  taking  the  initiative,  this 
canon  of  administration  is  simple.  Whatever  he  shall  offer  to  the  tribunal  must 
be  presented  with  sufficient  fulness  to  place  it  in  a  true  light.  lie  is  left  free 
to  choose  his  evidence  and  limit  the  purpose  of  it.  But  he  must  not  arbitrarily 
select  isolated  portions  of  an  entire  statement  which  produce,  when  divorced 
from  their  context  and  qualifications,  a  false  impression,  unduly  favorable  to 
himself.  He  must,  if  he  produces  anything  on  a  given  subject,  present  so 
much  of  it  as.  will  represent  it  fairly  and  as  it  is.  It  is  the  clear  right  of  the 
tribunal  to  have  for  its  consideration  an  entire  oral  utterance  where  any  part 

48.  1  Chamberlayne,   Evidence,   §   486.  51.  1  Chamberlayne,  Evidence.   §   487. 

49.  Infra,  §§  857  et  seq.  52.  1   Chamberlayne,   Evidence.   §   488. 

50.  Infra,  §§  672  et  seq.  53.  1  Chamberlayne,   Evidence,   §   489. 


125  COMPLETENESS  DEMANDED.  §§   240-248 

of  such  statement  has  been  offered  in  evidence.     This  fundamental  prerequisite 
to  the  ability  to  adjudicate  justly  is  not  in  dispute. 

§  246.  [Completeness  Demanded] ;  Admissions  and  Confessions.54 —  In  the  ma- 
jority of  instances,  the  question  as  to  completeness  arises  with  regard  to  admis- 
sions or  confessions,  including  statements  made  by  a  third  person  in  the  pres- 
ence of  the  party.  The  special  reason  for  the  truth  of  this  fact  is,  that  a  party 
whose  statements  are  relied  upon  as  admissions  frequently  seeks,  under  the 
guise  of  completing  his  statement  to  introduce  in  evidence  his  self-serving  and 
otherwise  incompetent  declarations. 

§  247.  [Completeness  Demanded] ;  Oral.55 —  Oral  admissions  should  be  proved 
in  their  entirely,50  the  complete  declaration  made  at  one  time  being  taken  as  a 
whole.57  This  includes  all  conversations  upon  a  relevant  topic  in  which  a 
party  participates,58  or  which  takes  place  in  his  presence  59  under  conditions 
conferring  relevancy  upon  his  conduct  with  regard  to  it.00 

§  248.  [Completeness  Demanded];  Confessions.01 — A  confession  must  be 
proved  as  a  whole.  In  case  of  such  a  statement,  the  whole  declaration  must, 
as  the  phrase  is,  *'  be  taken  together,"  G2  as  well  for  as  against  the  accused,63 
it  being  obviously  impossible  to  ascertain  what  the  accused  has  admitted  with- 
out knowing  what  qualifications,  if  any,  he  has  placed  upon  the  prima  facie 
meaning  of  the  inculpatory  phrases.  Should  the  confession  have  been  reduced 
to  writing  the  practice  applicable  to  other  documents  may  well  be  extended  to 
it,  and  the  written  confession  introduced,  as  a  whole,  without  being  read,  each 
party  being  at  liberty  to  use  such  portions  as  may  be  deemed  material.64  This 
practice  is  especially  commendable  for  the  protection  of  the  interests  of  third 
persons  whom  the  statement  may  tend  to  incriminate.  As  the  confession,  in 
the  absence  of  conspiracy  or  other  agency,  is  competent  against  no  one  but  the 
declarant,  there  is  danger  lest  third  persons  mentioned  in  the  statement  may  be 
prejudiced  by  it,  if  the  entire  document  were  read. 

The  American  practice  allows  the  confession  to  be  read  as  a  whole,  caution- 

54.  1  Chamberlayne,   Evidence,   §  490.  64.  Webb  v.  State,  100  Ala.  47,  52,  14  So. 

55.  1   Chamberlayne,   Evidence,   §   491.  865  (1893).     "  The  practice  has  been,  in  read- 

56.  Wilson  v.  Calvert,  8  Ala.  757    (1845);  ing  confessions,  to  omit  the  names  of  other 
Johnson  v.  Powers.  40  Vt.  611  (1868).     Infra,  accused   parties,   and,   where   they   are   used, 
§   1296.  to    say    '  another   person,'    '  a    third    person,' 

57.  Johnson  v.  Powers,  40  Vt.  611    (1868).  etc,,  where  more  than  one  other  prisoner  was 

58.  Barnum   v.   Barnum,  9   Conn.  242,  247  named :   and  some  judges  have  even  directed 
(1832).  witnesses,    who    came    to    prove    verbal    dec- 

59.  Gillam    v.    Sigman,    29    Cal.    637,    641  larations  to  omit  the  names  of  those  persons 
(1866).  in   like   manner."     R.   v.    Clewes,   4   C.   &    P. 

60.  Infra,   §   566.  221,224  (1830),  note      K.  v.  Hearne.  4  C.  &  P. 

61.  1  Chamberlayne,   Evidence,   §   492  215    (1830);    R,  v.   Fletcher,  4  C.   &   P.   250 

62.  Com    v    Kussell,    160  Mass.   8,    10,   35  (1829)      See  also  R.  v.  Walkley,  6  C.  &  P. 
N.  E.  84    (1893).  175    (1833). 

63.  Eiland  v.  State,  52  Ala.  322  (1875). 


§§  249-252  FURTHERANCE  OF  JUSTICE.  12U 

ing  the  jury  that  it  is  not  evidence  as  against  tnird  persons  mentioned  in 

it."5 

§  249.  [Completeness  Demanded] ;  Independent  Relevancy  .li(i —  Where,  as  in 
case  of  admissions,  contradictory  declarations  °7  or  statements  independently 
relevant  'is  for  some  other  reason,0  u  the  object  is  merely  to  show  that  a  given 
statement  was  made,  it  will,  in  general,  be  sufficient  for  the  proponent  of  the 
evidence  to  prove  the  statement  itself  in  its  fullness,70  leaving  any  modification 
of  its  effect  to  his  opponent.'1 

§  250.  [Completeness  Demanded] ;  Res  Gestse  an  Exception.72 —  There  is,  how- 
ever, one  important  qualification  of  this  rule.  Where  the  independently  rele- 
vant statements  constitute  or  assist  to  constitute  the  res  gestce  of  a  transaction, 
the  entire  matter  must  be  stated  by  the  proponent  in  the  first  instance.  The 
reason  is  plain ;  —  that  the  statements  cannot  be  divorced  from  their  context. 

The  practice  is  the  same  where  it  is  neither  the  fact  of  a  statement,  nor  its 
legal  effect,  but  its  logical  and  probative  meaning  which  is  involved  in  the 
inquiry. 

§  251.  [Completeness  Demanded] ;  Opponent.73 —  From  the  standpoint  of  the 
party  who  does  not  offer  the  evidence  in  the  first  instance,  the  canon  of  com- 
pleteness operates  to  permit  a  reasonable  amount  of  supplementing  on  his  part 
of  the  evidence  after  his  opponent  has  presented  it  to  the  court  with  the  re- 
quired degree  of  fairness  and  fullness.  When  once  he  has  opened  the  door,  it 
is  open  for  his  antagonist  as  well. 

The  party  may  claim,  in  the  first  place  that,  on  the  whole,  the  oral  state- 
ments on  the  occasion  referred  to  or  the  declarations  of  a  particular  document 
on  a  given  subject  have  not  been  fully  and  correctly  stated. 

In  the  second  place,  the  opposing  party  may  claim  and  exercise  the  right  to 
insist,  not  only  that  the  extracts  offered  by  his  antagonist  do  not,  when  the 
proper  contemporaneous  qualifications  are  made,  support  the  latter's  conten- 
tion, but  that,  when  taken  as  a  whole,  they  actually  sustain  his  own  inconsistent 
claim. 

§  252.  [Completeness  Demanded] ;  Probative  Effect.74 —  All  that  is  said  con- 
cerning any  given  topic  at  any  one  rime  should  be  received,  if  any  portion  of  it 

65.  Massachusetts  —  Com.    v     Bishop,    165       evidence  of  the  facts  asserted.     Infra,  §§  857 
Mass    14S,  42  X.  E.  560  (1896).  et  seq. 

\ortk  Carolina.—  State  v.  Collins,   121   N.  70.  Sylvester  v.   State    (Fla.    100.'}).  35   So 

C.  667.  -28  S.  E.  5-20   (1S07K  -l-r'2:    State   v     La  whom.    SS    N     C     634.   6:57 

66.  1   Chamherlayne,    Evidence.   §   403.  (1S*3)  ;  Davis  v.  Smith.  75  N.  C    115   (18.76). 

67.  Infra,   §  071.  71.   Hudson    v     State.    137    Ala.    00.    34    So 

68.  Infra,  §§   837   et  se<i.:  Drake  v.   State,  854    (100-2):    Halifax   Nankin?  Co.  v.   Smith. 
110  Ala.  9,  20  So.  450   (1895)    (threats).  29  N    Bninsw.  46'2.  465.   18  Can.  Suppl.  710 

69.  Admissions  and  confessions,  though,  in  (1S90)    (admissions). 

a    sense,    independently    relevant     (infra,    §§  72.   1   Chamherlayne.    Evidence.   §   404 

837   et  seq.) ,  are  considered   as   constituting  73.   1   Chamherlayne.    Evidence.   §   495 

74.  1   Chamberlayne,   Evidence,   §   406 


127  COMPLETENESS  DEMANDED.  §§  253-255 

is  admitted.75  The  tribunal  is  entitled  to  receive  the  whole  of  what  was  said 
at  the  same  time  on  the  same  subject.76  But  what  was  said  at  the  same  time  on 
a  different  subject,  as  to  which  the  judge  will  determine,77  cannot  be  added  by 
way  of  supplementation,  unless,  indeed,  the  matter  is  still  pending.78 

§  253.  [Completeness  Demanded] ;  Right  of  Initiative.79 —  It  will  be  observed 
also  that  the  part  added,  by  way  of  supplementation,  is  not  independent  evi- 
dence, but  is  a  component  part  of  the  otherwise  imperfect  and  fragmentary 
statement  which  it  completes  and  is  governed  as  to  its  purpose  and  effect  in 
evidence  by  those  of  the  main  fact  to  which  it  is,  in  a  way,  ancilliary.  But  the 
opponent  has  other  rights  than  that  of  supplementing.  He  has  also  the  right 
of  initiative  in  offering  evidence.  This  may  be  permitted  for  one  of  two  pur- 
poses additional  to  the  mere  supplementing  of  the  parts  already  in  evidence, 
(a)  He  may  put  in  other  parts  to  sustain  an  independent  theory  of  his  own 
as  to  the  effect  of  entire  declaration,  or  (b)  he  may  use  such  additional  matter 
to  establish  a  disconnected  fact  as  to  which  he  himself  has  the  initiative. 
Having  a  right  to  introduce  this  evidence  at  some  stage  of  the  trial,  whether  it 
shall  be  done  at  one  point  or  another,  is  a  question  of  the  order  of  evidence, 
and  entirely  within  the  administrative  function  of  the  judge  —  a  matter  of 
discretion.80 

§  254.  [Completeness  Demanded] ;  Former  Evidence.81 —  The  requirement  re- 
garding former  evidence,82  to  the  effect  that  the  reporting  witness  should  be 
able  to  state,  in  extension,  the  entire  oral  utterance,83  is  exceptional.  The 
general  practice  is  to  receive  the  statements  of  a  witness  as  to  so  much  of  the 
relevant  parts  of  the  conversation84  or  other  utterance,85 . as  he  heard;  —  fail- 
ure to  hear  the  entire  conversation  being  a  consideration  properly  affecting  the, 
weight.86 

§  255.  [Completeness  Demanded] ;  Independent  Relevancy.87 —  This  considera- 

75.  Cusick  v.  Whitcomb,  173  Mass.  330,  53  83.  If    part    of    the    former    testimony   of 
N.  E.  815    (1899).  a  witness  is  admitted  the  whole  is  competent. 

76.  Bailey  v.  Carlton,  95  Pac.  542   (1908);  Aulger  v.   Smith,  34   111.   534    (1864).     Such 
Chicago  City  Ry.  Co.  v.   Bundy,  210   111.   39,  additional  evidence  may,  however,  be  properly 
71  X    E.  28    (1904)    [judgment  affirmed.   109  limited   to    statements   Avhich    may   fairly   be 
111.  App.  637    (1903)];   Earley  v.  Winn.   129  said  to  qualify  the  evidence  already  received. 
Wis.  291,  109  X.  \V.  633   (1906).  Siberry  v.  State,   149  Ind.  684,  39  X.  E.  937 

77.  Robinson  v.   Ferry,    11    Conn.   460,  463  (1895)  :  lie  Chamberlain,  140  X.  Y.  390,  393, 
(1836).  35  X.  E.  602    (1893). 

78.  "The  question  is  merely  this,  whether  84.   State  v.  Elliott,  15  Iowa  72,  74  (1863)  ; 
a  particular  conversation  is  part  of  a  preced-  State  v.  Daniels.  49  La.  Ann.  954,  22  So.  415 
ing  conversation  because  a  negotiation  begun  (1897). 

was   still   pursued."     Stewart   v.   Sherman,  5  85.  People  v.  Daniels,  105  Cal.  262,  38  Pac. 

Conn.  244,  245    (1824).  720    (1894). 

79.  1  Chamberlayne,  Evidence,  §  497.  \orth  Carolina. —  State  v.   Robertson,   121 

80.  See  WITNESSES.     §§  1171  rt  seq.  N.  C.  551,  28  S.  E.  59   (1897K 

81.  1   Chamberlayne,    Evidence,  §    498.  86.  Mays  v.  Deaver,  1  Iowa  216.  222  (1855). 

82.  Infra,  §  633.  87.  1  Chamberlayne,   Evidence,   §   499. 


§§  256-258  FURTHERANCE  OF  JUSTICE.  128 

tion  would  be,  for  obvious  reasons,  of  less  importance  in  dealing  with  state- 
ments independently  relevant,88  than  where  the  statement  shown  is  relied  upon 
as  proof  of  the  facts  asserted  in  it.  In  either  case,  however,  the  weight  may 
be  reduced  below  the  point  of  relevancy.89  It  is  no  ground  for  excluding  a 
statement  that  the  declarant  made  other  disconnected  statements  at  another 
time  which  are  in  conflict  with  it.90 

Rules  relating  to  incorporation  by  reference  apply  equally  to  oral  statements 
as  to  documents.  Where  an  oral  declaration  is  made  with  such  reference  to  a 
document,  by  whomever  made,01  or  a  verbal  statement,92  by  whomever  uttered, 
as  to  be  unintelligible,  or  otherwise  incomplete  without  it,  the  document  or 
statement  will  be  received  or  required,  according  to  its  obvious  necessity  to  the 
case  of  the  proponent.  If  the  part,  admitted  is  reasonably  intelligible  in  the 
first  instance,  without  the  document  or  statement  to  which  reference  is  made, 
the  opponent  will  be  allowed  to  supply  it  at  a  stage  where  he  has  the  initia- 
tive. 

§  256.  [Completeness  Demanded] ;  Independent  Relevancy.93 —  In  case  of  a 
document  used,  not  to  the  end  of  proving  a  proposition  but  of  establishing  the 
existence  of  the  document,  or  some  statement  contained  in  it,  all  that  need  be 
proved  is  the  existence  of  such  a  document  or  statement. 

§  257.  [Completeness  Demanded] ;  Judgment.94 —  Thus,  in  case  of  a  judg- 
ment, all  that  need  at  times  be  proved  is  that,  in  point  of  fact,  such  a  judgment 
was  rendered.  Evidence  of  preliminary,  subsequent  or  subordinate  matters 
need  be  produced  only  so  far  as  is  necessary  to  show  that  the  judgment  was 
rendered  and  specialize  as  to  what  it  covers.95 

§  258.  [Completeness  Demanded] ;  General  Practice.90 —  Documents,  viewed  in 
their  probative  capacity,  i.e.,  as  evidence  of  facts  which  their  statements  assert, 
invite  from  their  very  nature,  to  an  administrative  practice  fair  to  both  parties 
and  also  to  the  court,  while  avoiding  unnecessary  loss  of  time.  The  practice  is 
to  require  the  proponent  to  produce,  in  evidence,  the  entire  document  and  then, 
the  document  being  in  evidence  as  having  been  offered  by  the  proponent,  to 

88.  People  v.   Dice,   120   Cal.   189,   52   Pac.       551    (1899);   State  v.  Gossett,  9  Rich.  L.   (S. 
477    (1898)    (threats):  State  v.  Moelchen,  53       C.)   437   (1856). 

Iowa  310,  314,  5  X.  W.   186    (1880)    (foreign  91.  Buffum  v.  New  York  Mfg.  Co.,  175  Mass, 

language;  one  word  — ''  knife  " —  recognized)  :  471.  56  N.  E.  599  ( 1900 )  ;  Trischet  v.  Ins.  Co., 

Shifflet's    Case,     14    Gratt.     (Va.)     652,    657  14   Gray  457    (1860). 

(1858)    (confession).  92,  Judd    v.     Brentwood,    46    X.    H.    430 

89.  William   v.   State,   39   Ala.   532    (1865)  (1866):    Insurance   Co.  v.   Xewton,  22   Wall, 
(confession  interrupted  before  completion;  ex-  (U.  S.)    32,  35    (1874). 

eluded)  ;    People    v.    Gelabert,    39    Cal.    663  93.   1    Cliamberlayne,   Evidence,   §   500. 

(1870)     (confession   partly  in   Spanish   which  94.   1    Chamherlavne.  Evidence,  §§  501,  502. 

the  witness  did  not  understand:    excluded)  ;  95.  Little  Rock   C.   Co.   v.    Hodge,    112   Ga. 

State  v.  Gilcrease,  26  La.  Ann.  622  (1874).  521,  37  S.  E.  743    (1000);   Rpiney  v.  Hines, 

90.  Com.  v.  Chance,  174  Mass.  245,  54  N.  E.  121  N.  C.  318,  28  S.  E.  410  (1S97). 

96.   1  Chamberlayne,   Evidence,   §   503. 


129  COMPLETENESS  DEMANDED.  §§  259-261 

permit^  each  party  to  read,  at  any  appropriate  stage,  such  portions  of  the  docu- 
ment as  may  be  deemed  material. 

General  Considerations. —  In  general  the  proponent  of  a  document  produced 
in  evidence  cannot,  it  is  said,  be  required  to  read  the  entire  instrument  on  its 
presentation.0 '  There  is,  however,  as  in  case  of  depositions,  authority  to  the 
contrary  effect,  that  the  proponent  may  be  compelled  to  read  the  entire  docu- 
ment before  proceeding  with  other  evidence.9*5 

§  259.  [Completeness  Demanded] ;  Depositions." —  The  party  who  has  taken 
a  deposition  or  given  his  own,1  need,  in  the  tirst  instance,  read  only  the  direct 
examination,2  or  such  portion  of  it  as  he  deems  material,3  subject  to  immediate 
correction  by  the  judge,  in  case  of  obvious  unfairness,4  or  for  other  cause. 

§  260.  [Completeness  Demanded] ;  Admissions.5 —  Where  an  admission  is  in 
writing  it  is  particularly  appropriate,  as  in  case  of  oral  admissions,  that  the 
self-serving  portion  go  to  the  jury  at  the  same  time  as  the  portion  more  favor- 
able to  the  proponent,  providing  the  two  are  needed  to  give  the  effect  of  the 
statement  as  a  whole.  This  is  the  practice  not  only  where  the  statements  are 
made  at  or  about  the  same  time,  e.g.,  were  parts  of  a  single  transaction;  but 
where,  as  in  case  of  an  account,0  the  entries,  both  of  charge  and  discharge  are 
made  at  different  times. 

§  261.  [Completeness  Demanded];  Public  Records.7 — Public  record  as  a  rule 
is  afforded  to  instruments  constituent  of  legal  results.  The  interdependence 
of  parts  being  especially  marked  in  instruments  of  this  nature,  a  full  copy  of 
the  original  record,  which  itself,  is  usually  irremovable,  alone  demonstrates 
whether  a  particular  conclusion  is  justified  by  the  instrument ;  or  whether,  on 
the  contrary,  some  minor  and  perhaps  disconnected  clause  may  modify  and 
indeed  control  the  alleged  meaning  and  effect.  Such  a  full  copy  being  as 

97.  Lester  v.  Ins.  Co.  55  fia.  475,  470  (1875)  California. —  Orland  v.  Finnell.  65  Pac.  976 
(letter)  :  SlinglolT  v.  Bruner,  174  111.  561.  51        (1901). 

X    E.  772   (1S9S).  3.  Bunzel  v.  Maas,  116  Ala.  68.  22  So.  568 

98.  Milne   v.    Leisler,   7    II.   &    X.   7S6,   795        (1897). 

(1862).     If  one  party  reads  a   portion   of  a  The  entire  direct  examination  must,  it  is 

written  document  in   evidence   in   his   behalf.  said,  he  read  in  the  original  instance.     South- 

the  other  party  is  entitled  to  the  reading  of  wark  Ins.  Co.  v.  Knight.  6  Whart.   (Pa.)   327, 

the    remaining    portions    thereof,    before    the  3.10    (1841). 

intervention    of    other    testimony.     Snanagel  4.   The    whole    of    any    particular    answer 

v.  Bellinger,  38  Cal.  279,  283   (I860)    (former  must    be   read.     Perkins    v.    Adams.   5    Mete, 

pleadings).  (Mass.)    44,  48    (1842). 

99.  1   Chamberlayne,   Evidence.   §   504.  5.   1   Chamberlayne,    Evidence.    §    505. 

1.  Thomas  v.  Miller,   151   Pa.  4S2,  486.  25  6.  Bridges  v.  State.   110  Ga.  246.  34  S.  E. 
Atl.  127  (1892).  1037   (1900)    (entire  book  introduced)  :  State. 

2.  The  practice,  which  seems  a  convenient  v.     Powers.  72  Vt.  168.  47  Atl.  830   (1900)  : 
ore,  has  not  been  adopted  in  England.     Tern-  Rowan  v.  Chenoweth.  49  W.  Va.  287,  38  S.  E. 
perley  v.  Scott,  5  C.  &  P.  341    (1832).     Xbr  544    (1901). 

is    it    accepted    in    a    majority    of    American  7.  1  Chamberlayne,  Evidence,  §  506. 

jurisdictions. 


§§  262-264  FURTHERANCE  OF  JUSTICE.  130 

readily  obtained  as  a  partial  one,  the  court  is  justified  in  so  discharging  its 
administrative  function  as  to  require  that  it  be  done.  The  litigant  offering 
any  part  of  a  public  record  puts  in  evidence  a  copy  of  the  whole  of  that  recond  8 
and,  thereupon,  reads  or  otherwise  states  the  portion  on  which  he  actually 
relies.9 

Deeds,  Wills,  etc. —  Records,  as  those  of  deeds,  wills,  and  the  like  which  are 
customarily  copied  in  extenso  are  proved  by  verbatim  copies,  duly  certified  by 
an  official  or  proved,  under  oath,  by  an  examining  witness. 

§  262.  [Completeness  Demanded] ;  Executive.10 —  The  executive  department 
of  government  affords  numerous  instances  of  records  to  which  the  requirement 
of  completeness  is  constantly  being  applied ;  —  whether  these  public  documents 
are  those  made  in  extenso,  or  consist  of  what  may  be  called  "  single  entry  " 
records.  Of  this  latter  class  are  parish  registers  of  births,  marriages  and 
death,11  and  municipal  official  records  covering  the  same  data,12  plats  of  lots,13 
tax  lists.14 

§  263.  [Completeness  Demanded];  Legislative.15 — Where  proof  is  required 
of  a  statute,  only  such  portions  need  be  introduced  in  evidence  as  are  material,16 
and  relate  to  the  proposition  in  issue,17  whether  the  proof  is  by  deposition  18  or 
otherwise,  and  whether  the  statute  be  domestic  19  or  foreign.20 

§  264.  [Completeness  Demanded] ;  Judicial.21 —  In  no  connection  is  the  appli- 
cation of  the  principle  of  completeness  at  once  so  difficult  and  so  important  as 
in  regard  to  judicial  records.  The  requirement  is  strongly  insisted  upon  by 
the  presiding  judge,  in  the  interest  of  public  justice.22 

Irrelevancy,  if  Separable,  Rejected. —  Where  an  entire  record  cannot,  by 
any  possibility,  ever  become  material  on  an  issue,  but  a  line  of  clear  demarca- 

8.  Smith    v.   Rich,    37    Mich.    540    (1877):  17.  Chamberlain    v.   Maitland,   5   B.   Monr. 
State  v.  Clark,  41  X.  .T.  L.  486  (1879)  :  Wood  <Ky.)     448     (1845)     (law    as    to    holidays); 
v.  Knapp,  100  X.  Y.  109,  2  X.  E.  632   11885).  Adle  v.   Sherwood.  3   Whart.    (Pa.)    481,  483 
See  also  Garrish  v.  Hyman,  20  La.   Ann.  28  (1838). 

(1877).  The  title  of  a  statute  is  not  sufficient  to 

9.  Davis    v.    Mason,    4    Pick.     (Mass.)     156       establish  its  effect.     State  v.  Welsh,  3  Hawks 
(1826).  (X.  C.)  404,  407  (1824)    (incorporation). 

10.  1   Chamberlayne,   Evidence.   §   507.  18.   Biesenthall  v.  Williams,   ]   Duv.    (Ky. ) 

11.  American  Life  Ins.  Co.  v.  Rosenagle,  77  320    (1864)  :   Chamberlain  v.   Maitland,  5  B. 
Pa.  507,  515   (1875).  Monr.   (Ky.)  448  (1845)    i  foreign  notary ). 

12.  State  v.  Potter,  52  Vt.  33,  38    (1879);  19.   Grant's    Succession.    14    La.    Ann.    795 
Blair  v.  Sayre,  20  W.  Va.  604,  606,  2  S.  E.  (1859). 

!)7    (1887).  20.  Chamberlain   v.   Maitland,   5   B.   Monr. 

13.  Farr  v.  Swan.  2  Pa.  St.  245.  255  (1845).        (Ky.)   448   (1845)  :  Grant  v.  Coal  Co.,  80  Pa. 

14.  Job  v.  Tebbetts,  10  111.  376,  380  (1848)  ;       208,  216    (1876). 

State    v.    Howard,    01    Me.    396,    40    Atl.    65  21.   1   Chamberlayne,   Evidence,   §   509. 

(1898)  liquor  tax  payers).  22.  Illinois. —  Vail  v.  Iglehart,  69   111.  332 

15.  1  Chamberlayne,   Evidence,  §   508.  (1873). 

16.  Swift  v.   Fitzhugh,  9  Port.    (Ala.)    39, 
54  (1839). 


131  COMPLETENESS  DEMANDED.  §§  265-268 

tion  may  be  traced  between  relevant  and  irrelevant  parts  of  the  record,  the  pro- 
ponent may  rest  content  upon  offering  the  former  portions  of  the  writing. 

§  265.  [Completeness  Demanded] ;  Pleadings  at  Law.23 —  In  connection  with 
the  pleadings  themselves,  whether  in  equity  or  at  law,  substantially  the  same 
canons  of  administration  are  adopted.  Pleadings  may  be  offered  for  either 
of  two  purposes.  In  the  first  place,  as  is  shown  elsewhere,  the  statement  may 
be  independently  relevant,  i.e.,  by  reason  of  its  own  existence  regardless  of  the 
truth  of  the  facts  asserted.  Or,  on  the  other  hand,  the  pleading  may,  as  where 
it  contains  an  admission,  be  used  as  constituting  evidence  of  something  asserted 
by  it,  i.e.,  in  what  may  be  called  its  probative  or  assertive  capacity. 

§  266.  [Completeness  Demanded] ;  Pleadings  in  Chancery.24 —  In  dealing  with 
pleadings  in  chancery  causes  the  bill,  as  a  whole,  should  be  produced  by  the 
opponent ;  and  so  much  of  it  read  by  him,  subject  to  supervision  by  the  court 
and  correction  by  his  antagonist,  as  fairly  covers,  to  a  reasonable  exeut,25  the 
particular  aspect  or  portion  of  the  bill  which  he  deems  relevant  to  the  truth  of 
a  proposition  in  issue.26  In  equity  causes  where  the  answer  is  treated  as  a 
pleading,  e.g.,  when  used  in  the  cause  in  which  it  was  filed,  the  same  rule  as  to 
completeness  is  applied. 

§  267.  [Completeness  Demanded] ;  Statutory  Interrogatories.27 —  The  propo- 
nent may  offer  such  portions  of  his  adversary's  statements  in  sworn  answers  as 
he  deems  material  and  helpful  to  himself  28  not  being  obviously  unfair  or  mis- 
leading, and  subject  at  all  times  to  the  power  of  the  court  to  order  that  other 
portions  of  the  adversary's  statement,  necessary  to  fairness  29  or  essential  to  a 
complete  understanding  30  should  also  be  read.  The  rights  of  the  proponent 
are  subject  also  to  the  further  qualification  that,  while  he  is  at  liberty  to  decide 
on  what  topic,  if  any,  he  will  interrogate  his  opponent,  he  will  be  required, 
having  selected  his  subject  and  asked  his  questions,  to  introduce  in  evidence  all 
that  his  opponent  has  to  answer  as  to  it.31  The  matter  is  one  frequently 
regulated  by  a  "  rule  of  court." 

§  268.  [Completeness  remanded] ;  Judgments.32 —  It  is  not,  in  the  absence  of 
exceptional  circumstances,  as  where  the  inquiry  is  as  to  the  nature  of  a  claim 

23.  1  Chamberlayne,   Evidence,    §   510.  27.   1  Chamberlayne,   Evidence,   §   512. 

24.  1   Chamberlayne.   Evidence.   §   511.  28.  2  Van  Horn  v.  Smith,  59  Iowa  142.  148, 

25.  To  introduce  in  evidence  part  of  a  writ-  12   X.   W.   789    (1882):    Lyon  v.   Marriott.   5 
ing.   such  as  a   bill   in  equity,   and   withhold  Brit.    Col.    157     (1896):    Wunderlich   v.    Ins. 
from  the  jury  the  balance  of  the  instrument,  Co.,  104  Wise.  382,  80  X.  W.  467   (  1809). 

it  is  at  least  necessary  to  point  out  definitely  29.  Hammatt  v.  Emerson,  27  Me.  308,  335 

the   part    offered,    that    is,    the    pases,    para-  (1847). 

graphs,  sentences  or  words.     When  this  is  not  30.   Allend  v.  R.  Co.,  21  Wash.  324,  58  Pac. 

done,  the  whole  or  none  should  go  to  the  jury.  244    ( 1899) . 

Jones  v.  Grantham,  80  Ga.  472,  477.  5  S.  E  31.  Demelman  v.  Burton,  176  Mass.  363,  57 

764    (1888).  X.   E.   665    (1900). 

26.  Jones  v.  Grantham,  80  Ga.  472,  476,  5  32.  1   Chamberlayne,   Evidence,  §   513. 
S.  E.  764  (1888). 


§§    209-271  FUKTIIEKAXCE    OF    JUSTICE.  132 

which  has  been  placed  iii  a  judgment,33  or  the  effort  is  made  for  the  enforce- 
ment of  the  judgment  itself,34  the  practice  to  require  that  the  whole  record,  in 
all  its  extension,  on  whatsoever  matter  relating,  should  be  produced.  What  is 
demanded,  is  the  whole  record  relating  to  the  particular  proposition ; :i5 —  all 
that  which  establishes  by  judicial  hearing  the  existence  of  the  fact  which  it  is 
sought  to  prove. 

§  269.  [Completeness  Demanded] ;  Verdicts/56 —  The  general  rule  is  that  a  rec- 
ord of  a  verdict  standing  alone,  i.e.,  without  the  judgment,  is  not  admissible,  be- 
cause, otherwise,  non  constat  but  that  the  verdict  may  no  longer  be  in  force.  It 
may  have  been  set  aside  or  for  some  other  reason  no  judgment  have  issued  on  it.37 
Clearly,  however,  the  production  of  a  verdict  is  independently  relevant  to  the 
effect  that  there  was  a  suit  which  progressed  so  far  as  to  reach  a  verdict*1'8 

§  270.  [Completeness  Demanded];  Executions.39 — In  its  probative  capacity 
as  establishing  the  facts  adjudicated,  an  execution  is  not  complete  without  the 
judgment  on  which  it  was  issued ;  4U  and,  usually,  other  portions  of  the  record. 
If  the  execution  is  independently  relevant,  e.g.,  where1  an  officer  in  possession 
of  goods  under  an  execution  proceeds  against  a  third  person  acting  without 
claim  or  right,41  or  where  the  owner  of  the  goods  sues  the  officer  for  seizing 
them  under  his  writ,42  mere  production  of  the  execution  is  sufficient. 

§  271.  [Completeness  Demanded] ;  Wills  and  Probate  Papers.43 —  It  is  essen- 
tial that  the*  copy  of  a  will  be  full  and  complete.  In  several  states  of  the 
American  Union  it  is  required,  in  order  that  a  copy  of  a  will  should  be  admis- 
sible, that  it  be  accompanied  by  a  record  of  its  probate.44  Elsewhere,  a  cer- 
tificate of  the  register  of  probate  or  other  suitable  official  that  the  accompany- 
ing will  has  been  duly  proved  will  be  accorded  a  prima  facie  effect.45  Com- 
pleteness is  conditioned,  however,  in  all  cases,  by  the  object  of  the  offer. 

Administration. —  Appointment  as  administrator  of  the  estate  of  a  decedent 
should  be  proved,  in  the  ordinary  case,  by  production  of  the  original  papers, 
or  record  books,  or  else  by  a  copy  of  them,  sworn  or  certified. 

33.  Jones   v.    Hopkins,    32    Iowa    503,    504        (1810).     See    also    McLeod    v.    Crosby,    128 
(1871).  Mich.  641,  87. N.  W.  883   (1901). 

34.  Willis   v.    Louderback,   5   Lea    (Tenn.)  39.   1  Chamberlayne,  Evidence.  §  515. 

561    (1880).  40.  Vassault  v.  Austin.  32  Cal.  507   (1867). 

35.  People  v.   Pike,   197   111.  449.  64  N.  E.  41.  Spoor  v.  Holland.  8  Wend.   (X.  Y.)  445, 
393    (1902)     (county   court  records).                     24  Am.  Dec.  37   (1832). 

Indiana.—  Brown    v.    Eaton.    08    Ind.    591,  42.  Deloach   v.   Myriok.  6  Ga.   410    (1849). 

595    (1884):    Drosdowski   v    Chosen   Friends,  43.  1   Chamberlayne,   Evidence.   §   516. 

114  Mich.  178.  72  N.  W.  169  (1897):  Garner  44.  Kentucky  Land,  etc.,   Co    v.   Crabtree, 

v.  State,  5  Lea  213,  217    (1880).  113  Ky.  922,  70  S.  W.  31,  24  Ky.  L.  Rep.  743 

36.  1    Chamberlayne,   Evidence.   §   514.  (1902). 

37.  Comm.  v.  Minnich.  250  Pa.  363,  95  Atl.  45.   Lopan  v.  Watt.  5  Sera.  &  R.   (Pa.)   212 
565.  L.   R.   A.    1916  B  950    (1915).  (1^19).     See  also  Thursby  v.  Myers.  57  Ga. 

38.  Waldo  v.  Long,  7  Johns.    (N.  Y.)    173  155  (1876). 


133  COMPLETENESS  DEMANDED.  §§  272-274 

§  272.  [Completeness  Demanded] ;  Private  Records.46 —  The  records  of  a  cor- 
poration in  any  suit  in  which  they  are  relevant  and  competent  may  be  proved 
by  a  certificate  from  the  proper  officer,  an  examined  and  sworn  copy,47  by  pro- 
duction of  the  books  properly  authenticated,48  or  in  any  other  legal  manner,  as 
an  admission.49 

£  273.  [Completeness  Demanded] ;  Independent  Relevancy.50 —  When  proof  of 
the  independent  relevancy  of  a  document  has  been  made,  the  opponent  is  at 
liberty  to  read  so  much  of  the  remainder  of  its  statements  as  pertains  to  the 
same  subject  and  tends  to  qualify,  limit  or  explain  the  portion  already  read. 

This  doctrine  applies  to  pleadings,51  public  records,52  and  private  writings.53 

§  274.  [Completeness  Demanded] ;  Incorporation  by  Reference.54 —  The  ad- 
ministrative requirement,  of  completness  calls  for  introduction  in  evidence  of 
documents  referred  to  in  the  writings  already  before  the  court.  The  greater 
the  relative  importance  of  the  document  in  the  case,  the  more  its  precise  shades 
of  meaning  are  significant,  the  more  .strenuously  will  the  judge  insist  that  all 
writings  incorporated  in  it  by  reference  should  be  produced  for  inspection.00 

//  a  letter  is  introduced  that  to  which  it  is  in  reply  is  rendered  competent ;  56 
and,  indeed,  will  be  required,57  as  in  cases  of  oral  conversation,58  whenever 
available;59 — extracts  from  it  not  being  deemed  a  sufficient  compliance  with 
the  rule.0"  Where,  however,  the  letter  originally  offered  is  intelligible61  and 
not  obviously  incomplete t;2  as  it  stands  and  it  further  appears  that  the  letter 

46.  1   Chamberlayne,    Evidence,   §   517-  73  ('.  C.  A.  302,  142  Fed.  73:  Tilton  v.  Beecher, 

47.  "Proprietors'     records"     of     common       X.  Y.,  Abbott's  Rep.  II,  270   (1875). 

lands,  etc.,  are  treated  in  the  same  manner.  57.  Walson  v.  Moore,  1  C.  &  K.  626  (1844). 

Pike  v.  Dyke,  2  Greenl.    i  Me. )    213    (1823);  "  We  can  perceive  no  just  distinction  between 

Woods  v.  Banks,  14  X.  H.  101,  109  i  1843).  oral  conversation  and  written  correspondence 

48.  Hanks    v.    Darden,     18    Ga.    318,    341  in  this  respect."     Trischet  v.  Ins.  Co.,  14  Gray 
(1855).  (Mass.)    457     (I860). 

49.  Sinking  Fund  Com'rs  v.  Bank,   1  Mete.  58.   Parts    of   a    correspondence   or    conver- 
(Ky.)    174,    185    (IS58)     (recital   of   corpora-  sation  necessary  to  the  complete  understand- 

tion's  doings  contained   in  a   mortgage).  ing   of   such    conversation    or   correspondence 

50.  1  Chamberlayne,  Evidence,  §§  518-520.       are,  as  a  rule,  admissible  by  way  of  supple- 

51.  Davies  v    Flewellen,  29  Ga.  40   (1.859):  mentation,   if  any   portion   of  the  eorrespon- 
Sciple    v     Xorthcutt,    t»2    Ga.    42,    45    (1878)  deuce   or   conversation    is    received.     Trischet 
(amendment  to  bill).  v.    Ins     Co.    14    Gray    (Mass.)    457     (I860). 

52.  Rule  v    State   (Miss.   1S98)   22  So.  872.  "If   we    have   the    sermon,    let    us   have    the 

53.  Stone   v.   Town    of   Tallalah    Fall-.    131  text  "     Tilton    v      Beecher,    X.    Y,    Abbott's 
Ga.    452,    62    S.    E.    592     MOOS)     (ordinance  Rep.    11.    270    (1875). 

book):    Page   v.   Hazelton.   74   X.   H    252.   66  59.   Kayward    R.    C.    v.    Duncklee.    30    Vt. 

Atl.   1049    (1907)     (entries   in   a   book   of  ac-  29.    39     M856). 

count).  60.  Coats    v.    Gregory.    10    Tnd.    345,    346 

54.  1  Chamberlayne.  Evidence.  §§  521-523.  (1858). 

55.  East  Coast  Lumber  Co.  v.   Ellis-Young  61.   Brayley  v.   Ross,  33   Towa  505    (1871); 
Co    (Fla.  1908),  45  >o    826   (deed)  :   Stone  v.  Xew  Hampshire  T.  Co  v.  Korsmeyer.  etc.,  Co, 
Sanborn,    104    Mass     319.    324    (1870)     (con-  57   Neb    7«4.   7^   X.    W.   703    (1899). 
tract).  62.  Stone  v    Sanborn,   104  Mass.   319,  324 

56.  Seciiritv  Trust  Co  v.  Robb  (X.  J.  1906).  ( 1870). 


§§    275-277  FURTHEKANCE    OF    JUSTICE.  134: 

to  which  it  is  in  answer  63  or  the  documents  enclosed  or  referred  to  are  in  the 
possession  of  the  adverse  party,  the  balance  of  convenience  may  well  be  found 
in  receiving  the  letter  as  offered,  leaving  the  work  of  supplementing  or  ampli- 
fying it  to  the  opposite  side  at  a  subsequent  stage. 

§  275.  [Completeness  Demanded] ;  Obligation  to  Introduce  into  Evidence  Re- 
sulting from  Demand  and  Inspection.64 —  Under  a  certain  set  of  circumstances, 
the  law  of  procedure  itself  overrides  the  option  of  the  party  to  produce  a  docu- 
ment in  his  power  and  compels  him  to  put  it  in  evidence.  This  occurs  where 
he  who  subsequently  is  obligated  to  become  the  proponent  of  the  document  has 
given  notice  to  his  adversary  requiring  the  latter  to  produce  the  writing,  and 
the  latter  has  in  fact  produced  it.  The  demanding  party  has  now  availed 
himself  of  the  opportunity  so  secured  of  inspecting  .the  document.  He  is  no 
longer  at  liberty  to  decline  to  keep  the  examined  document  out  of  evidence ;  he 
must,  by  the  rule  originally  laid  down  in  England,  offer  the  whole  writing65 
"  if  at  all  material  to  the  issue."  66  The  document  is  thereby  made  evidence 
for  both  parties.67  The  object  which  the  court  in  so  ordering  had  in  view  was 
to  punish  and  thereby  discourage  "  fishing  "  for  the  adversary's  evidence. 

§  267.  Prevent  Surprise.68 —  It  is  the  duty  of  the  presiding  judge  to  prevent 
surprise  upon  a  litigant ;  —  that  his  substantive  rights  shall  not  suffer  by 
unforeseen  developments  in  the  case  which  could  not  have  been  anticipated  and 
prevented  by  the  exercise  of  ordinary  prudence.  The  judge's  solicitude  that 
there  be  no  miscarriage  of  justice  will  be  proportionate  to  the  importance  of 
the  consequences  of  the  untoward  event  to  the  party  affected  by  it ;  and  also 
to  the  degree  of  culpability  of  the  respective  parties  for  the  existence  of  the 
situation  which  is  presented.  It  may  be  the  duty  of  the  court  to  adjourn  the 
hearing  or  continue  the  case,  or  even  to  award  a  new  trial,69  according  to  cir- 
cumstances. 

§  277.  [Prevent  Surprise] ;  New  Trial  for  Newly  Discovered  Evidence. —  A 
new  trial  will  not  be  granted  on  a  mere  showing  that  new  evidence  has  been 
discovered.  Such  evidence  must  meet  the  following  requirements:  1.  It  must 

63.   Barnes   v.   Trust   Co.,    160   111.    112.   48  '    born.   104  Mass.  310,  3^4    (1870).     The  prac- 

N.  E.  31    (1807).  tioe  is  the  same  even  in  criminal  oases.     I".  S. 

Stone    v.    Sanborn,     104     Mass.     310,    324  v.  Doebler,  1  Baldxv.   (U.S.)   510,522   (1832) 

(1870).  (forgery). 

''  In   either   case,   whether   the  communica-  64.   1   Chamberlayne.  Evidence,  §§  524-526. 

tions  are  by  successive  letters  or  by  distinct  65.  Calvert  v.  Flower,  7  ('.  &  P.  380  (1836)  ; 

conversations,  the  party  introducing  the  sec-  Wharam  v.  Routledge.  5  Esp.  235   (1805). 

ond  in  evidence  may.  if  he  pleases,  introduce  66.  Wilson  v.  Ro\vie,  1  C.  &  P.  8.  10  (1823). 

the  first  also,  and  if  he  does  not.  the  other  67.  Com.  v.  Davidson,  1   Cush.    (Mass.)    33, 

party  may.     The  actual  custody  of  the  papers  44   (1848). 

does  not  affect  the  question  which  party  shall  68.   I   Chamberlayne,   Evidence.   §   527. 

introduce  them,  but  only  the  steps  to  be  taken  69.  Xorfolk   &    VV.    Ry.   Co.  v.   Coffey    (Va. 

to  compel  their  production."     Stone  v.   San-  1905),  51  S.  E.  729. 


135  PREVENT  SURPRISE.  §§  278 

be  such  that  it  will  probably  change  the  result  if  a  new  trial  is  granted.  2.  It 
must  have  been  discovered  since  the  trial.  3.  It  must  be  such  that  it  could  not 
have  been  discovered  before  the  trial  by  the  exercise  of  due  diligence.  4.  It 
must  be  material  to  the  issue.  5.  It  must  be  not  merely  cumulative  to  the 
former  evidence.  6.  It  must  not  be  to  merely  impeach  or  contradict  the  former 
evidence.  Cumulative  evidence  is  additional  evidence  of  the  same  kind  to  the 
same  point.  Evidence  to  prove  a  distinct  issue  is  not  cumulative.70 

§  278.  [Prevent  Surprise];  Action  of  Appellate  Courts.71 — Adjournment  or 
continuance  on  the  ground  of  surprise  is  a  question  of  administration.  When, 
therefore,  reason  has  been  employed,  the  exercise  of  the  power  will  not  be  re- 
viewed on  appeal.  Where,  however,  its  action  is  unreasonable  the  ruling  of 
the  trial  court  may  be  reversed.72 

§  279.  [Prevent  Surprise];  Amendment  of  Pleadings.  -a/roniment  among 
causes  assigned  for  surprise  warranting  a  stay  of  proceedings  is  in  connection 
with  a  change  in  the  pleadings.  Where  the  allowance  of  an  amendment  to  a 
pleading  so  alters  the  forensic  position  of  the  opposite  party  that  he  is  not  able 
to  proceed  without  delay  except  by  impairing  the  chances  for  a  successful 
issue  in  his  favor,74  he  will  ordinarily  be  given  the  benetit  of  a  continuance  on 
the  ground  of  surprise.  The  rule  is.  enforced  with  particular  strictness  in 
criminal  cases.75 

§  280.  [Prevent  Surprise] ;  Decisions  on  Dilatory  Pleas.76 —  In  case  of  deci- 
sions by  the  court  upon  dilatory  pleas  77  or  other  formal  matters,78  the  nature 
of  which  might  reasonably  have  been  anticipated,  some  proof  of  threatened 
prejudice  other  than  the  party's  allegation  or  statement"  that  he  is  surprised  at 
the  result,  will  be  required  to  warrant  a  continuance.  On  the  other  hand,  it 
may  be  equally  clear  that  where  the  result  of  the  court's  action  is  to  place  a 
party  in  a  situation  different  from  what  he  could  fairly  have  foreseen,  the 
continuance  is  not  only  reasonable,79  but  may  even  be  necessary  to  the  ends 
of  justice. 

70.  Vickers  v.  Carey  Co.  (Okla.  1015),  151  611     (embezzlement    from    another    society). 
Pac.  1023,  L.  II.  A.  1916  C  1155.  The    accused    may,   however,    be    required    to 

71.  1   Chamberlayne,  Evidence,  §§  526-528.  show  that  he  intends  in  good  faith  a  defense 

72.  Pirrung  v.  Supreme  Council  of  Catholic  to  the  amended  complaint.     Williams  v   State 
Mut.  Ben.  Ass'n,  93   X.  Y.   S.  575,   104  App.  (Tex.  Cr.  App.   1005),  87  S.  YV.  1155. 

Div.    571     (1905).  76.  1  Chamberlayne,   Kvidence.  §  528b. 

73.  1  Chamberlayne,  Evidence.  §  52Sa.  77.  St.  Louis.  1.  M.  &  S.  Ry.  Co.  v.  Smith 

74.  Despatch    Laundry    Co.    v.    Employers'  (Ark.   1907).    100   S.   W.   884    (plea  in   abat- 
Liability  As.sur.  Corp.,  105  Minn.  384.  118  X.  ment). 

\\ .  152   (1908)    (raising  new  issues)    [rehear-  78.  Vulcan  Ironworks  v.  Burrell  Const.  Co. 

ing  granted.  105  Minn.  384.  117  X.  W.  506]:  (Wash.    1905),    81     Pac.    836     (motions    for 

Horwitz  v.  La   Roche    (Civ.   App.   1908),   10"  non-suit  K 

S.  W    1148-.  Wright  v.  Xorthern  Pac.  Ry   Co.,  79.  Crotty  v.  City  of  Danbury,  79  Conn.  379, 

38  Wash.  64.  SO  Pac.  197   (1905).  65  Atl.   147    (1906). 

75.  Foreman  v.  State   (Miss.  1909),  48  So. 


§§  281-284  FURTHERANCE  OF  JUSTICE.  136 

§  281.  [Prevent  Surprise];  Testimony.80 — Where  the  testimony  given  at  a 
trial  is  such  that  it  could  not  reasonably  have  been  anticipated  by  the  party 
against  whom  it  is  offered,  he  will,  if  it  is  material  to  the  decision  of  the  case,81 
be  entitled  to  an  opportunity  of  meeting  it,  by  adjournment,8-  or  continuance,83 
if  this  be  the  only  adequate  means  of  facing  the  situation.84  Such  an  order 

may  be  of  especial  importance  in  a  criminal  case.*"' 

Such  surprise  may  consist  in  the  failure  of  a  party's  own  evidence  86  where 
he  has  used  due  diligence  in  procuring  it  8T  or  in  the  change  by  a  witness  in 
his  testimony  from  what  was  fairly  to  be  expected  88  or  from  the  absence  of  a 
witness  whose  testimony  becomes  suddenly  and  unexpectedly  important.89 

§  282.  [Prevent  Surprise] ;  Production  of  Documents/"1 —  The  rule  is  the 
same  with  regard  to  the  production  of  papers.  The  court  has  full  power  to 
protect  a  party  from  surprise  due  to  the  introduction  of  documents  by  the 
opposite  party  under  circumstances  not  reasonably  to  have  been  anticipated  by 
him.91  If  necessary  for  doing  justice,  the  judge  may  continue  the  case.92 
Nor  is  the  rejection  of  immaterial  documents  a  suitable  ground  for  claiming 

•  OQ 

surprise. 

§  283.  [Prevent  Surprise] ;  Time  and  Place  of  Hearing/'4 —  Where  a  party, 
without  his  fault,  is  surprised  as  to  the  time  or  place  of  holding  court,  the 
trial  judge  will  be  justified  in  granting  a  continuance.95  A  rearrangement  of 
cases  on  the  court's  docket  may  have  this  effect.96 

§  284.  [Prevent  Surprise] ;  Surprise  Must  be  Prejudicial.97 —  The  surprise 
against  which  the  presiding  judge  is  bound,  so  far  as  consistent  with  his  other 

80.  1   Chamberlayne,     Evidence,     §§     528c-  Contracting   Co.,    93    N.    Y.    Suppl.   920,    105 
528g.  App.  Div.  90   (1905).     A  continuance  on  this 

81.  Dempsey   v.   Taylor,   4   Tex.    Civ.    App.  ground  may  be  refused  where  many  witnesses* 
126.  23  S.  W.  220   (1893).  are  prepared  to  testify  on  the  point.     Blair 

82.  Heyman  v.  Singer,  99  X.  Y.  Suppl.  942,  v.  State    (Neb.   1904).   101   X.  W.   17. 

51   Misc.  IS   (1906).  89.  Schwar/.schild  &  Sulzberger  Co.  v.  Xew 

83.  Louisville   &    X.   R.    Co.    v.    Bell     (Ky.       York    City    Ry.    Co.,    90    X.    Y.    Suppl.    374 
1909),    119   S.   W.   782;    Johnson   v.   Com.   32        (1904)    (gone  home  at  G  p.  m.). 

Ky.  L.  Rep.   1117,  107  S.  W.  768    (1908).  90.   I  Chamberlayne,  Evidence,  §  528h. 

84.  Freeland   v.   Brooklyn    Heights   R.   Co..  91.   Leveret t  v.  Tift,  6  Ga.  App.  90,  64  S.  K 
6(i  X.  Y.  Suppl.  321,  54  App.  Div.  90  (1900).  317  (  1909)  :  Dare  v.  McXutt,  1  Ind.  (1  Cart.) 

85.  Lir.dlc   v.   Com.,   2.",    Ky.   L.   Rep.    1307,  14S    i  1848)  ;    Bronaugh  v.  Bowles,  3  La.   120 
64  S.  W.  980  (1901 ).  (1831,. 

86.  Thready-ill    v.    Bickerstaff.   7    Tex.    Civ.  92.   Leverett  v.  Tift.  6  Ga.  App.  90.  64  S.  E. 
App.  406,  26  S.   W.  739    (1894):   Texas  &  P.  317     (1900).     A    motion    for    a    continuance 
Its.   Co.   v.    I5o<rgs    (Tex.   Civ.   App.    1895)    30  should   be   promptly  made.     McLear   v.   Hap-' 
S.  \V.  1089  (failure  ot  counsel  to  comply  with  good,  85  Cal.  557,  24  Pac.  788   (1890). 
stipulation)  :  Shipp  v.  Suggett,  48  Ky.   (9  B.  93.  Lyons  &  E.  P.  Toll  Road  Co.  v.  People, 
Monr.)   5   (1848)    (drunken  witness).  29  Colo.  434.  68  Pac.  275    (1902). 

87.  Pinson   v.   Bass,   114  Ga.  575,  40  S.  E.  94.   1   Chamberlayne,   Evidence.  §  528i. 
747    (1902)  :   Sheedy  v.  City  of  Chicago,  221  95.   Ross  v.  Austill.  2  Cal.  183    (1852). 

111.   111.  77   X.  E.  539    (1906)     (measuring  a  96.  Elliott    v.    Cadwallader,    14    Iowa    67 

sewer)  :  St.  Louis.  \V.  &  \Y.  R.  Co.  v.  Ransom,  (1862). 

29  Kan.  298   (1883).  97.   1   Chamberlayne,  Evidence.  §  528j. 

88.  McDonald  v.   Holbrook,   Cabot   ,1-   Dalv 


157  PREVENT  SURPRISE.  §§  285-287 

administrative  duties,  to  protect  a  litigant  is  one  which  clearly  impairs  the 
latter's  chances  of  success,  i.e.,  is  prejudicial  to  him.08 

§  285.  [Prevent  Surprise] ;  Protection  against  Unfair  Treatment.'^ —  A  broad 
canon  of  administration,  so  inclusive  that  but  occasional  instances  can,  here  and 
there,  be  given  of  its  application,  is  that  the  court  will,  in  furtherance  of  jus- 
tice, protect  each  party  from  unfair  treatment.  This  may  be  threatened  either 
from  the  opposite  party  or  from  the  judge  himself.  In  whichever  guise  the 
danger  may  present  itself,  the  administrative  duty  of  the  court  to  remove  it  is 
clear. 

§  286.  [Prevent  Surprise];  Unfair  Comment.1 — The  weight  which  the  jury 
attach  to  the  utterances  of  the  judge,  their  anxiety  to  seek  a  clue  from  him 
which  may,  in  a  case  of  bewildering  uucerainty,  relieve  them  from  their  own 
duty  will  make  him  extremely  cautious  that  his  prejudice  shall  not  supplant 
the  orderly  administration  of  law.  The  trial  judge  will,  therefore,  at  all  times, 
carefully  refrain  from  interpolating  remarks  which  indicate  to  the  jury  the 
opinion  which  he  has  formed  on  a  material  point  in  dispute,2  or  as  to  what 
facts  are  3  or  are  not  4  proved.5  He  may  even  refrain  from  stating  as  to  what 
facts  there  is  evidence.* 

§  287.  [Prevent  Surprise] ;  Incidental  Comment  Permitted.7 —  A  certain  in- 
cidental comment  by  the  court  is  not  unreasonable,  especially  where  the  jury 
are  distinctly  instructed  that  questions  of  fact  in  issue  are  to  be  decided  by 
them.  It  is  not,  for  example,  unreasonable  for  the  judge  in  discussing  with 
counsel  the  admissibility  of  evidence,8  the  propriety  of  a  nonsuit,9  the  direc- 

98.  The  exclusion  of  inadmissible  evidence       (.a.  App.  832,  58  S.  E.  88  (1907)  ;  Thomson  v. 
furnishes  no  ground  for  surprise.     McCutchin       Kelley   (Tex.  Civ.  App.  1906),  97  S.  \V.  326. 

v.   Bankston,  2  Ga.   244    (1847);    Simpson  v.  3.  Ficken  v.  City  of  Atlanta,  114  Ga.  970,  41 

Johnson     (Tex     Civ     App.    1898),    44    S.    W.  S.   E.  58    (1902):    In  re  Knox's   Will    (Iowa 

1076      The  fact  that  the  same  evidence  was  1904),  98  X.  W.  468    (Tex.  Civ.  App.   1907), 

admitted  without  objection  at  a  former  trial  103   S.   W.   444. 

does  not  constitute  the  subsequent  exclusion  4.    Atlantic   Coast   .Line    R.    Co.    v.    Ponel1, 

a  surprise.     Turner  v.  Tubersing,  67  Ga.   161  127  Ga.  805,  9  L    R.  A.   (X.  S.)   769,  56  S.  E. 

(1881).     Nor  does  the  fact  that  the  opposing  1006    (1907). 

witnesses   testify  differently   than   they   have  5.  The    demeanor    of    a    judge    may    bo    as 

told  the  objecting  party  they   would,  consti  unfair  to  a  party  as  his  verbal   sxpretfuon*. 

tute  such   a  threatened   prejudice  as  will   be  City   of   Xewkirk    v.    Dimmers,    17    Ok'     525, 

deemed   a    surprise      Brock   v    Com.,   33   Ky.  87   Pac.  603    (1906). 

JL.    Rep.    630.    110    S.    W.    878     (1908).     See  6.  Patten     v.     Town     of     Auburn      (Wash, 

also  Texas  Cent.  Ry    Co.  v    Brock    (Tex.  Civ.  1906),    84    Pac.    594. 

App.    1895),  30  S.   W.   274.  7.   1   Chamber layne.   Evidence,   §   529b. 

Improper  conduct  on  the  part  of  the  judge  8.  Hampton    v     City    of    Macon,    113    Ga. 

which  takes  place  after  verdict  rendered  can  93,   38   S.    E    387    (1901)     (view);    St.   Louis 

scarcely    be   deemed    prejudicial.     Central    of  &.  S.  W    Ry.  Co.  v.  Elgin  Condensed  Milk  Co 

Georgia   Ry    Co.   v.   Perkerson,   115   Ga.   547,  175  111.  557,  51   X.  E    911    (1898)    [judgment 

41    S.   E.   1018    (1902).  affirmed,  74  111.  App   619  (1898)];  Herrstrom 

99.  1    Chamber  layne.    Evidence.   §   529  v.   Xewton  &  X.   W.   R.   Co.,   105   X.   W.   436 

1.  1   Chamberlayne.   Evidence,   §   529a.  (1905). 

2.  Georgia  Ry.  &   Electric  Co.  v.  Baker,  1  9.  Continental    Ins.    Co.   v.    Wckham,    110 


§§  288-291  FURTHERANCE  OF  JUSTICE.  138 

tiou    of    a    verdict,    or    other    similar    questions,10    to    refer    to    the    evi- 
dence.11 

§  288.  [Prevent  Surprise] ;  Unreasonable  Comment.12 —  On  the  other  hand, 
to  characterize  the  statement  of  a  witness  as  ''  very  fair  and  unbiased,'1  13  or 
to  suggest  that  certain  evidence,  if  believed,  is  or  is  not 14  conclusive,  that 
other  facts  are  or  are  not  very  material,10  may  well  be  regarded  as  objection- 
able.10 

§  289.  [Prevent  Surprise] ;  Comments  on  Law.17 —  Whatever  may  be  thought 
of  the  good  judgment  of  a  trial  court  who  shall  undertake  to  criticize  un- 
favorably the  rule  of  law  which  he  is  announcing  to  the  jury,  such  a  course 
does  not,  in  itself,  constitute  unfair  treatment  of  the  party  for  whom  the  rule 
operates.18 

§  290.  [Prevent  Surprise] ;  Influence  of  Spectators.10 —  Aware  of  the  psychic 
influence  of  the  dramatic  features  of  a  trial,  to  which  reference  is  elsewhere 
made,20  the  presiding  judge  will  seek  to  prevent  the  issue  of  the  trial  from 
being  affected  by  applause,21  or  other  manifestation  of  feeling,  on  the  part  of 
the  audience. 

§  291.  [Prevent  Surprise];  Misquoting  Evidence.22 — To  misquote  the  evi- 
dence of  a  witness  upon  a  material  point  may  be  a  form  of  unfair  treatment 
against  which  a  party  is  reasonably  entitled  to  the  protection  of  the  judge. 
Against  the  action  of  a  litigant  so  offending  the  court  will  promptly  afford  his 
assistance  to  the  injured  party.  Naturally,  moreover,  he  will  be  careful  that 
his  own  quotations  from  the  evidence  shall  be  correct,  or  so  modified  by  a 
reference  to  the  power  and  duty  of  the  jury  to  judge  of  the  testimony  23  that 
any  inexactness  is  calculated  to  do  but  little  harm. 

Ga.    129,    35    S.    E.    2s7     (1900);    Cave    v.  114  Ga.  266,  40  S.  E.  231    (1901).     See  also 

Anderson,  50  S.  C.  293,  27  S.  E.  693  (1897).  McMinn  v.  Whelan,  27  Cal.  300    (1865). 

10.  Elgin,  J.  &  E.  Ky.  Co.  v.  Lawlor,   132  14.   Haynes    v.    City    of    Hillsdale     (Mich. 
111.    App.    280     (1907)     [judgment    affirmed,  1897),  71  N.  W.  466;  St.  Louis  &  S.  F.  R.  Co. 
229   111.  621,   82  N.  E.  407]:   Stoebier  v.   St.  v.  Lane  (Tex.  Civ.  App.. 1908),  110  S.  W.  530. 
Louis  Transit  Co.,  203  Mo.  702,  102  S.  W.  651  15.  Howland  v.  Oakland  Consol.  St.  Ry.  Co., 
(1907)    (motion  to  strike  out  evidence  1  ;   Fi-  115  Cal.  487,  47  Pac.  255   (1896). 

delity   Mut.    Fire   Ins.   Co.   v.   Murphy    (Xeb.  16.  McKissick    v.    Oregon    Short   Line    Ry. 

1903),    95    N.    W.    702     (overruling    dilatory  Co.,  13  Idaho  195,  89  Pac   629  (1907). 

motions).  17.   1  Chamberlayne,  Evidence,  §  529d. 

11.  Where  a  trial  judge,  on  rejecting  evi-  18.  Martin  v.  Peddy,  120  Ga.  1079,  48  S.  E. 
dence,  sees  fit  to  comment  upon  its  materiality  420    (1904)  ;   Lake  Shore  &  M.  S.  Ry.  Co    v. 
or   value,   the   action    may   well   be   justified.  Ford,     18    Ohio    Cir     Ct.    R.    239     (1899); 
In  re  City  of  Seattle.  52  Wash.  226,  100  Pac.  Kreuger  v.  Sylvester   (Iowa  1897),  69  N.  W. 
330    (1909);   Manhattan  Bldg.  Co.  v.  City  of  1059. 

Seattle,  52  Wash.  226,  100  Pac.  330    (1909).  19.  1  Chamberlayne,  Evidence,  §  529e. 

12.  1   Chamberlayne,  Evidence,  §  529c.  20.  Supra,  §  81. 

13.  Edwards  v.  City  of  Cedar  Rapids  (Iowa  21.  Central  of  Georgia  Ry.  Co.  v.  Mote,  131 
1908),  116  N.  W.  323   (expert  physician).     A       Ga.  lf>6,  62  S.  E.  164   (1908). 

judge  should  not,   in  the  hearing  of  a  jury,  22.   1   Chamberlayne.  Evidence,  §  529f. 

compliment^,  witness.     Alexander   v.    State,          23.  Prescott  v.    Fletcher,    133  Ga.   404,  65 


139  PRETEXT  SURPRISE,  §§  292-295 

§  292.  [Prevent  Surprise];  Reprimanding  Counsel.24 — The  interests  of  par- 
ties may  be  injuriously  affected  at  times,  by  reprimands  addressed  by  the 
judge  to  their  counsel.25 

§  293.  [Prevent  Surprise] ;  Reprimanding  a  Party  or  His  Witnesses.26 — 
Nothing  unfair  to  a  party  is  done  where  the  judge,  in  reasonable  discharge  of 
his  executive  or  police  powers,2'  has  occasion  to  reprimand  one  of  his  witnesses 
or  even  to  commit  him  for  contempt.28 

§  294.  [Prevent  Surprise] ;  Effect  of  Waiver.29 —  A  party  who  might  other- 
wise be  prejudiced  by  the  action  of  a  judge  may  place  himself  in  a  position 
where  he  is  not  justly  entitled  to  take  advanage  of  it  in  an  appellate  court.30 
This  may  happen,  for  example,  where  the  party  claiming  to  be  aggrieved  de- 
clines to  avail  himself  of  a  reasonable  offer  on  the  part  of  the  judge  to  repair 
the  consequences  of  the  latter's  erroneous  action.31  Where,  moreover,  a  liti- 
gant consents  that  the  trial  shall  take  a  certain  course,32  e.g.,  that  questions  of 
law  shall  be  argued  in  presence  of  the  jury  33  or  that  talesmen  should  be  added 
to  a  jury  without  waiting  for  the  arrival  of  the  regular  panel,34  he  cannot 
complain  of  the  legitimate  consequences  flowing  from  the  adoption  of  the  pro- 
cedure. 

§  295.  [Prevent  Surprise] ;  Protect  Witnesses  from  Annoyance.35 —  The  further- 
ance of  justice  requires  that  its  administration  should  be  made  to  press  with  as 
little  of  hardship  as  possible  upon  witnesses.  The  judge  may,  therefore,  rea- 
sonably so  exercise  his  administrative  powers  as  to  protect  the  witness  from 
all  avoidable  annoyance.  The  sacrifices  of  time  and  convenience  usually  ex- 
acted as  the  price  of  testifying  at  all,  he  cannot  well  control.  But  the  insult, 
innuendo  and  gibes  of  counsel  may,  by  a  vigilant  judge  be,  in  large  measure, 
averted  from  their  victim.36  In  view  of  the  administrative  powers  at  his 
command,  it  would  be  impossible,  even  were  it  desirable,  for  the  presiding 
justice  to  escape  responsibility  in  this  matter. 

S.   E.  877    (1909);   Lee  v.  Williams,  30  Pa.  29.  1  Chamberlayne,  Evidence,  §  529i. 

Super.  t_t.  349,  357    (1906).  30.  Richardson    v.    State     (Tex.    Cr.    App. 

24.  1  Chamberlayne,  Evidence,  §  529g.  1906),  94  S.  W.   1016. 

25.  Woodson  v.  Holmes,  117  Ga.  19,  43  S.  E.  31.  Richards    v.    City    of   Ann    Arbor,    152 
467    (1903).     It  is  improper  for  the  court  to  Mich.  K,  115  N.  W.  1047,  15  Detroit  Leg.  N. 
refer  to  expert  testimony  as  "  bought  en  testi-  142    (1908). 

mony."     People  v   Jennings  (Mich.  1903),  94  32.  Farley  v.  Gate  City  Gaslight  Co.    (Ga. 

.N.  W.  216,  10  Detroit  Leg.  N.  39;  Adams  v.  1898),  31   S.   E.   193;    Spangehl  v.   Rpangehl, 

Fisher,  83  Neb.  686,  120  N.  W.  194   (1909).  57  X.  Y.  Suppl.  7,  39  App.  Div.  5  (1899)    (call 

26.  1  Chamberlayne,  Evidence,  §  529h  but  five  witnesses). 

27.  Supra,  §  99.  33.  Moore  v.  Rose,  130  Mo.  App.  668,  108  S. 

28.  Marcumv.  Hargis,  31  Ky.  L.  Rep.  1117,  W.  1105   (1908). 

104  S.  W.  693  (1907)    (drunkenness  in  court)  34.  Rice  v.  Dewberry  (Tex.  Civ.  App.  1906), 

Seawell  v.   Carolina  Cent.  R.  Co.,   132  N.   C.  93  S.  W.  715. 

856,  44  S    E.  610    (1903)    [rehearing  denied,  35.  1  Chamberlayne,  Evidence,   §   530. 
45    S.   E.   850]     (laughing). 


^   J'-n;-L",)8  FURTHERANCE  OF  JUSTICE.  140 

§  296.  [Prevent  Surprise];  Cross-examination/57 — The  principal  occasion  for 
the  objectionable  and  offensive  treatment  of  witnesses  is  upon  cross-examination. 
Here  the  zeal  of  counsel  has  been  most  frequently  betrayed  into  excesses.  If 
this  enthusiasm  is  honest,  an  intimation  from  the  court  usually  suffices  for  its 
control.38  A  cross-examination  in  any  way  abusive  is  improper,  and  can  only, 
so  far  as  the  witness  is  concerned,  be  repressed  by  the  presiding  judge.  In 
the  same  way,  it  may  be  proper  for  the  court  to  intimate  to  counsel  that  the 
cross-examination  of  a  particular  witness  is  being  unduly  protracted.39 

§  297.  [Prevent  Surprise] ;  A  Reasonable  Limitation.4" —  It  bv  no  means  fol- 
lows that  the  course  of  a  judge  in  allowing  a  witness  to  be  intimidated  or 
otherwise  annoyed  is,  in  all  cases,  bad  administration.  The  object  of  this 
treatment  may  richly  merit  such  an  experience ;  the  interests  of  justice  may 
demand  that  he  be  so  treated.  In  undertaking  to  limit  the  rights  of  counsel, 
as  to  tone,  gesture,  manner  as  well  as  substance  of  examination,  the  possible 
existence  of  fraud,  bad  faith,  perjury  must  not  be  overlooked. 

.Innuendo. —  Counsel  should  rarely  be  permitted  to  comment  upon  the  evi- 
dence they  are  eliciting.41  An  appropriate  opportunity  will  be  reserved  for 
such  observations  at  a  later  stage.  At  that  of  examination;  the  principal  effect 
of  such  comment,  and  often,  apparently,  its  exclusive  object,  is  to  embarrass 
the  witness. 

Intimidation. —  Any  question  which  tends  to  intimidate  42  or  embarrass  a 
witness  is  objectionable. 

§  298.  Judge  May  Interrogate  Witnesses.4-—  The  judge  may  elicit  evidence; 
he  should  not  intimate  his  opinion  as  to  the  case,  its  .merits  or  the  credibility 
of  witnesses.  The  right  of  a  judge,  for  the  promotion  of  justice,  to  interrogate 
a  witness  is  not  affected  by  the  constitutional  provision  forbidding  judges  to 
comment  upon  the  evidence  in  the  case.44  In  any  case,  the  court  will  not  in- 
terrogate a  party  or  witness  in  such  a  manner  as  to  indicate  to  the  jury  the 
judgment  which  he  may  have  formed  regarding  the  truth  of  a  disputed  7iiat- 
ter  of  fact,  especially  if  such  a  fact  be  a  material  one.4''  On  the  other  hand, 

36.  Eliott  v.  Boyles,  31  Pa.  St.  66   (1837).  ally  all  that  is  needed  to  restrain  such  ardor. 
Where  a   witness  on   the   stand   is   wantonly  when   it   does  not   arise  in   any   degree   from 
attacked  by  the  attorney  of  the  opposite  party  habitual   want   of   respect    for   the   rights   of 
without   any    provocation    whatever,    the   act  others  and  for  the  order  of  public  business." 
of  the  trial  judge  in  reproving  such  attorney  Eliott  v.   Boyles,  31   Pa.  66    (1857). 

is  proper.     Heffernan  v.  O'Xeill   ( Xeb.  1901),  39.  Crane    Lumber    Co.   v.    Bellows    (Mich. 

96    N.    W.   244.     In   like   manner,   the   judge  1898),   74    X.   W.  481. 

upon  heing  appealed  to  by  a  witness  for  fur-  40.   1   Chamberlayne,  Evidence,  §§  532,  533. 

ther  time  in  which  to  answer  the  questions  of  41.   Ings'   Trial,   33   How.   St.   Tr    957,   999 

counsel,  is  justified  in  directing  that  sufficient  (1820) 

time   be   allowed   her   for   the   purpose.     Bir-  42.  Haines  v.  Ins.  Co.,  52  X.  H.  470  ( 1872 ) 

mingham  Ry.  &  Electric  Co.  v.  Ellard,  135  Ala.  43.    1   Chamberlayne.  Evidence,  §§  534-536. 

433,  33  So.  276   (1903).  44.  Wilson    v.    Ohio    River    &    C.    Ry.    Co. 

37.  1  Chamberlayne,   Evidence,   §   531.  (S   C.  1898),  30  S.  E.  406.     Supra,  §  281. 

38.  "  When  the  presiding  judge  is  respected  45.  Bryant   v.    Anderson,   5   Ga.    App.   517, 
and  prudent,  a  hint  kindly  given   is  gener-  63   S.  E.  638    (1909). 


14:1  JUDGE  MAY  INTERROGATE.  ^    i",U»-301 

he  may  not  properly  ask  immaterial  questions  calculated  to  arouse  the  passions 
arid  prejudices  of  a  jury.46  In  the  same  way,  while  the  judge  may  question 
witnesses  to  bring  the  facts  properly  before  the  jury,  he  must  so  frame  his 
questions  as  not  to  indicate  hi?  own  opinion,  and  not  to  lay  undue  stress  on 
particular  features  of  the  witness'  testimony  tending  t'o  impeach  him.47 

vj  299.  [Judge  May  Interrogate  Witnesses] ;  In  Order  to  Elicit  Material 
Facts. 4S —  But  the  judge  may  interrogate  a  witness  for  a  higher  purpose  than 
to  enable  him  to  give  the  jury  full  instructions.  Beside  his  function  of  offer- 
ing light  to  the  jury,  he  has  a  duty  to  justice.  He  should  therefore  ask  any 
question  calculated  to  present  new  and  material  evidence.49 

§  300.  [Judge  May  Interrogate  Witnesses] ;  Range  of  Inquiry.5" —  The  only 
limitation  upon  the  range  of  the  judge's  interrogation  is  that  the  power  should 
be  reasonably  exercised.  The  questions  should  be  relevant,  and  so  framed  as 
not  to  prejudice  either  of  the  parties.  As  is  said  by  the  supreme  court  of 
Georgia.'"'1  a  judge  may  ask  a  witness  "  any  legal  question  he  pleases."  He 
may  ask  leading  questions/'2 

;;  301.  Judge  May  Call  Additional  Witnesses. ^ —  Where  the  social  demands 
of  justice  are  likely  to  suffer  by  an  avoidable  inadequacy  of  proof,  the  court 
may,  of  its  own  motion,  seek  to  supply  it.  Thus,  if  a  material  witness,  avail- 
able to  the  parties,  is  not  produced,  the  judge  may  cause  him  to  be  sworn  and 
testify.'''4  The  judge  may  make  the  order  equally  whether  he  is  5r>  or  is  not 

46.  Flinn    v    Ferry,    127   Cal.   64*,   60  Pac.       would  likely  throw  any  light  upon  the  testi- 
434    (1900)  mony."     Huffman    v.    Cauhle.    86    Ind     591, 

47.  Barlow   Bros.  t'o.  v.   Parsons,  73  Conn.       596    (1882). 

606,  49  Atl.  205  i  1001.  Should  the  examina-  Xugc/estions  to  Counsel. —  The  trial  judge 
tion  clearly  show  the  judge's  opinion  on  the  is  not  required  to  ask  the  questions  person- 
question  of  credibility,  it  is  matter  for  re-  ally.  He  may  suggest  them  to  counsel.  State 
versal.  City  of  Flint  v.  Stockdale's  Estate,  v.  Xoakes.  70  Vt.  -247.  40  Atl.  240  (1898). 
157  Mich.  503.  122  N.  W  270.  Hi  Detroit  Leg.  50.  1  Chamberlayne,  Evidence.  §§  538.  530. 
X.  403  (19M<».  This  power  and  duty  of  51.  Epps  v.  State.  10  (ia.  Ill  (1855), 
interrogation  is  not  limited  to  judges.  Tt  Where  the  judge  is  forbidden  to  comment  on 
applies  a\*o  to  inferior  magistrates  or  persons  the  evidence  in  charging  the  jury,  for  the 
exercising  temporary  judicial  functions,  such  judge  to  indicate  by  his  question  his  opin- 
as  arbitrators.  Butler  v.  Boyles,  10  Humph.  ion  as  to  a  material  fact,  would  constitute 
155  (1840).  prejudice  Harris  v.  State.  61  Ga.  .350 

48.  1   Chamberlayne,    Kvidence.   §   537.  (1878). 

49.  It   may   properly   be   said    in   any   case  52.  See  WITNESSES,  infra,  §  1172:  25  Han- 
as   was   said   by   Judge    Bickwell    in    the   su-  sard  Parl.  Deb.  207    (1813). 

preme   court  of   Indiana:      "A    circuit   judge  53.   1   Chamberlayne.   Evidence,   §   540 

presiding  at  a  trial  is  not  a  mere  moderator  54.  Selph  v.  State.  12  Fla.  537.  548  (1886)  ; 

between   contending   parties:    he    is   a    sworn  Hoskins  v.  State.  11   Ga.  92,  97    (1852)  :   Ful- 

officer  charged  with  grave  public  duties.     In  lerton    v.    Fordyce.    144    Mo.    510.   44    S.    W. 

order  to  establish  justice  and  maintain  truth  1053   (1808)  ;  Coulson  v.  Disborough,  L.  R.  2 

and  prevent  wrong,  he  has  a  large  discretion  Q.   B.   D    316    (1894). 

in   the  application   of  rules  of  practice.  .  .   .  55.  Badische  A.  &  S.  Fabrik  v.  Levinstein, 

There  is  nothing  wrong  in  the  court's  asking  L.  R.  24  Ch.  D.  156,  167   (1883). 
the  witness  any  question  the  answer  to  which 


§§    302,  303  FUKTHEKANCE    OF    JUSTICE.  142 

sitting  as  a  jury.  His  right  to  ask  questions  of  a  witness  is  subject,  however, 
to  the  qualification  that  his  questions  should  be  put  in  open  court.  It  is 
highly  improper  for  a  judge  to  interrogate  a  witness  privately  and  subsequently 
ask  him  questions  upon  the  basis  of  the  information  so  obtained.5"  In  much 
the  same  way  a  witness  may  properly  be  recalled  for  further  examination  at 
the  request  of  the  presiding  judge.57 

§  302.  Judge  Should  Hold  Balance  of  Indulgence  Even.58 —  A  presiding 
judge  will  not  be  permitted  to  grant  an  indulgence  to  one  party  which  he 
denies  to  the  other.  This  rule  is  one  of  wide  range  of  application.  So  where 
one  party  has  been  permitted  to  offer  evidence  on  a  particular  subject  50  or  to 
use  some  special  class  of  evidence,60  his  adversary  will  be  conceded  the  priv- 
ilege of  meeting  him  upon  the  same  ground01  or  with  the  same  weapons.62 

Use  of  Incompetent  Testimony. —  The  principle  has  even  been  carried  so 
far,  in  certain  courts,  as  to  permit  a  party  against  whom  is  introduced  irrele- 
vant evidence  63  or  that  which  is  incompetent,64  hearsay,  "  opinion  "  65  or  the 
like,"6  to  insist  upon  meeting  it  with  equally  incompetent  evidence  of  the  same 
nature. 

In  a  criminal  case,  the  same  right  has  been  conceded  to  the  prosecution 
where  the  accused  has  introduced  without  objection,  legally  inadmissible  testi- 
mony.67 

§  303.  Judge  Should  Require  Full  Disclosure.68 — A  party  is  not  entitled,  as 
a  matter  of  right,  to  withdraw  legal  and  competent  evidence,  voluntarily  in- 

56.  Littleton  v.  Clayton,  77  Ala.  571,  575  Co.  v.  White   (Colo.  1903),  75  Pac.  415;  Mc- 
(1884).     See   also   Sparks   v.    State,   59   Ala.  Ilwain   v.   Gaebe,    128   111.   App.   209    ^1906) 
82,87    (1877).  (X-ray  photographs). 

57.  Fitzgerald  v.   Benner,   219   111.  485,   76  63.  Warren    Live    Stock   Co.    v.    Farr,    142 
N.   E.   709    (1906).     For   an   interesting   and  Fed.  116,  73  C.  C.  A.  340   (1905). 
instructive  contribution  to  the  learning  of  this  64.  German-Amer.  Ins.  Co.  v.  Brown   (Ark. 
subject  see  57  L.  R.  A.  875.  1905),  87  S.  W.  135. 

58.  1  C'hamberlayne,   Evidence,   §   541.  65.  Provident  Sav.  Life  Assur.  Soc.  v.  King, 

59.  McElevaney  v.  McDiarmid,  131  Ga.  97,  216  111.  416,  75  N.  E.   166    (1905)    [affirming 
62  S.  E.  20   (1908);  Alpena  Tp.  v.  Mainville,  judgment,    117   111.   App.   556]     (conclusion); 
153  Mich.  732,  117  X.  W.  338,  15  Detroit  Leg.  State  v.  Grubb,  201  Mo.  585,  99  S.  W.  1083 
N.  605   (1908).  (1906)    (handwriting)  ;  Ahnert  v.  Union  Ry. 

60.  Bates  v.  Hall    (Colo.  1908),  98  Pac.  3  Co.    of   N.    Y.    City,    110    N.    Y.    Suppl.    376 
(parol  evidence)  ;   Missouri,  K.  &  T.  Ry.  Co.  (1908)  ;  Lefevre  v.  Silo,  98  X.  Y.  Suppl.  321, 
of  Texas  v.  Steele  (Tex.  Civ.  App.  1908),  110  112  App.  Div.  464    (1906)    (conclusion). 

o.  W.  171.  66.  Aetna  Ins.  Co.  v.  Fitze  (Tex.  Civ.  App. 

61.  Jefferson   Min.   Co.   v.   Anchoria-Leland  1904),    78    S.    W.    370     (compromise    offer). 
Min.  &  Mill  Co.,  75  Pac.  1070,  64  L.  R.  A.  925  Where  plaintiff  gave  secondary  evidence  with- 
(1904);   Kuhn   v.  j^ppstein,  239  111.  555,   88  out    objection,    defendant    should    have    been 
X.  E.  174   (1909)  ;  Kelly  v.  Chicago,  R.  I.  &  allowed  to  give  similar  contradictory  evidence. 
P.    Ry.    Co.    (Iowa    1908),    114    X.    W.    536;  McCormack  v.  Mandlebaum,  92  N.  Y.  S.  425, 
Jetter  v.  Zeller,  104  X.  Y.  S.  229,   119  App.  162  App.  Div.  302    (1005). 

Div.  179  (1907)  ;  Whitney  v.  Haskell,  216  Pa.  67.  People  v.  Duncan   (Cal.  App.  1908),  96 

622,    66    Atl.    101     (1907)     (construction    of  Pac.  414    (hearsay). 

agreement).  68.  1  Chamberlayne,  Evidence,  §§  542,  543. 

62.  Farmer's  High  Line  Canal  &  Reservoir 


143  EXPEDITE  TRIALS.  §  304 

troduced  by  him,  which  is  favorable  to  his  adversary.69  While  the  interests 
of  public  justice  may  require  a  full  disclosure  on  the  part  of  a  witness,  the 
attempt  to  break  down  the  testimony  of  one  whom  the  judge  regards  as  mis- 
taken 7"  may  more  properly  be  left  to  counsel. 

§  304.  Expedite  Trials.71 —  Beyond  a  certain  point,  to  delay  justice  in  any 
case,  in  to  deny  it.  "  Undue  delay  is  a  denial  of  justice."  ~cz  The  expediting 
of  trials  is  therefore  in  the  direction  of  the  furtherance  of  justice,  and,  there- 
fore, is  well  within  the  administrative  duty  of  the  court.  But  no  furtherance 
of  justice,  as  a  whole,  can  take  place  by  declining  to  accord  to  a  case  all  the 
time  reasonably  necessary  to  diagnose  every  material  fact  merely  in  order  to 
advance  a  case  standing  later  on  the  docket.7"  The  present  canon  of  adminis- 
tration prescribes  economy  in  the  use  of  time.  It  permits  any  expenditure 
which  is  reasonably  necessary  for  the  purpose  of  doing  justice.'4  It  cautions 
merely  against  time's  waste;  nothing  is  said  against  its  useful  employment.75 

Methods  Employed. —  In  seeking  this  objective  of  administration  —  the  at- 
tainment of  substantial  justice  as  speedily  as  is  consistent  with  the  adequacy 
of  the  result  itself  —  courts  proceed,  in  addition  to  minor  and  more  incidental 
methods,  by  these  principal  ways:  (1)  Such  a  use  of  its  judicial  knowledge 
and  power  to  rule  as  to  the  existence  of  prima  facie  states  of  evidence  as  will 
prevent  diverting  of  attention  from  the  facts  really  in  dispute  and  keep  the 
case  as  it  were  constantly  turning  on  its  hinge;  (2)  controlling  the  range  of 
inquiry  at  any  stage  to  the  reasonable  requirements  of  proof;76  (3)  eliminat- 
ing evidence  of  slight,  collateral,  or  remote  logical  bearing;  7T  (4)  regulating 
introduction  of  cumulative  evidence;78  (5)  limiting  number  of  witnesses;  ''• 
((>)  restricting  repetition  of  question;80  (7)  restricting  repetition  of  testi- 
mony;81 (8)  restricting  length  of  argument;82  (9)  restricting  length  of  ex- 
amination ;  s3  number  of  conusel.  etc. 

69.  Zipperer  v.  City  of  Savannah,  128  Ga.  79.  White  v.  City  of  Boston,  186  Mass.  65, 
135,  57  8.  E.  311   (1907).  71  X.  E.  75  (l'J04)  ;  Swope  v.  City  of  Seattle, 

70.  Glover  v.   United  States,  147  Fed.  426,  36   Wash.    113,   78   Pac.   607    (1904);    Austin 
77  C.  C.  A.  450    (1906).  v.  Smith  &  Holliday   (Iowa  1906),  109  N.  W. 

71.  1   Chamberlayne,  Evidence,  §§  544-555.  289;   J.  H.  Clark  Co.  v.   Rice,   127   Wis.  451, 

72.  Post  v.   Bklyn.   Heights  R.  R.  Co.,   195  106   X.   W.   231    (1906);    Taylor   v.   Security 
N.  Y.   62    (1909).*  Life,  etc.,  Co.,   145   X.   C.   383,  59  S-   E.    139 

73.  People  v.  Pease,  27  X.  Y.  45,  61   (1863).  (1907). 

74.  Amoskeag  Mfg.  Co.  v.  Head,  59  X.  H.  80.  Singer  &  T.  S.  Co.  v.   Hutchinson,   184 
332    (1879).  111.  169,  56  X.  E.  353  (1900)  ;  Simon  v.  Home 

75.  Godard  v.  Gray,  L.  R.  6  Q.  B.  139,  152  Ins.  Co.,  58  Mich.  278,  25  X.  W.  190   (1885)  ; 
(1870).  Ulrich  v.  People,  39  Mich.  245,  251   (1878). 

76.  Aurora  v.  Hillman,  90  111    61    (1878)  ;  81.  Stern  v.  Bradner  Smith  &  Co.,  225  111. 
Stroh    v.    South    Covington,   etc,    R.    Co.    78  430,  80  X.   E.  307    (1907)    [affirming  127   111. 
S.    W.    1120,   25    Ky.    L.    Rep.    1868(    1904);  App.  640    (1906)]:   Griswold  v.  Xichols,   126 
Davis  v.  U.  S.,   165  U.  S.  373,  17  S.  Ct,  360,  Wis.  401,  lOo  X.  W.  815   (1905). 

41  L.  ed    750   (1S97).  82.  Munro  v.  Stowe,   175  Mass.  169,  55  N. 

77.  Com.  v.  Williams,  105  Mass.  62  (1870).  E    992    (1900)  :   Reagan  v.  St.   Louis  Transit 

78.  Georgia.—  U'hite     v.     Columbus      Iron  Co.,   180  Mo.   117,  79  S.  W.  435    (1904). 
Works  Co.,  113  Ga.  577,  38  S.  E.  944   (1901).  83.  Walker  v.  McMillan.  21  X.  Br.  31,  44, 


§§    o05-C07  FURTHERANCE    OF    JUSTICE.  144: 

§  305.  Judge  Should  Aim  to  Give  Certainty  to  Substantive  Law.84 —  The  final 
general  canon  of  administration  is  that  of  legal  certainty.  Litigation  should 
be  so  conducted  as  not  only  to  (A)  secure  and  enforce  the  substantive  rights  of 
the  parties,85  ( l> )  further  justice,"0  (Cj  do  it  in  as  speedy  a  manner  a&  is 
consistent  with  the  higher  ends,*'  but  also  (D)  to  create  and  establish  a  mure( 
complete  and  perfect  system  of  substantive  law. 

In  seekiny  to  secure  to  the  community  as  a  whole  the  benefit  of  the  litigation 
between  individuals,  the  judiciary  as  a  body,  having  a  continuous  tradition 
and  a  constant  object,  endeavors  to  utilize  the  results  of  repeated  jury  trials 
for  making  the  rules  of  law  more  precise  and  definite.  Such  action  is  evi- 
dently in  the  line  of  the  public  interest. 

Where  successive  juries  upon  substantially  similar  facts  evidence  by  their 
decisions  a  fairly  uniform  tendency  to  draw  a  particular  inference  from  these 
facts,  the  judge  may,  in  committing  the  decision  of  the  same  question  to  a  jury 
call  attention  to  this  inference,  if  approved  by  him,  as  being  a  reasonable  one, 
which  the  jury  may  properly  consider,  giving  it  such  weight  as  they  may  think 
proper.  The  court  has  announced  a  "  presumption  of  fact,"  so  called.88 

§  306.  Action  of  Appellate  Court;  Judicial  Function  of  Trial  Judge;  Substan- 
tive Law.80 —  Any  ruling  as  to  substantive  law,  whether  in  open  court  or  con- 
fused 90  connection  with  administrative  or  judicial  rulings,  is  clearly  subject 
to  review.  On  ordinary  principles,  any  ruling  as  to  matter  of  substantive  law 
or  procedure,  incidental  to  a  subsidiary  finding  91  as  that  deciding  a  subordinate 
issue  of  fact  in  a  particular  way  renders  certain  evidence  admissible  or  inad- 
missible,92 or  that  the  court  has  or  has  not  a  discretion  in  the  matter,  may  con- 
stitute error. 

§  307.  [Action  of  Appellate  Courts] ;  Findings  of  Fact.ua —  A  finding  bv  the 
trial  judge  as  to  a  preliminary  or  subsidiary  fact  may  be  final  or  provisional, 
according  as  the  ultimate  determination  as  to  the  existence  of  the  fact  is  or  is 
not  within  the  duty  of  the  presiding  judge.  If  it  is  within  his  province  and 
is  justified  by  the  rules  of  reasoning,94  it  is  "  a  finality  as  much  as  the  verdict 
of  a  jury  upon  a  question  of  fact  "  95  and  will  not  be  reviewed  in  an  appellate 

6    Can.    Sup.    241,    245     (1882);    Mason  v.           94.  How    far.  discretionary. —  The    deter- 

Ditchbourne,  1  M.  &  Hob.  460,  462   (1835).  mination  of  a  subsidiary  question  of  fact  is 

84.  1   Chamberlayne,   Evidence,   §   556.  said  necessarily  to  rest  chiefly   "  in  the  dis- 

85.  Ritpra,  §§   147  et  seq.  cretion    of    the    presiding    judge."     Lane    v. 

86.  Xupra.  §§  226  et  seq.  Moore,  151  Mass.  87.  <)1   (1890).     This  may  be 

87.  Supra,  §§  304  et  seq.  doubted,  if  by  discretion  is  implied  irrespon- 

88.  S'j/pra,  §  415.  sible   action.     See   Com.   v.   Gray,    129    Mass. 

89.  1  Chamberlayne.    Evidence,   §   557.  474    (1880). 

90.  Rupra,  §  118.  95.   Lane  v.  Moore,   151   Mass.   87    (remote- 

91.  Com.  v.  Coe,  1 15  Mass.  481,  505   (1874).       ness    of    declarations    showing    mental    con- 

92.  Com    v.  CJray.  129  Mass.  474   (1880).  dition)    (1890)  ;   .State  v.  Pike,  49  N.  H.  399 

93.  1  Chamberlayne,   Evidence,  §   558.  (1870). 


145  APPELLATE  COURTS.  §§  30S-310 

court  in  a  civil96  or  criminal97  proceeding;-  unless  the  judge  sees  fit  to 
permit  a  revision.98  But  in  respect  to  failure  to  exercise  the  faculty  of  reason 
in  making  an  inference  of  fact  the  appellate  court  stands  to  the  judge  presiding 
at  nisi  ijrius  in  much  the  same  position  that  the  presiding  justice  himself  occu- 
pies as  regards  the  trial  jury.  To  fail  in  exercising  the  reasoning  faculties 
through  ignorance,  prejudice,  lack  of  competent  evidence  upon  which  a  finding 
could  be  based,9"  or  for  any  other  cause,  is  in  violation  of  the  rule  of  substantive 
law  requiring  the  use  of  reason  and  is  subject  to  correction  on  review  at  the 
hands  of  an  appellate  court. 

§  308.  [Action  of  Appellate  Courts] ;  Facts  Conditioning  Admissibility.1 — 
While  the  action  of  the  presiding  judge  in  submitting  evidence  to  the  jury  is 
not  reversible  in  an  appellate  tribunal,  if  the  finding  of  a  preliminary  fact 
necessary  to  admissibility  is  logically  permissible,  the  party  may  ask  that  the 
jury  in  discharging  their  function  of  weighing  the  evidence  submitted,  should 
reverse  the  rinding  of  the  judge  as  to  the  existence  of  the  preliminary  fact. 
The  usual  effect  of  the  ruling  that  evidence,  the  admissibility  of  which  is  con- 
ditioned upon  the  existence  of  a  preliminary  fact,  may  be  laid  before  the  jury, 
is  merely  that  sufficient  facts  have  been  made  to  appear  to  convince  the  judge 
that  the  jury  may,  within  the  bounds  of  reason,  find  that  the  preliminary  fact 
exists.2  The  ruling  merely  places  the  matter  before  the  jury.  It  fails  to  give, 
in  any  sense,  to  the  existence  of  the  conditioning  fact  the  probative  weight 
of  the  judge's  unqualified  endorsement. 

§  309.  [Action  of  Appellate  Courts] ;  Competency  of  Witnesses.3 —  For  exam- 
ple, the  rinding  as  to  the  competency  of  a  witness  is  not  final;  4  where  the  evi- 
dence is  reported  for  the  purpose,  but  will  be  revised  though  with  hestiancy 
and  caution.5 

§  310.   [Action  of  Appellate  Courts] ;  Administrative  Function  of  Trial  Judge.6 

—  It  is,  as  has  been  .said,7  the  essential  characteristic  of  judicial  administration 
that  it  is  governed  by  the  use  of  enlightened  reasoning.  The  necessity  for  em- 
ploying legal  reason  is  the  only  limitation  upon  its  exercise.  H$ot  the  result, 
but  the  process  of  reaching  it.  is  in  the  control  of  an  appellate  court.  If  the 

96.   Walker  v.  Curtis.   116  Mass.  98    (gemi-  2.  Com  v.  Robinson,  146  Mass.  571    (1888). 

ineness  of  papers)    (1874)  :  O'Connor  v.  Hal-  3.   1   Chamberlayne,    Evidence.    §    560. 

linan,  103  Mass.  547   (competency  of  wife  as  a  4.  Udy  v.  Stewart,  10  Chit   Rep.  501    (1886) 

witness)    (1870).  It  has  been  properly  held,  however,  that  un- 

97  Com.  v.   Robinson,   146  Mass.  571    (gen-  less  some  rule  of   law  has  been  wrongly  ap- 

eral  scheme  or  plan)    (1888):  Com.  v    Gray,  plied,  the  finding  is  not  a  subject  of  excep- 

129    Mass.     474     (1880);     Com.     v.     Culver.  tions.     Com.  v.  Mullins,  2  Allen   (Mass.)   295 

126  Mass.  464   (confession  voluntary)    (1879).  (1861). 

98.  Com.     v.     Robinson,     146     Mass.     571  5.   Peterson  v.  State,  47  Ga.  524    (1873). 
(1888)                                                                                   6.   1    Chamberlayne,    Evidence,    §    561. 

99.  Com.    v.    Williams,    105    Mass     62,    68  7.  Kxpra,  §   74. 

(1870).  8.  Chicago,  etc.  tty.  Co    v.  Shenk,  131  111. 

1.   1  Chamberlayne,    Evidence.    §    559.  283,  23  N.  E.  436   (1890). 


§§    311-313  FiTBTHEBANCE    OF    JUSTICE.  146 

administrative  act  of  the  trial  judge  is  defensible  on  grounds  of  legal  reason- 
ing, it  will  stand.  If,  on  the  contrary,  it  is  not  supportable  on  these  grounds 
the  discretion  is  said  to  be  "  abused  "  and  the  action  is  reversed.8 

§  311.  [Action  of  Appellate  Courts] ;  Executive  Function  of  Trial  Judge.9— 

The  action  of  a  presiding  judge  in  enforcing  obedience  to  his  orders  or  in  pro- 
tecting the  administration  of  justice  is  part  of  his  function  as  judge,  and,  so 
long  as  his  acts  are  done  under  the  guidance  of  reason,  their  propriety  is  not 
reversible  in  an  appellate  court.10  It  has  even  been  held  that  if  the  trial  judge 
had  jurisdiction  his  action,  reasonable  or  unreasonable,  will  not  be  re- 
versed.11 

§  312.  [Action  of  Appellate  Courts] ;  All  Intendments  Made  in  Favor  of  Trial 
Judge.12 —  .Xo  mere  irregularities,  not  prejudicing  the  substantive  rights  of  the 
person  claiming  relief  against  an  order  for  contempt,  will  be  permitted  to  affect 
the  action  of  the  trial  judge.13  For  a  reversal,  the  difficulty  with  prior  pro- 
ceedings must  be  so  radical  that  they  are,  in  whole  or  in  part,  void.14  Every 
fact  found  by  the  trial  judge  will  be  assumed  to  be  correct,  all  intendmeuts 
being  made  in  its  favor.15  Indeed,  it  might  fairly  be  said  that  questions  of 
fact  will  not  be  deemed  reviewable  at  all,16  so  long  as  the  rules  of  reason  are 
observed,17  including,  as  seems  proper,  within  the  term  "  matter  of  law,'7  any 
violation  of  the  rule  that  in  all  judicial  proceedings  reason  must  be  em- 
ployed.18 Revision  properly  extends  merely  to  matters  of  law.19 

§  313.  [Action  of  Appellate  Courts] ;  Powers  of  an  Appellate  Court.20 —  In 
matters  of  contempt  an  appellate  court  has  the  same  power  as  in  other  error  in 
law.21  Regarding  questions  of  fact  wherever  reason  has  been  followed  by  the 

9.  1  Chamberlayne,    Evidence,    §    562.  C.  578,  41  S    E.  784   (1902).     But  see  In  re 

10.  State  v.  Archer,  48   Iowa   310    (1878):  Deaton,  105  X    C.  59,   11   S.   E.  244    (1890); 
Bagley  v.  Scudder,  06  Mich.  97,  33  X    W.  47  State   v.    McKinnon.   8   Or.   487    (1880). 
(1887);   Watrous  v.   Kearney,  79  N.  Y.  496  17.  The  facts   found  by  the  judge   in   con- 
(1880)     [affirming    (X.    Y. )     11    Hun    584]:  tempt  proceedings  are  not  reviewable  on  ap- 
Murray  v.  Berry,   113  N.  C    46,   18  S. 'E.  78  peal,  except  for  the  purpose  of  passing  upon 
(1893);  West  v.  State,  1  Wis.  209   (1853).  their    sufficiency    to    warrant    the    judgment. 

11.  In   re   Consolidated    Rendering   Co,   80  Green  v.  Green,  130  .N.  C.  578,  41   S.  E.  784 
Vt.  55,  66  Atl.  790  [affirmed  in  207  U   S.  541,  (1902). 

28  S.  Ct.   178]    (1907).  18.   Green  v.  Green,  130  X.  C.  578,  41 'S.  E. 

12.  1  Chamberlayne.    Evidence,   §   563.  784   (1902). 

13.  Indiana.—  Hawkins  v.   State,    126   Ind.  19.  State  v    Seaton.  61  Iowa  563,  16  X.  W. 
294.  26  -\.  E.  43   (1890).  73(i    (1883);    Bradley   v.    Veazie;  47   Me.    85 

14.  Drady  v.   Dist.   Court  of   Polk   County  (1860). 

(Towa  190o),   102  X.  W.   115:   Ex  p    Keeler,  \eic    York. —  In    re    Blumenthal.    22   Misc. 

45  S.  C.  537,  23  S.  E.  865,  55  Am.  St.  Rep.  704,  50  N.  Y.  Suppl.  49   (1898)    [affirming  22 

785,   31   L.  R.   A.   678    (1895)  Misc.  764.  48  X.  Y.  Suppl.  1101    (1897)]. 

15.  Gunn  v    Calhoun,  51   Ga.  501    (1874);  20.   1   Chamberlayne,  Evidence.  §§  566,  567. 
Park  v    Park.  80  X.  Y.   156    (1880).  21.  Questions  finally  determined  by  the  ap- 

16.  TTolIv  Mfsr.  Co.  v.  Venner.  143  X.  Y.  639,  pellate    court    are   res    adjudicata.     Ryan    v. 
37  X.  E.  648   (1894)  ;  Green  v.  Green,  130  X.  Kingsbery,  89  Ga.  228,  15  S.  E.  302  (1892). 


APPELLATE  COURTS. 


§  314 


trial  judge  there  will  be  no  reversal  merely  because  the  exercise  of  reason 
might  have  led  the  appellate  court  to  a  different  conclusion.22 

§  314.  [Action  of  Appellate  Courts] ;  Modification  of  Action.23 —  Instead  of 
reversing,  the  appellate  court  may  modify  the  order  of  t~e  trial  judge,24  as  by 
reducing  a  tine  imposed  by  him 25  to  the  statutory  limit.26  The  appellate 
court  may  make  any  orders  incidental  to  carrying  out  its  decree;  —  e.g.,  pro- 
vide for  enforcing  a  modification.27 

22.  In   re   Chesseman,   49    X.   J    L.    llo,   6      X     \'.    Suppl.    314,    52    N.    Y.    St.    Rep.    516 


Atl.  513,  60  Am.  Rep    596   (1886). 

23.  1  Chamberlayne,  Evidence,  §§  568,  569. 

24.  Turner    v.    Com.     (Ky.),    2    Mete.    619 
(1859j. 

25  Buffalo  Loan.  Trust,  etc.,  Co.  v.  Medina 
Gas,  etc.,  Co.,  74  X  Y.  Suppl.  486,  68  App. 
Div.  414  il902). 

26.  Luedeke   v.    Coursen,   3  Misc.   559,  23 


(1893). 

As  to  costs  in  the  appellate  court,  see 
Tucker  v.  Oilman,  37  N.  Y.  St.  Rep.  958,  14 
N.  Y.  Suppl.  392,  20  N.  Y.  Civ.  Proc.  397 
(1891). 

27.  Oilman  v.  Byrnes,  10  N.  Y.  Civ.  Proc. 
46  (1886). 


CHAPTER  VIII. 

JUDICIAL  KNOWLEDGE. 

Knowledge,  315 

Knowledge  of  law ;  in  general,  316. 
Common  and  judicial  1,-non-ledge,  317. 
Judicial  vs.  personal  knowledge ;  judge,  318. 

judge  as  witness,  319. 

jury,  320. 

Scope  of  judicial  knowledge  of  law,  321. 
Judicial  knowledge  of  common  law;  national  courts,  322. 

state  and  provincial  courts,  323. 
Judicial  knowledge  of  international  law,  324. 
Judicial  knowledge  of  law  merchant,  325. 
Judicial  knowledge  of  written  law ;  extension  and  intension,  326. 

treaties,  327. 

national  courts,  328. 

state  and  provincial  courts,  329. 

local  courts,  330. 

amendment  and  repeal,  331. 

what  statutes  <ire  public,  332. 
How  judicial  knowledge  of  law  is  acquired,  333. 
Judicial  know-ledge  of  the  results  of  law,  334. 

official  proceedings,  335. 

executive  department ;  nation,  336. 
state  337. 

public  surveys,  338. 
rules  and  regulations;  nation,  339. 
signatures  and  seals:  national.  .'J40. 

legislative  department ;  general  facts,  341. 

judicial  department ;  general  facts,  342. 
attorneys  and  counsel,  343. 
court  records,  papers,  etc.,  344. 

§  315.  Knowledge. —  Pacts  as  to  which  no  proof  need  be  offered  may  be 
designated,  respectively,  as  judicial  knowledge  and  common  knowledge.  Judi- 
cial knowledge  is  that  which  the  judge  has,  or  is  assumed  to  have  by  virtue  of 
his  office;  —  virtiite  officii.  It  covers,  in  main,  propositions  of  law  and.  to  a 
limited  extent,  facts  established  as  the  direct  result  of  legal  provisions.  Com- 

148 


149  KNOWLEDGE  OF  LAW.  §§  310-318 

moii  knowledge  is  the  property  of  judge  and  jury  alike,  equally  with  any 
other  well  informed  members  of  the  community.  It  is  confined  to  matters  of 
fact.1  Common  knowledge  may  be  divided  into  (a)  that  which  is  general 
among  the  community  —  to  which  the  generic  term  "  common  "  may  be  deemed 
appropriate,  and  (b)  the  technical  knowledge  which  is  general  among  mem- 
bers of  a  class,  trade  or  profession.  This  class  or  species  of  knowledge  may  be 
designated  as  special.2 

§  316.  Knowledge  of  Law;  In  general.3 — To  announce  and  enforce  the  pro- 
visions of  a  certain  code  of  laws,  subsantive  or  procedural,  is  one  of  the  judicial 
powers  of  the  court;  *  knowledge  of  that  code  is  therefore  an  essential  attribute 
of  the  office.  Cognizance  of  these  rules  of  law  is  not,  like  that  of  facts  in  gen- 
eral," something  which  comes  to  the  judge  from  wihout,  i.e.,  dehors  the'  judi- 
cial office.  Knowledge  of  domestic  law  is  intrinsic  in  the  judge,  whose  action, 
in  this  respect,  binds  the  jury  and  is,  for  the  purposes  of  the  case,  final  as  to 
the  rights  of  the  parties.6 

§  317.  Common  and  Judicial  Knowledge.7 —  Essential  differences  exist  be- 
tween the  knowledge  which  a  judge  has  of  the  domestic  law  of  the  jurisdiction 
which  he  is  set  to  enforce,  and  that  general  information  which  is  fairly  to  be 
designated  as  common  knowledge.8  Knowledge  of  notorious  facts,  i.e.,  com- 
mon knowledge,  the  judge  may  be  assumed  to  share  with  other  intelligent  men. 
But  he  may  decline  to  notice  the  existence  of  such  facts  and  may  require  that 
they  be  proved.  Knowledge  of  domestic  law  the  judge  must  have.  He  has 
no  option  or  discretion  as  to  whether  he  will  have  it  or  not.  It  is  his  elementary 
duty  to  know  the  rules,  to  state  them  for  the  guidance  of  the  jury  and  fully  to 
determine,  for  the  purposes  of  the  trial,  the  legal  rights  of  the  parties.  He  is 
not  at  liberty  to  decline  to  rule  as  to  his  judicial  knowledge  until  the  parties 
supply  him  with  actual  information, —  as  he  might  do  in  a  matter  of  common 
knowledge:  he  must  rule.  The  parties  have  not  only  the  right  to  insist  that 
the  judge  should  act,  but  to  insist  that  he  shall  act  right.9  Should  he  fail  to 
do  so,  it  is  error;  —  for  which  redress  will  be  furnished  on  taking  appropriate 
steps.1" 

§  318.  Judicial  vs.  Personal  Knowledge;  Judge.11 — Judicial  knowledge  is  not 

1.  1  Chamb.,   Ev.,   §  oTO.  and    "judicial    notice"   are   used    practically 

2.  1  ("hanilj.  Ev.,  §§  f>70.  870  et  seq.  indiscriminately,  to  cover  two  very  dissimilar 

3.  1  Chamberlayne,   Evidence,  §  571.  set  of  facts  —  those  which  the  judge  knows 

4.  I  Chamh  ,   Ev..  Jj§  69,   165.  qua  judge  and   those   facts   which   every   one 

5.  1  Chamb.,  Ev..  §§  6.  7.  knows.     It    has    been    deemed    advisable    to 

6.  1  Chamb.,   Ev..   §   571.  disassociate   these   two   classes   of   fact    from 

7.  1  Chamberlayne.  Evidence.  §  572.  under   the  common   designation   of  "  judicial 

8.  1  Chamb.,  Ev.,  §  601  et  seq.  knowledge." — reserving     the     phrase     exclti- 

9.  1  Chamb..   Ev.,   §§   3  So   et  seq.  sively   for   those   which    are   part    of   the   ju- 

10.  1   Chamb.,  Ev .  §  572.  dicial    office      1    Chamb..   Ev..   §   578 

"  Judicial  Notice." —  As  usually  employed.          11.  1  Chamberlayne,   Evidence.   §  574. 
"  judicial  knowledge,"  ''  judicial  cognizance  " 


318 


JUDICIAL  KNOWLEDGE. 


150 


the  personal  knowledge  of  the  judge.12  To  a  certain  extent  a  presiding  judge 
may  use  his  knowledge  of  facts  provided  these  are  not  part  of  the  res  gestw  of 
a  case.  lie  may  properly  cognize  facts  which  are  notorious  in  the  community 
because  arising  out  of  celebrated  or  protracted  litigation  13  or  known  to  him, 
because  established  in  judicial  proceedings  before  him  in  the  same  14  or  an- 
other lf>  case.  He  may  even  remember  that  he  has  done  something  now  on 
record  in  his  court.16  In  none  of  these  cases,  is,  it,  strictly  speaking,  the 
particular  17  knowledge  of  the  judge,  as  an  individual.  That  a  presiding  jus 
tice  cannot  give  judgment  on  his  personal  and  private  knowledge  is  well  estab- 
lished.18 Where  he  possesses  particular  knowledge  19  which  is  important  to 
the  cause  of  justice  it  is  the  duty  of  the  judge  to  take  the  stand  as  a  witness.20 
even  when  presiding  at  the  trial.21 

A  judge  may  judicially  know  the  law  22  or  procedure  of  an  American  state, 
the  law  23  or  procedure  of  a  ^foreign  country,  or  facts  notorious  in  the  limited 
professional  community  of  which  the  judge  is  a  member.24  In  a  sense,  this 


12.  Steenerson  v.  K.  Co.,  69  Minn.  353,  72 
N.  W.  713    (1897). 

13.  Davies  v.  Hunt,  37  Ark.  574  ( 1881 ) . 

14.  Robertson  v.  Meyers,  7  U.  C.  Q.  B.  423 

(1850). 

15.  People  v.  Lon,   Yeck,   123  Cal.  246,  55 
Pac.  984    (1899),  Chinese  perjury;   Bryan  v. 
Beekley,    Litt    Sel.    Cas.    (Ky.)   *91,    12   Am. 
Dec.   276    (1809);    Graham   v.   Williams,   21 
La.  Ann.  594   (1869),  foreign  statute:  Hatch 
v.    Dunn,    11    Tex.    708    (1854),    colonization 
contract:    U    S.  v.  'L'eschmaker,  22  How.    (U. 
S.)  392,  16  L.  Ed.  353  (1859),  foreign  statute, 
land   office   procedure. 

16.  Secrist   v.    Petty,    109   111.    188    (1883), 
signed  paper:  Robertson  v.  Meyers,  supra: 

17.  1  Chamb.,  Ev.,  §  570. 

18.  Bank    of    British    North     America    v. 
Sherwood,  6  U.  C.  Q.  B.  213    (184!))  :   Fox  v. 
State,    9    Ga     373,    376     (1851),    credibility: 
Dines    v.    People,    39    111.    App.   565    (1890); 
Stephenson  v.  State,  28  Ind.  272   (1867),  age 
from  inspection ;  State  v.  Edwards,  19  Mo.  675 
(1854),  previous  conviction;  Smith  v.  Moore, 

3  How.  (Miss.)  40  (  1838),  person  has  a  mania 
a  potit;  State  v.  Chase  County  School  Dist. 
No.  24,  38  Neb.  237.  56  N.  W.  701  (1893), 
false  statements  in  pleadings:  Purdy  v  Erie 
R.  Co.,  162  X.  Y  42,  56  N.  E.  508,  48 
L.  R.  A.  669  (1900):  Cassidy  v.  McFarland, 
139  N.  Y.  201.  34  N.  E.  893  (1893),  case 
suitable  for  a  reference:  Amundson  v.  Wilson, 
11  N.  D.  193.  91  N.  W.  137  (1902),  witness 
cannot  be  excluded  because  he  proposes  to 
,estify  contrary  to  the  court's  knowledge; 


State  v.  Horn,  43  Vt.  20  (1870),  law  of 
another  state;  Halaska  v  Cotzhausen,  52  Wis. 
G24,  9  N.  W.  401  ( 1881 ) ,  judge's  knowledge  of 
legal  services  rendered  in  a  cause  tried  before 
him,  considered. 

19.  Brown  v.  Lincoln,  47  N.  H.  468  ( 1867 ) , 
where  a  judge  familiar  with  a  signature  ad- 
mitted it  a  prima  facie  genuine;    Wisconsin 
Central  Ry    Co.  v.  Cornell  Univ.,  49  Wis.  162 

(1880),  judge's  personal  knowledge  of  a 
portion  of  a  state  considered;  Griffing  v. 
Gibbs,  2  Black.  (  U.  S.)  519,  17  L.  ed  353 
(1862).  "The  justice  cannot  act  from  his 
own  knowledge  and  call  that  knowledge 
proof."  Rosekrans  v.  Antwerp,  4  Johns.  239 
(1809),  sickness  of  witness.  For  a  magis- 
trate to  act  precisely  on  his  personal  knowl- 
edge, as  by  excluding  a  witness  because  he 
proposes  to  testify  to  a  fact,  which,  as 
the  judge  says,  Shafer  v.  Eau  Claire,  105, 
Wis.  239,  81  N.  W.  409  (1900)  is  "contrary 
to  what  I  know  to  be  the  fact  from  my  own 
personal  knowledge."  constitutes  error. 

20.  Hoyt  v.  Russell,  117  U.  S.  401   (1886). 

21.  1   Chamb.,   Ev.,  §  574. 

22.  Herschfeld  v.  Dexel,  12  Ga.  582  (1853)  ; 
Rush  v.  Landers.  107  La.  549,  35  So.  95,  57 
L.  R.  A.  353    (1901)  ;   State  v.  Rood,   12  Vt. 
396    (1840). 

23.  Arayo  v.  Currel,  1  La.  528,  20  Am.  Dec. 
286    (1830). 

24.  People  v.   McQuaid,   85  Mich.    123,   48 
N.    W.    161,   value   of   unofficial    publications 
(189-1)  :   Day  v.  Decousse,   12  L.  C.  Jur.  265 
(1868),  lawyer  out  of  practice. 


151  PEKSO^AL  KNOWLEDGE.  §§  319, 320 

knowledge  is  personal  to  the  judge,  lie  caimot  be  required  to  know  such 
facts,  as  would  be  the  case  were  the  law  or  procedure  domestic.  More  prop- 
erly, however,  the  knowledge  is  used,  as  a  rule,  to  expedite  the  judicial  business 
before  the  court,25  and  is  a  fair  exercise  of  the  function  of  administration.26 

§  319.  Judicial  vs.  Personal  Knowledge;  Judge  as  Witness.27 —  The  early  Eng- 
lish practice  authorized  a  judge  to  testify  as  a  witness  even  before  a  jury  at  a 
trial  over  which  he  was  himself  presiding  or  before  a  court  of  which  he  was  a 
member.28  Later,  in  England,  doubts  as  to  the  propriety  of  such  a  course 
were  expressed,29  especially  where  the  judge  which  testifies  is  sole  judge  pre- 
siding at  the  trial.30  The  courts  of  the  United  States  receive  the  evidence  of 
a  judge,  whether  that  of  a  single  judge  presiding  at  the  trial,31  or  one  of  a 
number  of  judges  before  whom  a  trial  is  being  held.32  Grave  doubts  as  to  the 
propriety  of  the  practice  have,  however,  been  entertained.33 

§  320.  Judicial  vs.  Personal  Knowledge;  Jury.34 —  The  law  is  now  settled  that 
a  juryman  is  not  at  liberty  to  use  his  individual  knowledge,  to  act  on  his  own 
knowledge  as  to  probative  or  deliberative  facts.35  Such  facts  should  be  given 
in  evidence  by  the  juryman  as  a  witness.36  The  right  of  a  party  litigant  to 
require  the  evidence  of  a  member  of  the  panel  which  is  trying  his  case  where 
the  evidence  is  reasonably  necessary  to  proof  of  the  proponent's  contention, 
may  be  regarded  as  undoubted,  either  in  England37  or  in  the  United  States;  38 
although  it  has  been  held  that  a  juryman  may  refuse  to  tesify  if  so  minded.39 
After  testifying,  the  witness  may  return  to  his  place  on  the  panel.40 

25.  1  Chamb.,  Ev.,  §§  544  et  seq.  barrassed  in  deciding  between  the  judge  and 

26.  1  Chamb,  Ev.,  §  574.  other     witnesses.     Powers     v.     Cook      (Okla. 

27.  1   Chamberlayne,  Evidence,  §§  575-579.  1915),     149    Pac.     1121,    L.    R.    A.     1915    F 

28.  Femriek's  Trial,  13  How.  St.  Tr.  537,  766. 

667  (1696).     See  1  Chamb.,  Ev.,  §  575  34.  1  Chamberlayne,  Evidence,  §§  580-582. 

29.  Duke    of     Buccleuch     v.     Metropolitan  35.  Collins  v.  State,  94  Ga.  394,   19  S.  E. 
Hoard,  L.  R.  5  E.  &  1.  App.  429,  433   (  1872).  243   (1894)  ;  Carver  v.  Hornburg,  26  Kan.  94 

30.  K.  v.  Petrie,  SOOnt.  317,  323   (1890).  (1881);    Schmidt   v.   New  York   Union   Mut. 

31.  State  v.  Barnes,  34  La.  Ann.  395,  399  F.    Ins.    Co.,    1    Gray    (Mass.)    529    (1854); 
(1882).  Wharton  v.  State,  45  Tex.  2    (1876);   John- 

32.  State  v    Duffy,   57   Conn.   525,   18   Atl.  son  v.  Superior  Rapid  Transit  R.  Co.,  91  Wia. 
7!)1     (1889);    People    v.    Dohring,    59    X.    Y.  233,  64  X.  W.  753  (1895). 

374,    379     (1874).     See    also    cases    cited    1  36.   1  Chamb.,   Ev.,   §   580   and   cases   cited 

Chamb.,  Ev.,  §  576.  in  preceding  note. 

33.  Dabney   v.    Mitchell,   66    Ala.    495,   503  37.  Heath's  Trial,   18  How.   St.  Tr.   1,   123 
(1880);    Morss  v.   Morss,    11    Barb.    (X.   Y.)  (1744). 

510,  515    (1851).     See  1  Chamb.,  Ev.,  §  576.  38.  People    v.     Dohring,    59     X.     Y.     374 

For  discussion  of  the  objections  to  a  judge's  (1874)  ;    Chicago,   etc.,    R.    Co.    v.    Collier,    1 

testifying   as   a   witness,   see    1    Chamb.,   Ev.,  Xeb.   (Unof.)   278,  95  X.  W.  472   (1903);  and 

§§  577,  578,  579.     A  presiding  judere  in  a  jury  cases  and  statutes  cited  in  notes  to  1  Chamb., 

trial  cannot  testify  in  a  suit  pending  before  Ev.,   §   581. 

him  as  such  a  practice  would  lead  to  various  39.  Manley  v   Shaw,  Car.  &  M.  361    (1840). 

unseemly  situations.     The  judge  could  not  de-  40.  Fitzjames  v.  Moys,   1   Sid.   133    (1663). 

cidc  properly   the   admissihility   of  questions  See   1   Chamb.,  Ev..  §  581.     As  to  objections 

put  to  him  and  where  there  was   a   conflict  to  such  evidence,  see  Morss  v.  Morss,  11  Barb, 

in    the    testimony    the    jury    would    be    em-  (X.  Y.)   510;   1  Chamb. ,.Ev.,  §  582. 


§§  321,322  JUDICIAL  KNOWLEDGE.  152 

§  321.  Scope  of  Judicial  Knowledge  of  Law. —  Tribunals  of  general  jurisdic- 
tion enforce  and  apply,  and,  therefore,  judicially  know,  not  only  the  general 
body  of  statutes  enacted  by  the  law-making  body  of  tbe  forum,  but  also  any 
laws  constitutionally  promulgated  and  adopted  by  the  paramount  national 
authority  under  which  the  court  exists.  Tribunals  of  limited  or  local  juris- 
diction as  county,  circuit,  police  or  city  courts  are  required  to  know  the  local 
regulations,  municipal  ordinances,  town  by-laws  and  the  like  which  it  is  their 
duty  to  administer.  This  is  the  extent  or  extension  of  the  court's  knowledge 
of  law.  Courts  may  be  roughly  classified,  in  this  connection,  as  (a)  national, 
(b)  state  or  provincial,  (c)  local;  and  the  laws  as  to  which  knowledge  is 
predicated,  into  unwritten  and  written.41 

§  322.  Judicial  Knowledge  of  Common  Law ;  National  Courts.42 —  Courts  of 
any  national  jurisdiction  using  the  English  system  of  jurisprudence  judicially 
know  the  unwritten  common  law  of  England.  This  rule  applies  to  the  courts 
of  the  United  States,  as  the  common  law  existed  prior  to  the  independent  of 
the  American  States,  legal  doctrines  adopted  in  England  since  that  date  not 
being  judicially  known.43  Such  a  court  knows  the  rules  and  principles  of 
equity,44  while  courts  sitting  in  equity  know  the  propositions  of  civil  45  and 
criminal 4C  law  administered  by  the  common  law  courts.  National  courts 
know  the  laws  of  states,  colonies  or  provinces  over  which  they  exercise  appel- 
late jurisdiction.  Thus,  the  supreme  court  of  the  United  States,  exercising 
appellate  jurisdiction  from  the  highest  court  of  a  state,  knows  the  law  of  that 
state;47  but  judicially  knows  as  to  the  law  of  states  other  than  that  whose 
action  is  under  review,  merely  to  the  same  extent  that  the  court  appealed  from 
would  have  had  such  knowledge.48  Every  federal  court,  however,  in  its  orig- 
inal jurisdiction  knows  the  laws,49  written,50  or  unwritten,  of  any  state,51  or 
territory,  including  the  District  of  Columbia,'  which  it  is  called  upon  to  ad- 
minister,52 either  as  a  matter  of  original  jurisdiction  or  of  jurisdiction  ac- 
quired by  removal  from  a  state  court.53  And  it  necessarily  follows  from  this 
rule  that  the  Supreme  Court  of  the  United  States  when  reviewing  tfie  judgment 
rendered  in  a  federal  court  judicially  knows  the  law  of  all  the  states  and  terri- 
tories of  the  Union.54 

41.  1   Chamb.,  Ev  ,  §  583.  48.  Lloyd  v.  Matthews,   155   U.   S.  222,   15 

42.  1  Chamberlayne,  Evidence.  §§  584,  585.  Sup.  Ct.   70,  39   L.   ed.    128    (1804). 

43.  Liverpool,    etc.,    Steam    Co     v.    Phenix  49.  U.  8.  v.  Chaves,  159  U.  S.  452.  16  Sup. 
Ins.   Co.,   129   U.   S.   397,  9   Sup.   Ct.   469,  32  Ct.  57,  40  L.  ed   215    (1895). 

L.  Ed.   788    (1888).  50.   Lamar  v.  Micou,  114  U.  S.  218,  5  Sup 

44.  Nimmo  v.  Davis,  7  Tex.  26  (1851).     See      Ct.  857,  29  L.  ed.  94   (1884). 

Garzot  v.  Rios  De  Kubio    (Porto  Rico  1908),  51.  Liverpool,  etc.,  Steam  Co.  v.  Phenix  Ins. 

209  U.  S.  283.  28  Sup.  Ct.  548,  52  L.  ed.  794.  Co.,  supra. 

45.  Southgate  v.  Montgomery,  1  Paige   (N.  52.  See  Wilson  v.  Owens,  30  C.  C.  A.  257,  86 
Y.)    41    (1828).  Fed.   571     (1898). 

46.  1   Chamb.,  Ev.,  §  584,  53.   18  U.  S.  St.  at  L.  472,  §  6  (U.  S.  Comp. 

47.  Hanley   v.    Donoghue,    116    U.    S.    1,   6  St.  1901,  p.  512).                                                   , 
Sup.  Ct.  242,  29  L.  ed.  535    (1885).  54.  Lamar  v.  Micou,  supra.     I  Chamb.,  Ev  ,. 


153 


COMMON  LAW. 


§  323 


§  323.  Judicial  Knowledge  of  Common  Law;  State  and  Provincial  Courts.55 — 

The  state  courts  of  the  American  Union  know  the  common  law  of  England,86 
including  early  English  general  statutes  applicable  to  their  condition,  and  the 
principles  of  equity  jurisprudence,57  which  was  in  force  at  the  time  of  the 
separation  from  the  mother  country.  Rules  of  law  adopted  in  England  since 
that  time  are  not  judicially  known  by  the  American  courts.5*  Common  law 
courts  know,  when  sitting  at  law,  the  rules  and  principles  of  equity  jurispru- 
dence 59  and  know,  when  sitting  in  equity,  the  rules  of  ordinary  civil  and 
criminal  law ;  60  but  common  law  courts  do  not  know,  in  either  capacity,  the 
rules  of  the  ecclesiastical  law.01  A  state  court  notices  the  unwritten  law  of 
the  forum,62  including  the  unwritten  laws  of  any  country,63  state/*4  or  terri- 
tory,65 which  have  been  operative  in  any  portions  of  the  domain  which  now 
constitutes  the  jurisdiction  of  the  forum.66  Unless  required  to  do  so  by  stat- 
ute,67 the  courts  of  an  American  state  do  not  judicially  know  the  unwritten  or 
non-statutory  law  of  a  sister  state.6S  Neither  the  courts  of  England,69  nor 
those  of  the  United  States,70  judicially  know7  the  laws  of  any  foreign  country.71 
.Matters  of  notoriety  among  the  legal  profession  may  be  treated  by  the  courts  as 
matters  of  common  knowledge.72 


§  5.S.~>.     \\  hat  courts  may  take  judicial  notice. 
See  Note  Bender  Ed.  64  X    Y.  272. 

55.  1  t'hamberlayne,  Evidence,  §§  586-590. 

56.  Eureka  Springs  R.  Co.  v    Timmons,  51 
Ark.   459,    11    S.    \V.   459    (1888);    Stokes   v. 
Macken,   62   Barb.    (N.   Y.)    145    (1861) 

57.  Ximmo  v.  Davis,  7  Tex.  26    (1851). 

58.  \\ickersham  v.  Johnston,  104  Cal    407, 
-i>8   Pac.  89,  43  Am.  St.  Rep.   118    (1894) 

59.  Ximmo  v.  Davis,  supra. 

60.  Southgate  v.  Montgomery,  1  Paige   ( N. 
Y.)   41    (1828). 

61.  De  Grandmont  v.  La  Societe  des  Arti- 
sans, etc.,   16  Quebec  Super    Ct    532    (1899). 

62.  Gaylod's  Appeal,  43  Conn   82   (  1875). 

63.  Doe  v.  Enslava,  11   Ala.   1028    (1847); 
Wells  v.  Stout,  9  Cal.  480   (1858)  ;  Chouteau 
v.  Pierre,  9  Mo.  3    (1845);    Matter  of  Hall, 
61   X.  Y.  App.  Div.  266,  70  X.  Y    Supp    406 
(1901). 

64.  State    v.    Sais,    47    Tex.    307     (1877); 
Xorthwestern  Bank  v.  Maehir,  18  \V    Ya.  271 
(1881). 

65.  Crandall  v.   Sterling  Gold   Min    Co.,   1 
Colo.   106    (1868). 

66.  1   Chamb.,  Ev.,  §  586. 

67.  Hale  v.  Xew  Jersey  Steam  Xav.  Co  ,  15 
Conn.  539,  39  Am.  Dec    398    (1843). 

68.  Cox   v.   Morrow,    14   Ark.   603    (1854); 
Hendryx  v.  Evans,   120    Iowa  310,  94  X.  W. 
853    (1903):    Phenix   Tns.   Co    v.   Church.   59 
How    Pr.    (X    Y.)    293    (1880);    Bollinger   v. 


Gallagher,  170  Pa.  St.  84,  32  Atl.  569  ( 1895)  ; 
and  cases  cited  1  Chamb.,  Ev.,  §  587,  note  2. 
The  court  will  not  take  notice  of  the  lawa 
of  another  state  but  will  presume  that  the 
common  law  prevails  there  and  that  it  is  the 
same  as  that  in  the  state  of  the  forum. 
Maloney  v.  Winston  Brothers  Co.,  18  Idaho 
740,  111  Pac.  1080,  47  L.  R.  A.  (X.  S.)  634 
(1910). 

69.  Godard    v.    Gray,   L.   R    6   Q.    B.    139, 
40   L.  J.  Q    B.   62,  24   L.   T.  Rep.   N.   S.   89, 
19  Wkly.   Rep.  348    (1870). 

70.  Dianese    v.    Hale,    91     U.    S.     13,     18 
(1875).' 

71.  Bowditch     v.     Soltyk,     99     Mass.     136 
(1868)  ;  Hall  v.  Costello,  48  N.  H    176,  2  Am. 
Rep.  207   1 1868)  :  Liverpool,  etc.,  Steam  Co.  v. 
Phenix  Ins.  Co.,  129  U.  S.  397.  9  Sup.  Ct.  469, 
32    L.    ed.    788     (1888):    and    cases    cited    1 
Chamb.    Ev.,    §    589. 

72.  1   Chamb..  Ev..  §  590:   Matter  of  Hall, 
61   X.   Y.   App    Div.  266.  70  N.  Y    Supp.  406 
(1901).     The  court  will  not  assume  that  in 
Cuba    which    inherited    the    Spanish    system 
of  law  the   law   is  that  a  promise  to  repair 
defective  machinery   throws  the  risk   on   the 
master   until    the   time   for   repair   has   gone 
by  as  this  is  evidence  of  the  great  considera- 
tion   with    which    a    plaintiff    is    treated    in 
this  country  but  is  not  a  necessary  incident 
of    all    civilixed    codes.     The    court    remarks 
that  *'  It  may  be  that  in  dealing  with  rudi- 


§§  324,325 


JUDICIAL  KNOWLEDGE. 


15-i 


§  324.  Judicial  Knowledge  of  International  Law.73 —  The  courts  of  a  country 
know  the  principles  of  international  law  to  which  the  executive  department  of 
the  forum  has  assented.74  Prize  and  admiral  r  courts  judicially  know  inter- 
national law.75  They  know  the  maritime  regulations  adopted  by  the  commer- 
cial nations  as  the  law  of  the  sea.76  A  notary  public  is  judicially  known  by 
the  courts  as  existing  under  the  law  of  nations,77  and  they  will  give  effect  to 
his  seal,78  or  jurat  taken  before  him  without  seal,79  when  attached  to  an  offi- 
cial act  shown  to  have  been  valid  according  to  the  law  of  the  domicile  of  the 
notary.80  The  same  effect  will  be  given  his  act  whether  he  is  acting  in  a 
colony,  foreign  or  domestic;5*1  or  in  a  foreign  country82  or. -in  another  state 
of  the  Union,83  or  within  the  jurisdiction  of  the  court  itself.84 

§  325.  Judicial  Knowledge  of  Law  Merchant.85 —  The  law  merchant  is  part 
of  the  common  law  and,  as  such,  is  judicially  known.86  The  basis  of  the  law 
merchant  is  the  civil  law,  prevalent  on  the  Continent  of  Europe,  and  a  general 
uniformity  exists,  with  regard  to  mercantile  affairs,  between  the  common  and 
the  civil  systems  of  law.  Of  this  nature  are  laws  relating  to  partnership,87 
negotiable  instruments,88  or  banking.89 


mentary  contracts  or  torts  made  or  commft- 
ted  abroad,  such  as  promises  to  pay  money 
for  goods  or  services,  or  battery  of  the  person 
or  conversion  of  goods  courts  would  assume 
a  liability  to  exist  if  nothing  to  the  contrary 
appeared.''  Cuba  Railroad  Co.  v  Crosby, 
222  U.  S.  473,  32  Sup.  Ct.  132,  38  L  R.  A. 
(X.  S.)  40  (1912). 

73.  1   Chamberlayne,   Evidence,   §   591. 

74.  Ocean  Ins    Co.  v    Francis,  2  Wend.   (N. 
Y.)   64,  19  Am.  Dec.  549    (1828)  :  Strither  v. 
Lucas,    12    Pet.    (U.    S.)    410,   436,   9   L.   ed. 
1137    (1838);   The  Scotia,   14  Wall.    (U.  S.) 
171    (1871).     See  also  The  Paquete  Habana, 
175  U.  S.  677,  20  bup.  Ct.  290,  44  L.  ed   320 
(1899),  1  Chamb.,  Ev.,  §  591. 

75.  The  New  York,  175  U.  S.  187,  20  Sup. 
Ct.  67,  44  L.  ed.   126    (1899). 

76.  The  New   York,  supra.     See  also  Liv- 
erpool,  etc.,    Steam   Co.   v.   Phenix   Ins.   Co., 
supra;  Sears  v.  The  Scotia,  supra. 

77.  1   Chamb  ,  Ev.,  §  591      Recognition  does 
not    extend    to    the    power    to    attest    deeds. 
Neese    v.    Farmers'    Ins.    Co..    55    Towa    604 

(1881),; 

78.  Pierce  v.  Tndseth,  106  U.  S.  546,  1  Sup. 
Ct.  418.  27  L.  ed    254   (1882). 

79.  Fhielmann  v.  Burp,  73  111    293    (1874). 

80.  Neese  v    Farmers'  Ins.  Co.,  supra  ;  Orr 
v.  Lacy.  4  McLean   (U.  P.)   243,  IS  Fed.  Cas 
No.  10,  589   (1847). 

81.  Brooke  v.  Brooke,  17  Ch.  D.  833,  50  L. 


J.  Ch.  528,  44  L.  T.  Rep.    (N.  S.)  )    512,  30 
Wkly    Rep.   45    (1881) 

82.  Pierce  v.  Indseth,  supra;  Orr  v.  Lacy, 
supra. 

83.  Denmead  v.  Mack,  2  MacArthur  (D.  C.) 
475    (1876);    Carter  v.   Burley,  9   N.   H.  558 
(1838);    Halliday    v.    McDougall,   20    Wend 
(N.   Y.)    81    (1838). 

84.  Porter  v    Judson,  1  Gray   (Mass.)    17"> 
(1854)  ;  Brown  v.  Philadelphia  Bank.  0  ,Sei:: 
&  R.    (Pa.)    484,  9  Am.   Dec.   463    (1821).    1 
Chamb.,    Ev.,    §    591.     Special    powers    co:, 
ferred    by    domestic    law,    such    as    right    to 
administer  affidavits  must  be  proved   in  the 
ordinary  way      Teutonia  Loan,  etc.,  BIdg.  Co 
v.  Turrell,  19  Ind.  App.  469,  49  N.  E.  852,  65 
Am.    St.    Rep.   419    (1897).     The   validity   of 
the  acts  of  foreign  officials  discharging  func- 
tions  similar   to  those  of  a  notary  must  be 
established  by  evidence.     Chanoine  v    Fowler, 
3  Wend.    (N.  Y.)    173    (1829). 

85.  1   Chamberlayne,   Evidence,   §   592. 

86.  Jewell  v    Center,  25  Ala    498    (1854); 
Davis  v    Hanly.   12   Ark.  645    (1852);   Munn 
v.    Bnrch.    25    111.    35.    38     (I860):    Reed    v 
Wilson,  41  N.  J.  L.  29   (1879)  :   Edie  v.  East 
India  Co,  1  W.  Bl    295,  2  Burr    1216   (1761) 

87.  Cameron  v   Orleans,  etc  ,  R.  Co.,  108  La. 
83.  32  So.  208   (1902) 

88.  Sassoer   v.   Farmers'   Bank.  4   Md.   409 
(18531  :   Reed  v    Wilson,  supra. 

89.  Brandao   v.    Barnett,   3   C.    B.    519.    54 


155  WKITTEX  LAW.  -  §§  326,  32T 

§  326.  Judicial  Knowledge  of  Written  Law;  Extension  and  Intension. —  Writ- 
ten laws  may  be  conveniently  divided  into  (a)  constitutions,  (b)  public  statutes, 
(c)  private  statutes  and  (d)  municipal  regulations.  All  tribunals  in  a  juris- 
diction, regardless  of  grade,  judicially  know  the  organic  law,  or  constitution. 
Courts  of  national,  provincial  or  state  jurisdiction  judicially  know,  in  addition 
to  the  constitution,  such  statutes  as  legislation  in  the  forum  has  directed  them 
to  know.  Usually  these  are  only  public  statutes.  Occasionally  knowledge 
is  required  also  of  private  statutes.  Judicial  knowledge  of  local  or  municipal 
regulations  is  confined  to  the  local  tribunals  of  limited  jurisdiction  whose  dis- 
tinctive duty  it  is  to  enforce  such  minor  enactments ;  but  who  are,  at  the  same 
time,  charged  with  judicial  knowledge  of  the  more  general  statutes  known  to 
the  superior  courts.  Such  is  the  judicial  knowledge  of  written  law  in  exten- 
sion;—  the  breadth  of  its  application.90  In  intension,  or  depth,  this  judicial 
knowledge  of  written  law  covers  the  following  particulars:  (a)  The  exist- 
ence of  the  law  in  question,  including  the  date  at  which  it  went  into  effect,91 
was  suspended  92  or  repealed ;  9:5 —  so  far  as  these  facts  are  ascertainable  from 
the  legislative  records  themselves  or  by  a  resort  to  customary  sources  of  infor- 
mation regarding  official  proceedings.  Judicial  knowledge  is  not  demanded 
when  it  can  be  acquired  only  by  ascertaining  a  fact  in  pais.94  The  burden  of 
establishing  facts  in  pais  rests  on  the  party  claiming  their  existence.95  (b)  A 
knowledge  as  to  the  direct  results  accomplished  by  the  statute.96  (c)  Knowl- 
edge of  facts  recited  or  recognized  in  the  written  law  will  be  judicially  known 
to  any  court  whose  knowledge,  in  extension,  covers  the  written  law  itself.97 

§  327.  Judicial  Knowledge  of  Written  Law;  Treaties.98 — By  constitutional 
provision,  treaties  legally  made  by  the  national  executive  are  declared  to  be 

K.  C.  L.  51!),  12  Cl.  &  F.  787,  8  Eng.  Reprint  94.  Stein  v.  Morrison,  9  Idaho  426,  75  Pac. 

1(522     (1846).     A    judge    is    not    required    to  240;    .Shaw  v.  Xew  York  Cent.,  etc.,  R.   Co- 

hear  evidence  as  to  the  law  merchant  to  an  85   X.   V.  App.  Div.   137,  83  X.  Y.   Supp.   91 

effect    contrary    to    his    judicial    knowledge.  (1903);    Doyle    v.    Village   of    Bradford,    90 

Jewell  v    Center,  supra.  111.  416    (1878):    Whitman  v.   State,  80  Md. 

90.  1   Chamb.,  Ev  .  §  593.  410,  31  Atl.  325  (1895)  ;  1  Chamb.,  Ev.,  §  594 

91.  Moss  v.  Sugar  Ridge  Tp.,  161  Ind.  417,  and  cases  cited. 

68    X.    E     S'.»6    (1003);    Ottman   v.   Hoffman,  95.  Miller    v.    Com.,    13    Bush     (Ky.)     731 

7    Misc.     (X.    Y.)    714,    28    X.    Y.    Supp.    28  ( 1878)  ;  People  v.  State  Land  Office,  23  Mich 

(1894)  ;   1  Chamb.,  Ev.,  §  594  and  cases  cited  270    (1871*. 

The   court   may   take    judicial    notice   of   the  96.  Calloway  v.  Cossart,  45  Ark.  81  (1885); 

history   of   a   statute   and   the   circumstances  La  Salle  Co.  v.  Milligan,  143  111   321   (1892); 

surrounding    it.     Industrial     Commission    v.  Grant  v    State,  33  Tex.  Cr.  R.  527.  27  S.  W. 

Brown,  Ohio  St.  110  X.  E.  744.  L.  R    A.  1016  127    (1804)  :   1  Chamb.  Ev.,  §  595  and  cases 

B  1277   (1915).  cited. 

92.  Bernstein   v.    Humes,    60    Ala.   582.   31  97.  Boyd  v.  Conklin,  54  Mich.  583.  20  X.  W. 
Am.  Rep.  52  (1877)  :  Buckingham  v.  Walker.  "»05.  52  Am.  Rep   831   (1884*  :  Watkins  v.  Hol- 
48  Miss.  609    (1873).  man.    16   Pet.    (U    S.)    25.  55,  56,   10   L.  ed. 

93.  State    v.    O'Conner,    13    La.    Ann.    486  S73    (1842);   1  Chamb.,  Ev.,  §  506  and  cases 
(1858);    Springfield    v.    Worcester,    2    Cush.  cited. 

i  Mass  )    52    (1848).  98.  1  Chamberlayne,  Evidence,  §  597. 


§  328  JUDICIAL  KNOWLEDGE.  156 

the  supreme  law  of  the  laud.  The  judges  of  all  American  courts,  state  "  or 
federal,1  will,  therefore,  kuow  of  the  existence  and  provisions  ~  of  treaties  with 
foreign  nations  or  Indian  tribes.3  Protocols  and  schedules  attached  to  a 
treaty,4  its  date,5  the  date  of  its  ratification0  and  all  other  facts  necessary  to 
its  legal  validity  have  been  deemed  part  of  the  treaty  itself.7 

§  328.  Judicial  Knowledge  of  Written  Law;  National  Courts.8 — Tribunals  of 
national  jurisdiction  know  judicially  the  written  constitution  which  formulates 
the  fundamental  law  of  the  sovereignty  under  which  they  are  acting,  and  the 
constitution  of  each  province  or  state  within  its  jurisdiction.  The  federal 
courts  judicially  know  the  Constitution  of  the  United  States  and  its  amend- 
ments.9 

Public  Statutes. —  National  tribunals  know  judicially  the  public  statutes 
passed  by  the  national  legislature.  As  English  courts  know  the  acts  of  Parlia- 
ment, so  the  federal  courts  of  the  United  States  judicially  know  the  public 
statutes  enacted  by  Congress.10  A  national  court  will  also  know  judicially 
the  public  statutes  of  every  province  or  state,  whose  jurisdiction  it  administers 
by  virtue  of  an  appellate  jurisdiction.  This  includes  the  then  existing  statutes 
of  prior  governments  which  at  any  time  exercised  sovereignty  over  the  territory 
in  question;  —  whether  the  control  were  colonial,11  provincial,  or  in  some 
other  form.12 

Private  Statutes. —  A  court  of  national  jurisdiction  does  not  judicially 
know  the  private  acts  of  the  national  legislature,  nor  the  private  acts  of  the 
state  whose  public  statutes  it  knows,13  except  where  the  statute  expressly  re- 
quires such  knowledge.14 

Foreign  Statutes.—  The  national  courts  of  a  country  do  not  judicially  know 

99.  La  Rue  v  Kansas  Milt.  L.  Ins  Co.,  68  supra.  A  superseded  treaty,  being  no  longer 
Kan.  539,  75  Pac.  494.  law,  is  not  judicially  known  Ryan  v.  Knorr, 

1.  Knight  v.  rnited  Land  Assoc  ,  142  U.  S.       19  Hun    (X.  Y  )    540    (1880). 

161,  12  Sup.  Ct.  258.  35  L    ed.  974    (1891);  8.   1   Chamberlayne,  Evidence,  §§  598-601. 

Callsen  v    Hope,  75  Fed.  758   (1896)  9.  Young  v.    Montgomery,   etc.,    R.   Co.,   30 

2.  La    Rue    v.    Kansas    Mut.    L.    Ins.    Co.,  Fed.  Cas.  No.   18,   166,  2  Woods    (U.  S.)    606 
supra.  (1875)  ;   1  Chamb.,  Ev..  §  598  and  cases  cited 

3.  U.  S.  v.  Beebe,  2  Dak.  292,  11  N.  W.  505  10.  Pennsylvania  R.  Co.  v    Baltimore,  etc., 
(1880)  :  Dole  v.  Wilson.  Ifi  Minn.  525  (1871).  R.  Co.,  37  Fed.  129   (1888)  ;    1  Chamb.,  Ev.,  § 

4.  Callsen  v.  Hope,  supra.  599  and  oases  cited. 

5.  Kreuger  v.  Schultz,  6  N.  D.  310,  70  N.  W.  11.  Loree  v.  Aimer.  6  C.  C    A.  302,  57  Fed. 
269    (1896).  159   (1893)  :  Municipality  of  Ponce  v.  Roman 

6.  Carson    v.    Smith.   .1    Minn.    78,    77    Am.  Cath.  A.  Church,  etc.   (Porto  Rico  1908),  210 
Dec    539    (1860).  U.  S.  296,  28  Sup.  Ct.  737.  52  L.  ed.  1068. 

7.  1   Chamb..  Ev.,  §  597  and  cases  cited.  12.    1   Chamb  ,  Ev.,  §  599  and  cases  cited,  in 
Acts   done   under   a   treaty,   foreign    laws,      notes  3-7 

usages,  or  other  facts  referred  to  therein,  un-  13.  Leland  v.  Wilkinson,  6  Pet    (U   S.)  317, 

less  cogni/able  as  matters  of  notoriety,  i.e.,  of  8  L.  ed.  412   (1832). 

common   knowledge,  are   secondary   effects  of  14.  Case  v.  Kelly,  133  U.  S.  21,  10  Sup.  Ct. 

law  which  will  not  be  judicially  known.     Dole  216,  33  L.  ed.  513    (1889)  :   Junction  Ry.  Co 

v.  Wilson,  supra:  Dainese  v.   Hale,  91   U.   S.  v.  Ashland  Rank.  12  Wall.  (U.  S.)  226.230,20 

13,  23   L.   ed.    190    (1875);    U.    S.   v.   Beebe,  L.  ed.  385  (1870):  1  Chamh.,  Ev.,  §  600. 


157  WRITTEN  LAW.  §  329 

the  public  laws  of  another  country,15  except  such  as  may  be  known  by  them 
as  part  of  general  international  law.10 

£  329.  Judicial  Knowledge  of  Written  Law;  State  and  Provincial  Courts.17— 
All  courts  of  a  state  judicially  know  the  written  Constitution  of  the  United 
States  18  and  amendments  to  it  subsequently  adopted.19  They  also  know  the 
direct  results  accomplished  by  the  instrument,  as  the  division  of  the  powers  of 
the  national  government  among  the  three  great  departments,  the  legislative, 
executive,  and  judicial.20  State  courts  know  the  state  constitutions  and  the 
adoption  of  amendments  to.it.21  They  know  judicially  the  effect 'of  a  state 
constitution  not  only  as  to  its  direct  enactments,  but  as  to  any  results  in  re- 
pealing statutes.-2 

Constitutional  Requirements  for  Statutory  Enactments. —  To  know  a  statute, 
it  is  necessary  that  the  judge  should  ascertain  that  the  facts  essential  to  its 
validity  actually  exist  —  that  constitutional  requirements  have  been  complied 
with.2* 

National  Statutes. —  The  courts  of  a  province  or  state  know  the  public 
statutes  passed  by  the  national  legislature.  The  domestic  tribunals  of  the 
states  of  the  American  Union  judicially  know  the  public  acts  of  Congress,24 
including  those  \vhich  relate  to  the  District  of  Columbia,25  and  also  the  laws 
of  sister  states  which  are  referred  to  in  such  an  act.26 

Xtate  titatutvs. —  State  courts  know  the  public  statutes  of  the  state  legisla- 
ture, and  any  other  statutes  which  the  legislature  or  the  constitution  directs 
that  they  shall  know.27  Provincial  courts  know  the  public  statutes  of  the 
legislature  of  the  forum  under  which  they  are  constituted.28 

15.  Coghian  v.  South  Carolina  K.  Co.,   142  24.  St.   Louis,  etc,  R.  Co.  v.  Brown,  supra; 
I.    S.    101,    12    Sup.    Ct.    150,   35    L.   ed.    951  Schwerdtle   v     Placer   County,    108   Cal.   589, 
(1891);     1    Chamb.,    Ev.,    §    001    and    cases  41    Pac.  448    (1895);   Gooding  v.  Morgan,  70 
cited.  Ill   2-75   (1873)  ;  \\heelock  v.  Lee,  15  Abb.  Pr. 

16.  The  New  York,  175  U.  S    187,  20  S.  Ct.  X    S.    i  X.   Y.)    24    (1873);    1   Chamb,  Ev.,  § 
07,  44   L    ed    126    \  reversing  82  Fed.  819,  27  604  and  cases  cited. 

C.  C.  A     154,  86   Fed.  814,  30  C.   C    A.  628)  25.  Milliken  v.  Dotson,  117  N.  Y.  App.  Div. 

(1899);    1  Chamb.,  Ev.,  §§  591,  601.  5z.< ,  102  X.  Y.  Supp    564   (1907). 

17.  1   Chamber layne.   Evidence,  §§  602-616.  26.  Flanigen  v.  Washington  Ins.  Co.,  7  Pa. 

18.  St  Louis,  etc.,  H.  Co.  v   Brown,  67  Ark.  St.  306    (1847)  ;    Belt  v.  Gulf,  etc.,   H    Co.,  4 
295,  54  a.  W.  *65   (1899)  ;  State  v.  Bates,  22  Tex.   Civ.   App    231,   22  S.   \V.   1062    (1893); 
Utah   05,   61    Pac.   905,  83   Am.   St.   Rep.  768  1   Chamb.,   Ev.,  §  604. 

(1900).  27.   Arndt  v.  Cullman,  132  Ala.  540.  31   So. 

19.  Graves   v     Keaton,   3   Cold     (Tenn.)    8  478,  90  Am.  St    Rep.  922   (1901);  Schwerdtle 
(1866).  v.    Placer    County,    supra;    Pittsburgh,    etc., 

20.  U.    S.    v.    Williams,   6   Mont.    379,   387,  H    r0    v.   Moore.    1  Hi    111    App    304    (1903); 
12   Pac    851    (1887).  Barnes  v    Squier.  19.3  Mass.  21,  78  X.  E    731 

21.  Carmody  v.   St.  Louis  Transit  Co.,   188  (1906)  :   Warner  v.   Beers,  23  Wend.    (X.  Y.) 
Mo    572.  87  S.  W.  913   M905).  103    (1840)  :    1   Chamb.,  Ev.,  §  605  and  cases 

22    Campbell    v.    Shelby   County,    147    Ala.       cited 

703,  41  So   408   (11)06)  ;   1  Chamb  ,  Ev.;  §  602  28    Darling  v.  Hitchcock,  25  U.  C.  Q.  B   463 

and  eases  cited.  (1866). 

23.  Gardner   v    Collector.   6   Wall.    ( U.   S.) 
499,  511   ;  1867)  ;  1  Chamb  ,  Ev.,  §  603. 


§  329  JUDICIAL  KNOWLEDGE.  158 

Statutes  of  Former  Sovereignties. —  Equally  domestic  are  the  public  stat- 
utes of  a  state  or  nation  which  exercised  soverignty  over  the  territory  in  ques- 
tion, and  which  were  in  force  at  the  time  such  sovereignty  was  exercised29 

Legislative  Resolutions. —  Legislative  resolutions  of  a  public  character  are 
classed  with  public  acts  and  are  accordingly  judicially  known  to  the  state 
courts.30 

Special  Acts. —  Statutes  specially  limited  by  the  legislature,  though  of  a 
public  nature,  e.g.,  a  statute  forbidding  the  sale  of  intoxicating  liquors  in  a 
particular  county,  are  judicially  known.31 

Priuate  Statutes. —  In  the  absence  of  constitutional  or  statutory  require- 
ment to  other  effect,  courts  do  not  judicially  know  private  statutes  of  a  state,32 
provincial  or  uational 33  legislature,  or  legislative  resolutions,  affecting  private 
interests.34  This  is  the  uniform  rule  though  the  purpose  is,  in  a  sense,  public; 
—  as  where  a  private  act  incorporates  an  association  for  business  purposes,35  or 
affecting  a  municipal  corporation.30  The  constitution  or  the  legislature  may, 
however,  require  that  certain  private  statutes  shall  be  deemed  public,  i.e.,  shall 
be  judicially  known  to  the  court  as  would  be  the  case  with  public  statutes.37 
The  private  act  may  be  recognized  in  the  state  constitution,38  or  in  a  public 
statute ;  39  it  may  be  amended  by  a  public  act.4u  Under  any  of  these  condi- 
tions the  courts  judicially  know  the  private  act  to  the  same  extent  as  if  it  were 
public,41  and  also  know  judicially  any  subsequent  amendment.42 

Local  Regulations. —  The  power  of  passing  ordinances  or  by-laws  conferred 
on  municipalities  by  a  general  act  of  incorporation  or  granted  by  special 
charter  known  to  the  court  as  a  public  act 43  is  a  direct  result  of  the  public  stat- 

29  Henthorne  v.  Doe,  1  Blackf    (Ind.)    157,  36.   Loper  v.  St.  Louis,  1  Mo.  681    (1^26)  ; 

163    U822);    1  Cliamb.,  Ev.,  §  606  Apitz  v.   Missouri   Pac.   K    Co.,   17   Mo.   App. 

30.  McCarver    v.    Herzberg,    120    Ala.    523,  419    (1885).     A   private   statute   not    known 
25  So.  3    U898)  ;    1  Chamb.,  Ev.,  §  607  and  to  the  courts  of  the  state   by  authority  of 
cases  cited.  which  it  is  enacted  will  not  be  known  to  the 

31.  Ball   v.  Com.,  30  Ky.   L.    Rep.   600,   99  courts   01    other   states.     Miller   v.   Johnston, 
S.  VV.  326   (1907)  ;   1  Chamb,  Ev.,  §  608  and  71  Ark.  174,  72  S.  W   371   (1903). 

cases  cited  37.  Mullan  v.  State.  114  Cal    578,  46  Pac. 

32.  Mobile   v.    Louisville,   etc.,   R.   Co.,    124  670,  34  L.  R.  A.  262   (1896)  ;  Junction  R.  Co. 
Ala.  132,  26  So.  902   (1899);  Minck  v.  People.  v.   Ashland  Bank,    12   Wall     ( T.  S.)    226,  20 
6    111.    App.    127    (1880):    Hall   v.    Brown,   58  L.  ed.  385    (1870>. 

X     H.    93    '1877):    Pearl    v.    Allen.    2   Tyler  38.   Vance  v.  Farmers',  etc ,  Bank.  1  Blackf. 

rVt  )   311    (ist)3>;    1  Chamb.,  Ev.,  §  609  and  (Ind  )    80    (1820) 

cases   cited.  39.  Webb  v.  Bidwell.  15  Minn.  479   (1870). 

33.  Denver,  etc.,   R    Co    v.  U.   S  ,  9  X    M.  40.  Lavalle    v.     People.    6     111      App.     157 
380,  54  Pac.  336  i  1898)  .  Wright  v.  Paton.  10  ( 1880). 

Johns.    (N.  V)   300   U813)  41.   Ximmo   v.   Jackman.   21    111.    App.   607 

34.  Simmons  v    Jacob.  52  Me.   147    (1862).  '1888)  :  Bowie  v.  Kansas.  51  Mo.  454  (1873)  ; 

35.  Mobile  v   Louisville,  etc ,  R.  Co.,  ftuprfi :  State    v     Olinsrer     (Iowa).    72    N      W.    441 
Butler    v.    Robinson.    75    Mo      192     (1881):  (  1897 ):   1  Chamh.,  Ev,  §  610  and  cases  cited. 
Methodist  Episcopal  I'nion  Church  v.  Picket t.  42.   Stephens,  etc..  Transp    Co   v    New  Jer- 
19  .V.  Y.  482   (18591  -.  Timlnw  v   Philadelphia.  sey  Cent.  R.  Co.  33  X.  J.  I.    220   flSfiO). 
etc,  R.  Co.,  99  Pa.  St.  2*4  (1882);   1  Chamb..  43.  Miter,  where  the  power  of   legislating 
Ev.,  §  609  and  cases  cited.  ordinances,  etc.,  is  not  deemed  a   public  act. 

Butler  v    Robinson,  75  Mo    192    (1881). 


159 


WBITTEN  LAW. 


§  329 


ute;  and  is,  therefore,  judicially  known  to  the  court.44  The  ordinances  or 
other  regulations  passed  in  pursuance  of  the  powers  so  conferred  are  them- 
selves secondary  results  of  the  public  statute  and  are,  in  effect,  so  far  as  re- 
gards state  or  provincial  courts,  matter  in  pais.  Such  a  court,  therefore,  will 
not  judicially  know  their  enactment.45  Within  this  rule  fall  the  ordinances  of 
a  city,46  or  of  a  municipal  department ;  4T  the  regulations  of  county  48  or  ad- 
ministrative boards,  such  as  county  commissioners ;  49  the  by-laws  of  a  cor- 
poration, public  or  private.50 

Regulations  of  Voluntary  Associations. —  A  fortiori  judges  do  not  judicially 
know  the  laws  by  which  members  of  voluntary  associations,  e.g.,  labor  unions,51 
are  bound.  A  state  or  provincial  court  does  not  take  judicial  notice  of  the 
by-laws  of  a  private  corporation ;  but  will  require  proof  on  the  subject.52 

Statutes  of  Sister  State. —  The  courts  of  one  state,  or  province,  do  not  judi- 
cially know,  that  is,  without  proof,53  the  written  law  of  another  state,  or  of  an 
Indian  tribe.54  If  the  foreign  law  is  essential  to  a  case,  it  must  be  pleaded,55 
proved  5ti  and  found  5T  like  any  other  fact. 

44.  Case   v.    .Mobile,    30    Ala.   538    (1857);       themselves.     Winona  v.  Burke,  23  Minn.  254 

t 1876)  ;  Cox  v.  St.  Louis,  11  Mo.  431  (1848)  ; 
Marker  v.  New  York,i  17  Wend.  (X  Y.)  199 
(1837).  As  to  judicial  knowledge  of  local 
regulations  on  appeal  or  review  of  the  de- 
cision of  a  local  court,  civil  or  criminal, 
see  1  Chamb.,  Ev.,  §  612  and  cases  cited. 

51.  Birmingham    Paint    &    Roofing    Co.    v. 
Crampton    &    Tharpe     (Ala.    1905),    39    So. 
1020;    1    Chamb.,    Ev.,   §   613. 

52.  Elkhart  Hydraulic  Co.   v.  Turner,   170 
Ind    455,  84  X.  E    812    (1908). 

53.  Southern    Express    Co.    v.    Owens,    146 
Ala.  412,  41  So.  752   (1906)  ;  Crane  v.  Black- 
man,    126   111.   App.   631    (1906);    Washburn 


Green  v.  Indianapolis,  22  Ind.  192   (1864) 

45.  City   of   Greeley   v.    Hamman.    12   Colo. 
94,  20  Pac.   1    ( 1888)  ;   Hill   v.   Atlanta,   123 
Ga     697,   54    S.    E.    354    (1906);    Weaver   v. 
Snow,    b'O    111.    App.    624     (1895);    Wolf    v. 
Keokuk,    48    Iowa    129     (1878);    O'Brien    v. 
Woburn,  184  Mass.  598,  69  X.  E.  350   (1904)  ; 
City    of    Xew    Yprk    v.    Knickerbocker    Trust 
Co.,    104    X.    Y.    App     Div.    223,    93    X.    Y. 
Supp.  937   (1905)  ;  1  Chamb.,  Ev.,  §  611,  note 
3,  and  cases  cited. 

46.  Case  v.  Mobile,  supra ;  Watt  v.  Jones, 
60  Kan.  201.  56  Pac.    16    (1899);    Porter  v. 
Waring.  69  X.  Y.  250,  254  (1877). 

47.  State  v.  Inhabitants  of  Trenton,  51   X. 
J.  L.  495,  17  Atl.   1083    (1889);  Department 
of  Health  of  City  of  New  York  v.  City  Real 
Property   Investigating  Co.,   86   X.   Y'.   Supp. 
18    (1904). 

48.  Indianapolis  &   C.   R.   Co.   v.   Caldwell, 
9  Tnd.  397    (1857) 

49.  Atkinson  v.  Mott,  102  Ind.  431,  26  X.  E. 
217    (1885). 

50.  Portage,  etc..  Benev.  Society  v.  Phillips, 
36  Mich.   22    (1877);    1   Chamb.,   Ev.,  §   611. 
The  repeal  of  any  such  regulations  or  ordi- 
nances stands  in  the  same  position.     Field  v. 
Malster,   88   Md.   691.   41    Atl.    10S7    (IsPSK 
Such  knowledge  may  be  required  by  .statute. 
Moore  v.   Jonesboro,    107   Ga.   704.   33   S.   E. 
435    (1899).     Statutory   niitfwritit   for   using 
printed    official    copies    as    evidence,    without 
f  -rther  proof,  does  not  have  the  effect  of  re- 
quiring judicial  knowledge  of  the  regulations 


Crosby  Co.  v.  Boston,  etc.,  R.  Co.,  180  Mass. 
252,  62  N.  E.  590  (1902)  ;  Harris  v  White  81 
X.  Y.  532  (1880);  Smith  v.  Bartram,  11 
Ohio  St.  690  (1860);  Spellier  Electric  Time 
Co.  v.  Geiger.  147  Pa.  St.  399.  23  Atl.  547 
(1892);  1  Chamb.,  Ev.,  §  614  and  cases 
cit«d. 

54.  Rowe  v.  Henderson    (Ind.  T.  1903),  76 
S    W.   250. 

55.  Nenno  v.  St.  Louis  &  S.  F.  R.  Co.,  105 
Mo.  App.  540,  80  S.  W.  24   (1904).     See  also 
Leigh  v.   Xat.   Hollow   Brake   Beam   Co.    131 
111.  App    106   (1907):  Electro-Tint  Engraving 
Co.  v.  American  Handkerchief  Co.,   130  App. 
Div.    (X.  Y.)   561.  115  X    Y.  Supp.  34   i!909). 

56.  Baltimore    &    O.    R.    Co.    v.    Ryan.    31 
Ind.    App     597.    68    X     E.    923     (1903):    The 
Matterhorn.   63   C.   C.   A.   331,   128   Fed.   863 
(1904). 

57.  Snuffer  v.  Karr,  197  Mo.  182,  94  S.  W. 


JUDICIAL  KNOWLEDGE.  160 

Statutes  of  Foreign  Country. —  Courts  of  a  state  58  or  province  59  do  not 
know  the  corporation  (io  or  other  written  laws,  of  a  foreign  country.  The  law 
of  the  foreign  country  must  be  pleaded  and  proved.01 

§  330.  Judicial  Knowledge  of  Written  Law;  Local  Courts.62 — The  judicial 
knowledge  of  unwritten  law  by  the  local  or  inferior  courts  is  equally  extensive 

with  that  of  courts  of  general  jurisdiction.  The  judicial  knowledge  of  tri- 
bunals of  local  or  limited  jurisdiction  is  the  same,  in  relation  to  the  constitu- 
tion and  public  statutes  of  the  state,  province  or  nation,  as  that  of  state  or 
provincial  courts.03  A  local  court  being  distinctively  charged  with  the  duty 
of  enforcing  municipal  regulations,  judicially  knows  them.84 

§  331.  Judicial  Knowledge  of  Written;  Amendment  and  Repeal.65 — Any 
amendment  of  a  public  act  is  itself  entitled  to  judicial  knowledge;  66  and  the 
same  is  true  of  an  act  repealing  a  public  statute.'57 

§  332.  Judicial  Knowledge  of  Written  Law;  What  Statutes  are  Public.68— 
Public  statutes,  in  connection  with  the  law  of  judicial  notice,  may  be  defined 
as  being  those  which  affect,  directly  and  equally,  the  inhabitants  of  a  nation, 
state  or  province;  or  apply,  in  the  same  way,  to  the  dwellers  in  any  municipal- 
ity or  other  territorial  division  of  such  nation,  state  or  province.  If  the  pur- 
pose be  public,  the  act  is  not  made  private  by  the  circumstance  that  the  legisla- 
ture has  limited  its  operation  to  a  particular  territory.69  Where  special  laws 

983   (1906)  ;   1  Chamb.,  Ev.,  §  614  and  cases  60.  Duke  v.  Taylor,  37  Fla.  64,  19  So.  172 

cited.  (1896);    Southern    Illinois,    etc.,    Bridge   Co. 

"Full    faith    and    credit."— The    Supreme  v.  Stone,  174  Mo.  1,  73  S.  W.  453,  63  L.  E.  A. 

Court   of    the    United    States,    on    review   of  301    (1903). 

the  judgment  of  a  state  court,  will  take  only  61.  Ryan  v.  North  Alaska  Salmon  Co.,  153 

such  knowledge  of  the  law  of  a  state  other  Cal.    438,    95    Pac.    862     (1908);    Gordon    v. 

than    the    one    under    review    as    that    court  Knott,  199  Mass.  173,  85  N.  E.  184  (1908);  1 

itself  would  have  taken.     Lloyd  v.  Matthews,  Chamb.,  Ev..  §  616  and  cases  cited. 

155    U.   S.   222,   15   S    Ct.   70,   39   L.   ed.    128  62.   1   Lhamberlayne,   Evidence,   §   617. 

(1894).     The   majority    of    the    state    courts  63.   1   Chamb.,  Ev.,  §§  602,  604,  605,  617. 

take  no  additional  judicial  knowledge  of  the  64.  Ex  parte  Davis,   115  Cal.  445,  47  Pac. 

laws  of  a   sister   state   when   they  are  asked  258    (1896);   Fears  v.  State.  125  Ga.  740,  54 

to  give  "full   faith  and  credit"  to  its  judg-  S.  E.  661    (1906);    1  Chamb.,  Ev.,  §  617  and 

ments.     Sammis    v.    \Vi»htman,    31     Fla.    10,  cases  cited. 

12  So.  526   i  l«93i  ;  Knapp  v.  Abell.  10  Allen  65.   1  Chamberlayne,  Evidence,  §  618. 

(Mass.)    485    (1865);    1    Chamb.,   Ev..   §   615  66.  Parent    v.    Wamsly's    Adm'rs,    20    Tnd. 

and   cases    cited.  82,   86    (1863);    Belmont  v.   Morrill,   69   Me. 

58.  Wickersham  v.  Johnston,  104  Cal.  40",  314,  317    (1879):    1   Chamb..  Ev.,  §  618  and 
38    Pac.    89,   43    Am     St.    Rep.    118    (1S94);  cases   cited. 

McCurdy  v.  Alaska,  etc.,  Commercial  Co.,  102  67.  State    v.    O'Conner,    13    La.    Ann.    487 

111.  App.   120    (1902);   Chapman  v.  Colby,  47  (1858) 

Mich.   46,    10   N     \V.   74    (1*81):    Monroe   v.  68.   1   Chamberlayne,  Evidence,  §§  619-634. 

Douglass,  5  N.  Y.  447   (1851)  ;  1  Chamb..  Ev.,  69.  Davis  v.  State,  141   Ala.  84,  37  So.  454, 

§   616   and  cases   cited.  10!)    Am.   St.    Rep     19    I'lOfUi;    Rurnham    v. 

59.  Giles   v.    Gariepy,    29    L.    C.    Jur.    207  Webster,    5    Mass.    266.    269     (1809);    Bret/ 
(1885).  v.    Mayor,   etc.,    of    New    York,    6    Robertson 


161 


WRITTEN  LAW. 


332 


apply  to  different  sections  of  the  state,  a  court  will  know  the  public  laws 
locally  limited  which  apply  to  each  section.7"  In  general,  statutes  allowing 
certain  governmental  agencies,  counties,  cities  or  the  like,  to  adopt  laws  re- 
lating to  given  subjects  at  their  option  are  themselves  public  statutes;  but 
whether  the  necessary  action,  in  pais,  has  in  fact  been  taken  in  a  given  case 
must  usually  be  established  by  evidence.71 

Administration  of  (jtouernment. —  Administration  of  government  being  a 
public  purpose,  statutes  prescribing  in  what  manner  it  shall  be  conducted  are 
public  though  dealing  with  details.  Within  this  class  fall  statutes  creating  a 
public  office,'2  determining  the  duties  incumbent  upon  the  individual  holding 
it,7:J  or  establishing  courts.74 

Local  Option  Laves. —  Certain  states  do  not  take  judicial  notice  that  the 
general  law  has,  by  popular  action,  been  made  operative  in  a  certain  section 
of  the  state.75  In  other  states,  courts  judicially  know  the  result  of  local  op- 
tion elections;711  and  the  length  of  time  after  its  adoption  during  which  a 
local  option  law  persists.77 

Municipal  Corporations.—  The  creation  of  municipalities  are  pre-eminently 
public  statutes;  7S  whether  the  incorporation  be  by  general  act,79  or  by  special 
charter,81*  particularly  where  the  courts  are  ordered  to  regard  the  latter  as 


(\.  Y.)  325  (1868)  ;  State  v.  Finer.  141  N.  C. 
760,  53  S.  E.  305  (1906)  ;  1  Chamb.,  Ev.,  § 
ol9  and  cases  cited. 

70.  Lewis  v    Rasp,  14  Okl    69,  76  Pac.   142 
(1904).     Thus,   for   example,   the   "local   op- 
tion "   law,   so-called,   regulating   the  sale   of 
intoxicating    liquors    in     limited    areas,    ac- 
cording to  the  wishes  of  the   voters   in   that 
section,    will    be    judicially    noticed;    Crigler 
v.   Comm.,   87    S.    W.   281    (Ky.    1905),— and 
also  the  time  when  it  goes  into  effect.     State 
v.   Scampini,  77   Vt.  92,  59   Atl.   201    (1904). 

71.  Johnson    v     Scott,    133    Mo.    App.    689, 
114  S.  W.  45  (1908). 

72.  State  v.  Jarrett,  17  Md.  309   (1861). 

73.  Lynn  v.  People,   170  111.  527,  48  N.  E. 
964     (1897):     State    v.    Gut,    13    Minn.    341 
(1868)  :   1  Chamb.,  EV.,  §  620  and  cases  cited. 

74.  La  Salle  Co.  v.  Milligan,   143   111.  321 
(  Hfl-2). 

75.  CraddiYk  v    State,  48  Tex,  Cr.  R.  385, 
88    S.    YV.    347     (1905);    State    v.    Scampini, 
supra      Chicago  &  X.  W.   R.  Co.  v.  Railroad 
Commission.    156   Wis.  47.   145   N    W    216.    1 
Chamb..    Ev  .   §   621.     The  same  rule  applies 
to    laws    conferring    an    option    of   using   the 
highway    -ontrar-t    svstem       State  v    Burkett. 
S3   Miss    :Wi.  3.1   So.   6*9    (1904). 

Acceptance  of  Liquor  Law. —  According  to 
the  weiirht  of  authority  the  courts  will  not 
take  judicial  notice  of  the  acceptance  at  a 


local  election  of  a  no-lioense  liquor  law  This 
is  a  matter  of  record  to  he  proved  like  other 
matters  of  record.  People  v.  Mueller,  168 
Lai.  521,  143  Pac.  748,  L.  R.  A.  1915  B  788 
(1914). 

76.  Oglesby  v.  State,  121  Ga.  602,  49  S    E. 
706    (1905):    Cue  v    City  of  Eugene.  53  Or. 
282,   100   Pac.  254    (1909);    1   Chamb,  Ev.,  § 

622  and    cases    cited. 

77.  State  v.    Hall,    130  Mo.   App.    170,    108 
S.  W    1077    (1908).     Where  it  is  unlawful  to 
manufacture    or    sell     intoxicants    anywhere 
within  a  county,  the  supreme  court  will  take 
notice    of    that     fact      State    v.     Arnold,    80 
S    C.   3S3.   61    S     E.   891     (1908). 

78.  Frost    v.    State.    153    Ala     654.    45    So. 
307    (  1908)  :    Agnew  v.  Pawnee  City,  79  Veb. 
603.  113  X.  W.  236   (1907)  ;   1  Chamb.,  Ev.,  § 

623  and  cases  cited. 

79.  State    v     Ricksecker,    73   Kan.    495.    85 
Pac.    547     (1906K     Arts    in    pnis    must     be 
proved      Hard    v.   City   of  Decorah.   43    Iowa 
313    i  1876):    1    Chamb.  Ev..  §  623  and  cases 
cited 

80.  Pavne   v.    Treadwell.    16    Cal.  221.   232 
(1860);    Beatv  v.   Sears  &   Bennett.   132  Ga. 
516.    64    S.    E     321     (1900):    Stone    v     Auer- 
bach.    133    App.  Div.    i  V.   Y. )    75,    117   X    Y 
Supp.  734   1 1909)  ;   1  Chamb..  Ev.,  §  623  and 
cases   cited. 


332 


JUDICIAL  KNOWLEDGE. 


102 


public  acts.81  Acts  prescribing  the  duties,  or  establishing  the  powers  of  these 
public  corporations  82  are  equally  public. 8a 

Cities. —  Particular  facts  concerning  individual  cities,  established  by  84  or 
recited  in  an  act  relating  to  such  city  will  be  judicially  known.  Acts  providing 
for  the  erection  of  municipal  buiuldings  *5  and,  occasionally,  the  adoption  of  a 
general  municipal  incorporation  law  by  a  particular  city  so  need  not  be  proved. 

Mercantile  Corporations;  Acts  of  Incorporation. —  General  acts  of  incorpor- 
ation for  business  or  other  private  purposes,  are  public  statutes,87  especially 
where,  as  in  case  of  railways  88  the  purpose  is  one  which  concerns  the  general 
public. 

Corporate  Acts  in  Pais. —  Unless  required  by  law  to  do  so  courts  will  not 
notice  acceptance  by  a  corporation  of  its  charter,  as  to  what  corporations  are 
established  by  acts  in  pais  under  the  provisions  of  a  general  statute  of  incor- 
poration,85*  or,  where  there  are  several  available  statutes  of  incorporation,  as  to 
which  was  actually  employed.90 


81.  City  of  Austin  v.  .Forbis,  99  Tex.  234, 
bj   S.   W.  405    (1905). 

82.  Vance  v.  Rankin,  194  111.  625,  62  N.  E. 
607,  88   Am.  St.   Rep.    173,  reversing  95  111. 
.App.  562  ( 1902)  ;  Harris  v.  Quincy,  171  Mass. 
472,  50  N.  W.    1042    (1898);    Shaw  v.   New 
York  Cent.,  etc.,  R.  Co.,  85  App.  Div.  IN.  Y.) 
137,    83    N.    Y.    Supp.    91     (1903):    State   v. 
Banfield,  43  Or    287,  72  Pac.    1093    (1903); 
1    Chamb.,   Ev.,   §   623   and   eases   cited. 

83.  Foley  v.  Ray,  27  R.  I.   127,  61  Atl.  50 
( 1905 ) .     Statutes    establishing    or    changing 
the    name    of    a    municipal    corporation    are 
public.     State    v.     Cooper.     101     X.     C.     684 
(1888).     The    powers    of    municipal    officers 

are  judicially  known  by  the  judges.  Lynn 
v.  People,  170  Til  527,  48  N.  E.  964  (1897). 
The  repeal  of  acts  incorporating  a  town  are 
public.  Board  of  Tp.  Conrrs  for  Sullivan's 
Island  v.  Buckley,  82  S.  C.  352,  64  S.  E.  163 
(1900). 

84.  Harris  v.  Quincy,  supra;  1  Chamb.,  Ev., 
§   624. 

85.  Burlington  Mfg.  Co  v.  Board  of  Court- 
House,  etc..  Com'rs,  67  Minn.  327,  69  N.  W 
1091    M807). 

86.  Davey  v.  Janesville,   111   Wis.  628,  87 
X.    W    813    (1001).     Statutes   providing   in- 
dividual  relief  are,  in  their  nature,  private. 
State  v.  FT.  &  C.  Turnpike  Co.,  65  N.  J.  L.  97, 
46    Atl. "700    (1900). 

87.  Woodruff  v.   Marsh,   63   Conn.   125,   26 
Atl.  846.  38  Am.  St.  Rep.  346  (18931  -.  Ximmo 
v    Jackman.  21    Til.  App.  607    (1886):    State 
v.  Webb's  River  Imp.  Co.,  07  Me.  559,  55  Atl. 
495      (1903);     Methodist     Episcopal     Union. 


Church  v.  Pickett,  19  N.  Y.  482  (1859)  ;  Case 
v.  Kelly,  133  U.  S.  21,  10  S.  Ct.  216,  33  L.  ed. 
513  (1889)  ;  1  Chamb.,  Ev.,  §  625  and  cases 
cited. 

88.  Heaston  v.  Cincinnati  &  Ft.  W.  R.  Co., 
16   Ind.    275,   79   Am.   Dec.   430    (1861).     in 
case   of    the    federal    courts,    this    knowledge 
covers    not    only    incorporation    granted    by 
public  acts  of  Congress,  Central  Bank  v.  Tay- 
loe,   5    Fed.    Cas.    No.   2,548,   2   Cranch   C.   C. 
(U.  S. )   427   (1823)  ;  but  those  created  under 
the  public  statutes  of  a  state,  Beaty  v.  Know- 
ler,  4  Pet    (U.  S.)    152,  7  L.  ed.  813    (1830). 
They  know  also  powers  conferred  by  act  of 
Congress   on   existing   corporations,   state   or 
national.      Pennsylvania  R.  Co.  v.  Baltimore, 
etc.,  R.  Co.,  37   Fed.   129    (1888). 

89.  Danville,  etc.,  Plank-Road  Co.  v.  State, 
16   Tnd.   456    (1861):    People   v.   De  Mill,    15 
Mich.    164.  93   Am.  Dec.    179    (1867):    Purdy 
v.   Erie   K.  Co.,   162  N.   Y.   42,  56  N.   E.  508, 
48  L.  R.  A.  669.  affirming  33  App.  Div.  643, 
54  X.  Y.  Supp.   1114   (1900):  Trice  v.  State, 
2  Head  (Tenn.)  591    (1859)  ;  1  Chamb.,  Ev.,  § 
625  and  cases  cited. 

90.  Danville,  etc ,  Plank-Road  Co.  v.  State, 
supra.     Neither  will  a  judge  judicially  know 
whether  a  given  corporation  has  adopted  the 
terms    of    a    certain    act.    Id. :    has    in    fact 
consolidated  with  another  corporation  as  au- 
thorized   by    statute,    Southgate    v.    Atlantic, 
etc.,   R.    Co.,   61    Mo.   89    (1875):    Columbus, 
etc..  R.  Co    v.  Skidmore.  69  111.  566    (1873)  : 
whether  it  has  lo«t  or  forfeited   it«  charter. 
Shea    v.    Knoxville,    etc..    R.    Cc..    fi    Baxt. 
(Tenn.)  277  (1873)  ;  or  has  adopted  by-laws, 


163 


WRITTEN  LAW. 


332 


Mercantile  Corporations;  Existence  of  Such  Corporations. —  As  a  result  ac- 
complished by  the  direct  operation  of  a  law  which  it  is  obliged  to  kuow  the 
court  judicially  knows  the  existence  of  private  corporations  established  by  a 
domestic  public  statute,1'1  their  names,02  and  powers;03  and  the  duties  of  its 
omcers  94  and  of  a  time  limit  upon  its  corporate  existence,95  so  far  as  anv  has 
been  imposed  by  law.96  Except  where  the  fact  is  a  notorious  one  in  the  com- 
munity or  where  required  by  law  so  to  do,  the  court  will  not  know  the  existence 
of  domestic  corporations  existing  under  a  private  act,97  or  that  of  corporations 
established  under  the  law  of  a  foreign  country  or  sister  state.98 

Mercantile  Corporations;  Statutes  Conferring  Powers. —  Statutes  prescrib- 
ing the  powers  and  duties  of  all  corporations  of  a  public  or  semi-public  nature, 
or  of  all  corporations  organized  for  certain  purposes,  e.g.,  operating  a  railroad,99 
and  the  like,1  are  judicially  known.  Minor  facts  relating  to  corporations  as 
that  all  stockholders,  residents  of  the  state,  are  among  its  citizens  2  are  not 
within  the  judicial  knowledge  of  the  court.  Facts  of  this  class  may  be  known 


and,  if  so,  what  these  are.  Bushnell  v.  Hall, 
9  Ky.  L.  Rep.  684  (18S7)  :  Simpson  v.  South 
Carolina  Mut.  Ins.  Co.,  59  S.  C.  195,  37  S.  E. 
18,  225  (1900).  A  court  will  not  judicially 
know  what  officers  a  certain  corporation  has 
elected  and  what  powers  it  has  conferred  on 
them,  Brown  v.  Missouri,  etc.,  K.  Co.,  67  Mo. 
122  i  1877 );  or,  whether  any  other  act  in  pais 
whatever,  has  been  done  by  the  corporation, 
Illinois  Cent.  H.  Co.  v.  Johnson,  40  111.  35 
(1864);  People  v.  Tierney,  57  Hun  (N.  Y.) 
357,  589,  10  N.  Y.  Supp.  940,  948  (1890); 
Topp  v.  Watson,  12  Heisk.  (Tenn.)  411 
(1873)  ;  or  its  board  of  directors.  Crawford 
v.  Mobile  Branch  State  Bank,  7  Ala.  205 
(1844);  Topp  v.  Watson,  supra.  Statutes 
of  incorporation  of  private  corporations  will 
not  be  judicially  known,  Winnipiseogee  Lake 
Co.  v.  Young,  40  N.  H.  420,  428  (1860)  ;  nor 
the  seal  of  private  corporations.  Griffing 
Bros.  Co.  v.  Winfield,  53  Fla.  589,  43  So 
687  (1907). 

91.  State   v.    Briscoe,    6    Pen.    (Del.)    401, 
67  Atl.    154   (1907). 

92.  Jackson  v    State,  72  Ga.  28    (1883). 

93.  Gordon    v.    Montgomery,    19    Tnd.    110 
(1862);    Chapman  v.  Colby,  47   Mich    46,   10 
N    W.   74    (1881):    Bnell   v    Warner,   33  Vt. 
570    (1861)  ;    1  Chamb.,  Ev.,  §  626  and  cases 
cited 

94.  Douglass    v     Mobile    Br'anch    Bank,    19 
Ala.  6oO    (1851) 

95.  Terry  v    Merchant?',  etc.,  Bank,  66  Ga. 

177  M8SO). 

96.  Cicero  Hygiene  Draining  Co.  v.  Craig- 
head,  28   Ind.  274    (1867).     A  federal  court 


will  judicially  know  that  a  certain  corpora- 
tion is  established  under  act  of  Congress, 
neffelfinger  v.  Choctaw,  O.  &  G.  R.  Co.,  140 
Fed.  75  (1905). 

97.  Mobile   v.   Louisville,   etc.,   R.   Co.,    124 
Ala.   132,  26  So.   902    (1899);   Kirby  v.   Wa- 
bash  R.  Co,  85  Mo.  App.  345  (1900). 

98.  Savage  Mfg.  Co.  v.  Armstrong,   17  Me. 
34,  35   Am.  Dec.  227    (1840);   Brown  v.  Dib- 
ble,  65    Mich.    520,    32    N.    W     656    (1887); 
Southern   Illinois,  etc..   Bridge  Co.  v.  Stone, 
174  Mo.   1,  73  S.  W.  453    (1902)  ;   1  Chamb., 
Ev.,   §    627    and   cases   cited.     A    court   may 
treat   special   charters   incorporating  persons 
to  carry  on  certain  business  enterprises  of  a 
public    or    semi-public    nature,    as    banking, 
Davis  v.  Bank  of  Fulton,  31  Ga.  69   (1860)  ; 
Buell   v.    Warner,   33    Vt.   570,   578    (1861); 
operating  a   railroad,   street   railway,   or   an 
electric   light.   Nelson    v.    Narragansett   Elec- 
tric Lighting  Co.,  26   R.   I.  258,  58   Atl.  802 
(1904),  or  power  plant,  as  within  the  range 
of  judicial  knowledge 

99.  Caldwell   v    Richmond  Ry.  Co..  .89  Ga. 
550    (1892):    Chicago,   etc.,  R.   Co    v.   Liebel, 
27   Ky.  L    Rep.   716,   86   S.   W.   549    (1905); 
1  Chamb  .  Ev.,  §  628  and  cases  cited. 

1.  Miller  v    Matthews.  87  Md.  464,  40  Atl. 
176  (1898).     It  will  be  judicially  known  that 
a  corporation,  operating  a  canal  in  a  naviga- 
ble river  can  acquire  a  fee  in  such  property 
only  by  a  grant  from  the  legislature.     State 
v    Portland  General   Kleotrio  Co  ,  52  Or.  502, 
98  Pac.  160,  9o.Pac.  722   (1908). 

2.  Lexington    Mfg.    Co.    v.    Dorr,    2    Litt. 
(Ky.)    256    (1822). 


§  332  JUDICIAL  KNOWLEDGE.  164 

wherever  they  are  notorious  in  the  community  or  historical,  in  some  general 
sense.3 

Mercantile  Corporations;  Railroads. —  Direct  results  of  legislation  as  that 
railroad  companies  are  common  carriers  4  and,  as  such,  have  certain  duties  to 
perform,5  will  be  recognized  by  the  court  as  a  matter  of  law,  i.e.,  judicially 
known.  The  creation  of  a  railroad  company  either  as  an  original  corporation, 
by  charter  or  by  certiticate  under  a  general  law,'1  or  as  successor  to  another  rail- 
road,7 will  be  noticed  judicially.  A  special  charter  incorporating  a  railroad 
will  not  be  deemed  a  public  statute.8 

Mercantile  Corporations ;  Street  Railways. —  The  incorporation  of  a  street 
railway  by  special  charter  is  a  direct  result  of  a  public  statute  of  which  the 
courts  take  judicial  notice.  It  follows  that  the  presiding  judge  will  know  that 
no  special  charter  has  been  issued  to  a  particular  street  railway  company.1* 
Courts  also  judicially  know  the  legal  powers  and  duties  conferred  or  imposed 
on  such  creations  of  law ;  —  e.g.,  that  they  are  common  carriers  of  passengers.1" 

Mercantile  Corporations;  Telegraph  Companies. —  Particular  facts  relating 
to  telegraph  companies,  neither  of  general  importance,  nor  a  direct  result  of 
legal  enactment,  as  that  there  are  only  two  telegraph  companies  in  the  state, 
will  not  be  treated  as  a  matter  of  judicial  knowledge.11 

Private  Acts  Made  Public. —  The  legislature  may  order  that  certain  acts, 
otherwise  private,  shall  be  treated  as  beiug  public.12  This  regulation  may 
apply  to  private  acts  of  a  given  class,1-'5  or  to  all  private  acts  whatever,1'1  or  to 

3.  Ohio  L.  Ins.,  etc  ,  to.  v   Debolt,  16  How.  7.  Atlanta  &  W    P.  R.  Co.  v.  Atlanta,  B.  & 
(U.    S.)     416,    435,    14    L.    ed.    997     (1853);       A.  R.  Co.,  supra. 

State  v.  Franklin  County  Sav.  Bank,  etc,  Co.,  8.  Perry  v  K.  Co.,  55  Ala.  413,  426  (1876). 
74  Vt  246,  52  Atl.  1069  (1002):  1  Chamb.,  Contra:  Wright  v.  Hawkins,  28  Tex.  452, 
Ev.,  §  620  In  the  case  of  certain  well-known  471  (1866).  Where  the  legislature  has  pro- 
bodies  notice  will  be  taken  that  they  are  not  vided  a  system  of  assessing  railroad  taxes, 
organixed  for  business  purposes  Burdine  v.  the  fact  that  the  railroads  of  the  state  have 
Grand  Lodge,  37  Ala.  478  (1861),  Free  Ma-  paid  the  taxes  so  assessed  is  judicially 
sons.  Protection  of  workingmen  is  a  public  known.  Gulf  &  £»•:  I  R.  Co  v.  Adams,  85 
purpose.  Thus  statutory  regulations  of  the  Miss  772.  38  So.  348  (1905). 
duties  due  a  servant  from  his  master  are  9.  American  Steel  &  Wire  Co.  v.  Bearse,  194 
public  in  their  nature.  Squilac-he  v.  Tide-  Mass.  506.  80  X.  E.  623  (1907);  1  Chamb., 
water  Coal  &  Coke  Co,  64  W.  Va  337,  62  Ev.,  §  631  and  cases  cited. 
S.  E.  446  (1908).  10.  Indianapolis  St.  Ry.  Co.  v.  Ray,  167 

4.  Caldwell    v.    Richmond,   etc.,   R.    Co.,   80  Ind.  236,  78  X.  E.  978  (1906) 

Ga.    550,    15    S.    E.    678  (1892);    Boyle    v.  11.  State  v.  Atlantic  Coast  Line  R    Co.,  51 

Great    Xorthern    R.    Co.,  13    Wash.    383,    43  Fla.  578,  40  So.  875    (1906);   1   Chamb.,  Ev., 

Pac    344    (1896):    1  Chamb.,  Ev ,  §  630,  and  §  632. 

cases  cited  12.  Gormley  v.   Day.   114   111     185    (1885); 

5.  Evansville.    etc.    R.  Co.    v.    Duncan,    28  Beaty  v    Lessee  of  Knowler,  4  Peters   ( U.  S  ) 
Ind.   441     (1S67K  152    (1830);    1  Chamb.,  Ev.,  §  633  and  cases 

6.  Atlanta  &   W.   P.   R  Co.   v.   Atlanta.   B.  cited. 

&  A.  R   Co.,  124  >.a    125.  52  S.  E.  320  (1005)  ;  13.  Doyle  v.  Village  of  Bradford,  90  111.  416. 

McArdle  v   Chicago  City  Ry.  Co..  141  111.  App.  14.   Doyle    v.    Hradford.    Kiiprn  :    F.el    River 

59    (1908)  ;    1  Chamb.,  Ev.,  §  630  and  cases  D.  Ass'n  v.  Topp,  16  Ind.  242  (1861). 
cited. 


165  How  KNOWLEDGE  ACQUIRED.  §  333 

all  statutes  except  those  which  expressly  declare  themselves  to  be  of  a  private 
nature.15 

Statutes  of  Sister  State. —  The  law-making  body  of  a  jurisdiction  may  re- 
quire that  the  courts  organized  within  it  should  know  judicially  the  written 
constitution  of  public  statutes  of  another  state;  16  in  which  case  the  foreign 
law  need  not  be  introduced  into  evidence.17 

§  333.  How  Judicial  Knowledge  of  Law  is  Acquired.18 —  Knowledge  of  domes- 
tic law,  being  a  judicial  function,  is  beyond  the  tield  of  evidence  and  the  judge 
is  not  called  upon  to  receive  it  when  tendered.19  Constructively,  i.e.,  in  intend- 
ment  of  law,  the  judge  already  knows  the  law.  Any  assistance  from  without 
which  he  may  require,  or  accepts  from  a  party,  or  even  from  an  arnicas  curiae, 
is  simply  to  refresh  the  judicial  memory.20  This  is  commonly  expressed  by 
saying  that  the  judge  is  "  presumed  to  know  the  law."  21  This  is  not  a  pre- 
sumption or  inference.22  It  merely  states  a  necessary  principle  of  adminis- 
tration, viz. ;  —  that  trials  must  proceed  upon  the  basis  or  assumption  that  the 
judge  knows  the  law,23  although,  in  point  of  fact,  he  frequently  does  not  know 
it.24  A  statute  may  in  reality  have  recently  been  passed  and  the  court  not 
know  it.25  In  discharging  his  function  of  knowing  the  law,  a  judge  need  not 
make  any  investigation,  or  invite  any  assistance.  If  he  sees  fit  to  do  so  the 
judge  may  examine  into  what  the  law  is,  in  his  own  way;  or  he  may  require 
the  assistance  of  the  parties,  and  adjourn  or  continue  the  case  until  he  gets  it.2ft 
Jf  he  decides  to  examine  the  matter  for  himself,  he  may  resort  to  any  source 
of  information  which  he  feels  is  calculated  to  aid  him.2' 

15.  Covington  Drawbridge  Co.  v.  Shepherd.          21.  Lincoln  v    Battelle,  supra. 

20  How    (U.  S.)  227   (1857)  22.   1   Chamb.,    Ev..   §§   635,    1027. 

Amendments  or  recognition   of  a  private  23.   1   Chamb,  Ev.,  §§  571,  635. 

act  by  a  public  one  entail  judicial  knowledge  24.   Frost's  Trial,  Gurney's  Hep.  168  (1840). 

of  the  private  act.      Lavalle  v.    People,  6  111.  25.   People  v.  Dowling,  84  X    Y.  478  (1881). 

-A pp.  157   I  1880)  ;  1  Chamb..  Ev..  §§  600.  609,  26.   Richardson  County  School  Dist    Xo.  56 

633      Hie    regulations    of    an    administrative  v.    St    Joseph    F.    &    M.    Ins.    Co..    101    U.   S. 

board,   ear.    the    board    of   health      Cohen    v  472,   25    L.   ed.   868    (1870) 

Department   of    Health   of   the   City   of   Xew  27.  Strauss  v    Heiss,  48   Md    292    (1877); 

York,    61    Misc.     124,     113    X.    Y.    Supp.    88  State   v.    Stearns,    72    Minn.    200,   75    X     W. 

(1908).  may,  if  adopted  by  a  public  statute,  210   (1898):    Bowen  v    Missouri   Pac    R.  Co., 

receive  judicial   notice  118  Mo.  541.  24  S.  W   436  (1893)  :  1  Chamb., 

16.  Mates  v.  McCully.  27  Miss.  584   (1854);  Ev..     §§     635     and     cases     cited.     "The     ex- 
Lockhead    v     Berkeley    Springs    Waterworks,  istence     of     a     public     act     is     determined 
etc,  Co.,  40  W   Va  553,  21  S.  E   1031   (1895):  by     the    judges     themselves,     who     if    there 
Miller  v   Johnston,  71  Ark.  174,  72  S.  W    371  be  any  difficulty,  are  to  make  use  of  ancient 
(1903).  copies,   transcripts,    hooks,   pleadings   or   any 

17.  F     E     C'reelman    Lumber   Co.    v    J     A  other      memorial,      to      inform      themselves. 
Lesh  &  Co,  73  Ark    16.  S3  S    W.  320   (1004).  Bowen    v     Missouri     Pac      Ky ,    snprn.     The 

18.  I   Chamber layne.  Evidence.  §§  fi35,  636.  judge  may  resort  to  official  documents  in  the 

19.  In    re    Howard    County.    15    Kan     194  executive    or    legislative    departments.    (Mare 
(1875)  :    1   Chamb.   Ev  .  §  035  v   State.  5  Iowa  509  i  1857)  :  State  v    Stearns, 

20.  Lincoln    v     Rattelle.   6   \Yend.    (XT    Y)  supra..    Puckett   v     State,    71    Miss.    192.    14 
475    (1831):    Clegg   v     Levy,    3    Campb.    166  So     452     (1893):    seeking   the    most    conclu- 
(1811).  sive,  if  available,  Gardner  v.  Barney,  6  Wall. 


§  334  JUDICIAL  KNOWLEDGE.  166 

Foreign  Law. —  Even  in  the  absence  of  statutory  requirement,  judges  fre- 
quently take  or,  perhaps,  more  properly,  acquire  judicial  knowledge  of  such  a 
law  in  the  manner  appropriate  to  a  rule  of  domestic  law.28  He  may  consult 
text  books,29  or  other  authoritative  printed  or  written  statements,^0  official  deci- 
sions,31 volumes  of  statutes  and  the  like;  or  any  other  source  of  information  he 
may  deem  reliable.32 

§  334.  Judicial  Knowledge  of  the  Results  of  Law.33 —  The  second  and  remain- 
ing branch  of  judicial  knowledge  properly  so  called,  is  a  knowledge,  cognizance, 
notice  or  whatever  may  be  the  term  preferred,  of  facts  which  are  the  direct 
result  of  law.  This  knowledge  may,  under  some  circumstances,  be  actual ;  - 
as  where  a  judge  knows  of  the  establishment  of  a  county  or  other  political 
division  of  the  state.  In  most  cases,  however,  the  knowledge  is  one  of  the  im- 
puted, constructive  kind  characteristic  of  knowledge  of  the  rules  of  law  them- 
selves ;  —  the  sort  of  knowledge  which  one  may  be  said  to  have  who  is  merely 
forbidden  to  say  that  he  does  not  know.  A  judge  judicially  knows  that  which 
is  "  matter  of  law."  The  phrase  is  sufficiently  elastic  to  cover  both  the  rules 
of  law  and  such  facts  as  laws  directly  establish.34 

Governmental  Assumptions. —  Perhaps  as  a  relic  of  early  days  where  the 
King,  the  source  of  all  government,  as  well  as  the  fountain  of  justice,  person- 
ally sat  in  Court  of  King's  Bench  and  gave  judgment,  courts,  to  a  certain  extent, 
regard  themselves  as  knowing  wyhat  the  other  departments  of  government  know. 
The  courts  recognize  that  they  are  parts  of  a  system  or  scheme  of  governmental 
administration.  As  such,  they  assume,  in  a  spirit  of  co-ordinate  responsibility, 
the  correctness  of  the  official  actions  of  other  departments.  Whether  the  process 
be  called  taking  judicial  knowledge,  raising  a  presumption  of  regularity  or 
otherwise,  the  real  action  is  one  of  judicial  administration  proceeding  by  way 
of  an  assumption  of  the  correctness  of  official  proceedings  in  another  branch  of 
the  domestic  government.35 

(U.   S)    409,    18   L.   ed.    890    (1867):    unless  cisions  of  State  courts      Old  Dominion  Cop- 

the  legislature  has  regulated  the  matter  for  per  Co.  v.   Bigelow.  203  Mass.   159.  89  X.  E. 

him.     Puckett  v    State,  supra  193,  40  L.  K.  A.   (X.  S.)   314   (1909). 

28.  See  The  Paquete  Hahana,  175  U   S   677,  32.  The  Pawashick,  supra:  Sussex   Peerage 
20  S.  Ct.  220  (1899)  ;  1  Chamb.,  Ev.,  §  636).  I  ase,  11  Cl.  &  F    85   (1844)  :    1  Chamb.,  Ev., 

29.  Hilton   v.   C.uyot,    159   L     S.    113,   16  S.  §   636. 

Ct.   139,  162    (1894)  33.   1    Chamberlayne,  Evidence,  §§  637-641. 

30.  De    Sonora    v.    Bankers'    Mut     C.    Co  34.   1   Chamb..  Ev.,  §  637.      - 

(Iowa    1903),   95   N     \V    232:    Devenbagh    v.  35.   1   Chamb  .  Ev..  §  038.     Probably  it  is  in 

Devenbagh.  5  Paige  Ch.   (X.  Y.)   554   (1836)  ;  this  way  that  a  court  will  assume  that  pub- 

The  Paquete  Habana,  supra.  lie  officials  keep  within  the  sums  appropriated 

31.  The    Pawashick,   2    Low.     (U.    S  )     148  by   law   for  their  use      Stein   v    Morrison,   9 
(1872).  Idaho  426,  75  Pac    246    (1904)       Courts  can 

Foreign   law. —  The   decisions   of   the   Fed-  take  judicial  notice  of  all  questions  relating 

eral   courts   are   not  evidence  as  to  the   law  to  public  policy.     Hall   v.   O'Xeil   Turpentine 

of    another    state    on    a    question    of    general  Co,  56   Fla    324,  47  So.    (609)       The  history 

law  as  the  Federal  courts  declare  the  law  on  of  previous  legislation  upon  a  given  subject, 

their  own  views  and  are  not  bound  by  the  de-  and  the  practical  contemporaneous  construe- 


167  KESULTS  or  LAW.  §  334 

Official  Position. —  In  determining  judicial  action  the  incumbency,  past  or 
present,  of  high  public  position  in  other  departments  of  government  may  be  an 
important  fact.  All  the  courts  of  a  country  know  who  is  or  at  any  time  was 
the  executive  head  of  the  state ;  —  as  president  of  the  United  States,36  who 
are  3T  or,  at  a  given  time,  were  cabinet  officers,38  foreign  ministers,'59  or  at  the 
head  of  the  great  departments  of  government,40  or  of  important  bureaus  in 
these  departments.41  In  minor  official  connections,  they  know  as  a  rule  who 
are  deputies  or  acting  substitutes,  while  the  latter  are  exercising  the  functions 
of  the  office,  in  the  absence  of  the  chief,42  and,  less  frequently,  in  case  of  im- 
portant officers,  who  are  the  deputies  empowered  to  act  for  the  chief.43  The 
court  knows  who  are  the  principal  subordinate  department  officials,44  receivers 
of  public  money,45  as  chief  clerk,46  and  the  like. 

De  Facto  and  De  Jure  Officers. —  It  has  been  reasonably  held  that  only  de 
jure  officials  could  be  judicially  noticed.47  Judicial  knowledge  is  reserved  for 
matters  of  law  —  law  or  its  direct  results  or  creations ;  and  does  not,  properly, 
apply  to  de  facto  officers.  The  distinction,  however,  is  not  well  established. 
Time  of  holding  elections  for  national  officers,  including  congressmen ;  48  or 
for  the  governor  and  other  high  officials  of  a  state,  will,  when  established  by 
law,  be  judicially  known  by  all  the  courts  of  a  state. 

Tenure  of  Minor  Offices. —  Minor  political  details  as  to  official  tenure  of 
state  officers,  as  the  appointment  by  the  governor  49  or  election  by  the  legisla- 
ture 6U  or  the  voters,  of  inferior  state  officers,51  whether  de  jure  or  de  facto, 

tion  placed  upon  statutes  of  that  nature  by'  45.  Herriot  v.    Broussard,   4   Mart.   N.    S. 

olticers   charged   with  their  enforcement   will  (La.)   260    (1826). 

be  known   to  the  presiding  jud^e.     State  v.  46.  Barton  v.  Hempkin,  supra;  1  Chamb , 

Rutland  R.  Co.,  81  V't.  508,  71  Atl.  97  (1908).  Ev.,   §   639. 

36.  Liddon    v.    Hodnett,    22    Fla.    442,   450  47.  Williams  v    Finch,  148  Ala.  674,  41  So. 
•1886);    1   Chamb.,   Ev.,  §  639.  834    (1906). 

37.  Backus  Portable  Steam   Heater  Co.  v.  48.  State  v.  Custer,  Z6  R.  1.  222,  66  Atl.  306 
Simonds,  2  App.  Cas.    (D    (.)   290    (1894).  (1907);    1   Chamb.,  Ev.,   §  640. 

38.  Walden   v.   Canfield,  2   Rob.    (La.)    466  49.  Bailey  v.  McAlpin,  122  Ga.  616,  50  S. 
(1842):     Perovich    v.    Perry,    167    Fed.    789  E.  388    ( 1905)  ;    Louisville  v.  Board  of  Park 
(1909).  Com'rs,   112  Ky.  409,  24  Ky.   L.  Rep.  38,  65 

39.  Wetherbee  v.  Dunn,  32  Cal.  106  (1867).  S.  \V.  860   (1901)  ;   1  Chamb.,  Ev.,  §  641  and 

40.  State  v    Board  of  State  Canvassers,  32  cases  cited.      Who  are  notaries-  public  in  the 
Mont    13.  79  Pac.  402   (1905).  state    will    be   judicially, noticed.     Hertig    v. 

41.  Keyser   v.    Hitz,    133   U     S.    138,    10   S.  People.    159   111.  237,   42   X.    E.   S79.   50   Am. 
Ct.  290,  33  L.  ed.  531    (1889).  St.    Rep     162    (1S96):    Black  v.    Minneapolis, 

42.  Barton  v.  Hempkin,  19  La.  510  (1841)  :  etc.,  R.  Co..  122  Iowa  32.  9fi  X.  W  9S4  (1903). 
York,  etc..  R.  Co.  Y.  Winans,  17  How.   (U.  S.)  50.  Coljjin    v.    State    Bank.     11     Ala.    222 
30,  15  L.  ed.  27   «  1S54).  (1^47)  :  Bennett  v   State,  Mart.  &  Y.  (Tenn.) 

43.  Wetherbee    v.    Dunn,    supra.     Who   are  133. 

deputy    United   States   marshals   will   not   be  51.  Fisk  v.  Hopping.  IrtO  Til.  105.  4S  X.  E. 

known   to   state  courts      Ward   v.   Henry,    10  323     '1^07):    People   v.   Johr.   22    Mich.   461 

\\is.  76,  «8  Am.  Dec   672   (1865).  (1871)  :    Xew  York  v.   Vanderveer.  91   X.  Y. 

44.  Rullock  v.  Wilson,  5  Port.    (Ala.)    338  App   Div.  303.  8fi  X.  Y.  Supp    659   (1904);  1 
(1837).  Chamb.,  Ev.,  §  641  and  cases  cited. 


§  335  JUDICIAL  KNOWLEDGE.  168 

their  tenure  of  office,52  and  the  date  of  their  election  or  appointment 53  will  be 
known  to  the  courts.  The  appointee  of  a  state  official  whose  own  tenure  is 
itself  judicially  known  is  not,  however,  an  official  within  the  meaning  of  the 
rule.54 

Tenure  Under  Local  Ordinances. —  Courts  do  not  take  judicial  notice  of  the 
primary  results  of  statutes  of  which  they  do  not  take  such  cognizance.  As 
they  do  not  take  such  notice  of  local  ordinances,55  a  fortiori  they  do  not  judi- 
cially know  their  results.  For  example,  a  state  or  provincial  court  will  not 
notice  the  salary  of  a  policeman  0(i  established  by  a  municipal  ordinance. 

§  335.  Judicial  Knowledge  of  Results  of  Law;  Official  Proceedings.57 — The 
reasons  which  control  a  court's  action  in  dealing  with  official  proceedings  are 
several.  Judicial  knowledge  in  this  connection  is  a  function  of  three  variables, 
(a;  notoriety  in  the  community;  (b)  directness  of  relation  to  a  rule  of  law; 
(c)  difficulty  of  making  other  proof  as  compared  to  the  readiness  with  which 
the  matter  can  be  set  at  rest  by  inspection.  In  few  cases  does  the  court's  actual 
knowledge  exteud  to  saying  whether,  in  any  particular  instance,  an  official  act 
has  been  properly  done.0*  But  the  general  manner  in  which  officials  in  close 
touch  with  the  public  discharge  the  duties  of  their  respective  offices,  as  that 
in  the  callection  of  taxes  property  is  not  assessed  by  the  owner,59  but  by  public 
officers  who  customarily  appraise  it  at  less  than  its  marker  value,"0  that  taxes 
are  not  at  all  times  collected  until  years  after  they  are  assessed,"1  will  be  re- 
garded as  known. 

Correspondence. —  Official  correspondence,  letters  and  the  like,  proceeding 
with  apparent  regularity  from  the  executive  department  of  national  govern- 
ment, will  be  assumed  to  be  what  they  purport  to  be.  Thus,  the  letter  of  the 
official  head  of  the  national  land  office  relating  to  routine  business  is  a  public 
document  which  is  said  to  be  judicially  known.62 

Publications. —  Printed  official  copies  are,  as  a  rule,  incompetent  to  estab- 
lish facts  of  which  judicial  knowledge  is  taken.'53  Judicial  cognizance  of  facts 

52.  Gary  v.  State,  76  Ala.  78    (1884);  Me-  59.  Chicago,   etc.,   R.   LO    v.   Smith,   6   Ind. 
Carty  v.  Johnson.  20  i'ex.  Civ.  App.  184,  40       App.  262.  33  X.  E    241    (1892) 

S.  \V.  1098   (4899).  60.   State  v.  Savage,  65  Xeh.  714,  91  X.  W. 

53.  Lindsey    v.    Atty.-Gen.,  33    Miss.    508,       716    (1902);    Cummings   v.   Merchants'   Nat. 
528   (18.57).  Bank,    101    U.   S    153.  2.")   L.  ed.  903    (1879); 

54.  Crawford  v    State,  155  Ind.  692,  57  N.       1  Chamb.,  Ev.,  §  642  and  cases  cited. 

E.  931    .1900K  61.   Mullen    v.    Sackett,    14    Wash.    100.   44 

55.  1   Chamb..  Ev.,  §§  611,  641.  Pac.   130    (1896);    1   Chamb.,  Ev.,  §  642  and 

56.  (Jibbs  v.  City  of  Manchester,  73  X.  H.       cases  cited. 

265.  til    Atl.  128    (1905).  62.  Southern    Pac.   ft.   Co.   v.   Willard.    148 

57.  1   Chamherlayne,  Evidence,  §§  642-644.       Cal    xvii,  S3  Pac.  452   (1906):   1  Chamb.,  Ev., 

58.  Koach    v.    Retcher,    11    Tex.   Civ.   App.       §  643 

225,  32  S.  W.  5S5  (1895).  Whether  a  patent  63.  Wellington  First  Xat.  Bank  v  Chap- 
has  issued  will  not  he  judicially  noticed.  man,  173  V.  S.  205,  19  S.  Ct.  407,  43  L.  ed. 
Bottle  Seal  Co.  v.  Dela  Vergne  Bottle,  etc.,  669  (1898);  1  Chamb.,  Ev.,  §  644  and  cases 
Co.,  47  Fed.  59  (1891).  cited. 


169  RESULTS  OF  LAW.  §  336 

stated  in  certain  official  publications  such  as  the  gazette,64  may  be  required  by 
law.  Public  documents,  as  the  returns  of  railroad  companies  °5  to  appropriate 
administrative  boards,  rendered  in  accordance  with  the  requirements  of  law, 
are  proper  subjects  of  judicial  knowledge.  Reports  of  departments,  or  admin- 
istrative boards,  to  the  executive  or  legislative  branches  of  the  government,  if 
ordered,  recognized  or  sanctioned  by  law,  stand  in  the  same  position.'1*5 

§  336.  Judicial  Knowledge  of  Results  of  Law;  Executive  Department;  Nation.07 
—  All  courts  recognize,  without  proof,  who  is,  and  at  any  time  in  the  past,  was 
the  chief  executive  head  of  the  nation;  the  incumbents  of  the  principal  depart- 
ments into  which  the  administration  of  national  executive  authority  is  divided, 
as  the  State,  Treasury,  War,  Interor  or  Navy  Departments ;  and  of  the  princi- 
pal bureau  offices  established  in  these  departments;68  whether  the  incumbent 
is  regular  and  permanent  or  holds  as  a  substitute,  or  locum  tenens.™  A  state 
court  will  take  judicial  notice  of  the  inferior  federal  officers  located  within  the 
state. 7" 

Proclamations  and  Other  Executive  Acts. —  Public  proclamations,'1  mes- 
sages,72 orders  "3  and  other  official  acts  of  the  national  executive,74  as  in  de- 
claring a  state  of  war  75  or  peace,76  the  existence  of  martial  Jaw  TT  in  certain 
territory,  are  judicially  known.  Likewise,  the  granting  of  amnesty  or  par- 
don,78 establishing  the  status  of  a  foreign  country,79  of  a  set  of  its  people,  or 
of  certain  lauds,8"  as  related  to  the  domestic  government.  The  recognition  by 
the  national  executive  of  who  is  the  sovereign,  de  jure  or  de  facto  of  a  territory 
conclusively  binds  the  judges  of  the  government  of  the  forum,81  as  it  binds  all 
other  citizens.  A  government  so  recognized,82  its  official  name  and  style,83 

64.  Simms  v.  Quebec,  etc.,  R.  Co.,  22  L    C.  74.  Woods  v.  Wilder,  supra;  1  Chamb.,  Ev., 
Jur.  20   (1878).  §  646  and  cases  cited. 

65.  Staton  v    Atlantic   Coast    Line   R    Co.,  .  75.  Woods    v.    Wilder,    supra;    Sutton    v. 
144  X.  C.  135,  56  S.   E.  794    |UH)7).  Tiller,  6  Cold.    (Tenn  )   593,  98  Am.  Dec.  471 

66.  State   v     Candland,   36    Utah    406,    104  (1869). 

Pac.  285   (1909).  76.   U.  S.  v    Anderson,  9  Wall.   (U.  S.)  56, 

67.  1   Chamherlayne,  Kvidence.  §§  645,  646.  19   L    ed    615    (1869). 

68.  1  Chamb.,    Ev.,   §   645:    R.    v.   Jones,   2  77.  .Jeffries  v.   State,   39   Ala.   655    (1866). 
Campb.    131     (1809).     This    rule    applies    to  78.  Jenkins   v.   Collard,   145   U.   S.   546,    12 
any   nation   which   has   exercised    jurisdiction  S.  Ct   868.  36  L.  ed.  812   (1891). 

over   any   portion   of   the  territory   now   con-  79.  Jones  v.  U.  8.,  137  U.  S  '202,  11  S.  Ct. 

stituting   the   sovereignty   of   the   forum  80.    34    L.    ed.    691     (1890);    1    Chamb.,    Ev , 

69.  York  &   M.  R.  Co.  v.  Winans,   17  How.       §   646  and  cases  cited. 

(U.  S. )    30    (1854);    15  L.  ed.  27.  80.  Jones    v.    U.    S.,   supra;    Armstrong   v. 

70.  Kellogg  v.    Finn,  22  S.   D.  578,  119  X  U.   S,    13   Wall.    (U.   S.)    154,   20   L    ed   614 
W.  545    ( 1909).  (1871). 

71.  Moss  v    Sugar  Ridge  Tp.,  161  Ind.  417,  81.  Jones  v.  U.  S.,  supra. 

68   X.    E.   896    i  1903);    Woods  v    Wilder.  43  82.  Laxier   v.    Westcott.   26  N.   Y.    146,   82 

X   Y    164,  3  Am.  Rep.  684  (1870)  :  1  Chamb.  Am.  Dec    404    (1862)  ;    Underbill   v.   Hernan- 

Ev,  §  646  and  cases  cited.  dez,   168   U.   S.   250,   18   S.   Ct.   83,  42   L.   ed. 

72.  Wells  v    Missouri  Pac.  R    Co.,  110  Mo.  456   (1897);    1  Chamb.,  Ev.,  §  646  and  cases 
286,  19  S.  W.  530,  15  L.  R.  A.  847   (1892).  cited. 

73.  State  v.  Tully,  31  Mont.  365,  78  Pac.  83.  U.  S.  v.  Wagner,  L.  J.  2  Ch.  624  (1866). 
760  (1904). 


337 


JUDICIAL  KNOWLEDGE. 


170 


boundaries,84  the  existence  of  its  colonial  possessions,85  its  flag,86  and  other 
usual  evidence  of  sovereignty  will  thereupon  be  judicially  known.  The  exist- 
ence of  a  state  of  peace  87  with  such  a  government  will  be  recognized.*8 

§  337.  Judicial  Knowledge  of  Eesults  of  Law;  State.89 — Who,  at  any  par- 
ticular time,  is  the  chief  executive  of  the  state  oy  or,  for  any  given  series  of 
years,  was  the  chief  magistrate  of  the  state  itself,91  or  of  any  state  or  nation 
which  at  any  time  had  jurisdiction  over  it  °2  need  not  be  proved.  Courts  will 
also  take  judicial  knowledge  as  to  who  are,  or  at  any  time  in  the  past  were, 
officers  which  the  law  requires  should  be  commissioned  by  the  governor,93  at 
the  head  of  the  principal  departments  of  state  94  and  who  were  their  deputies, 
appointed  under  authority  of  law.90 

Proclamations  and  Other  Executive  Acts. —  A  state  court  takes  judicial 
cognizance  of  the  proclamations  °6  or  official  messages  to  the  legislature  by  the 
chief  executive  of  the  jurisdiction,  and  of  the  general  orders  of  military  gov- 
ernors.97 it  is  said  that  federal  courts  will  not  take  cognizance  of  the  facts 
stated  in  the  messages  of  a  state  governor,  civil  or  military.98  Other  executive 
acts  of  the  chief  magistrate?*  or  of  his  principal  officer  of  state  1  or  of  promi- 
nent general  officers,2  may  be  noticed  judicially.  The  rule  is  general  that  acts 
of  any  state  functionary  which  nearly  affect  the  public  will  be  judicially  no- 
ticed,3 while  those  of  local  importance  or  limited  interest  will  require  proof.4 

92.  Jones    v.    Gale,    4    Mart.     (La.)     635 
(1817). 


84.  Foster  v.  Globe  Venture  Synd.,  1  Ch.  811 
(1900). 

85.  Lazier   v.    Westcott,  supra;   Lumley  v. 
Wabash  R.  Co.,  71  Fed.  21    (1895). 

86.  Watson  v.  Walker.  23  N.  H.  471  (1851). 

87.  Trotta'a    Adm'r    v.    Johnson,    Briggs    & 
Pitts,    28    Ky.    L.    Rep     851,    90    S.    W.    540 
(1006). 

88.  Sohoerken    v.    Swift,   etc.,   Co,    7    Fed. 
469,    19    Blatchf.     (U.    S.)     209     (1881),    but 
this    judicial    knowledge   does    not   cover   the 
question   what  are  the  departments  of  state 
in  the  country  so  recognized. 

Other  acts  of  state  of  the  chief  national 
executive,  Dole  v.  Wilson,  16  Minn.  525 
(1871)  ;  or  by  an  official  high  in  one  of  the 
chief  departments  of  government,  Southern 
Pac.  R.  Co.  v.  Groeck,  68  Fed.  609  (1895); 
or  of  a  prominent  bureau  in  such  a  depart- 
ment, Lerch  v  Snyder,  112  Pa.  St.  161,  4  Atl. 
336  (1886),  may  be  judicially  known  by  the 
courts. 

89.  1   rhamberlayne.  Evidence.  §§  647-650. 

90.  State    v.    Minnick,    Iowa    123     (1863); 
Lindsey  v.  Atty.-Gen..  33  Miss.  508    (1857): 
State   v.   Boyd,   34   Neb    435,   51    N.   W.   964 
(1892)  :  1  Chamb.,  Ev.,  §  647  and  cases  cited. 

91.  Wells  v.  Jackson  Iron  Mfg.  Co..  47  N. 
H.   235,  260,   90   Am.   Dec.   575    (1866). 


93  Abrams  v.  State,  121  Ga.  170,  48  S.  E. 
965    (1904). 

94.  In  re  Clement,  132  N.  Y.  App.  Div.  598, 
117   N.   Y.  Supp.  30    (1909). 

95.  People  v.  Johr,  22  Mich    461    (1871). 

96.  Hanson    v.    South    Scituate.    115    Mass. 
336    (1874);    Bosworth   v.    Union   R.   Co.,   26 
R.  I.  309,  58  Atl.  982   (1904). 

97.  Gates  v.  Johnson  County,  36  Tex.   144 
(1872);     1    Chamb.,    Kv.,    §    648    and    cases 
cited.     But    see    Burke    v.    Miltenberger,    19 
Wall.    (U.  S.)   519,  22  L.  ed.  158   (1873). 

98.  Houston,  etc.,  R.  Co.  v.  Texas,  177  U. 
S.  66,  20  S.  Ct.  545,  44  L.  ed.  272   ( 1899 ) 

99.  State  v    Gramelspacher,   126   Ind.  398, 
26  N.  E.  81    (1890). 

1.  State  v.  Scampini,  77  Vt.  92,  59  Atl.  201 
(1904). 

2.  Roach  v.  Fletcher,  11  Tex.  Civ.  App.  225, 
32  S.  W.  585   (1895). 

3.  State  v.  Gramelspacher,  supra;  State  v. 
Savage,  65  Neb.  714,  91   N.  W.  716    (1902); 
New  York  v.  Barker,  179  U.  S.  279,  21  S.  Ct. 
121.  45   L.   ed.    190    (1900):    1    Chamb.,    Ev., 
§  648  and  cases  cited. 

4.  State  v.  Wise.  7  Ind.  645    (1856)  ;  Dole 
v.   Wilson,   16  Minn.  525    (1871);   Porter  T. 


171  RESULTS  OF  LAW.  §  338 

County. —  Courts  of  all  grades  judicially  know  the  persons  who  hold  the 
principal  executive  offices  in  the  counties  of  the  state.5  The  courts  of  a  county 
will  judicially  know  all  the  officers  of  its  own  county,6  but  in  case  of  the  officers 
of  other  counties  a  higher  degree  of  official  standing  is  necessary  to  warrant  a 
similar  course ;  7  and,  in  the  absence  of  statutory  requirement,  courts  will  not 
judicially  -know  wlio  are  the  deputies  appointed  by  county  officials.8  Chief 
among  county  officers  judicially  known  by  courts  in  any  county  are  sheriffs,9 
tax  collectors,10  or  other  officials  discharging  the  duties  usually  included  in  the 
office  of  sheriff.11 

Municipal. —  All  courts  know,  as  a  primary  result  of  legislation,  what  officers 
are  legally  required,  at  any  time,  for  the  administration  of  municipal  govern- 
ment, the  respective  powers  and  duties  of  such  officers,  their  terms  of  office, 
amount  of  salary  and  similar  facts.12  What  individuals,  at  any  time,  are  the 
municipal  officers  will  be  known  to  the  courts  of  the  municipality  itself.13  It 
has  been  said  that  judicial  knowledge  will  not  be  taken  as  to  who  are  con- 
stables. The  fact  is  not  of  "  public  notoriety."  14  The  courts  of  a  county  in 
which  a  given  city  is  located  will  judicially  know  who  is,  from  time  to  time, 

its  mavor.15 

n 

§  338.  Judicial  Knowledge  of  Results  of  Law;  Public  Surveys.16 — Knowledge 
of  the  existence  of  public  surveys  made  under  national  authority,  as  an  act  of 
Parliament,17  or  of  Congress,15*  or  under  state  authority,19  will  be  judicially 

Waring,  2  Abb.  N.  Cas.   (N.  Y .)  230  (1877);  10.  Burnett    v.    Henderson,    21    Tex.    588 

1    Chamb,    Ev.,    §    648    and    cases    cited.     A  (1858). 

judge    is    apt   to    take    judicial    notice    of   a          11.  Feld  v.  Loftis,  140  111.  App.  530  (1908), 

fact  easily  ascertainable  from  public  official  affirmed  240  111.  105,  88  N.  E.  281   (1909). 
records.     Pleasant    Valley    Coal    Co.    v.    Salt          12.  1  Chamb.,    Ev..    §    650.     Any    relation 

Lake    County,    15    Utah    97,    48    Pac.    1032  which  the   law   has   established   between   in- 

(1897).  cumbency   of  one  municipal   office   and   that 

5.  Slaughter    v.    Barnes,    3    A.    K.    Marsh.  of   another,   is   a  proper   subject  of  judicial 
(Ky.)    412,    12   Am.   Dec     190,   note    (1821);  knowledge.     Inglis    v.    Hughes,    61    Ind.    212 
Lanfear    v.    Mestier,    18    La.    Ann.    497,    89  (1878). 

Am.  Dec.  658,  682,  note    (1866).  13.  Fluagal  v.  Lards,  108  Mich.  682,  66  N. 

6.  Russell  v.  Huntsville,  etc..  Co.,  137  Ala.       W.   585    (1896). 

627,   34   So.   855    (1902):    Hertig  y    People,  14.  Doe  v.  Blackman,  1  D.  Chipman   (Vt.) 

159  111.  237,  50  Am.  St.  Rep    162,  42  N.  E.  1^   (1797). 

879    (1896)  :    Slaughter  v.   Barnes,  supra;   1  15.  Lucas  v.  Boyd,  156  Ala.  427,  47  So.  209 

Chamb,  Ev.,  §  640  and  cases  cited.  (1908):    People   v.    Hall,   45    Colo.    303.    100 

7.  White  v    Rankin,  90  Ala.  541,  8  So.  118  Pac.    1129    (1909). 

(1889)  ;  State  v.  Ledford.  28  X.  C.   (6  Ired  )  16.    1   Chamherlayne,  Evidence.  §§  651.  652. 

5    (1845)  17.  Birrell    v.    Dryer,   9    App    Cas    345,   5 

8.  Joyce  v.  Joyce.  5  Cal.  449    (1855)  -.   Al-  Aspin.  267.  51  L.  T.  Rep.  (X  S.)  130  (1884). 
ford  v.  State,  8  Tex.  App.  545    (1880).     But  18.  Ledbetter  v.   Borland,  128  Ala.  418,  29 
see  also  People  v.  Johr,  22  Mich.  461   (1871)  ;  So.  579    (1900)  ;  Gardner  v.  Eberhart,  82  111. 
People  v.  Lyman.  2  Utah  30   (1877)  316    (1876);   Quinn  v.  Champajrne.  38  Minn 

9.  Doe  v.  Riley,  28  Ala.   164,  65  Am    Dec.  322.   37   N.   W.   451    (1888);    1    Chamb.   Ev., 
334   (1S56):   Alexander  v.  Burnham,  18  Wis.  §  6.">1   and  cases  cited. 

199    (1864).  19.  Bank  of  Lemoore  v.  Fulgham,  151  Cal. 

234,   90  Pac.   936    (1907). 


JUDICIAL  KNOWLEDGE. 


172 


taken  by  all  courts  20  as  a  secondary  legal  result  of  great  public  notoriety.  Not 
only  is  the  position  of  the  boundaries  of  states,  counties,  towns,  township  and 
other  municipalities,  as  related  to  the  principal  lines,  established  by  these  sur- 
veys, known  to  all  courts  of  localities  within  which  these  facts  are  of  public 
interest,  but  the  position  of  the  meridian,21  range-2  and  section-3  lines  estab- 
lished in  such  localities  are  regarded  in  a  similar  way.  In  the  same  manner 
the  nomenclature,24  including  abbreviations,  adopted  by  the  government  sur- 
veyors, the  numbering 25  arid  relative  position 20  of  territorial  divisions,  as 
counties,27  towns,  townships  whole  2!>  or  fractional, 2a  and  the  like,  need  not  be 
proved.  Incidentally  the  court  judicially  knows  the  actual ;io  and  relative31 
size,  of  such  divisions;  and  also  their  position  both  as  regards  each  other  32  and 
also  in  relation  to  the  meridian  lines  3;;  or  points  of  the  compass.34  An  admin- 
istrative assumption  of  regularity  exists  in  favor  of  the  surveys  made  under 
official  authority.35  The  general  methods  and  results  of  government  surveys 
may  well  be  matters  for  either  judicial  or  common  knowledge.36 

§  339.  Judicial  Knowledge  of  Results  of  Law;  Rules  and  Regulations;  Na- 
tion.37—  The  procedure  adopted  in  and  the  regulations  prescribed  by  the  great 
departments  of  national  government,1'18  as  the  department  of  state,'"9  depart- 
ment of  the  treasury,4"  department  of  the  interior,41  post-office,42  or  of  war  or 


20.  Wright    v.    Phillips,   2    Greene    (Iowa) 
191    (1849) 

21.  Muse  v.   Richards,  70  Miss.  581,  12  So. 
821    (1893). 

22.  Muse  v.  Richards,  supra. 

23.  Hill  v.   Bacon,  43  111.  477    (1867). 

24.  Quinn    v     Windmiller,    67    Cal.    461,    8 
Pac.   14    (1885). 

25.  Sinitha     v       Flournoy,     47     Ala.     345 
(1872)  ;   Albert  v.  *alem,  39  Or.  466,  65  Pac. 
106S,   66    Pac.   233    (  1901). 

26.  Mossman  v.  Forest,  27  Ind.  233  (1866). 

27.  Huxford     v.     Southern     Pine    Co.,     124 
Ga     181,    52    8.    E     439    (1905).    O'Brien    v. 
Krockinski,     50     111.     App      456      (1893):      1 
Chamb.,  Ev.,  §  651   and  cases  cited 

28.  Peck   v,   Sims,    120   Ind.   345.  22   NT    E. 
313    « 1889). 

29.  Webb  v.   Mullins.  78   Ala    111    (1884). 

30.  Quinn    v.    Windmiller.    supra 

31.  Hill   v.   Bacon,  supra. 

32.  Muse  v    Richards,  supra. 

33.  O'Brien   v    Krockinski.  supra. 

34.  Kile  v.  Yellowhead,  SO  111    208   (1875). 
On    the    other    hand,    facts    of    a    limited 

public  interest  as  the  topography  of  a  cer- 
tain locality,  Wilcox  v.  Jackson.  109  Til 
261  (1883)  :  its  minor  divisions.  Stanberry 
v.  Nelson.  Wright  (Ohio)  766  (1834):  the 
position  of  a  particular  lot  upon  the  surface 


of  the  ground,  Goodwin  v.  Scheerer,  106  Cal. 
690,  40  Pac.  18  (1895)  ;  or  whether  a  certain 
piece  of  land  is  within  the  public  domain, 
Schwertltle  v.  Placer  Co.,  108  Cal  589,  41 
Pac.  448  (  1895),  fall  outside  the  range  of  the 
court's  judicial  knowledge. 

35.  Town  of  West  Seattle  v.   West  Seattle 
Land    Imp.   Co.,   38    Wash.   359,   80   Pac.   549 
(1905). 

36.  Little  v    Williams.  88   Ark    37,   113  S 
W.  340   (1908)  ;  Davis  v.  State,  134  Wis.  632, 
115  X.  W.   150   (1908). 

37.  1  Chamberlayne.   Evidence,  §§  652-654 

38.  Caha  v.   U.  S.,  152  U.  S.  211.  14  S.  Ct. 
513,  38  L.  ed    415   (1893)  ;    1   Chamb,  Ev.,  § 
952  and  cases  cited. 

39.  Zevely  v.  Weimer.  5  Tnd.  T.  646,  82  S. 
W   941   (1904). 

40.  Low   v.    Hanson.   72    Me.    104     (1881); 
Dominici    v.    U     S..    72    Fed.    46     (1896);     1 
Chamb..   Ev.,  §  652  and  cases  cited 

Regulations  adopted  by  the  Bureau  of  In- 
ternal Revenue  must  be  proved.  Com.  v 
Crane.  158  Mass.  218.  33  S.  W.  388  (1893). 

41.  Kimball    v.    McKee.    149    Cal     435,    86 
Pac     1089    (1906):    Campbell    v.    Wood.    116 
Mo    196.  22  S    W.  796  (1893^  :  Caha  v.  U.  S., 
supra  :  1   Chamb..  Ev  .  §  652  and  cases  cited 

The  main  rules  of  practice  of  the  land 
office  are  of  general  notoriety  and  their  re- 


173 


RESULTS  OF  LAW. 


§  339 


the  navy,  will  be  judicially  known.  In  general,  where  a  statute  gives  a  depart- 
ment or  other  agency  of  government  the  right  to  pass  regulations  intimately 
affecting  the  conduct  of  large  sections  of  the  public,  courts  whose  duty  it  is  to 
enforce  such  regulations  will  judicially  know  them.43  Another  reason  is  that 
the  power  to  enact  these  regulations  not  only  to  control  the  action  of  the  public 
in  doing  business  with  a  department,  or  any  of  its  bureaus,  but  equally  to  pass 
ordinances  tor  conduct  of  the  community,  as  where  the  lighthouse  board  deter- 
mines the  number  and  kind  of  lights  which  shall  be  placed  upon  drawbridges 
across  navigable  waters,44  regulations  are  made  by  federal  authority  for  the 
quarantine  and  transportation  of  infected  cattle,45  or  the  British  orders  in 
council  are  adopted  by  virtue  of  an  act  of  Parliament,4*5  has  often  been  granted 
by  the  terms  of  a  public  statute. 

Administrative  Boards. —  The  rules  and  regulations  adopted  by  administra- 
tive boards,  departments  of  state  or  other  executive  agencies  of  government  are 
thus  judicially  cognized  by  the  courts,  where  they  are  such  as  may  be  assumed 
to  ati'ect  and,  consequently,  to  be  known  by,  a  large  proportion  of  the  commu- 
nity.47 On  the  other  hand,  regulations  which  affect  only  the  internal  adminis- 
tration of  the  oth'ce  adopting  them,48  or  a  limited  portion  of  the  public,  will  not 
be  judicially  known. 


suits  need  no  proof.  Parkersville  Drainage 
Dist  v.  \\attier,  48  Or  332,  86  Pac.  775 
(1906).  The  practice  of  the  patent  office  as 
to  the  consecutive  numbering  of  patents  falls 
within  the  scope  of  judicial  knowledge.  A. 
Smith,  etc,  Carpet  Co.  v.  Skinner,  Ml  Hun 
(X.  Y  )  U41,  36  X.  V  Supp  1000  (  1895) 

Department  of  justice, —  A  court  will  ju- 
dicially know  that  the  action  of  the  president 
of  the  United  States  in  passing  upon  an  ap- 
plication for  pardon  may  properly  he  taken 
through  the  department  of  justice  Perovich 
v  Perry,  167  Fed.  789  (1909). 

Interstate  Commerce  Commission. —  The 
court  knows  that  the  Interstate  Commerce 
Commission  has  much  to  do  with  the  regula- 
tion of  freight  rates  on  ;irticies  transported 
in  commerce  between  the  states  or  with  for- 
eign nations.  Law  Reporting  Co.  v.  Elvvood 
Grain  Co..  135  Mo.  App  10.  115  S.  \V.  475 
(1909) 

42.  Carr  v    First  Nat.  Bank.  35  Tnd    App. 
216.   73   X.   E.   947    (10051       Judicial   knowl- 
edge has,  however,  been  refused,  even  in  the 
federal  courts      Xasle  v.  I".  S  .  145  Fed.  302, 
76  0.  C.  A.    (X.  Y  )    181    (1906) 

43.  State   v     Southern    Ry    Co..    141    X.   C. 
846.  54   S    E.   294    (1906) 

44.  Smith    v.    Shakopee,    103    Fed.   240.   44 
€.  C.  A    1   (1900). 


45.  Wabash  R.  Co.  v.  Campbell,  219  111.  312, 
76  N.  E.  346   (1905). 

46.  Reg.  v.  The  Ship  Minnie,  4  Can.   Exch. 
151    (1894). 

Autnority  of  Congress. —  Regulations  made 
by  an  executive  department  in  pursuance  of 
authority  delegated  by  Congress  have  the 
force  of  law,  and  the  courts  take  judicial  no- 
tice of  their  existence  and  provisions  U.  S. 
v.  Moody,  164  Fed.  269  (Mich.  1908).  But 
when  the  action  of  an  administrative  board, 
as  supervising  inspectors  of  steam  vessels, 
The  E.  A.  Packer.  140  U.  S.  360,  11  S  Ct. 
794,  35  L.  ed.  453  (18901,  comes  but  little 
into  direct  touch  with  the  public,  their  regu- 
lations will  not  receive  judicial  notice  On 
the  contrary,  where  a  great  department  of 
government,  such  as  that  of  agriculture,  is 
expressly  empowered  to  regulate  a  matter 
which  intimately  concerns  the  public,  eg, 
the  transportation  of  cattle.  State  v  Southern 
Ry.  Co  ,  supra,  the  courts  of  a  state  will  ju- 
diciallv  notice  these  regulations  It  follows 
that  the  practice  of  the  departments  will  he 
judicially  recognized  and  given  suitable 
weight  by  the  courts  in  the  constntction  of  a 
statute.  Griner  v.  Ra<nrs  &  Perry.  4  Ga.  App. 
232.  61  S  E  147  (1908). 

47.  1    Chamb..   Ev..   §  653. 

48.  Hensley  v.  Tarpey,  7  Cal.  288   (1857). 


340 


JUDICIAL  KNOWLEDGE. 


State. —  Rules  for  the  transaction  of  business  49  adopted  by  the  chief  depart- 
ments of  state,50  or  important  state  51  or  county  52  officials,  may  be  judicially 
recognized  by  the  courts.  Cognizance  is  especially  easy  where  the  power  to 
prescribe  regulations  is  expressly  conferred  by  statute.53  The  regulations  of 
official  boards  which  come  but  little  into  contact  with  the  general  public  must 
be  proved.54 

§  340.  Judicial  Knowledge  of  Results  of  Law;  Signatures  and  Seals;  National.56 
—  The  great  seal  of  the  nation  u°  and  the  national  seal  of  any  government,57 
or  any  of  its  provinces, 5!>  recognized  by  the  executive  of  the  sovereignty  of  the 
court  of  the  forum,  will  be  judicially  cognized;  but  the  seal  of  an  unacknowl- 
edged government  must  be  proved  by  such  testimony  as  the  nature  of  the  case 
admits.59  .National  courts,  and,  in  many  instances,  courts  of  state  jurisdic- 
tion,60 judicially  notice  the  signature  even  by  initials,01  and  the  seals,  of  na- 
tional officials,  of  the  higher  grades  °2  such  as  the  chief  executive,0-'5  or  the  head 
of  departments,  of  state,  or  of  bureaus  under  them.04 

Executive  Magistrates  of  Foreign  States. —  Except  where  other  provision  is 
made  by  statute,05  the  seal  of  the  chief  magistrate,  or  an  executive  govern- 
mental department,60  of  a  foreign  state  or  of  any  municipality  existing 
therein  6T  will  not  be  noticed,  but  is  a  subject  of  proof. 


In  any  case,  unless  expressly  required  to  take 
judicial  notice  of  the  action  of  an  adminis- 
trative board,  a  court  may  decline  to  do  so 
and  require  that  the  fact  be  proved.  Robin- 
eon  v.  Baltimore  &  0.  R  Co.,  64  W  Va.  406, 
63  S.  E.  323  (1908). 

49.  People  v.  Palmer,  6  N.  Y.  App.  Div.  19, 
39   X.   Y.   Supp.  631    (1896). 

50.  City  of  Jeffersonville  v.  Louisville  &  J. 
Bridge  Co.,  169  Ind.  645,  S3  N.  E.  337  (1908)  ; 
1  Chamb.,  Ev.,  §  654  and  cases  cited 

51.  People  v.    Kent   County,   40   Mich.   481 
(1879). 

52.  Mode  v.  Beasley,  143  Ind.  306.  42  X.  E 
727    (1895). 

53.  Larson  v.  Pendler  First  Nat.  Bank,  66 
Neb.    595,    92    X.    \V.    729     (1902)       For    ex- 
ample, quarantine  regulations,  e.g.,  those  af- 
fecting the  transportation  of  diseased  cattle, 
will  be  noticed.     Wabash  R.  Co.  v    Campbell, 
117   111.   App.   630.   affirmed  219   111.   312.   76 
N.  E    34ti    (1905). 

54.  New   York   City   Health   Dept.   v.   City 
Real    Property    Invest.   Co,   86   N.    Y.    Supp. 
18    (1904)  :   People  v.  Dalton,  4fi  N.  Y.  App. 
Div.    264.    61    X.    Y.    Supp.    263     (1899):     1 
Chamb..   Fv  .  §   654  and  cases  cited. 

55.  1    Chamherlayne.  Evidence.  SS  655-659. 

56.  Yount  v.   Howell.    14  Cal.   405    (1859). 

57.  Watson    v.     Walker,    23    N.    H.    471 


(1851)  ;  Lincoln  v.  Bartelle,  6  Wend  (N.  Y.) 
475  (1831);  The  Santissima  Trinidad,  7 
Wheat.  (U  S.)  283.  5  L.  ed.  454  (1822); 
1  Chamb...  Ev.,  §  655  and  cases  cittd 

58.  Lazier   v.    Westcott,   26   N    Y.    146,   82 
Am.  Dec   404   (1862) 

59.  U.    S.    v.    Palmer,    3    Wheat.     (U.    S.) 
610,  4  L.  ed.  471   (1818). 

60.  Yount  v    Hovvell,  supra;  Jones  v.  Gale, 
4  Mart.    (La  )    635    (1817). 

61.  Liddon  v.  Hodnet,  22  Fla.  442    (1886). 
A   telegram  signed  with  the  surname  of  the 
Attorney-General  of  the  United  States.     Pero- 
vich  v    Perry,  167  Fed.  789   (1909). 

62.  Ferguson  v.  Benyon.  16  Wkly.  Rep.  71 
(1867). 

63.  Gardner  v.  Barney,  6  Wall.    (U.  S.  499, 
18  L.  ed.  890   (1867). 

64.  York,  etc.,  Line  R.   Co    v.   Winans,   17 
How.    (U.  S.)    30,  15  L.  ed.  27    (1854)      The 
same  rule  applies  to  the  signatures  and  seals 
of   consuls.    Barber   v.    Mexico    International 
Co..  73   Conn    587.  48   Atl    758    (1901),  and 
other  diplomatic  representatives. 

65.  Duffey  v.   Bellefonte   Presby.   Cong.,  48 
Pa    St.  51    (1864). 

66.  S(-hoerken    v.    Swift,    etc..    Co..    7    Fed. 
469.  ]H   Blatchf     (U.  S.)    200   (1881). 

67.  Chew    v.     Kerk,    4    Rawle     (Pa.)     163 
(1833)  ;  1  Chamb.,  Ev.,  §  656  and  cases  cited. 


175 


RESULTS  OF  LAW. 


341 


State. —  The  great  seal  of  state  of  the  sovereignty  of  the  forum,68  the  seal 
of  every  state  69  and  territory  7ft  in  the  American  Union,  will  be  judicially  no- 
ticed by  all  courts,  state  and  federal,  in  the  United  States.  So  also  the  signa- 
ture atfd  public  71  seal  of  the  present  or  any  past  governor  of  the  state,72  even 
when  under  a  former  government :  T3  and  those  of  leading  officers  of  state,74 
present  or  past,75  or  of  their  substitutes,70  will  be  noticed  by  all  courts  within 
a  state  of  the  Union. 

County. —  The  signature  and  seal  of  the  principal  county  executive  officials,77 
as  recorder  of  deeds,78  registers,79  sheriff,80  tax  collector  S1  and  the  like  need 
not  be  proved ;  nor  the  signatures  and  seals  of  the  deputies  of  such  county 
officers  s-  appointed  by  virtue  of  statute,  and  acting  for  them.83 

Cities,  Toicns,  etc. —  The  official  signatures  and  seals  of  city,  town  and  other 
municipal  officers  will  bejioticed  judicially,84  and  also  those  of  their  deputies 
appointed  under  legal  authority.85 

>;  341.  Judicial  Knowledge  of  Results  of  Law;  Legislative  Department;  Gen- 
eral Facts.80 —  The  existence  of  the  national  and  its  own  state  8T  legislature,  the 
number  of  members  in  its  several  branches,88  general  facts  regarding  its  mem- 
bership, as  that  a  certain  body  of  men  comprise  the  legislature,89  and  when  a 
certain  sessions  ended,91'  will  be  noticed  by  all  the  courts. 


68.  Chicago,    etc.,    K.    Co.    v.    Keegan,    152 
111   413,  39  X    E.  33   (1894). 

69.  U    S.  v   Amedy,  11  Wheat.   (U.  S  )  392 
( 1826  I. 

70.  Coit   v    Millikin,    1    Den.    (N.  Y.)    376 
<1845);    U.   S.   v.   Amedy,  supra;   1   Chamb., 
Kv  ,  §  657  and  cases  cited. 

71.  An     unollicial     seal     must    be     proved. 
Beach  v   Workman,  20  X.  H.  379  (1850) 

72.  Powers  v.  Com.,  110  Ky    ?>S6.  61   S.  W. 
735,  63  S.  W.   976,  22   Ky    L.   Rep    1807,  53 
L    R    A.  245   (  1901  ;   1  Chamb.,  Ev ..  §  657  and 
cases  cited. 

73.  .Jones  v.  Gale's  Curatrix,  4  Mart.  (La.) 
635   (1817). 

74.  Cary  v.  State,  76  Ala.  78  ( 1884)  ;  Weth- 
«rbee  v.  Dunn,  32  Cal.  106   (1867)  :  Roach  v. 
Fletcher,  11  Tex.  Civ.  App.  225,  32  S   W.  585 
(1895)  ;   1  Chamb.,  Ev.,  §  657  and  cases  cited. 

75.  Smyth  v    Xew  Orleans.  C.  &  B.  Co.,  35 
C  C.  A.  646.  93  Fed.  399    (18091. 

76.  People  v   Johr,  22  Mich   461    (1871). 

77.  Himmelmann   v.   Hoadley.   44   Cal.   213 
(1872);    Wetherbee  v.  Dunn,  supra. 

78.  Scott    v.    Jackson.     12    La     Ann.    640 
(1857). 

79.  Francher    v.     De    Montegre.     1     Head 
(fenn  )    40    (1858) 

80.  Thielmann  v.  Burg.  73  Til    293   (1874)  : 
Alford   v     State,    8    Tex.    App.    545    (1880); 


Martin  v.  Aultman,  80  VVis.  150,  49  X.  W. 
749  ( 1891 )  ;  1  Chamb.,  Ev.,  §  658  and  casea 
cited. 

81.  Wetherbee  v.  Dunn,  supra;  Walcott  T. 
Gibbs,  97  111.  118  (1880). 

82.  Himmelmann  v.  Hoadley,  supra. 

83.  Himmelmann  v.  Hoadley,  supra  :  Martin 
v.  Aultman,  supra.     Formal  proof  of  the  of- 
ficial signatures  on  a  county  warrant  must  be 
made   where   their   genuineness    is   placed   in 
issue   by   the    pleadings.     Apache    County    v. 
Barth,  177  U.  S.  538,  20  S.  Ct.  718.  44  L.  ed. 
878. 

84.  1  Chamb ,  Ev.,  §  659. 

85.  Himmelmann   v.    Hoadley,   supra.     The 
courts   of   England   will   judicially  know   the 
seal    of    the   city    of    London.     Woodmasa    v. 
Mason.  1  Esp    53   (1793). 

86.  1   Chamherlayne.  Evidence,  §§  660-663. 

87.  People    v     Burt.    43    Cal.    560    (1872). 
House   of   Commons.     Bradlaugh   v.    Gossett, 
12  Q    B   D   271   (1884) 

88.  State  v.  Mason.  155  Mo.  486.  55  S.  W. 
636   (1900) 

89.  State    v.    Kennard.    25    La.    Ann.    238 
(1873):    State  v    Schnitger,   17  Wyo.  65,  95 
Pac.  698   (1908). 

90.  Perkins    v.    Perkins.    7    Conn     558.    13 
Am.  Dec    120   (1829)  :   1  Chamb  .  Ev..  §  660. 

But  facts  pertaining  to  individuals  aa  that 


341 


JUDICIAL  KNOWLEDGE. 


176 


Municipalities. —  The  legislative  branch  of  a  municipal  government,  as  the 
aldermen  of  a  city,"1  will  be  judicially  noticed. 

Journah. —  Journals  of  a  branch  of  the  legislature  are  public  records. 
"  They  prove  their  own  authenticity."  ya  Their  existence  and  function  in  legis- 
lation are  judicially  known.1'3  Judges  of  a  majority  of  American  states"" 
hold  that  they  may  resort  to  these  journals  for  the  purpose  of  ascertaining  what 
is  the  law  which  they  are  charged  with  the  responsibility  of  knowing  at  their 
peril ;  9o  when  a  statute  went  into  effect  whether  it  was  properly  enacted,  and 
facts  of  similar  nature.  Jn  so  doing,  they  judicially  notice  facts  brought  to 
their  attention  on  such  inspection,  and  give  effect  to  them  even  to  the  extent 
of  controlling  the  official  certificate  of  enactment.1'0 

Legislative  Proceedings. —  Courts  will  take  judicial  notice  of  legislative  pro- 
ceedings, for  example,  that  the  legislature  has  done  certain  official  acts  other 
than  the  enactment  of  laws;  —  e.g.,  expelled  certain  of  its  members.97  Mu- 
nicipal legislative  bodies  stand  in  a  somewhat  similar  position.98 

Direct  Results  of  Legislation. —  The  judge  knows  judicially  the  direct  re- 
sults of  legal  enactments  by  public  statutes,  e.g.,  that  the  sale  of  intoxicating 
liquor  is  prohibited  in  a  particular  county  of  the  state.9"  That  certain  coim- 


a  particular  person  is  a  member,  State  v. 
Polacheck,  101  Wis.  427,  77  X.  W.  708 
(1898);  or  with  relation  to  the  internal 
machinery  of  law  making,  Judah  v.  Vincennes 
University,  16  hid.  56  (1861);  State  v  Dow, 
53  Me.  305  (1865):  are  outside  the  cate- 
gory; —  except  where  the  fact  is  one  of  noto- 
riety. Walden  v.  Canfield,  2  Hob.  (La.)  466 
(1842). 

91.  Fox   v.   Com.,  32   Leg.   Int.    (Pa.)    257, 
i  VV.  N.  C.  243   (1873) 

92.  Grob  v.   Cushman,  45   111.    119    (1867); 
State  v.   Denny,   118   Ind.  44!)    (1888). 

93.  State  v    Swiggart,   118  Tenn.   556.   102 
S.  \V.  75    (1907). 

94.  Sherman    v.    Story,    30    Cal.    253,    275 
(1866);    Hart  v.  McElroy,   72  Mich.  446,  40 
N.    W.    750    (1888);    People   v.    Chenanjro,    8 
N.  Y.  317    (1853)  ;   Dane  County  v.  Keindahl, 
104  Wis.  302,  80  N.  W.  438    (1890)  :   Post  v. 
Supervisors,  105  U    S   667   (1881)  ;  1  Chamb., 
Ev  ,  §  661   and  cases  cited. 

95.  1   Chamb.,  Ev  ,  $§  571  et  seq. 

96.  The  right  of  the   legislature  to  amend 
its  journal  so  as  to  conform  to  the  facts  at 
the    same    session,    is    not    disputed.     Turley 
v   Logan,  17  111    151    (1855). 

In  other  jurisdictions  different  views  pre- 
vail. Xot  only  is  the  certificate  of  the  proper 
official  that  the  act  has  duly  become  a  law 
been  accepted  as  final,  Harwood  v.  Went- 


Avorth,  162  C.  S  547,  16  S.  Ct  390  (1895)  ; 
but  the  journals  have  been  refused  the  status 
of  public  records.  Sherman  v.  Story,  supra ; 
Pangborn  v.  Young,  32  X.  J.  L.  29  (1866). 
In  these  states  they  have  been  treated  merely 
as  public  documents,  (Jrob  v  Cushman, 
supra;  Evans  v.  Browne.  30  Ind.  514,  95 
Am.  Dec.  710  (1869);  which  were  to  be 
proved  by  evidence  in  the  usual  way,  Cole- 
man  v..  Dobbins,  8  Ind.  156  (1S56; 
Burt  v  Winona,  etc.,  R  Co.,  31  Minn. 
472,  18  X.  W.  285  (1884);  1  Chamb.,  Ev.,  § 
661  and  cases  cited;  upon  an  issue  as  to  the 
validity  of  the  statute  regularly  raised  Il- 
linois Cent,  H.  Co  v  People,  143  111  434, 
33  X.  E.  173  (1892);  1  Chamb.,  Ev  ,  §  661 
and  cases  cited.  The  question,  it  will  be 
noted,  is  really  one  of  administration. 

97.  French   v.    State   Senate,    146   Cal.   604, 
80   Pac.    1031,   69   I.    H.   A.   556    (1905).     An 
English  court  judicially  knows  the  order  and 
course  of  proceedings  in  Parliament.     Lake  v. 
•King,  1  \Yrns.  Saund.  131b   (1S46). 

98.  1   Chamb.,    Ev..   §   662      Thus,   where  a 
city   council    is   required    by    law   to   meet   at 
certain   intervals,  the  fact  will   be  known   to 
the    court.     Stoner    v.    City    Council    of    Los 
Angeles,  8  Cal    App.  607.  97  Pac.  692   (1908). 

99.  Bass  v.  State,  1  Ga.  App.  728,  790,  57  S. 
E.  1054   (1907). 


177  RESULTS  OF  LAW.  §  342 

ties,  cities,  towns  1  and  the  like,  are  municipal  corporations,  need  not  be  proved. 
Xor  need  the  statute  be  introduced  in  evidence.2 

§  342.  Judicial  Knowledge  of  Results  of  Law;  Judicial  Department;  General 
Facts.3 —  Among  results  of  a  primary  nature  established  by  law  are  the  exist- 
ence, organization,  jurisdiction  and  powers  of  the  judge's  own  court,4  and  of 
other  courts  established  by  the  constitution  5  or  statutes  of  the  state  y  or  nation 
under  the  authority  of  which  the  court  is  organized." 

Inferior  Courts. —  The  same  rule  or  practice  applies  to  courts  of  inferior 
jurisdiction,8  as  county  "  or  municipal  l"  courts. 

Special  Tribunals. —  Xo  proof  need  be  offered  as  to  the  existence,  jurisdic- 
tion, and  the  like,  of  federal  commissioners,11  justices  of  the  peace  12  and  tri- 
bunals of  special  functions  as  probate  13  courts,  of  inquest  14  or  other  irregular 
judicial  bodies.15 

Federal  Courts. —  The  jurisdiction  of  the  federal  courts  over  places  within 
the  limits  of  a  state  ceded  to  the  national  government  by  the  state  legislature 
will  be  judicially  known;  16  but  not  where  the  acquisition  of  title  is  by  pur- 
chase or  by  the  exercise  of  eminent  domain  by  national  authority.1' 

Foreign  Courts. —  The  jurisdiction  of  a  foreign  court  is  not  noticed.18  But 
the  courts  of  any  forum  recognize,  as  a  fact  of  notoriety.  "  that  tribunals  are 
established  in  the  several  states  for  the  adjustment  of  controversies  and  the 
ascertainment  of  rights;  ''  10  other  notorious  facts  concerning  courts  of  a  sister 

1.  City  of  Brownsville  v.  Arbuckle,  .'JO  Ky.  10.   Hearson     v.     Graudine,     87     111.     115 
L.   Hep.  414.  !)!»   S.    U  .   2:}M    i  I'.iOTl.  '  1*77  .1  :   Heffernan  v.  Hervey,  41  W.  Va.  766, 

2.  In  re  Mohawk   River  U  ridge  Connecting  24    S.    E.    502     il896i.     A    court    of   quarter 
Towns   of    Rotterdam    and   Glenville.    12S    X.  sessions   judicial   knows   the   petty    sessional 
i,App.  Div.  54,  112  X.  \.  Supp   428   i  1!»08)  ;  divisions    of    a    county.     R.    v.    Whittles,    13 
1   Chamb.,   Ev.,  §  663  and  cases  cited.  Q.  B.  248  < 1849  I 

3.  1   Chamberlayne,    Evidence,    ^    664-675.  11.  Ex  parte  Lane.  6  Fed    34    (1881). 

4.  State  v.   Schlessinger,   38   La.   Ann.   564  12.  Olmstead  v.  Thompson,  91    Ala.   130,  8 
(1886).  So.  755  (1800)  :  Goodsell  v.  Leonard.  23  Mich. 

5.  Tucker  v.  State,  11  Md.  322   (1857).  374   (1871). 

6.  Russell  v.  Sargent,  7  111.  App.  98  .1880);  13.   La    Salle  v.   Milligan.   143   111.   321,   32 
In    re    Hackley,    21    How.    Pr.    103     (1861);  X.  E.   106    (1802):   1  Chamb.,  Ev.,  §  666  and 
State    v.    Marsh,    70    Vt.    288,    40    Atl.    836  cases  cited. 

(1898)  ;  1  Chamb.,  Ev.,  §  664  and  cases  cited.  14.  State  v.  Marsh,  supra. 

7.  Headman  v.  Rose,   63   Ga.  458    (1879);  15.   Tucker   v.    State.    11    Md.   322    (1857). 
Ledbetter  v.  U.  S.,  108  Fed.  52,  47  C.  C.  A.  The  court  cannot  take  judicial  notice  in  case 
191    (1901);   1  Chamb.,  Ev.,  §  664  and  cases  of  a  grand   jury.     Chicago,  etc..  Coal  Co.  v. 
cited.     Bankruptcy    courts    are    within    the  People,  114   111.  App.  75,  judg.  aff'd  214  111. 
rule.     Lathrop  v.  Stuart.  5  McLean    (U.  S.)-  421.  73  \.  E.  770  i  190.V) . 

167     (1850).     The    existence    of    all     courte  16.   Lasher  v.   State.   30  Tex.  App.  387.   17 

established    by    Act    of    Parliament    will    be  S.   \Y.   1064.  28   Am.  St.  Rep.  922    i  1891)  :    1 

judicially    noticed    in    England.     Tregany    v.  Chamb..  Ev..  §§  57 1,  667. 

Fletcher,    1    Ld.   Raym.    154    (1694).  17.  People  v.  Collins.  105  Cal.  504.  30  Pac. 

8.  Xelson  v.  Ladd,  4  S.  D.  1    (1893).  16  n<W>5i. 

9.  St.   Louis,   etc.,   R.    Co.   v.    Magness,    68  18.  Xewell  v.  Xewton.  10  Pick.  (Mass.)  470 
Ark.    289,    57    S.    W.    033     (1000);    Lone    v.  (1830). 

State.    1    Tev.    App     700    tl*77):    1    Chamb.,  19.  Dozier   v.    Jovce.    8    Port.    (Ala.)    303, 

r.v..  §  665  and  cases  cited.  312    (1838);   1  Chamb.,  Ev.,  §  668  and  cases 


342 


JUDICIAL  KNOWLEDGE. 


ITS 


state  or  foreign  country,  as  that  courts  of  general  jurisdiction  are  courts  of 
record  20  are  equally  known. 

Districts. —  The  location  and  boundaries  of  the  judicial  districts,  into  which 
the  nation  21  or  a  state  22  or  a  territory  is  divided,  are  established  by  statute  and 
are,  therefore,  primary  results  of  legislation  of  which  judicial  notice  is  neces- 
sarily taken."3 

Terms. —  Courts,  whether  of  general  or  inferior  jurisdiction,24  judicially 
know  the  times  appointed  by  statute  for  holding  terms  of  any  court  lawfully 
established  by  state  or  national"5  authority  in  their  jurisdiction;20  whether 
the  term  is  that  of  the  judge's  own  court  2T  or  that  of  a  court  whose  action  is 
under  review,2*  or  the  court  is  one  of  limited  jurisdiction.2'-' 

Administrative  Boards. —  The  same  rule  applies  to  administrative  boanU. 
exercising  judicial  functions,  as  county  commissioners  3"  or  supervisors;  3l  and 
the  places  at  which  their  sittings  are  appointed  to  be  held.32 

Length  of  Terms. —  Judicial  knowledge  extends  to  cover  the  length  of  terms, 
when  the  fact  is  determined  by  law;  3;{  subject,  of  course,  to  the  court's  power 
of  adjournment.34 

Sessions;  Lenytli  of  Actual  Sitting. —  The  actual  length  of  a  session  or  sit- 
ting of  a  court  cannot  judicially  be  known ;  35  nor  the  time  at  which  a  grand 

YV.   666    (1895);    1    Chamb.,   Ev.,   §   670   and 
cases  cited. 

28.  Olmstead    v.    Thompson.    91    Ala.    130, 
8  So.  755   (1800)  ;  Talbert  v.  Hopper.  42  Cal. 
397    (1871);    Moss   v.   Sugar   Ridge   Tp.,    161 
Ind.   417,   68   X     E.   806    (1903):    Matter   of 
Hackley,  21   How.  Pr.   (X.  Y.)   103   (1861)  :   1 
C'hamli.,  Ev.,  §  670  and  cases  cited.  i 

29.  Van  Duzer  v.  Towne,   12  Colo.  App.  4, 
55  Pac.  13  (  1808)  ;  State  v.  Broderick,  70  Mo. 
622    (1879);    1  Chamb.,  Ev.,  §  670  and  cases 
cited. 

30.  Kane    County    v.    Young,    31    111.    194 
(1863);    Collins  v.  State,  58   Ind.  5    (1877). 

31.  State  v.  Smith.  87  Miss.  551    (1906). 

32.  Ross  v.  Anstill,  2  Cal.  183.  191   (1852)  ; 
1  Chamb.,  Ev.,  §  671. 

33.  McMullan  v.  Long   (Ala.  1905),  39  So. 
777;  Durre  v.  Brown,  7  Ind.  App.  127  (1893)  ; 
1  Chamb.,  Ev.,  §  672  and  cases  cited. 

34.  Harrison     v.     Meadors,     41     Ala.     274 
(1867  K     Whether  an  act  done  on  a  certain 
day    was    done    in    term    time    or    vacation, 
Rogers  v.  Venis,  137   Ind.  221,  36  X*.  E.  841 
(1893),    are    also   fact*    of   the    almanac.     1 
Chamh.,  Ev..  §§  672,  727. 

35.  Dudley  v.  Barnev.  4  Kan.  App.  122.  46 
Pac.  178   (1896)  ;   Hadley  v.  Bernero,  97  Mo. 
App.  314,  71    S.  W.  451    (1902);    1  Chamb., 
Ev.,  §  673  and  cases  cited. 


cited.  The  rule  applies  to  Canada.  Lazier 
v  \\estcott,  26  X.  Y.  146,  82  Am.  Dec.  404 
( 1 S62  ) . 

20.  Morse  v.  Hewett,  28  Mich.  481    (1874). 
The  rule  does  not  apply  to  courts  of  inferior 
jurisdiction.     Holly    v.    Bass,    68    Ala.    206 
(1880)  ;  Hill  v.  Taylor,  77  Tex.  295,  14  S.  W. 
.366    (1890). 

21.  State  v    Arthur,  129  Iowa  235,  105  X. 
W.   422    (1905);    1    Chamb.,   Ev.,   §    669   and 
cases  cited. 

22.  Alabama,  etc.,  Ins.  Co.  v.  Cobb,  57  Ala. 
547    ( 1877 )  ;    1  Chamb.,  Ev.,  §  669  and  cases 
cited. 

23.  Chicago,  etc.,  R.  Co.  v.  Hyatt,  48  Neb. 
161,   67    V    VY.   8    (1896).     Courts   will   take 
judicial  notice  that  a  particular  municipality 
is    within    the    jurisdiction    of    a    particular 
court.     Davis  v.  State,   134  \Yis.  632.  115  X. 
\V.  150   (1908). 

24.  Ex      parte      Voncent,      43      Ala.      402 
(1869). 

25.  Ledbetter    v     T.    S.,    108    Fed.    52,    47 
C.  C.  A.   191    (1901);    1   Chamb.,  Ev.,  §   670 
and    cases    cited. 

26.  Edwards  v.  State,  123  Ga.  542,  51  S.  E. 
630    (1905);   Ery  v.  Radzinski,  219  111.  526. 
76  X.  E.  694    11906);    1  Chamh.,  Ev.,  §  670 
and  cases  cited. 

27.  Harwood  v.  Toms,   130  Mo.  225,  32  S. 


179 


RESULTS  OF  LAW. 


342 


jury  in  fact  met,36  or  the  time  at  which  any  court  or  board,  other  than  the 
court  in  question,37  actually  adjourned  the  sitting.38 

Judges  and  Magistrates. —  While  the  number  of  judges  established  for  a 
particular  court,31*  the  length  of  their  term  of  office,40  the  amount  of  their 
salaries  41  and  the  manner  of  their  selection  42  and  qualifications  are  cognized  as 
"  matter  of  law,"  knowledge  as  to  what  persons  compose  the  judiciary  of  the 
state  or  nation  cannot  well  be  so  regarded.  It  is,  however,  deemed  a  matter  of 
notoriety,  certainly  in  the  legal  community  43  of  which  judicial  notice  is  taken. 
The  courts  of  England,  44  Canada  45  and  America  4G  know  who  are  and  at  any 
time  were,47  either  officially  or  as  a  locum  tene-ns,**  judges  of  their  own  tri- 
bunals 4<J  or  of  any  superior  court  of  record  within  the  jurisdiction,  state  or 
national,50  including  courts  of  probate.51  They  also  know  who  was  the  pre- 
siding officer  at  a  given  date,52  at  what  time,53  and  under  what  law  54  he  was 
selected,55  whether  a  proper  commission  has  issued  56  and  at  what  time  a  par- 
ticular judge  resigns  his  office  5T  or,  for  any  other  reason,  ceased  to  be  a  judge.58 

Inferior  Courts. —  In  America,  according  to  the  prevailing  view,  judicial 
cognizance  is  taken  as  to  who  are  justices  of  inferior  tribunals  59  or  even  as  to 
who  are  justices  of  the  peace,60  or  magistrates  commissioned  for  or  acting  in 


36.  Matter  of  Hackley,  supra. 

37.  Hadley  v.  Bennero,  supra. 

38.  Baker  v.  Knott,  3  Ida.  700,  35  Pac.  172 
(1893). 

39.  Vahle    v.     Brackenseik,     145     111.     231 
(1893);     1    Chamb.,    Ev.,    §    674    and    cases 
cited. 

40.  People  v.  Ebanks,  120  Cal.  026,  52  Pac. 
1078    (1898)  ;   Upton  v.  Paxton,  72  Iowa  295, 
33  X.  \V.  773    (1887)  ;    1  Chamb.,  Ev..  §  674 
and  cases  cited. 

41.  McKinney     v.     O'Conner,     26     Tex.     5 
(1861). 

42.  Alayes  v.  Palmer,  206  Mo.  293,   103  S. 
W.    1140    (1907). 

43.  Ward  v.  State   (Ala.  1905),  39  So.  923. 

44.  Van  Sandau  v.  Turner,  6  Q.  B.  773,  786 
(1845). 

45.  Watson    v.    Hay,    5    N.    Brunsw.    559 
(1847). 

46.  Means  v.  Stow,  29  Colo.  80,  66  Pac.  881 
(1901):    Vahle  v.   Brackenseik,  supra:   State 
v.    Ray,   97    X.   C.   510,    1    S.    E.    876    (1SS7): 
State    v.    Marsh,    70    Vt.    288,    40    At  I.    836 
(1897);     1    Chamb.,    Ev.,    §    674    and    cases 
cited. 

47.  Indianapolis    St.    R.    Co.    v.    Lawn.    30 
ind.   App.  515,  66  X.  E.  508    (1003). 

48.  Bell  v.  State,  115  Ala.  25,  22  So.  526 
(1896). 


49.  Gilliland    v.    Sellers,    2    Ohio    St.    223 
(1853). 

50.  Vahle  v.  Brackenfseik,  supra ;  Barnwell 
v.     Marion,    58    S.    C.    459,    36    S.    E.     818 
(1900). 

51.  McCarver   v.    Hertzberg,    120   Ala.   523, 
25   So.   3    (1898). 

52.  Kilpatrick      v.      Com.,      31      Pa.      198 
(1858). 

53.  Fay  v.  Miville,  2  Rev.  Leg.  333. 

54.  Clark  v.  Com.,  29  Pa.  St.  129  (1858). 

55.  De  la  Rosa  v.  State    (Tex.  Crim.  App. 
1893),  21  S.  W.  192. 

56.  Follain  .v.    Lefevre,    3    Rob.     (La.)     13 
(1842). 

57.  People  v.   McConnell,    155   111.    192,   40 
N.  E.  008    (1895). 

58.  People    v.    Ebanks,    supra;    1    Chamb., 
Ev.,  §  674. 

59.  Perry  v.   Bush.  46  Fla.  242,  35  So.  225 
(  1 903 )  ;     People    v.    McConnell,    supra ;    In- 
dianapolis St.   Ry.  Co.  v.  Lawn,  supra;  Kil- 
patrick v.  Com.,  supra;  1  Chamb.,  Ev.,  §  675 
and  cases  cited.     Contra:  Ripley  v.  Warren, 
2  Pick.    (Mass.)   592    (1824):   County  of  San 
Joaquin  v.  Budd,  96  Cal.  47    (1892). 

60.  Webb  v.  Kelsey,  66  Ark.  180.  49  S.  W. 
819  (1899)  ;  Gilbert  v.  Xational  Cash-Register 
Co.,    176    111.    288,    52    X.    E.    22     (1898);    1 
Chamb.,  Ev.,  §  675  and  cases  cited. 


§   343 


JUDICIAL  KNOWLEDGE. 


180 


the  county  in  which  the  court  is  sitting.01  Judicial  notice  has  been  taken  as 
to  who  are  the  magistrates  of  parishes.02 

Other  States. —  But  judicial  cognizance  cannot  be  taken  as  to  who  are  judges, 
even  of  courts  of  record,li:{  in  another  state,  or  who  are  magistrates  commis- 
sioned to  act  in  the  jurisdiction  of  a  sister  state.'54 

§  343.  Judicial  Knowledge  of  Results  of  Law;  Attorneys  and  Counsel.'1  r< — 
Judicial  notice  is  taken  of  who  is  attorney-general,00  but  not  of  who  are  dep- 
uties."7 .N'o  necessity  exists  for  proving  any  changes  in  the  incumbency  of 
the  office.08  Judges  know,  judicially,  who  are  the  prosecuting  attorneys  of 
the  state09  and  their  assistants  T"  'or  deputies  appointed  under  authority  of 
law;  71  and  the  length  of  their  terms  of  office.72  A  court  will  notice  also  who 
are  the  attorneys  ';!  or  counsellors  admitted  to  its  bar,  and  arc  regularly 

*  O  9r 

licensed;74  but  does  not  know  those  legally  practicing  before  the  bar  of  an 
inferior  domestic  tribunal.7" 

Signatures  and,  Seals. —  The  signatures  of  attorneys  admitted  to  practice  in 
the  court  will,  when  attached  to  pleadings70  or  otherwise  used,  as  an  attorney, 
often  be  judicially  noticed.  The  signature  of  a  prosecuting  attorney,  in  his 
official  capacity,  will  be  noticed.77 

Clerks. —  Judges  judicially  know  who  are  the  clerks  of  the  various  courts,78 

v.  Jacobs,  22  \Vkly  Notes  Cas.  (Pa.)  34S 
(1888):  Cothren  v.  Connaughton,  24  Wis. 
134  (18ti9);  J  Chamb.,  Ev.,  §  676  and  cases 
cited. 

74.  Ferris  v  Commercial  Nat.  Bank,  supra; 
bloan  v    Hallowell,  83  Xeb.  7(52,   120  N.   W. 
44!)    (1909). 

75.  (.lark  v.  Morrison,  ">  An/.  349,  52  Pac. 
985    (1898);    Sutton  v    Chicago,  etc.,  K    Co.. 
98  Wis    157,  73  N.  \V.  9!I3   (1898).     Whether 
lie    is    still    in    active    practice,    Cothren    v. 
(  onnaughton,   supra;  or   continues  to   reside 
in  the  state,  Sutton  v.  Chicago,  etc.,  R.   Co., 
supra,  must  be  proved,  if  claimed. 

76.  Markes  v.  Epstein.   13  X.  V    Civ.   Proc. 
'•.    293    (1888);    Strippelmann   v;   Clark,    11 
Tex.  296   i  1854.)  :   1  Chamb.,  Kv..  §  677.     But 
not   where  the  signature   is  made  by  the  at- 
torney   in    his    personal    capacity,    Masterson 
v.  Le  Claire,  4  Minn.   163    (18(50)  :  as  where 
he  appears  pro  se      Alderson   v.   Bell.  9  Cal. 
315    (1858);    Masterson  v.    Le  Claire,  supra. 

77.  State   v.    Kinney,   81    Mo.    101     (1883), 
although   the  description   of  the  office   is   in- 
correct. 

78.  White  v    Rankin,  90  Ala.  541,  8  So.  118 
(1890);   Major  v    State,  2  Sneed    (Tenn.)    11 
(1854).     See  also  State  v.  Kinney,  21   S.  D. 
390,  113  N.  W.  77  (1907). 


61.  Graham  v.  Anderson,  42  111.  514  i  1867) . 
The    view    in    England    is    to    the    contrary 
Van  Sandau  v  Turner.  6.Q.  B.  773,  9  Jur.  296, 
51  E.  C.  L.  773   (1845). 

62.  Despau    v.    Swindler,    2    Mart.     (La.) 
X.  S.  705    (1825). 

63.  r  el  lows     v.     Menasha,     11      Wis.     558 
(1860). 

64.  In  re  Keeler,   Hempst     (U.  S.)   300,   14 
-ted    Cas.   No.  7,637    (1843). 

65.  1   Chamberlayne,   Kvidence,  §§  (576-681 

66.  Curry   v.    State,   7    Baxt.    (Tenn.)     154 
(1874);     1    Chamb.,    Ev.,    §    676    and    case,, 

cited. 

67.  Crawford  v.  State,  155  Tnd.  692,  57  X. 
E.  931    (1900). 

68.  State  v.  Evans,  8  Humphr.   (Tenn.)   110 
(1847) 

69.  State  v.   Kinney.   81   Mo.    101     (1883): 
and  of  particular  counties  in  the  state.  State 
v     Campbell,    210    Mo.    202.    32    S.    \V.    670 
(1908). 

70.  People  v.   Lyman.   2   Utah    30    (1877). 

71.  State  v.  C.uglielmo,  46  Or.  250,  79  Pac. 
577    11905). 

72.  State  v.  Seibert.  130  Mo.  202.  32  S.  \V. 
670   (1895). 

73.  Ferris   v    Commercial   Xat.   Bank,    158 
111.  237,  41  X.  E.  1118   (1895);  Philadelphia 


181  RESULTS  OF  LAW.  §  343 

whether  state  79  or  federal,80  of  the  forum,  and  who  are  their  deputies.81  As 
a  rule,  presenting  but  few  exceptions/2  courts  do  not  judicially  notice  who  are 
the  clerks  of  court  in  other  states;  and  it  has  been  assumed  83  that  the  clerk  of 
an  inferior  court  would  not  be  judicially  noticed. 

Court  Officers  and  Officials. —  Judges  will  know  for  judicial  purposes  who 
are  the  customary  84  and  legally  appointed  officers  and  officials  of  their  own 
courts  85  and  of  other  courts  of  state  8G  or  national  s7  jurisdiction  exercising 
judicial  functions  within  the  state. 

Sheriffs,  Constables,  etc. —  Courts  judicially  and  officially  know  who  is  sher- 
iff of  a  particular  county,88  and  in  certain  jurisdictions  his  legally  appointed 
deputies;89  though  not  so  in  others.90  Constables  acting  as  court  officers91 
stand  in  the  same  position.  The  length  of  the  term  of  these  respective  offices 
is  judicially  known.92 

Practice. —  Judges  judicially  notice  the  rules  regulating  the  practice  of  their 
own  courts,93  but  not  of  those  of  inferior  tribunals,94  unless  required  to  do  so 
by  statute  or  otherwise.  The  judge  of  a  federal  court  judicially  knows  the 
practice  and  procedure  of  his  own  tribunal,  but  not  those  of  a  state  court.95  An 
appellate  court  judicially  knows  the  rules  and  practice  of  the  court  whose  pro- 
ceedings it  has  the  duty  of  revising.95  A  judge  will  assume  that  the  practice 
of  other  domestic  courts,1'7  of  law  or  equity,98  is,  in  a  general  way,  the  same  as 
that  of  his  own.  Courts  of  general  jurisdiction  will  not  judicially  know  the 

79.  Campbell  v.  West.  86  Cal.  1!>7,  24  Pac.       (La.)    705    (1825).     But  see   Norvell   v.   Mc- 
1000    (1890);   Mackimon  v.  Barnes,  06  Barb.       Henry,  1  Mich.  227    (1849). 

(X.    V.)    91    (1867)  ;   Goodwin   v.   Harris,  2S  87.  Buford  v.  Hickman,  4  Fed.  Cas.  No.  2, 

Tex.   Civ.  App.   7,   66   S.   \V.   308;    1   Chamb.,  114a,   Hempst.    I U.  S.)    232    (1834). 

Ev.,  §  678  and  cases  cited.  88.  Thompson    v.    Haskell,   21    111.    215,   74 

80.  Ledbetter    v.    U.    S.,    108    Fed.    52,    47  Am.  Dec.  98    (1859);   Ex  parte  Bargagliotti, 
C.  C.  A.  191    ( 1901  ) .  6  Cal.  App.  333,  92  Pac.  96  (1907)  ;  1  Chamb., 

81.  Himmelmann   v.    Hoadley.   44   Cal.   213  Ev.,  §  680  and  cases  cited. 

(1872);    State   v.    Barrett,   40   Minn     65,   41  89.  Martin    v.    Aultman.    80    Wis.    150,    49 

'X.    W.    459    (1889).     Their   names   need   not  N.  W.  749    (1891) 

be  proved.     Mountjoy   v.   State,  78    Ind.   172  90.  State    Bank    v.    Curran,    10    Ark.    142 

(1881).     But  the   name   of  a   clerk,   as   that  (1849);  Ward  v.  Henry,  19  Wis.  76    (1865). 

of  an  individual,  is  not  a  subject  of  judicial  91.  Harris    v     Buehler,    1    Pennew.    (Del.) 

cognizance.     Com.    v.    Fray,    126    Mass.    235  346,  40  Atl.  733    (1898). 

(1879).  92.  Hagland  v.   Wynn,  37   Ala.   32    (1860). 

82.  Monroe     v.     Eastman,     31     Mich.     283  93.   Packet  Co.  v.  Sickles,  19  Wall.   (U.  S.) 
(1875).  611    (1873). 

83.  Davis  v.  McEnaney.  150  Mass.  451,  23  94.  Bowen   v.   Webb,   34  Mont.   61,  85  Pac. 
X.  E.  221    (1890).  739    (1906). 

84.  See   Frost   v    Hayward.   2   Dowl.   P.   C.  95.   Handall  v.  New  England  0.  of  P.,   US 
(X.  S  )    566,  6  Jur.   1045,   12  L.  J    Exch.  84  Fed.  782   (1902). 

(1842).  96.  .lohnson-Wynne  Co    v.  Wright.  28  App. 

85.  Cary  v.  State,  76  Ala.  78  (18S4)  :  Miller       Cas.    (D.  C  )    375    (1906). 

v   Matthews,  87  Md.  464.  40  Atl.  176  (1898)  ;  97.  Newell    v.    Newton.    10    Pick.     (Mass.) 

1    Chamb.,    Ev..   §    679    and    cases   cited.  470     (.1830). 

86.  Despau   v.    Swindler,   3   Mart     (N.    S.)  98.  Contee  v.   Pratt.   9    Md.   67    (1856);    1 

Chamb.,   Ev.,  §   681   and  cases  cited. 


JUDICIAL  KNOWLEDGE. 


182 


rules  of  practice  of  inferior  tribunals."  But  without  statutory  regulation,1  lie 
will  not  judicially  cognize  with  precision  the  rules  and  regulations  of  other 
tribunals  in  the  same  jurisdiction,2  or  know  or  make  any  assumption  as  to  the 
procedure  or  practice  of  courts  of  a  sister  state  :J  or  foreign  country. 

§  344.  Judicial  Knowledge  of  Results  of  Law;  Court  Records,  Papers,  etc.4— 

Both  as  a  matter,  at  times,  of  legal  requirement  and  by  reason  of  the  difficulty 
of  making  other  proof  and  the  ease  and  appropriateness  of  this  method  of  estab- 
lishing facts  on  a  court  record  or  in  court  papers-,  judges  take  judicial  notice 
of  such  records  and  papers.5  They  will,  under  proper  circumstances,  examine 
the  records,0  papers  or  docket  entries  "  on  file  in  a  case  either  sua  sponte*  or  at 
the  suggestion  of  counsel.9  Pacts  so  ascertained  will  be  taken  as  proven ;  1(l — 
it  being  sufficient  that  the  record  or  papers  should  be  produced  1]  and  identi- 
fied to  the  satisfaction  of  the  jmlge.12 

Own  Court;  Same  Case. —  It  will  not  be  necessary  to  prove  to  a  judge  the 
record  or  papers  in  a  case  before  him  for  trial,13  whether  originally  filed  in  his 
own  court  or  transmitted  from  another.14  He  will,  as  a  rule,  judicially  notice 
their  existence  15  and  any  facts  which  appear  on  their  inspection,16  either  as 
endorsements  of  the  date  of  filing,17  amount  of  claim,18  and  the  like.  The 


99.  Powell  v.  Springston  Lumber  Co.,  12 
Idaho  723,  88  Pac.  97  (1900);  Bonney  v. 
McClelland,  138  111.  App.  449,  judg.  alfd  235 
111.  259,  85  N.  E.  242  (1908). 

1.  Kindel    v.    Le    Bert,    23    Colo.    385,    48 
Pac.  641,  58  Am.  St.  Rep.  234  ( 1897) . 

2.  Sweeney  v.  Stanford,  00  Cal.  362  (1882)  ; 
Kindel  v.  Le  Bert,  supra;  Gudgeon  v.  Casey, 
62   111.  App.  599   (1895);  Rout  v.  Ninde.  118 
Ind.  123,  20  N.  E.  704  (1888)  ;  1  Chamb.,  Ev., 
§  08!   and  cases  cited. 

3.  Newell  v.  Newton,  supra. 

4.  1   Chamberlayne,   Evidence,   §§   682-690. 

5.  Hollenbach    v.    Schnabel,    101    Cal.    312, 
35    Pac.    872,   40   Am.    St.    Rep.   57     (1894); 
Waterbury  Nat.  Bank  v.  Reed,  231   111.  246, 
83  N.  E.  188   ( 1907 )  ;   Stewart  v.   Hosengren, 
66  Neb.  445,  92  N.  W.  586   (1902)  ;  1  Chamb., 
Ev.,  §  682  and  cases  cited. 

6.  Dewey  v.   St.   Albans  Trust  Co.,  60  Vt. 
1,  12  Atl.  224,  6  Am.  St.  Rep.  84   (1887). 

7.  Dewey  v.    St.   Albans  Trust  Co.,   supra. 

8.  Denny  v.  State.   144  Ind.  503,  42  N.  E. 
929,  31  L*  R.  A.  726    (1895). 

9.  Denny  v.  State,  supra. 

10.  Neville  v.  Kenny,  125  Ala    149,  28  So. 
452,   82   Am.   St.   Rep.   230    (1899). 

ll.-Watkins  v.  Martin,  69  Ark.  311,  65  S. 
W.  103,  425  (1901). 


12.  Hollenbach  v.  Schnabel,  supra;  McGuire 
v.  State,  70  Miss.  504,  25  So.  495   (1898). 

13.  Bailey  v.  Kerr,   180  111.  412,  54  N.  E. 
105    (1899);    State   v.   Bowen,    16   Kan.   475 
( 1876)  ;  Pittel  v.  Fidelity,  etc.,  Ass'n,  86  Fed. 

255   (1898)  ;   1  Chamb.,  Ev.,  §  683  and  cases 
cited. 

14.  Boteler  v.  State,  8  Gill  &  J.   (Md.)  359 
(1836).     For    example,    the    probate    papers 
relating  to  a  given  estate  in  connection  with 
which  the  litigation   in  suit  arises.     Knight 
v.  Hamaker,  40  Or.  424,  67  Pac.  107    ( 1901 ) . 

15.  Hollenbach  v.   Schnabel,  supra;  Taylor 
v.  Adams,  115  111.  570,  4  N.  E.  837    (1886)  ; 
State    v.    Postlewait,    14    Iowa   446    (1862); 
Stewart  v.  Rosengren,  supra. 

16.  World's    Columbian    Exposition    Co.    v. 
Lehigh,   94    111.    App.    43.3    (1900):    State    v. 
Thomas,  74  Kan.  360,  86  Pac.  499    (1906); 
State  v.  Ulrich,   110  Mo.   350,   19   S.   W.   656 
(1892)  ;  Farmers'  L.  &  T.  Co.  v.  Hotel  Bruns- 
wick   Co.,    12    App.    Div.     (N.    Y.)     628,    42 
N.   Y.   Supp.   693    (1896):    1   Chamb.,  Ev.,   § 
683  and  cases  cited. 

17.  Chapman    v.    Currie,    51    Mo.    App.   40 
(1892)  ;  Fellers  v.  Lee,  2  Barb.   (N.  Y.)   488 
(1848). 

18.  Chicago,  etc.,  R.  Co.  v,  Minard,  20  111. 
9    (1858). 


183  RESULTS  OF  LAW.  §  344 

judge  will  know  judicially  any  fact  that  can  be  gathered  from  the  face  of  the 
record  or  papers.19 

Own  Court  Other  Cases. —  Courts  do  not  generally  take  judicial  notice  of 
the  records  in  other  cases  than  that  on  trial  20  as  it  is  deemed  better  for  the 
parties  themselves  to  submit  what  evidence  they  consider  material,  although 
this  is  sometimes  done  in  cases  of  great  notoriety  21  or  in  actions  in  rem.22 
Supplementary  proceedings  are  treated  as  part  of  the  main  case  and  noticed 
only  when  growing  out  of  the  same  case  as  is  on  trial.23 

Other  Courts. —  For  still  stronger  reasons  courts  do  not  take  judicial  notice 
of  the  records,  papers,  etc.,  of  other  courts,24  unless  such  knowledge  is  required 
by  statute.25  So  state  courts  do  not  take  cognizance  of  the  proceedings  of  fed- 
eral courts  26  and  federal  courts  do  not  know  judicially  the  proceedings  of  state 
courts,27  and  courts  do  not  know  judicially  of  the  proceedings  in  courts  outside 
of  their  jurisdiction. 

Signatures  and  Seals. —  The  seal  of  a  court  of  admiralty  being  of  interna- 
tional jurisdiction  will  be  recognized  in  all  other  courts  28  and  a  state  court  will 
judicially  know  the  signature  and  seal  of  federal  courts  29  and  federal  courts 
judicially  know  the  signature  and  seal  of  state  courts  30  and  even  the  official, 
seal  and  signature  of  notaries  public  have  been  judicially  noticed.31 

19.  State   v.   Kesner,   72   Kan.   87,   82   Pac.          24.  Hall   v.   Cole,   71   Ark.   601,   76   S.   W. 
720   (1905)  ;  George  v.  State,  59  Xeb.  163,  80       1067    (1903). 

N.   W.  486    (1899);   Blum  v.   Stein,  68  Tex.  25.  Ohm  v.  San  Francisco   (Gal.  1890),  25 

608    (1887);   1  Chamb.,  Ev.,  §  683  and  cases  Pac.  155. 

cited.     For   example,   defects   on   the   record.  26.  A  state  court  cannot  take  judicial  notice 

State  v.   Ulrich,   supra;  Searls  v.   Knapp,  5  of  bankruptcy  proceedings.     Tube  City  Min- 

S.   D.   325,   58   X.    W.   807,   49   Am.   St.   Rep.  ing  &  Milling  Co.  v.  Otterson,   16  Ariz.  305, 

S73    (1894).     But   not  acts   in  pais  concern-  146  Pac.  203,  L.  R.   A.   1916  E  303    (1914). 

ing  a  cause.     Foster  v.  Chicago,  etc.,  R.  Co.,  27.  Stewart  v.  Masterson,  131  U.  S.  151,  9 

10  Tex.  Civ.  App.  476,  31  S.  W.  529   (1895).  S.  Ct.  682,  33  L.  ed.  114   (1888). 

20.  Lake   Merced   Water  Co.  v.  Cowles,  31  28.  Lincoln  v.   Battelle,   6   Wend.    (N.   Y.) 
ral.  214   (1866).  475   (1881). 

21.  Story  v.  Ulman,  88  Md.  244,  41  Atl.  120  29.  Adams  v.  May,  33  Conn.  419  (1866). 
(1898).  30.  Turnbull     v.     Payson,     95     U.    S.     418 

22.  Cushman    Co.    v.    Goddard,    37    C.    C.  (1877). 

A.  221,  95  Fed.  664   (1S99).  31.  Black   v.   Minneapolis  &  St.  L.  R.   Co. 

23.  Lester  v.  People,  150  111.  408,  37  N.  E.       (Iowa  1903),  96  N.  W.  984. 
1004  (1894). 


CHAPTER  IX. 

KNOWLEDGE;  COMMON. 

Common  knowledge,  345. 

administrative  advantages,  346. 
What  knowledge  is  common,  347. 

knowledge  as  affected  by  jurisdiction,  348. 

restricted  communities,  349. 

potential  knowledge,  350. 

General  notoriety;  classes  of  facts  so  established;  res  gestce,  351. 
What  facts  are  covered  by  the  rule,  352. 

nature,  353. 

science,  354. 

facts  of  geography,  355. 

facts  of  human  experience,  356. 

standards  of  reasonable  conduct,  357. 

facts  of  social  life,  358. 

facts  of  history,  359. 

facts  of  business,  360. 

evidence  of  skilled  witness  not  required,  361. 
various  matters  covered,  362. 
How  actual  knowledge  may  be  acquired,  363. 

judge  may  decline  to  know  fact,  364. 

may  require  aid  of  parties,  365. 

examination  by  judge,  366. 

function  of  the  jury,  367. 
books  not  evidence,  368. 
standard  treatises,  369. 

testimony  of  skilled  witnesses,  370. 
How  far  knowledge  is  binding,  371. 

matter  of  fact,  372. 

matter  of  law,  373. 
Cognizance  as  affected  by  action  of  the  parties;  waiver,  374. 

§  345.  Common  Knowledge.1 —  Common  knowledge  is  general  knowledge.  It 
is  the  knowledge  that  every  one  has.  The  subject,  as  has  been  intimated,  has 
no  special  relation  to  the  law  of  evidence.2  A  trial  at  law  takes  the  world  as 

1.  Chamberlayne,  Evidence,  §§  691,  692.          need  not  be  proved."     South  &  N.  Ala.  R.  R. 

2.  "  All  men  know  them  and  therefore  they      Co.  v.  Wood,  74  Ala.  449  (1883). 

184 


185  ADMINISTRATIVE  ADVANTAGES.  §§   346, 347 

a  whole  precisely  as  it  finds  it.  With  only  a  small  portion  of  its  happenings 
does  the  law  of  evidence  purport  to  deal.  These  it  calls  the  res  gestce.*  Only 
by  assuming  the  reality  and  correctness  of  common  knowledge  can  the  settle- 
ment of  what  the  res  yestce  are  and  what  they  mean  in  terms  either  of  fact  or 
law,  possibly  be  reached  within  any  reasonable  limits  of  time.  Indeed,  the 
requirement  of  substantive  law,  that  reason  must  be  employed  by  all  branches 
of  the  tribunal  exercising  administrative  or  judicial  functions,4  is  in  reality  in 
itself  equivalent  to  and  involves  a  permission  and  insistence,  that  the  common 
knowledge  of  the  community  should  be  used  equally  both  by  judge  and  jury. 

§  346.  [Common  Knowledge] ;  Administrative  Advantages.5 —  Were  the  foren- 
isc  use  of  common  knowledge  not  necessary,  it  should  be  adopted  and  given  force 
and  extension  by  reason  of  the  marked  advantages  which  it  places  within  the 
reach  of  the  administrative  powers  of  a  presiding  judge.  Few  of  the  adminis- 
trative duties  of  such  a  magistrate  are  more  impressive,  especially  for  the  expe- 
diting of  trials,  than  the  necessity  of  seeing  that  any  case  before  him  keeps 
constantly,  as  it  were,  turning  upon  its  hinge.  That  is,  attention  should  be 
focused  at  all  times  on  proof  of  the  constituent  facts  or  set  of  such  facts  as  to 
which  the  parties  are  in  dispute.  The  jury  should  at  no  time  be  allowed  to 
digress  to  proof  of  facts  which  all  persons  know  to  be  true,  or  as  to  which  the 
parties  do  not  care  to  enter  into  a  contest.  As  a  method  of  expediting  trials  6 
and  sustaining  meritorious  causes  in  an  appellate  court 7  the  advantages  of 
steadily  extending  the  forensic  use  of  common  knowledge  are  obvious.  The 
province  of  the  jury,  orderly  administration  and  preservation  of  the  rights  of 
the  parties  alike  require  that  the  judge  should  be  the  mouthpiece  of  the  mixed 
tribunal.  Facts  which  the  judge  rightly  regards  as  commonly  known  go  to  the 
jury  as  established,  without  further  proof,  and  the  judge  may  charge  the  jury 
to  that  effect.8 

§  347.  What  Knowledge  Is  Common.9 —  The  test  of  what  knowledge  is  com- 
mon is  not  furnished  by  any  individual  judge  or  any  particular  jury.  Neither 
of  these  judicial  tribunals  may  ever  have  heard  of  the  fact  claimed  to  be  "  com- 
monly known."  Their  ascertainment  may  require  a  long  course  of  laborious 
investigation.  Common  knowledge  covers  such  facts  of  notoriety  and  general 

3.  Neville  v.  Kenney,   125  Ala.   140,  28  So  4.  Supra,  §  31,  6  supra.  §  170  et  seff. 

452,   454    (1899).     ''In   seeking  to   ascertain  5.   1   Chamberlayne,  Evidence,  §§   693,  694. 

the  unknown  from  the  known,  a  judicial  tri-  6.  Supra.  §  303  et  sef/. 

bunal  is  called  on  to  use,  apply,  reflect  upon,  7.  Campbell  v.  Wood,  116  Mo.  196,  22  S.  W. 

and    compare    a    great    body    of    facts    and  796    (1S93):    Hunter   v.   New   York,   etc.,   R. 

ideas  of  which  it  is  already  in  possession,  and  Co.,   116  X.   Y.  615,  23  X.  E.  9,  6  L.   R.  A. 

of   which    no   particle  of   'evidence.'    strictly  246   (1889). 

so  called,  is  ever  formally  presented  in  court.  8.  People  v.   Mayes,   113  Cal.   618.  45  Pac. 

And  then,  in  addition,  it  has  to  be  put  in  pos-  860    (1896)  ;    State   v.    Laffer.    38    Iowa   422 

session  of  new  material.     It  is  this  necessity,  (1874). 

that  of  furnishing  new  matter,  which  gives  9.  1  Chamberlayne,    Evidence,    §    695. 
occasion  for  rules  of  evidence."     Thayer,  Pre- 
lim. Treat.,  270. 


§§  348-351  KNOWLEDGE;  COMMON.  186 

acceptance  as  the  ideal  judge  and  jury  should  know ;  —  the  knowledge  each 
would  have  if  he  were  a  perfect  representative  of  the  community.  The  tri- 
bunal, both  court  and  jury,10  will  assume  such  facts  to  be  true,  without  evi- 
dence,11 unless  and  until  the  judge  demands  that  proof  be  furnished  as  to  them. 

§  348.  [What  Knowledge  Is  Common] ;  Knowledge  as  Affected  by  Jurisdic- 
tion.12—  Courts  of  general  jurisdiction  do  not  treat  as  matters  of  common 
knowledge  facts  of  merely  local  notoriety.  Within  limits  not  well  defined,  and 
following,  in  part,  the  analogy  of  the  court's  knowledge  of  law,  it  is,  as  a  rule, 
rather  the  community  for  which  than  the  community  in  which  the  judge  is  sit- 
ting which  determines  the  range  of  the  facts  which  he  will  treat  as  common 
knowledge. 

§  340.  [What  Knowledge  Is  Common] ;  Restricted  Communities.13 —  On  the 
contrary,  facts  may  be  regarded  as  commonly  known  even  by  a  judge  of  gen- 
eral jurisdiction ;  —  provided  they  are  so  known  and  understood  in  a  limited 
community  with  which  the  judge  is  specially  familiar  and,  for  which,  in  a 
real  sense,  he  may  be  regarded  as  sitting.14 

§  350.  [What  Knowledge  Is  Common] ;  Potential  Knowledge.15 —  The  average 
community,  in  addition  to  facts  directly  known,  has  a  certain  knowledge  as  to 
the  reach  of  the  knowable,  especially  along  scientific,  historical  or  technical 
lines,  and  knows  where  reliable  information  concerning  them  is  stored.  As  to 
these  facts,  about  which  no  dispute  exists,  which  are  definitely  settled,  in  a 
particular  way,  the  easy  and  sensible  thing  for  a  court  to  do  is  what  any  intel- 
ligent person  would  do  in  his  private  affairs ;  -*-  "  look  it  up"  in  an  encyclo- 
paedia,' atlas,  scientific  treatise  or  other  work  of  standard  authority.  The 
knowledge  so  acquired  is  deemed  common  knowledge. 

§  351.  General  Notoriety;  Classes  of  Facts  so  Established;  Res  Gestae.16 — As 
elsewhere  stated  17  use  may  be  made  of  common  knowledge  in  the  establish- 
ment of  facts  which  are  outside  the  necessity  for  strict  proof.  Where  the  fact 
in  question  is  one  of  the  res  gestce,18  or  a  probative  one  necessary  to  proof  of 

10.  Com.  v.  Peokham,  2  Gray   (Mass.)   514  is  not  necessary  to  prove  to  a  judge  facts  of 
(1854)    (gin  intoxicating)  ;  Murdock  v.  Sum-  a  technical  nature  notorious  in  the  legal  pro- 
ner,  22  Pick.    (Mass.)    156    (1830);    Spengler  fession.     In    the    same    way    courts    dealing 
v.  Williams,  67  Miss.  1,  6  So.  61311880)    (at-  'ustomarily   with    special    subjects,   as   mari- 
tractiveness  to  children  of  loosely  piled  lum-  time    or    patent    cases,    regard    as    generally 
ber).  known    facts   commonly   agreed   upon    among 

11.  State  v.  Main,  69  Com.  123,  37  Alt.  80,  persons  experienced  in  the  particular  branch 
bl  Am.  St.  Rep.  30,  36  L.  R.  A.  623    (1807)  :  in  which  the  presiding  judge  is  himself  ex- 
State  v.  Downs,   148   Ind.   324,  47  N.  'E.  670  pert.     In  this  connection,  these  persons  con- 
(1897);   King  v.  Gallun.  109  U.  S.  99,  3  S.  stitute  the  judge's  "community." 

Ct.  85,  27  L.  ed.  870   (1883).  15.  1    niamberlayne.   Evidence,   §   608. 

12.  1   Chamberlayne,   Evidence,   §   606.  16.   1   Chamberlnyne,    Evidence,    §   700. 

13.  1   Chamberlayne,    Evidence,   §   607.  17.  Supra.  §  346. 

14.  Thus,  the  legal  profession  is,  to  a  cer-  18.  Supra,  §  31.     Aloore  v.   State,   126  Ga. 
tain  extent,  the  community  of  all  judges.     It 


187 


WHAT  FACTS  COVERED. 


352,  353 


the  res  gestce,19  a  fortiori  where  it  is  a  constituent  fact,  either  party  is  entitled 
to  insist  within  the  limits  prescribed  by  reason,  that  proof  shall  be  furnished  as 
to  its  existence.  It  is  not,  therefore,  established  by  the  use  of  common  knowl- 
edge. 

§  352.  What  Facts  Are  Covered  by  the  Rule.20 — "  Courts  will  not  pretend  to 
be  more  ignorant  than  the  rest  of  mankind."  21  Speaking  broadly,  the  entire 
range  of  human  knowledge  commonly  accepted  as  true  in  the  community  for 
which  the  court  sits  is  regarded  by  it  as  generally  known  and  its  correctness  is 
assumed  in  dealing  with  the  res  gestce  which  are  proved  to  the  tribunal.22  An 
attempt  to  classify  human  knowledge  in  this  connection  must  necessarily  be  in 
a  sense  arbitrary.  It  falls  naturally,  however,  into  certain  broad  divisions, 
distinct  as  a  whole,  though  often  indistinct  in  outline  of  boundary  from  cognate 
classes.  Such  are  facts  relating  to  (1)  nature;  (2)  science;  (3)  geography; 
(4)  human  experience;  (5)  social  life;  (6)  history;  (7)  business. 

§  353.  [What  Facts  Are  Covered  by  the  Rule] ;  Nature.23 —  Notorious  facts 
regarding  the  order  of  nature  need  not  be  proved.  The  natural  order  of  events, 
so  far  as  invariable,24  and  obvious  to  common  apprehension  are  commonly 
known.25  Of  this  nature  is  the  succession  of  the  seasons.26 


414,  55  S.  E.  327  (1906)  (former  county 
prohibited  sale  of  liquor). 

Maine. —  Chase  v.  Maine  Cent.  R.  Co.,  77 
Me.  62,  52  Am.  Rep.  744  (1885);  Huntress 
v.  Boston,  etc.,  R.  Co.,  66  X.  h.  185,  34  Atl. 
154,  49  Am.  St.  Rep.  600  (1890). 

New  York. —  Reynolds  v.  New  York  Cent., 
etc.,  R.  Co.,  58  X.  Y.  248  (1874)  ;  Minnesota 
v.  Barber,  136  U.  S.  313  (1890).  On  a  crim- 
inal proceeding  for  receiving  stolen  cotton, 
the  court  will  not  dispense  with  proof  that 
cotton  is  a  thing  of  value.  Wright  v.  State, 

1  Ga.  App.  158,  57  S.  E.   1050    (1907).     "A 
matter  which  could  legitimately  be  the  sub- 
ject of  inquiry  in  a  court  could  not  well  be 
said   to   be   so  well   established   and   to   have 
acquired    such    notoriety   as   to    come   within 
the   judicial   knowledge   of   the   court."     Chi- 
cago,  etc.,   R.    R.   v.   Champion    ( Ind.    1892), 
32  X.  E.  874.     But  see  also  Com.  v.  Peckham, 

2  Gray    (Mass)    514    (1854)     (gin)     (intoxi- 
cating quality  of  certain  liquor). 

19.  Supra,  §  34;  Tunnison  v.  Field,  21   111. 
108    (1859):    Shiverick    v.    Gunning   Co.,    58 
Xeb.  29,  78  X.   \V.  460    (1899).     "This  fact 
ought  to  have  been  proved,  and  not  been  thus 
assumed  by  the  court  as  a  historical  fact,  of 
which  the  court  could  take  judicial   notice." 
Simmons   v.  Trumbo,   9   YV.  Va.   358    (1876). 

20.  1  Chamber layne,   Evidence,   §   702. 


21.  Fisher    v.    Jansen,    30    111.    App.    91 

(1888). 

22.  Indiana. —  Jamieson  v.  Indiana  Xatural 
Gas,  etc.,  Co.,  128  Ind.  555,  28  X.  E.  76,  12 
L.  R.  A.  652   (1891). 

Massachusetts. —  Com.  v.  Pear,  183  Maas. 
242,  66  X.  E.  719  (1903). 

Michigan. —  Gilbert  v.  Flint,  etc.,  R.  Co., 
51  Mich.  488,  16  X.  W.  868,  47  Am.  Rep.  592 
(1883)  ;  Howard  v.  Moot,  64  N.  Y.  262  [af- 
firming 2  Hun  475,  5  Thomps.  &  C.  89] 
(1876). 

23.  1  Chamberlayne,  Evidence,  §§  703-732. 

24.  Seufferle  v.  MacFarland,  28  App.  Caa. 
(D.  C.)   94   (1906)  ;  Rex  v.  Luffe,  8  East  193, 
9  Rev.  Rep.  406   (1807).     "The  natural  laws 
of  which  courts  take  judicial  notice  are  such 
as  are  of  uniform  occurrence  and  invariable 
in    their    action."     Chicago,    etc.,    R.    R.    v. 
Champion    (Ind.    1892),   32   X.   E.   874    (mo- 
tion of  a  freight  car  under  given  conditions). 

The  effect  of  placing  obstructions  in 
streams,  so  far  as  uniform,  will  be  commonly 
known.  Tewksbury  v.  Schulenberg,  41  Wia. 
584  (1877)  (dams). 

25.  Lake  Shore,   etc.,   R.   Co.   v.   Miller,   25 
Mich.  274.  292  (1872)  ;  Burwell  v.  Brodie,  134 
X.    C.    540,    47    S.    E.   47     (1904)     (planting 
time) . 

26.  Tomlinson   v.   Greenfield,    31    Ark.   557 


KNOWLEDGE;  COMMON. 


188 


In  other  words,  the  physical  world,  the  operation  of  the  established  laws  of 
nature,27  including  the  application,  in  a  familiar  form,  of  combustion,28 
force,29  gravitation,''50  momentum,31  are  not  proper  subjects  of  special  knowl- 
edge ;  —  or,  as  is  usually  said,  to  be  proved  by  expert  testimony. 

Regularly  recurring  and  approximately  uniform  succession  of  weather  con- 
ditions, as  heavy  rains  at  a  particular  season  of  the  year,32  may  be  a  subject  of 
common  knowledge.  But  mere  maxims  of  personal  experience  —  as  that  a 
foggy  night  is  followed  by  a  foggy  morning  33 —  must  be  established  by  proof. 

The  operation  of  natural  laws,  fairly  invariable  in  their  action,  may,  as  in 
case  of  the  action  of  water  in  running  streams,  under  varied  common  condi- 
tions,34 be  facts  of  notoriety. 

This  rule  includes  the  divisions  of  time  into  hours,  minutes,35  etc.,  the  char- 
acteristic properties  of  matter  whether  solid  3ti  or  liquid,37  including  intoxicat- 
ing liquors,38  distilled  39  or  fermented,40  or  malt 41  as  beer,42  lager  beer  43  and 
medicines  44  or  wines,45  and  so  also  of  gaseous  substances.4'5 


(1876)  ;  Ross  v.  Boswell,  60  Ind.  235  (1877). 
See  also  Barber  Asphalt  Pav.  Co.  v.  City  of 
Wabash  (  [nd.  App.  1909),  86  N.  E.  1034; 
First  Nat.  Bank  v.  Rogers  (Okla.  1909),  103 
Pac.  582  (succession  of  seasons). 

Agricultural  seasons,  not  being  fixed  by 
dates,  cannot  be  judicially  known  with  pre- 
cision. Gove  v.  Downer,  59  Vt.  139,  7  Atl. 
463  ( 1886 )  (pasture  season ) . 

27.  Cooper  v.  Mills  County,   69   Iowa   350, 
28   X.  W.  633    (1886)     (action  of  currents). 
Judicial  notice  must  be  taken  of  the  primary 
physical  laws.     Rome  Ry.  &  Light  Co.  v.  Keel, 
3  Ga.  App.  769,  60  S.  E.  468   (1908). 

28.  Boothby  v.  Lacasse,  94  Me.  392,  47  Atl. 
916  (1900)    (fire)  ;  Welch  v.  Franklin  Ins.  Co., 
23  W.  Va.  288  (1883). 

29.  Golson    v.    State,    124    Ala.    8.    26    So. 
975    (1899)     (bullet);   Richardson  -v.  Eureka, 
96  Cal.  443,  31    Pac.  458    (1892)    settling  of 
building)  ;    Weane   v.    Keokuk,    etc.,    R.    Co., 
45   Iowa  246    (1876);   Passmore  v.  Passmore, 
60  Mich.  463,  27  N.  W.  601    (1886). 

30.  Paducah  St.  R.  Co.  v.  Graham,  15  Ky. 
L.  Rep.  748   (1894)    (fall  from  car). 

31.  Chicago,   etc.,   R.   Co.   v.   Lewandowski, 
190  111.  301,  60  N.  E.  497    (1901)    (train  of 
cars). 

32.  Elser  v.  Village  of  Gross  Point,  223  111. 
230,  79  N.  E.  27   (1906). 

33.  Texas  &  X.  0.  R.  Co.  v.  Langham  (Tex. 
Civ.  App.   1906),  95  S.  W.  686. 

34.  Morton  v.  Oregon   Short  Line  Ry.  Co., 
48  Or    444,  87  Pac.   151,  7  L.  R.  A.    (N.  S.) 
344  (1906)    (freshet).     It  need  not  be  proved 


that  when  the  specific  gravity  of  a  log  be- 
comes greater  than  that  of  water,  it  sinks 
to  the  bottom;  or  that  if  the  stream  has  any 
considerable  current,  the  log  is  apt  to  become 
embedded  in  the  bottom.  Whitman  v.  Muske- 
gon  Log  Lifting  &  Operating  Co.,  152  Mich. 
645,  116  X.  W.  614,  15  Detroit  Leg.  X.  383 
(1908). 

35.  Williamson  v.  Brandenberg,  6  Ind.  App. 
97,  32  X.  E.   1022    (1892);   Mclntosh  v.  Lee, 
57  Iowa  356,  10  X.  W.  895   (1881)  ;  Bar  Har- 
bor First  Xat.  Bank  v.  Kingsley,  84  Me.  Ill, 
24  Atl.  794    (1891);  Hedderich  v.  State,  101 
Ind.  564,  1  X.  E.  47,  51  Am.  Rep.  768   (1884). 

Judicial  cognizance  is  not  taken  of  the 
hours  of  the  day  in  England.  Collier  v. 
Xokes,  2  C.  &  K.  1012,  5  Exch.  275,  61  E.  C. 
L.  1012  (1849). 

36.  Ware   v.   Chew,   43   X.   J.   Eq.   493,    11 
Atl.  746    (1887)    (brick  wall);   Worden's  Ap- 
peal, 71   Conn.  531,  42  Atl.  659,  71   Am.  St. 
Rep.   219    (1899)     (asphalt);    Xewlin   v.    St. 
Louis  &  S.  F.  R.  Co.,  222  Mo.  375,  121  S.  W. 
125     (1909)      (rotting    of    wood);    Willis    v. 
Lance,  28  Or.  371,  43  Pac.  483,  487    (1896) 
(deflect  currents  of  air). 

37.  Wood    v.    Xorth    Western    Ins.   Co.,   46 
X.  Y.  421   (1871). 

38.  Blatz  v.   Rohrbach,    116   X.  Y.  450,  22 
X.    E.    1049    (1889);    Johnston   v.    State,   23 
Ohio   St.   556    (1873).     To  the   contrary,   see 
State  v.   Biddle,   54  X.   H.  379    (1874).     See 
Garst  v.  State,  68  Ind.  101    (  1879)  :  Shaw  v. 
State,  56  Ind.  188   (1877)  ;  Haines  v.  Hanra- 
han,  105  Mass.  480   (1870).     The  courts  will 


189 


FACTS  COVKKED. 


354 


§  354.  [What  Facts  Are  Covered  by  the  Rule] ;  Science.47 —  The  rule  also  in- 
cludes matters  of  scieuce  48  like  mathematics,49  standards  of  measure,50  value  51 
aud  weight,52  the  facts  of  the  almanac53  showing  the  movements , of  the  heav- 


take  judicial  notice  of  the  fact  that  spiritu- 
ous and  vinous  liquors  such  as  whisky, 
brandy,  wine,  rum  and  gin,  as  well  as  malt 
liquors  like  beer  and  ale,  are  intoxicating,  but 
the  court  cannot  take  notice  that  a  new 
drink  called  "Malt  Mead  '  is  intoxicating 
when  it  has  not  become  so  well  known  as  to 
have  a  reputation  in  the  community.  Gour- 
ley  v.  Commonwealth,  140  Ky.  221,  131  8.  \V. 
34,  48  L.  R.  A.  (X.  S.)  315  (1910). 

39.  Hodge  v.  State,   116  Ga.  852,  43  S.  E. 
255    (1902);   Schlicht  v.   State,  56  Ind.    173 
(1877);   Com.  v.   Morgan,   149  Mass,  314,  21 

N.  E.  369    (1889). 

40.  State   v.   McLalTerty,   47   Kan.    140,   27 
Pac.  843    ( 1891 )  ;   State  v.  Schaefer,  44  Kan. 
90,  24  Pac.  92    (1890)  ;   State  v.  Crawley,  75 
Miss.  919,  23  So.  625    (1898);   Eureka  Vine- 
gar Co.  v.  Gazette   Printing  Co.,  35  Fed.  570 
(1888). 

41  Wiles  v.  State,  33  Ind  206  (1870).  See 
also  State  v.  Gill,  89  Minn.  502,  95  N.  W. 
449  (1003). 

Malt  liquor  is  commonly  known  to  be  a 
general  term  for  an  alcoholic  beverage  pro- 
duced merely  by  the  fermentation  of  malt  as 
opposed  to  those  obtained  by  the  distillation 
of  malt  or  mash.  Marks  v  State  (Ala. 
1909),  48  So.  864  \citing  Allred  v.  State,  89 
Ala.  112,  8  So  56  (1889):  Tinker's  Case,  90 
Ala.  647,  8  So.  814  i  1889)]. 

42.  \ew    York.—  Blatz    v.    Rohrbach,    116 
N.  Y.  450,  22  X.  E.   1049    (1889). 

Kkode  Island. —  State  v.  Beswick,  13  R.  I. 
211,  220  (1880). 

43.  State  v.  Morehead,  22  R.  I.  272,  47  Atl. 
545     (1900);    State    v.    Rush,    13    R.    I.    198 
(1881).     State    v.    Kibling,    63    Vt.    636.    22 

Atl.  613  (1891).  But  see  Tinker  v  State,  90 
Ala  647  (18901;  Rau  v.  People.  63  X.  Y. 
277  (1875).  See  also  Smith  v  State.  113 
Ga.  758.  39  S.  E.  249  (1901). 

Whether  bitters,  tonics  or  other  compounds 
are  intoxicating  is  a  question  of  evidence. 
State  v.  Gregory,  110  Iowa  624.  82  X.  W.  335 
(1900). 

44.  Intoxicating  Liquor  Cases.  25  Kan.  751, 
37   Am.   Rep    284    (1S31);   Mitchell   v.   Com.. 
106  Ky.  602,  51  S.  W.   17.  21  Ky.  L.  Rep    222 
(1899)    (Jamaica  ginger):   State  v.  Muncey. 
28  W.  Va.  494  (1886)    (essence  of  cinnamon). 


See  also  Robers  v.  State,  4  Ga.  App.  207,  60  S. 
E.  1082  (1908)  ;  Mason  v.  State,  1  Ga.  App. 
534,  58  S.  E.  139  (1907). 

45.  Iowa. —  State  v.   Curley,   33    Iowa   359 
(1871). 

\orth  Carolina.—  State  v.  Packer,  80  N.  C. 
439  (1879)  (port). 

Pennsylvania. —  Hatfield  v.  Com.,  120  Pa. 
St.  395,  14  Atl.  151  (1888). 

Vermont. —  Starace  v.  Rossi,  69  Vt.  303,  37 
Atl.  1109  (1897)  (Italian  sour  wine). 

Home-made  blackberry  wine  is  not  known, 
judicially,  to  be  intoxicating.  Loid  v.  State, 
104  Ga.  726,  30  S.  E.  949  (  1898). 

46.  Jamieson  v.  Indiana  Xatural  Gas,  etc., 
Co.,   128   Ind.  555,  28  N.  E.  76,   12  L.  R.  A. 
652    (1891).     Judicial    notice   will    be   taken 
that  gas,  unlike  oil,  cannot  be  brought  to  the 
surface  and   stored   to  await   a   market,   but 
must  remain   in   the  ground,  and,  unless  al- 
lowed to  waste  away,  taken  out  only  when 
producer  can   find   a   customer.     Eastern   Oil 
Co.  v.  Coulehan,  65  \V.  Va.  531,  ti4  S.  E.  836 
(1909).     See   also    Indiana,   etc.,   Gas   Co.   v. 
State,  158  Ind.  516,  63  X.  E.  220,  222  (1901). 
That  gas  pipes  always  leak  is  not  a  subject  of 
judicial     cognizance.     Indiana,     etc.,     Co.    v. 
Jones,  14  Ind.  App.  55,  52  X.  E.  487   (1895). 

47.  1  Chamberlayne,  Evidence,  §  733-748. 

48.  Luke  v.   Calhoun   County.   52    Ala.    115 
(1875);    Poor    v.    Watson,    92    Mo.    App.    89 
(1901)  ;  Cox  v.  Seyenite  Granite  Co.,  39  Mo. 
App.  424    (1890)    (gravitation). 

49.  Falls  v.  U.  S.  Saving,  etc.,  Co.,  fl7  Ala. 
417,  13  So.  25,  24  L.  R    A.  174   (18921  -.  Scan- 
Ian  v.  San  Francisco  Ry.  Co.   (Cal.  1898),  55 
Pac.  694.  , 

50.  Reid  v.  McWhinnie.  27  U.  C.  O.  B.  289 
(1868)    (a  pint  is  less  than  five  gallons).     No 
proof  need  be  offered  that  a  ten-cent  glass  of 
whiskey    contains    less    than    three    gallons 
State  v.  Blands,  101  Mo.  App.  61  S.  74  S.  W. 
3   (1903)  :  Tison  v.  Smith.  8  Tex.  147   (1852). 

51.  Grant   v.   State.   89   Ga.   393.    15   S.   E. 
488    (1S92):  McCarty  v.  State.  127  Tnd.  223, 
26  X.  E.  665   (1890)  :  Jones  v.  State,  39  Tex. 
Cr.  387,  46  S.  W.  250   (1898). 

52.  Mays   v.   Jennings.   4   Humph.    (Tenn.l 
102    (1843)  :    Hockin   v.   Cooke,   4   T.   R.    314 
(1791)  :   Reed  v.  McWhinnie,  27  U.  C.  Q.  B. 
289    (1868).     See  also  Putnam  v.  White,  76 


355 


KNOWLEDGE  ; 


190 


enly  bodies,54  photography,55  statistics  as  the  census  DC  and  mortality  tables  57 
or  trade  58  tables  or  facts  of  public  health.59 

§  355.  [What  Facts  Are  Covered  by  the  Rule] ;  Facts  of  Geography  .6U —  The 
same  considerations  apply  to  facts  of  geography01  as  the  boundaries  of  a 
country  <j2  or  state  (!3  and  other  political  divisions,04  what  are  the  commercial 
1884)  ;  Tison  v.  Smith,  8  Tex.  147 


Me.  551 
(1852). 

53.  Dawkins     v.     Smithwick,     4     Fla.     158 
(1851);    People    v.    Chee    Kee,    61    Cal.    404 
(1882)  ;  Wilson  v.  Van  Leer,  127  Pa.  St.  371, 

379,  17  Atl.  1097,  14  Am.  St.  Rep.  854  (1889). 

54.  People  v.  Mayes.  113  Cal.  618,  45  Pac. 
860     (1896);     Case    v     Perew,    46    Hun    57 
(1887)  ;  Cincinnati,  etc.,  R.  Co.  v.  Worthing- 

ton,  30  Ind.  App.  663,  65  X.  E.  557.  66  N.  E. 
478  (1D02)  (3:20  A.M.,  October  12th,  not 
daylight).  It  will  be  known  that  in  the  lati- 
tude of  Illinois  5  o'clock  in  the  afternoon  of 
July  23d  is  about  two  hours  before  sunset. 
Falkeneau  Const.  Co.  v.  Ginley,  131  111.  App. 
399  (1907). 

55.  Luke   v.   Calhoun   County,  52   Ala.    115 
(1875)  ;   Cowley  v    People,  83  N.  Y.  464,  38 
Am.  Rep.  464   ( 1881 )  ;  Udderzook  v.  Com.,  76 
Pa.  St.  340   (1874).     The  court  takes  judicial 
notice  of  the  fact  that  X-ray  machines  some- 
times cause  serious  burns.     State  v.   Lester, 
127  Minn.  282,  149  N.  W.  297,  L.  R,  A.  1915 
D201    (1014). 

56.  Indiana. —  Whit  ley    County    v.    Garty, 
161    Ind.  464,  68  X.  E.   1012    (1003);    Hunt- 
ington  v.  Cast,   149  Ind.  255,  48  X.  E.   1025 
( 1 808 )  ;  Stratton  v.  Oregon  City,  35  Or.  400, 
60  Pac.  905    (1000). 

57.  Joliet  v.  Blower,  155  111.  414,  40  X.  E. 
619   (  1S05)  ;  People  v.  Life  Ins.  Co.,  78  X.  Y. 
12S      (1870)      (vital     statistics).     See    note, 
Bender  eel.,  165  X.  Y.  171:  Campbell  v.  York 
172  Pa.  205,  33  Atl.  879   (1806)  :  Crouse  v.  R. 
Co.,  102  Wis.  106,  78  X.  W.  446   (1809). 

58.  Western  Assur.  Co.  v.  Mohlmann  Co.,  28 
C.  C.  A.   157,  83  Fed.  811    (1897)    (engineer- 
ing tables).     See  infra,  §§  859c  et  seq.     Gar- 
wood  v.   R.   Co.,   45    Hun    120    (1887)     (mill- 
wright's   tables)  ;    Hatcher    v.    Dunn     (Iowa 
1896),   66   S.   W.   005    (thermometer   used   in 
gauging  oils)  ;  Cherry  Point  Fish  Co.  v.  Xel- 
son,  25   Wash,  558,  66  Pac.  55    (1001)    (tide 
tables  for  Puget   Sound)  ;    Gallagher  v.   Ry. 
Co.,  67  Cal.  16,  6   t'ac.  860    (1885). 

59.  The  court  will  take  judicial  notice  of 
the   fact   that    the   sweepings    of    the   streets 
contain  matter  injurious  to  the  public  health. 
Savannah  v.  Jordan,  142  Ga.  409,  83  S.  E.  109, 


L.  R.  A.  101.5  C741  (1914).  The  court  may 
take  judicial  notice  of  the  fact  that  hogs  when 
kept  in  narrow  limits  are  unclean  and  dan- 
gerous to  health  when  kept  in  a  city  in  the 
ordinary  way.  Ex  Parte  Botts,  Tex.  Crim. 
Rep,  154  S.  W.  221,  44  L.  R.  A.  (X.  S.)  629 
(1913).  The  court  cannot,  however,  refuse 
to  enjoin  the  operation  of  a  gas  holder  as  a 
nuisance  on  the  ground  that  it  knows  that  the 
escape  of  gas  from  it  is  a  difficulty  which  is 
temporary  and  can  be  remedied,  as  the  court 
should  depend  on  evidence  on  this  point.  Ro- 
mano v.  Birmingham  Railway,  Light  & 
Power  Co.,  182  Ala.  335,  62  So.  677,  46  L. 
R.  A.  (X.  S.)  642  (1913). 

60.  1   Chamberlayne,  Evidence,  §§  749-752 

61.  Trenier  v.  Stewart,  55  Ala.  458  ( 1876)  ; 
Bittle  v.   Stuart,   34   Ark.  224    (1879);   Wil- 
liams v.  State,  64   Ind.  553,  31  Am.  Rep.  135 
(1878)  ;  Bell  v.  Barnet,  2  J.  J.  Marsh   (Ky.), 
516    (1829)  ;   U.  S.  v.  La  Vengeance,  3  Ball. 
(U.  S.)   297,  1  L.  ed   610   (1706)  ;  Peyroux  v. 
Howard,    7    Pet.    (I".   S.)    324,   8   L. 'ed.   700 
(1833). 

62.  Cooke  v.  Wilson,  1  C.  B.    (X.  S.)    153, 
163    (1856)    (Colony  of  Victoria  not  in  Eng- 
land).    See  also  Daly  v.  Old  (L'tah  1909),  99 
Pac.  460    (extent  of  territory  named  in  con- 
tract).    ''  It  is  a  matter  of  which  this  court 
will   take    judicial   notice,   that,   by   law,   the 
country  is  divided  into  collection  districts  for 
internal  revenue  purposes,  and  in  some  states 
there  are  several  of  these  districts  with  defined 
geographical   boundaries."     U.  S.  v.  Jackson, 
104  U.  S.  41    (1881). 

63.  State  v.  Dunwell,  3  R.  I.  127  (1855); 
Harrold  v.  Arrington.  64  Tex.  233  (1885); 
Thorson  v.  Peterson,  0  Fed.  517,  10  Biss.  530 

(1881);  King  v.  American  Transp.  Co.,  14 
Fed.  Cas.  Xo,  7.787,  1  Flipp.  1  (1850)  ;  Top- 
pan  v.  Cleveland,  etc.,  R.  Co.,  24  Fed.  Cas. 
Xo.  14,000,  1  Flipp.  74  (1862).  Race  Island 
is  in  the  jurisdiction  of  Illinois.  Gilbert  v. 
Moline  Water  Power  &  Mfg.  Co.,  10  Iowa  319 

(1865)  -.  Harvey  v.  Territory,  11  Okl.  156,  65 
Pac.  837  (1901|  :  Hoytt  v.  Russell,  117  U.  S. 
401  (1885). 

64.  Linck  v.  Litchfield,  141  111.  469,  31  N. 
E.  123   (1892). 


191 


WHAT  FACTS  COVERED. 


§  355 


centers  65  and  natural  features  like  rivers,66  railroads,67  distances  68  and  com- 
mon facts  about  counties,69  cities,70  including  their  boundaries,71  streets  and 
blocks,72  even  in  case  of  foreign  cities,73  and  so  of  towns  74  and  townships  75 
in  the  jurisdiction  or  villages.76 

70.  Bally   v.    Birkhofer,    123    Iowa    59,   98 
N.  W.  594   (1904)  ;  Goodwin  v.  Appleton,  22 
Me.  453   (1843)  ;  French  v.  Barre,  58  Vt.  567, 
5  Atl.  568  (1886)  ;  Woodward  v.  Chicago,  etc., 
R.  Co.,  21  Wis.  309    (1867). 

71.  De  Baker  v.  Southern  Cal.  R.  Co.,  106 
Cal.  257,  39  Pac.  610,  46  Am.  St.  Rep.  237 
(1895)    (river  often  mentioned  in  statutes)  ; 
In  re  Independence  Ave    Boulevard,   128  Mo. 
272,  30  S.  W.  733  ( 1895)  :  Atchison,  T.  &  S.  F. 
R.  Co.  v.  Paxton,  75  Kan.  197.  88  Pac.  1082 
(1907);   Houlton  v.  Chicago,  etc.,  R.  Co.,  86 
Wis.  59,  56  N.  W.  336   (1893). 

Precise  boundaries  cannot  be  judicially 
known  unless  established  by  statute.  Bos- 
ton v.  State,  5  Tex.  App.  383,  32  Am.  Rep. 
575  (1879)  ;  Brune  v.  Thompson,  2  Q.  B.  789 
( 1842 )  ( tower  of  London  not  known  to  be 
within  a  certain  city  line  in  London). 

72.  Certain  considerations  are  apt  to  affect 
the  judge's  action  in  any  particular  instance, 
i  1 )    Where   a   plan    has   been    recognized   by 
statute  the  facts  set  forth  in  it  will  be  more 
readily  known   [Whiting  v.  Quackenbush,  54 
Cal.  306   (1880)  :  S«ver  v.  Lyons,  170  111.  395, 
48   N.    E.    926    (1897);    Armstrong   v.    Cum- 
mings,   20    Hun    I  \.   Y.)    313    (1880)]    than 
when  established  by  dedication  or  a  munici- 
pal   by-law.     [Diggins    v.    Hartshorne,     108 
Cal.   154,  41    Pac.   283    (1895).]      (2)    Where 
judicial  knowledge  is  taken  of  streets,  etc.,  it 
is   rather   of   their   general   direction    [Brady 
v.  Page,  59  Cal.  52   (1881)  ;  Canavan  v.  Stuy- 
vesant,  7  Misc.    (N.  Y.)    113,  27  N.  Y.  Suppl. 
413   (1894):   Skelly  v.  New  York  El.  R.  Co., 
7  Misc.  88,  27  N.  Y.  Suppl.  304   (1894)].  the 
existence  of  the  arrangement  itself  [McMas- 
ter  v.  Morse,  18  Utah  21,  55  Pac.  70   (1898)] 
and    the    interrelations    in    position    of    the 
streets,  etc.,  to  each  other  [Diggins  v.  Harts- 
horne,   108    Cal.    154,    41    Pac.    283    (1895); 
Brady  v.   Page,  59  Cal.  52    (1881);   Gardner 
v.    Eberhart,    82    111.    316     (1876),]    than    an 
attempt  actually   to   know  of  the  true  posi- 
tion   of    these   ways    on    the    surface    of    the 
ground  [Diggins  v.  Hartshorne,  108  Cal.  154, 
41   Pac.  2S.3    (1805):   Shepard  v.  Shepard,  36 
Mich.    173    (1877)]   or  of  their  definite  rela- 
tions to  established  monuments  [Pennsylvania 
Co.  v.  Frana,  13  111.  App.  91    (1883)    ( inter - 


Maine. —  Harvey  v.  Wayne,  72  Me.  430 
(1881). 

United  States.—  U.  S.  v.  Jackson,  104  U.  S. 
41.  26  L.  ed.  651  (1881). 

65.  Harmon    v.    Chicago.    110    111.    400,    51 
Am.  Hep.  698   (1884)    (Chicago  river);  State 
v.  Wabash  Paper  Co.,  21  Ind.  App.  167,  48  X. 
E.   653,   51    NT.   E.   949    (1898)     i  Wabash  and 
Miami   rivers)       See  also  State  v.   Jones,   11 
Ohio  Cir.  Dec.  496   (1900).     Ex  parte  David 
son,  57   Fed    883.  887    (1893)    (laying  out  as 
the  site  of  a  city ) . 

66.  Walker   v.    Allen,   72  Ala.   456    (1882) 
(all  rivers  in  a  particular  county  are  of  fresh 
water).     Supperle  v.  McFarland,  28  App.  Cas. 
(D.    C. )     94     (1906)      (Potomac);     State    v. 
Southern  Ry.  Co.   ( N.  C.  1906),  54  S.  E.  294. 
No  part  of  the  Tallapoosa  river  is  in  the  city 
of  Montgomery.     City  Council  of  Montgomery 
v.   Montgomery,   etc.,    Plankroad,   31    Ala.   76 
(1857).     See  also  Thosvold  v.  Bygland   (Neb. 
1908),  116  N.  W.  971.     It  is  commonly  known 
that  the  Arkansas  and   Poteau  rivers  bound 
Ft.   Smith   on   the   west.     McKenzie   v.    New- 
ton, 89  Ark.  564,  117  S.  W.  553  (1909).     The 
court  knows  that  the  Snohomish  River  flows 
into  Puget  Sound.     Vail  v.  McGuire   (Wash. 
1908),  96  Pac.  1042. 

67.  Hobbs  v.  Memphis,  etc.,  R.  Co..  9  Heisk. 
(Tenn.)  873  ( 1872)  ;  Texas  &  N.  0.  Ry.  Co.  v. 
Walker   (Tex.  Civ.  App.  1906),  95  S.  W.  743: 
Miller  v.  Texas,  etc.,  R.  Co.,  83  Tex.  518,  18 
S.  W.  Oo4  (1892).     See  also  Patterson  v.  Mis- 
souri Pac.  Ry  Co.    (Kan.  1908),  94  Pac.  138. 
That  the  Missouri   Pacific  is  a  railroad   cor- 
poration engaged  in  interstate  commerce  may 
well  be  a  fact  of  judicial  knowledge.     State  v. 
Missouri  Pac.  Ry.  Co.,  212  Mo.  658,  111  S   W. 
500   ( 1908). 

68.  Bruson  v.  Clark,   151  111.  495,  38  N.  E. 
252    (1894);    Williams   v.    Brown,   65    N.    Y. 
Suppl.  1049,  53  App.  Div.  486  (1900)  :  Pearce 
v.  Langfit,   101  Pa.  St.  507,  47  Am.  Rep.  737 
(1882). 

69.  Connecticut. —  State  T.  Powers,  25  Conn. 
48    (1856). 

Illinois. —  Gooding  v.  Morgan,  70  111.  275 
(1873). 

Massachusetts. —  Com.  v.  Desmond,  103 
Mass.  445  (1869)  (Suffolk  county). 


356,  357 


KNOWLEDGE;  COMMON. 


192 


§  356.  [What  Facts  are  Covered  by  the  Rule] ;  Facts  of  Human  Experience.77 
—  The  broad  inductions  of  experience  are  ''  assumed  as  truths  in  any  process 
of  reasoning  by  the  mass  of  sane  minds."  7S  A  tribunal  legally  required  to 
render  judgments  according  to  reason,  must  know79  such  propositions ;  and 
counsel  may  properly  use  them  as  a  basis  of  their  argument  to  the  jury.'1'  It 
has  even  been  said  that  the  knowledge  is  not  optional;  M — the  use  of  sound 
reason  is  mandatory  at  all  times  upon  the  tribunal. 

§  357.  [What  Facts  are  Covered  by  the  Rule] ;  Standards  of  Reasonable  Con- 
duct.**—  The  standards  of  conduct  which  experience  has  established  in  the 
community  are  known  to  its  eourts.'v;  An  act  which  this  standard  of  experi- 

Mexico)  ;    Phillips  v.  Lindley,  9S  X    Y    Suppl. 
423,   112   App.  Div.  283    (1906). 

74.  State   v.   Simpoon,   91    Me.   83,   39    Atl. 
287    (1897);    Parker  v.   Burton.   172   Mo.   85. 
72   S.    W.    663    (1903);    Winnipiseogee   Lake 
Co.  v.  Young,  40  X.  H.  420,  429   (1860). 

75.  Kile  v.  Yellovvhead.  80  111.  208    (1875) 
(coincide    with    sectional    lines)  :    Wright    v. 
Phillips,  2  Greene   (Iowa)    191    (1849):   Dex 
ter  v.  Cranston,  41   Mich.  448,  2   X    W.  674 
(1879).     The  exact  position  of  boundary  line 
and     facts     dependent     on     that     position  — 
whether,    for   example,    the   particular   town- 
ship  is   or   is   not   within   a   given   county  — 
must  be  proved.     Backenstoe  v.  Wabash,  etc., 
"R  Co.,  86  Mo.  492  I  1885 )  :  Mayes  v.  St.  Louis, 
etc.,   R.  Co.,   71   Mo.   App.    140    (1897).     But 
see    City    Nat.    Bank    v.    (Joodloe-McClelland 
Commission  Co.,  93   Mo.   App.   123    (1902). 

76.  U.   S.  v.  Beebe,  2  Dak.  292,   11   X.  W. 
505     (1880):    Chamberlain    v.     Litchfield.    56 
111.  App.  652  (1894)  ;  Shaw  v.  Xew  York,  etc.. 
R.  Co.,  85  X.  Y.  Suppl.  91.  85  App.  Div.  137 
(1903)  ;    French   v.   Barre,  58  Vt.  567,  5  Atl. 
568    (1886):   Anderson  v.  Com.,   100  Va.  860, 
42  S.  E.  865   (1902). 

77.  1  Chamberlayne,  Evidence.  §  753. 

78.  Lake   Shore,   etc.,   R.   Co.   v.   Miller,   25 
Mich.  274,  292   (1872). 

79.  Lake   Shore,   etc.,   R.   Co.   v.   Miller,   25 
Mich.  274,  292    MS72). 

80.  Philadelphia  15.  Co.  v.  Lehman,  56  Md 
209    i  1881)  ;  State  v.  Lingle,  128  Mo.  528,  31 
S.  \V.  20    (1895). 


section  of  a  street  with  a  railroad  location, 
not  noticed  i  ] ,  or  even  the  actual  distances 
between  the  streets  themselves.  [West  Chi- 
cago St.  H.  Co.  v.  Vandehouten,  58  111.  App. 
318  (1895)  (Chicago). J  (3)  Facts  relating 
to  streets  widely  known,  because  (a)  in  a 
great  commercial  metropolis  [Poland  v.  Drey- 
fous,  48  La.  Ann.  83,  18  So.  906  (1896)  (Xew 
Orleans)  ;  In  re  City  of  Xew  York,  96  N.  Y. 
Suppl.  554,  48  Misc.  602  (1905)  (Xew  York)  ; 
Oruber  v.  Xew  York  City  R.  Co.,  53  Misc. 
(X.  Y.)  322,  103  X.  Y.  Suppl.  216  (1907) 
(New  York  city)  ;  Canavan  v.  Stuyvesant,  7 
Misc.  113,  27  X.  Y7.  Suppl  413  (1894)  (Xew 
York  city)],  ib)  long  established  [State  v. 
Ruth,  14  Mo.  App.  226  (1883)  ;  Breckinridge 
v.  American  Cent.  Ins.  Co.,  87  Mo.  62  (1885) 
(less  well-known  streets,  or  their  direction, 
not  noticed ) .  See,  however,  Allen  v.  Schar- 
ringhausen,  8  i.lo.  App  229  (1880)  (where 
cognizance  was  taken  of  a  street  number)], 
(c)  located  in  the  place  where  the  court  is 
actually  sitting  [State  v.  Ruth.  14  Mo.  App. 
226  (1883)],  will  be  known  by  the  court  as 
notorious. 

.4  Contrary  View. —  Several  jurisdictions 
have  peremptorily  declined  judicially  to  know 
these  ways  [Sever  v.  Lyons,  170  III.  395,  4S 
X.  K.  826  (1897);  Baily  v.  Birkhofer.  123 
Iowa  59,  98  X.  W.  5!»4  i!904);  Kitchie  v. 
Catlin,  86  Wis.  109.  56  X.  W.  473  (1893)], 
and.  a  fortiori,  the  house  numbering  on  them 
[Ritchie  v.  Catlin,  86  Wis.  109,  56  X.  \V.  473 
I  18!  13)]. 

Grades. —  The  court  may  take  judicial  no- 
tice of  the  fact  that  many  sidewalks  in  the 
state  have  a  grade  of  more  than  thirteen  per- 
cent. Dougan  v  Seattle,  76  Wash.  621,  136 
Pac.  1165,  51  L.  R.  A.  (X.  S.)  214  (1913). 

73.  Maese  v.  Hermann.  17  App.  Cas.  (D. 
C.)  52  [affirmed  in  183  V.  S.  572,  22  S.  Ct. 
91,  46  L.  ed.  33o J  (1900)  (Las  Vegas  in  Xew 


81.  Whatever  is  matter  of  common  knowl- 
edge arid  experience,  courts  are  bound  to  rec- 
ogni/.e  (irirtith  v.  Denver  Consol  Tramwa' 
Co.,  14  Colo  App.  504,  61  Par.  46  48  (1900). 

32.    1   Chamberlayne,  Evidence.  §  754. 

83.  Postal  Tel  Cable  Co.  v.  Jones,  133  Ala. 
217,  32  So.  500  (1901  i  ;  Lake  Shore,  etc.,  R. 
Co.  v.  Miller,  25  Mich.  274,  292  (1872). 


193 


WHAT  FACTS  COVERED. 


§  358 


ence  unhesitatingly  stamps  as  unreasonable  will  be  known  to  the  court  to  be 
so,84  while  conduct  which  the  community's  standard  of  prudence  deems  permis- 
sible will  be  so  regarded  by  the  court.85 

§  358.  [What  Facts  are  Covered  by  the  Rule};  Facts  of  Social  Life.86 — No 
proof  need  be  olfered  of  facts  which  are  well  known  incidents  of  the  social  life 
of  the  community.  Courts  know  the  customary  methods  of  doing  business, 
prevalent  in  the  community.  These  will  be  regarded  as  notorious,87  but  not  so 
of  local  customs.**  The  courts  know  also  what  is  customarily  known  by  per- 
sons of  average  intelligence  concerning  the  tine  arts,89  gaming,9"  language  91 
and  its  abbreviations,1'2  and  the  meaning  of  words  S)3  or  phrases,94  allusions  to 
well-known  literature/'1"'  and  the  state  of  the  mechanic  arts  9G  and  medicine.97 


84.  Griffith  v.  Denver  Consul.  Tramway  Co., 
14   Colo.   App.   504,   61    Pac.   46,   48    (1900); 
Upington  v.  Corrigan,  6!)  Hun   (X    Y. )  320,  23 
X,    V.   Suppl.   4-11    (1893)     (delay   of  twenty- 
nine  years   in   starting   to   build   a   church)  ; 
Texas,  etc.,   R.  Co.  v.  Cox,   145  I".  S.  593,  12 
fis.  Ct.  905,  36  L.  ed.  829   (1892).     That  elec- 
tricity is  a  dangerous  and  treacherous  agent, 
similar  to  gunpowder  or  dynamite  and  is  not 
to  he  handled  with  a   low  degree  of  caution, 
is  a  fact  of  common  knowledge.     De  Kallands 
v.  Washtenaw  Home  Telephone  Co.,  153  Mich. 
25,    110   X.   \V.   564,    15   Detroit   Leg.   XT.   337 
(1908). 

85.  Gilbert  v.   Flint,  etc.,   R.-  Co.,  51   Mich. 
488,   16  X.  W.  868,  47   Am.  Rep.  592    (1883) 
(leaving    a    box    freight    car    at    a    highway 

crowing). 

86.  1   Chamberlayne,   Evidence,  §§  755-782. 

87.  City   Electric   St.    R.   Co.   v.   First   Xat. 
Exch.  Bank.  62  Ark.  33,  34  S.  W   89,  54  Am. 
St.  Rep.  282,  31   L.  R.  A.  535    (1896)  ;   Pfeif- 
fer  v.  Detroit  Rd.  of  Education,  118  Mich.  560, 
It    X.  W.  250,  42  L.  R.  A    536   (1898);  Row- 
land  v.    Miln,   2    Hilt.    150    (1858);    Watt  v. 
Hooh.  25   Pa.  St.  411    (1855);   John  O'Brien 
Lumlier   Co.   v.   Wilkinson    ( Wis.    1904),   101 
X.  W.  1050;   U.  S.  v.  Arredondo,  6  Pet.  691, 
8  L.  ed.  547    (  1.S32 ) . 

88.  Sanders  v.   Brown    (Ala.   1905),  39  So. 
732    (on     ale  of  business  to  secure  covenant 
not     to  .compete);     Schultx    v.     Ford     Bros. 

(Iowa    19(16),   109  X.  W.  614. 

89.  Lumley  v.  Gye,  2  E.  &  B.  216,  267,  17 
Jur.   827,  22   L.  J.  Q.   B.  463,   1   Wkly.   Rep. 
432,  75  E.  C.  L.  216   (1S53)  :  Beck.  etc..  Litho- 
graphing  Co.   v.   Evansville   Brewing   Co..   25 
Ind.   App.  662,  58  N.  E.  859    (1900)  :   Adams 
Exprp-s   Co.   v.   Hoeing,   9   Ky.   L.   Rep.   814 
(1888). 


90.  State  v.   Burton,  25   Tex.   420    (I860); 
Salomon  v.  State,  28  Ala.  83    (1856)  ;    Boul- 
lemet  v.  State,  28  Ala.  83   (1856)  ;  Lohman  v. 
State,  81  Ind.  15   (1881j. 

91.  Power   v.   Bowdle,   3   X.   D.   107,  54  N. 
W7.  404,  44  Am.  St.  Rep.  511,  21  L.  R.  A.  328 
(1893). 

92.  Sheffield  Furnace  Co.  v.  Hull  Coal,  etc., 
Co.,  101  Ala.  446,  14  So.  672   (1892)    ("F.  O. 
B.");    Heaton   v.   Ainley,    108   Iowa    112,    78 
Ni  W.  798  (1899)    ("acct.")  :  South  Missouri 
Land  Co.  v.  Jeffries,  40  Mo.  App.  360   (1890) 
("Supt.").     That    '  5x16,"    in    speaking    of 
shingles,  means  5  inches  wide  and   16  inches 
long,  is  a  matter  of  common  knowledge.     Bir- 
mingham  &   A.   R.   Co.  v.  Maddox  &    Adams 
(Ala.    1908),   46   So.   780.     "0.   X."   signifies 
"  order  notify."     Ala.   Ut.   So.   R.  Co.   v.   Or- 
gan Power  Co.   (Miss.  1908),  46  So.  254   (ab- 
breviations) . 

93.  Sinnott   v.   Colombet,   107   Cal.   187,  40 
Pac.   329,  28  L.   R.   A.  594    (1895);    Com.   v. 
Pear,   183  Mass.  242,  66  N.   E.    719    (1903) 
("vaccination")  ;  Simpson  t.  Press  Pub.  Co., 
53  Misc.  228,  67  N.  Y.  Suppl.  401    (1900). 

94.  Lampton    v.    Haggard,    3    T.    B.    Mon. 
(Ky.)    149   (  1826)  ;  Hoare  v.  Silverlock,  12  Q. 
B.  624,   12  Jur.   695,   17  L.  J.  Q.   B.  306,  64 
E.  C.  L.  624  (1848)  ;  Clarke  v.  Fitch,  41  Cal. 
472    (1871);    Edwards  v.   San  Jose  Printing, 
etc.,   Soc.,  99  Cal.  431.  34   Pac.   128.   37   Am. 
St.    Rep.    70    (1893):    Greenfield    First    Xat. 
Bank  v.  Coffin,   162  Mass.   180,  38  X.  E.  444 
(1894). 

95.  Forbes    v.    King.    1    Dowl.    P.    C.    672 
( 1883) .     The  courts  will  take  the  same  knowl- 
edge as  the  community  at  large  of  matters  of 
literature.     St.   Hubert   Guild   v.   Quinn,    118 
X.  Y.  Suppl.  582.  64  Misc.  Rep.  336   (1909). 

96.  Phillips  v.  Detroit,  111  U.  S.  604,  4  S. 


358 


KNOWLEDGE:  COMMON. 


194 


The  court  knows  what  the  community  as  a  whole  knows  as  to  animal  98  or 
human  "  life,  the  moral.1  mental  2  or  physical  3  nature  of  human  beings  and 
diseases,4  or  vegetable 5  life.  The  court  also  knows  the  well  recognized  fea- 
tures of  politics,"  religion  7  or  the  general  amusements  8  of  the  people  or  their 
clothing,5*  food,10  household  conveniences,11  the  payment  of  taxes,12  the  use  of 
tobacco,13  the  value  of  property,14  or  general  distribution  of  wealth.15 


Ct.  580,  28  L.  ed.  532  (1883);  Parsons  v. 
Seelye,  100  Fed.  452,  40  C.  C.  A.  484  (1900)  ; 
Heaton-Peninsular  Button-Fastener  Co.  v. 
Schlochtmeyer.  69  Fed.  592  (1895);  Infra, 
§§  820,  902,  1988,  ^404. 

97.  Com.  v.  Pear,  183  Mass.  242,  66  N.  E. 
719   (1903)    (vaccination). 

98.  Fisk   v.   Chicago,  etc.,   R.  Co.,  74   Iowa 
424,  38  N.  \V.   132    (1888);   Gilbert  v.  Flint, 
etc.,  R.  Co.,  51  Mich.  488,   16  N.  W.  868,  47 
Am.  Rep.  592    (1883)  ;  Meyer  v.  Krauter,  56 
X.  .T.   L.   696,  29  Atl.  426,  24   L.   R.   A.   575 
(1894). 

99.  Ricks  v.   Broyles,  78  Ga.  610,  3  S.  E. 
772,  6  Am.  St.  282   (1887). 

1.  Fonville  v.  State,  91  Ala.  39,  8  So.  688 
(1890)  ;  People  v.  Lou  Yeck,  123  Cal.  246,  55 
Pac.   984    (1899);   Gurley  v.   Butler,   83  Ind. 
501     (drunkenness    unfits    administrator    for 
his  trust)    (1882). 

2.  Lake    Shore,   etc.,   R.    Co.    v.    Miller,    25 
Mich.    274,   292    (1872);    Hunt   v.    Wing,    10 
Heiske.    (Tenn.)    139   (1872). 

3.  Hunter   v.   New   York,  etc.,   R.   Co.,    116 
\.  V.  615,  23  N.  E.  9.  6  L.  R.  A.  246   i  1S89). 
The  court  does  not  judicially  know  that  the 
employment  of  women  more  than  ten  hours  in 
one  day  is  not  injurious  and  not  a  proper  sub- 
ject of  police  regulation.     People  v.  Elerding, 
254   111.  579,  98  X.  E.  982,  40  L.  R.   A.   893. 
Where  the  question  of  a  child's  ability  to  be 
of  service  is  in  issue  and  the  court  is  doubt- 
ful  the   jury    should    pass   upon    it    and    the 
court  should  not  take   judicial  notice  of  the 
fact  that  a  child  three  years  old  of  vigorous 
health   is  of  no  value  for  his  services  to  his 
parents.     Many    precocious    children    of    very 
tender  years  have  shown  great  ability  in  vari- 
ous ways.     James  v    Central  of  Georgia   R., 
138  OR."  415,  75  S.  E.  431,  41  L.  R.  A.   (X.  S.) 
75).)    (1912). 

4.  Kiernan  v.  Metropolitan  L.  Ins.  Co.,   13 
Misc.    (X.  Y.)    39.  34  X.  Y.  Suppl.  95    (189.'.) 

(pneumonia).  See  also  Lidwinofsky's  Peti- 
tion. 7  Pa.  Dist.  188  (1898).  See  also  State 
v.  Fox.  <<>  Md.  514,  29  Atl.  601,  47  Am.  St. 
424  (1894). 


5.  Meyers  v.  Menter,  63  Xeb.  427,  88  N.  W. 
662    (1902)  ;   Barr  v.  Cardiff   (Tex.  Civ.  App. 
1903),   75   S.'VV    341:    Wetzler   v.   Kelly,   83 
Ala.  440,  442,  3   So.   747    (1888);    Person  v. 
V\  right,  35  Ark.   169   (1879);  Garth  v.  Cald- 
well,  72  Mo.  622    (1880);   State  v.   Main,  69 
Conn.  123,  37  Atl.  80,  61  Am.  St.  Rep.  30,  36 
L.  R.  A.  623   (1897). 

6.  State  v.  Lindahl,  11  X.  D.  320,  91  N.  W. 
950   (1902). 

7.  Smith  v.  Pedigo,  145  Ind.  361,  33  N.  E. 
777,   32    L.   R.   A.   838    (1896);    State   v.   So. 
Kingstown,  18  R.  I.  258,  273,  27  Atl.  599,  22 
L.  R.  A.  65   (  1893 )    ( "  Seventh-day  baptists  " 
do  not  work  on  Saturday)  :   State  v.  District 
Board,  76  Wis.  177,  44  X.  W.  967,  7  L.  R.  A. 
330  (1890). 

8.  State   v.   Maloney,    115    La.   498.   39   So. 
539  (1905)  ;  Ex  parte  Berry,  147  Cal.  523,  82 
Pac.  44   (  1905)  ;  U.  S.  v.  Strauss,  Bros.  &  Co., 
69  C.  C.  A.  201,  136  Fed.  185  (1905)  ;  Sieberts 
v.  Spangler  (Iowa  1908),  118  X.  W.  292. 

9.  Wamser   v.    Browning,   King,   &   Co.,   95 
X.   Y.  Suppl.  1051,   109  App.  Div.  53    (1905). 

10.  People  v.  Meyer,  44  X.  Y.  App.  Div.  1, 
60  X.  Y.  Suppl.  415    (1899)  ;   People  v.  Hill- 
man,  58  X.  Y.  App.  Div.  571,  69  X.  Y.  Suppl. 
66.  15  X.  Y.  Cr.  394   (  1901)  :  Brown  v.  Piper, 
9i  U.  S.  37   (1875)    (ice  cream  freezer)  :  Pat- 
terson  v.   Wenatchee   Canning  Co.,  53   Wash. 
155,  101  Pac.  721    (1909). 

11.  Roberts   v.    Bennett,    69   C.    C.   A.   533, 
136  Fed.  193   (1905)  :  Moeckel  v.  C.  A.  Cross 
&   Co..    190  Mass.  280,   76   X.   E.   447    (1906). 
The  practice  of  lighting  fires  with  coal  oil  is 
commonly    known.     Waters- Pierce   Oil    Co.   v. 
Desplms,  212  I".  S.  159,  29  S.  ('t.  "270   (1909)  ; 
P.  Hoft'master  Sons  Co.  v.  Hodges,  154  Midi. 
641.   118  X.  W.  484,   15  Detroit  Leg.  X.  926 

,,908). 

12.  State  v.  Mutty,  39  Wash.  624,  82  Pac. 
118    (1905). 

13.  Austin  v.   State.   101   Tenn.   563,  48   S. 
W.  305.  70  Am.  St.  Rep.  703,  50  L.  R.  A.  478 
\affn-med  in   179  U.  S.  343,  21  S.  Ct.  132.  45 
L.  ed    224]    (1898):   Kappes  v.  City  of  Chi- 
cago, 119  111.  App.  436   (1903).     "Cigars  are 


195  WHAT  FACTS  COVERED.  §   359 

§  359.  [What  Facts  are  Covered  by  the  Rule];  Facts  of  History.16 Facts  of 

history  stand  in  much  the  same  position,  in  regard  to  practical  possibilities  of 
proof,  as  that  of  facts  of  science.17  Certain  matters  of  recent  occurrence  of  a 
local  nature  may  at  times  be  established  by  witnesses  possessing  first-hand 
knowledge.  Other  facts  may  be  regularly  proven  by  persons  of  exceptional 
skill  and  training  from  the  use  of  original  documents  or  other  historical  data. 
In  exercising  his  right  to  make  proof  of  his  case  according  to  the  practical  pos- 
sibilities of  procuring  evidence  which  it  presents,18  a  party,  to  substantiate  an 
historical  fact,  must,  in  the  average  case,  rely  directly  or  indirectly,  upon  hear- 
say ;  —  either  as  presented  by  a  witness  who  has  examined  treatises  on  the  sub- 
ject or  by  production  of  the  treatise  itself.  The  natural,  and  at  times,  the 
necessary  resort  of  one  who  would  seek  knowledge  on  the  subject,  is  to  printed 
works  on  history.  These  being  excluded  as  evidence  of  the  truth  of  the  state- 
ments contained  in  them  by  the  rule  against  hearsay,19  the  administrative  expe- 
dient is  adopted  of  treating  the  matter  as  one  of  common  knowledge  and  allow- 
ing the  use  of  the  book  to  refresh  the  memory  of  the  court  on  a  point,  in  many 
cases,  of  which  it  has  never  heard.  The  community  in  general  has  gained 
knowledge  of  certain  protruding  historical  facts  in  much  the  same  way,  to  wit, 
from  standard  treatises.  The  court,  in  like  manner,  in  the  absence  of  evidence 
to  the  contrary,  will  assume  the  knowledge  so  gained  as  correct  and  proceed  to 
act  judicially  in  accordance  with  it.  More  recondite  facts,  the  court,  ex  neces- 
sitate rei,  will  investigate  for  itself,  by  action  of  the  judge,  with  or  without  the 
assistance  of  the  parties.  The  operation  of  this  administrative  expedience,  sup- 
plementing the  common  knowledge  of  judge  and  jury,  may  cover  the  entire 
range  of  history,  sacred  or  profane ;  —  whether  of  the  world,  the  nation,  state, 
county  or  of  smaller  municipal  divisions,  cities,  towns,  parishes,  etc. 

For  example,  notorious  facts  of  the  world  history  will  be  noticed,  whether 
ancient  or  contemporaneous,20  but  not  minor  facts.21  The  courts  will  notice 
the  important  facts  of  the  history  of  their  own  nation  22  as  the  development 

manufactured     articles     familiar     to     every-  17.  Supra,  §  698. 

body."     Com.  v.  Marzynski.  149  Mass.  68.  18.  Supra,  §  334. 

14.  Rock   Island  &  E.  I.  R.  Co.  v.  Gordon,  19.  Infra,  §  2700. 

184  111.  456,  56  X.  E.  810    (1!)00)  ;   Bradford  20.  Banco  de  Sonora  v.  Bankers'  Mut.  Cas- 

v.   Cunard  Co.,    147   Mass.   55.   16   X.   E.   719  ualty  Co.    (Iowa  1903),  95  X.  W.  232    (basis 

(1888)  ;   Head  v.   Hargrave,   105  U.  S.  45,  49  of  foreign  law)  ;  Dowie  v.  Sutton,  227  111.  183, 

(1881)     (expert  evidence  as  to  land  values).  81  X.  E.  395    (1907)    (Boer  war);   Underbill 

Courts   will   recognize  that    a   grossly   inade-  v.  Hernandez,  168  U.  S.  18  S.  Ct.  83,  42  L.  ed. 

quate  price  is  merely  nominal.     York  v.  Lev-  456  (1897)    (Venezuela)  ;  Sears  v.  The  Scotia, 

erett   (Ala.  1909)  48  So.  684.  14  Wall.    <  U.  S.)    170,  20  L.  ed.  822    (1871). 

15.  Central   of   Georgia    R.   Co.   v.   Wright,  21.  Hebblethwaite  v.  Flint,  115  X.  Y.  App. 
125    Ga.    589,    54    S.    E.    64     (1906).     What  Div.  507.   101   X.  Y.  Suppl.  43    (1906);   City 
facts   may  not   be  judicially  noticed,   specific  of  Chicago  v.  Gage,  237  111.  328,  86  X.  E.  633 
instances.     See  note.   Bender   Ed..   108   N.   Y.  ^908). 

56.     Of  facts  concerning  the  operation  of  rail-  22.  U.   S.  v.  Reynes,  9  How.    ( U.   S.)    127, 

roads.     See  note,  Bender  Ed.,   137  X.  Y.  302.       147.    13  L.  ed.   74    (1850).     "The  court  will 

16.  1   Chamberlayne,  Evidence,  §§  783-808.       take  judicial  notice  of  the  leading  and  con- 


359 


KNOWLEDGE;  COMMON. 


196 


of  commerce,23  its  action  in  foreign  affairs,24  its  wars,25  its  habits  and  cus- 
toms 2fi  and  the  general  course  of  affairs  in  important  periods  like  the  Civil 
War.27  The  courts  know  also  the  history  of  their  own  state,28  the  history  of 
land  titles,2"  and  industrial  development  3"  such  as  the  establishment  of  tele- 
phones,31 mining32  and  railroads33  and  the  recent  general34  and  political35 
history  of  the  state,  including  that  of  the  great  national  parties,30  the  results 
of  elections  3T  and  the  religious  history  38  of  the  state.  Even  county  history,39 


trolling  events  in  the  history  of  the  country 
and  of  the  official  relations  of  the  principal 
actors  therein  to  the  government :  and,  in 
elucidation  thereof,  also  of  less  important 
transactions  of  general  and  public  interest 
immediately  connected  therewith,  when  they 
have  passed  into  commonly  received  authen- 
tic history."  De  Celis  v.  U.  S.,  13  Ct.  of 
Claims.  117  (1877);  Daggett  v.  Colgan,  92 
Cal.  53,  28  Pac.  51,  14  L.  R.  A.  474  (  1891). 

23.  Wood  v.  Cooper,  2   Heisk,  441    (1871). 
Compare,  however,  Laird  v.  Folwell,  10  Heisk. 
92  (1872)  ;  Hart  v.  (State,  55  Ind.  509  (1877). 

24.  Xeely    v.    Henkel,    180    I.    S.    109,    21 
S.  Ct.  302,  45  L.  ed.  448  [affirming  103  Fed. 
631]    (1901);    U.   S.   v.   Reynes,   9   How.    (U. 
S.)    127,   13   L.  ed.,   73    (1850). 

25.  Maclane's   Trial.   20   How.    St.   Tr.    797 
(1797):    R.   De  Berenger,   3  M.   &   S.   67,   69 
(1814)    ("so  many  statutes  that  speak  of  a 
war    with     France");     La    Rue    v.     Kansas 
Mut.   L.    Ins.  Co.    (Kan.  Sup.   1904),  75  Pac. 
494    (1904). 

26.  Youngs  v.   Youngs,   130  111.  230,  22  X. 
E.  806,   17  Am.  St.  Rep.   313.  ti  L.  R.  A.  548 
(1889);   Com.  v.  Whitney,  11  Cush.    (Mass.) 
477    (1853):   Williamson 'v.   Freer,  L.  R.  9  C. 
P.   393,   43   L.   J.   C.   P.    Kil,    30    L.   T.    Rep. 
N.  S.  332,  22  Wkly.  Rep.  878   (1874)  ;  Robin- 
son v.  Jones,  L.   R.  4   Ir.   391    (1879);    State 
v.    Chingren,    105    Iowa    169,    74    X.    W.    946 
(18!»8i:    Marsh   v.    Colby,    39    Mich     620,   33 
Am.  Rep.  439    (1878)  :  Zapf  v.  State.  11   Ind. 
App.  360.  39  X.   E.   171    (1894);   Von  Mumm 
v.     Wittemann,    85     Fed.    966.    967     (1898); 
The    Conqueror.    166    tT.    S.    110,    17    S.    Ct. 
510.  14  L.  ed.  937    (1896)    (before  Xovember 
1st). 

27.  Brooke   v.   Filer,   35    Ind.   402    (1871); 
Woods  v.  Wilder,  43  X.  Y.  164,  3  Am.  Rep. 
684    (1870). 

28.  Howard  v.  Moot.  64  X.  Y.  262   [affirm- 
ing 2    Hun   475]     (1876):    State   v.    Franklin 
County  Sav.   Bank,,  etc.,  Co.,  74  Vt.  246,  52 
Atl      1069     (1902). 

26.  City  of  Paterson  v.  East  Jersey  Water 


Co.  (Ch.  1908),  70  Atl.  472.  Townsend  v. 
Trustees  of  Freeholders  and  Commonalty  of 
Town  of  Brookhaven,  89  X.  Y.  Suppl.  982,  97 
App.  Div.  316  (1904). 

30.  Funderburg  v.   Augusta  &  A.   Ry.   Co., 
81    S.    C.    141,    61    S.    E.    1075    (1908);    Xew 
York  Cent.  &   H.   R.  R.   Co  v.   Williams,   118 
N.  Y.  Suppl.  785,  64  Misc.   15    (1909)  ;   Jack- 
son  Consol.   Traction   Co.   v.  Jackson   Circuit 
Judge,    155    Mich.    522,    119    X.    W.    915,    15 
Detroit  Leg.  X.  1081   (1909). 

31.  Wolfe  v.  Missouri  Pacific  Railway  Co., 
97  Mo.  473,  11   S.  W.  49,  3  L.  R    A.  539,  10 
Am.  St.  Rep.  331    ( 1888) .  t/uoted  in  Western 
Union  Telegraph  Co.  v.  Ro\vell  (Ala.  1907),  45 
So.   73,  80. 

32.  State   v.    Jacksonville    (Fla.    1904),    37 
So.   652    (phosphate)  ;    State   v.    Indianapolis 
(ias  Co.    (Ind.  1904),  71  N.  E.  139;   State  v. 
Barrett    (Ind.   1909),  87  X.  E.  7. 

33.  Knowlton  v.  Xew  York,  etc.,  R.  Co.,  72 
Conn.   188,  44  Atl.  8    (1899);   Hart  v.  Balti- 
more,  etc.,    R.    Co.,    6    W.    Va     336    (1873); 
Knowlton  v.  R.  Co.,  72  Conn.   188,  44  Atl.  8 
(1899)  ;  Miller  v.  Texas,  etc.,  R.  Co.,  83  Tex. 
518,  18  S.  W.  9.14   (  1892)  ;  Chinn  v.  Chicago, 
etc.,  R.  Co.,   100  Mo.  App.  576,  75  S.  W.  375 
(1903)     (live    stock   traffic   shows  yearly   in- 
crease) . 

34.  Brooke   v.    Filer,   35   Tnd.   402    (1871): 
Hill  v.   Baker,  32   Iowa  302,  7  Am.  Rep.  193 
(1872):     Douthitt    v.    Stinson,    63    Mo.    268 
(1876):   Jackson  County  v.  Arnold,   135  Mo. 
207,  36  S.  W.  662    (1896)  :   Taylor  v.  Rennie, 
35   Barb.    (X.   Y.)    272    (1861). 

36.  State  v.  Metcalf  (S.  D.  1904),  67  L.  R. 
A.  331.   100  X.  W.  923. 

37.  In  re  Denny,    156   Ind.    104,   59   X.   E. 
359,  52  L.  R.  A.  722  ( 1901 )  ;  State  v.  Stearns, 
72  Minn.  200,  75  X.  W.  210   (1898). 

38.  State   v.    District   Board.    76    Wis.    177 
(isno):    Pfeiffer  v.   Board  of  Education.  118 
Mich.    560.    77    X.    W.   250.   42    L.    R.    A.    536 
(1898)  :   State  v.  District  Board,  76  Wis.  177 
(1S90). 

39.  Hi.v    v.    Hix,    25    W.   Va.    481     (1885). 


197 


WHAT  FACTS  COVERED. 


§  360 


officials,*0  population  by  census  41  and  public  institutions  42  unless  of  minor 
character  43  need  not  be  proved.  The  court  may  also  know  the  commercial 
growth  of  cities  and  towns  44  but  not  minor  facts  in  connection  with  them  45 
but  may  know  their  officials.46 

§  360.  [What  Facts  are  Covered  by  the  Rule] ;  Facts  of  Business.47 —  Courts 
regard  as  commonly  known  the  facts  relating  to  business  matters  generally 
accepted  as  true  in  the  community.  "  We  cannot  close  our  eyes,"  say  the  Su- 
preme Court  of  the  United  States,  "  to  the  well-known  course  of  business  in 
the  country/'  48  This  common  course  of  business,49  its  instrumentalities,  the 
distinctions  between  them  usually  made  in  various  branches,50  and  the  changes 
which  have  taken  place  in  it,51  are  matters  of  such  notoriety  and  generally 
recognized  importance  as  to  warrant,  and  in  a  sense,  require,  that  they  be 
treated  as  matters  of  common  knowledge.52 

(1872)  (superintendent  of  streets);  Fleugel 
v.  Lards,  108  Mich.  682,  66  N.  W.  585  (1896) 
(marshal)  ;  St.  Louis  v.  Greely,  14  Mo.  App. 
578  (1883)  (street  commissioner);  Alford 
v.  State,  8  Tex.  App.  545  (1880)  (marshal)  ; 
Fox  v.  Com.,  81%  Pa.  St.  511  (1875)  (alder- 
men) ;  Alford  v.  State,  8  Tex.  App.  545 
(1880)  (deputy  marshal).  But  see  Himmel- 
mann  v.  Hoadley,  44  Cal.  213  (1872)  (deputy 
superintendent  of  streets ) . 

47.  1  Chamberlayne,   Evidence,   §   809. 

48.  Bank   of   Kentucky   v.   Adams   Express 
Co.,  93  t.  S.  185   (1876)*. 

49.  Hart    v.    Washington    Park    Club,    157 
111.  J)}  41  X.  E.  620,  29  L.  R.  A.  492   (1895)  ; 
Howe    v.    Provident    Fund    Society,    7    Ind. 
App.  586,  594,  34  X.  E.  830   (1893)    (that  ap- 
plications for  insurance  are  usually  made  to 
agents    of    the    company)  ;     City    of    Grand 
Rapids  v.   Braudy,   105  Mich.  670,  64   X.   ^  . 
29.  32  L.  R.  A.  116    (1895)    (thieves  dispose 
of  stolen  articles  through  pawn  brokers  and 
junk  dealers) . 

50.  City   of   Kansas   City  v.   Butt,   ss   Mo. 
App.    237     (1901)     (between    wholesaler    and 
manufacturer ) . 

51.  Gregory  v.   Wendell,   39   Mich.   337,   33 
Am.  Rep.  390    (1878):   Wiggins  Ferry  Co.  v. 
Chicago,  etc.,  R.  Co.,  5  Mo.  App.  347  [reversed 
in   73   Mo.   389,   39   Am.   Rep.   519]    (1878); 
Sacalaris  v.  Eureka,  etc.,  R.  Co.,  18  Xev.  155, 
51  Am.  Rep.  737   (1883). 

52.  See   Farmers',  etc..   Bank   v.   Butchers', 
etc.,  Bank,  28  X.  Y.  431,  26  How.  Pr.  (X.  Y.) 
(1863). 

The  court  may  take  judicial  notice  of  the 
usual  method  of  operating  crematories.  Ab- 
bey Land  &  Improvement  Co.  v.  Mateo,  167 


That  the  courts  of  a  given  county  were  open 
in  1861  and  1862  will  be  judicially  known. 
Breckenridge  Cannel  Coal  Co.  v.  Scott 
(Tenn.  1908),  114  S.  W.  930. 

40.  Ye  it-   Jersey. —  Campbell   v.   Dewick,   20 
X.  J    Eq.   186    (1869)     (constable  serving  as 
tax  collector). 

Pennsylvania. —  Rauch  v.  Com.,  78  Pa.  St. 
490  (1875)  (treasurer). 

Wisconsin. —  Martin  v.  Aultman,  80  Wis. 
150,  49  X.  W.  749  (1891)  (sheriff). 

41.  Thus,    where    it    is    claimed    that    the 
population  of  a  county  is  in  reality  greater 
than  as  given   by  the  census,  the   fact  must 
be    proved.     Funderburg    v.    Augusta    &    A. 
Ry.  Co.,  81  S.  C.  141,  61  S.  E.   1075    (1908). 

Actual  population  is  not  known  to  the 
court,  as  matter  either  of  common  or  judicial 
knowledge.  Adams  v.  Elwood,  176  N.  Y. 
106,  68  X.  E.  126  (1903). 

42.  State  v.  Tully    (Mont.    1904),  78  Pac. 
760. 

43.  Atkeson  v.  Lay,  115  Mo.  538,  22  S.  W. 
481    (1893)     (that  one  is  published).     John- 
son v.  Parke,   12   U.  C.  C.  P.   179    (1860). 

44.  Bookman  v.  Xew  York  El.  R.  Co.,  137 
.V   Y.  302,  33  X.   E.  33   [reversing  60  X.  Y. 
Super.  Ct.  493,  17  X    Y.  Suppl.  951]    (1893)  ; 
Denegre  v.  Walker,  114  111.  App.  234   f!904) 
[decree  affirmed,  73  kl.  E.  409   (1905)]    (Chi- 
cago ) . 

45.  Bogardus  v.  Trinity  Church,  4  Sandf. 
Ch.    (X.  Y.)    633,  724    (1847);   McKinnon  v. 
Bliss,  21  X.  Y.  206   (1860)  :  Chicago,  I.  &  L. 
Ry.   Co.  V.   Town  of  Salem    (Ind.    1906),  76 
.N.  E.  631,  634. 

46.  Himmelmann  v.  Hoadley,  44  Cal.  213 


§§  361,362 


KNOWLEDGE  ;  COMMON. 


§  361.  [What  Facts  are  Covered  by  the  Rule] ;  Evidence  of  Skilled  Witness  not 
Required.53 —  The  jury  need  no  expert  assistance  as  to  the  methods  of  transact- 
ing ordinary  business  which  the  average  man  does  or  may  do,  or  has  occasion 
to  observe  understandingly  at  frequent  intervals.54  For  example,  general  fea- 
tures of  the  business  of  selling  lumber ;  55  or  running  wires,50  are  too  well 
known  to  require  professional  aid,  though  as  to  the  more  technical  features  of 
the  business  a  different  rule  prevails.57 

§  362.  [What  Facts  are  Covered  by  the  Rule] ;  Various  Matters  Covered.58 — 
No  proof  need  be  offered  of  notorious  facts  concerning  agriculture  59  as  the 
characteristics  of  farm  animals,00  and  of  ordinary  farm  products,01  stock  rais- 
ing,62 banking,03  building,04  education,05  and  insurance.00  The  same  rule 
covers  the  mechanic  arts,07  mercantile  agencies,08  and  mining,09  but  not  minor 

v.  Jackson,  69  Minn.  342,  72  N,  W.  568  ( 1897 ) 
( ''  crushed  stone  " ) . 

65.  In  re  Oxford   Kate   Poor-Rate,   8  E.   & 
B.   184,  92  E.  C.  L.   184    (1857)    (University 
of    Oxford).     The    State    University    will    be 
known  to  be  at  Eugene.     Mayhew  v.  City  of 
Eugene    (Or.   1909),  104  Pac.  727;   People  v. 
Maxwell,  84  N.  Y.  Suppl.  947,  87  App.  Div. 
391   ( 1903)    (25  years).     The  court  will  know, 
as  a  matter  of  common   knowledge,  that   by 
reason    of    these    changes,    one    competent    to 
teach  20  years  ago   is  not  necessarily  so   at 
the  present  time.     People  v.  Maxwell,  84  N. 
Y.  Suppl.  947,  87  App.  Div.  391    (1903)  ;  Sin- 
nott  v.  Colombet,  107  Colo.   187,  40  Pac.  329 
(1895). 

66.  Williams    v.    Niagara    F.    Ins.    Co.,    50 
Iowa  561   (1879)    (adjusting  loss)  :  Perkins  v. 
Augusta   Ins.  Co.,   10  Gray    (Mass.)    312,  77 
Am.   Dec.   654    (1858). 

Customary  methods  of  conducting  the  bus- 
iness of  life  insurance  need  not  be  proved 
Thus,  it  is  a  matter  of  common  knowledge 
that  life  insurance  is  solicited  by  agents. 
Modern  Woodmen  of  America  v.  Lawson  (Va. 
1909),  65  S.  E.  509  (use  of  agents). 

67.  Brown  v.  Piper,  91   U.  S.  37   (1875). 

68.  Holmes  v.  Harrington,  20  Mo.  App.  661 
(1886):    Wilmot   v.   Lyon,    11    Ohio   Cir.   Ct. 
238,  7  Ohio  Cir.  Dec.  394    (1888);    Ernst  v. 
Cohn    (Tenn.  Ch.  App.   1900),  62  S.  W.   186. 

69.  Black    Diamond    Coal-Min.    Co.    v.    Ex- 
celsior Coal  Co.,  156  U.  S.  611,  15  S.  Ct.  482, 
39   L.   ed.   553    (1895).     "The  true  meaning 
of  such  expressions  as  shaft,  tunnels,  levels, 
chutes,   slopes,   uprisings,   crossings,   inclines, 
etc.,  signifies  instrumentalities  whereby  and 
through   which  such   mines   are   opened,   de- 


Cal.  434,  139  Pac.  1068,  52  L.  R.  A.   (X.  S.) 
408  (1914). 

53.  1  Chamber layne,   Evidence,  §   810. 

54.  Georgia  R.,  etc..  Co.  v.  Hicks,  95  Ga. 
301,  22  S.  E.  613   (1894). 

55.  Baldwin   v.   St.   Louis,  etc.,   R.   Co.,   68 
Iowa  37,  25  N.  W.  918    (1885)     (piling  lum- 
ber) :  Brown  v.  Doubleday,  61  Vt.  523,  17  Atl. 
135   (1889)    (piling  bark). 

56.  Flynn  v.  Boston  Electric  Light  Co.,  171 
Mass.    395,    50    X.    E.    937     (1898)     (among 
trees ) . 

57.  Infra,  §  362. 

58.  1  Chamberlayne,  Evidence,  §§  811-847. 

59.  Raridan    v.    Central    Iowa    R.    Co.,   69 
Iowa  527,  530    (1886). 

60.  Shubrick   v.  State,  2  S.  C.  21    (1870) 
("sow");     State    v.     Abbott,    20     Vt.     537 
(1848)    ("steer"). 

61.  Putnam  v.  St.  Louis  Southwestern  Ry. 
Co.  of  Texas  (Tex.  Civ.  App.  1906),  94  S.  W. 
1102    (no  pears   or  apples  on  trees  in  Jan- 
uary).    Courts   know   that   it   requires   more 
than  a  month  to  raise  a  crop  of  cotton.     First 
Nat.   Bank  v.   Rogers    (Okl.   1909),   103  Pac. 
582. 

62.  Mathews  v.  Great  Northern   R.  Co.,  7 
N.  D.  81,  72  X.  W.  1085   (1897). 

63.  Lewis,   Hubbard  &  Co.  v.   Montgomery 
Supply  Co.    (W.  Va.   1900),  52  S.   E.   1017; 
Salt  Springs  Nat.  Bank  v.  Burton,  58  N.  Y. 
430,  17  Am.  Rep.  265  ( 1874)  ;  Lewis,  Hubbard 
&   Co.   v.   Montgomery   Supply   Co.    (W.   Va. 
1906),   52   S.    E.    1017    (in   cities   and   large 
towns  not  earlier  than  9  A.  M.) 

64.  Duby  v.  Jackson,  69  Minn.  342,  72  X. 
W.  568  (1897)  ;  Doyle  v.  New  York,  69  N.  Y. 
Suppl.  120,  58  App.  Div.  588    (1901);  Duby 


199 


WHAT  FACTS  COVERED. 


362 


business  facts.70  The  court  knows  also  what  are  professional  occupations  71 
and  the  meaning  of  medical  terms  72  as  well  as  the  general  operation  of  rail- 
roads73 and  freight  74  and  passenger  service.75  Well  known  facts  concerning 
real  estate  dealings,76  stock  transactions,77  and  street  railways,7*  surveying,79 
telegraphing,80  trading,81  the  transportation  of  the  mail  82  and  the  business  of 
express  companies 83  or  the  length  of  time  consumed  in  transit  from  well- 


veloped,  prospected,  improved  and  worked," 
need  not  be  proved,  hines  v.  Miller,  122  Cal. 
517,  519,  55  Pac.  401  (1898).  The  court 
takes  judicial  notice  that  explosions  occur  in 
the  best  equipped,  best  regulated  and  per- 
fectly ventilated  coal  mines.  Dickinson  v. 
Stuart  Colliery  Co.,  71  W.  Va.  325,  76  S.  E. 
654,  43  L.  R.  A.  (X.  S.)  335  (1912). 

70.  Clark  v.  Babcock,  23  Mich.  164  (1871). 
It  cannot  be  known  that  the  cutting  and  box- 
ing of  pine  trees  for  turpentine,  destroys  their 
value  as  timber,  such  not  being  a  uniform  re- 
sult of  experience.     Board  of  Sup'rs  of  Han- 
cock Co.  v.  Imperial  Xaval  Stores  Co.   (Miss. 
1908),  47  So.   177;    Knight  v.  Empire  Land 
Co.    (Fla.    1908),  45   So.    1025. 

71.  O'Heilly  v.   Erlanger,  95  X.  Y.  Suppl. 
760,   108  App.  Div.  318    (1905). 

72.  State  v.  Wilhite    (Iowa  1907),  109  X. 
AV.  730    ("pathological  neurology"). 

73.  Alabama,    etc.,    R.    Co.    v.    Coskry,    92 
Ala.  254,  9  So.  202   (1890).     In  like  manner 
the  art  of  measuring  railroad  embankments, 
need    not    be    proved.     Scanlan    v.    Ry.    Co. 
(Cal.  1898),  55  Pac.  694;  Chicago  &  M.  Elec- 
tric R.  Co.  v.  Diver,  213  111.  26,  72  X.  E.  758 
( 1904)  ;  Fleischman,  Morris  &  Co.  v.  Southern 
Ry.,  76  S.  C.  237,  56  S.  E.  974,  9  L.  R.  A. 
(X.    S.)    519    (1907). 

74.  Illinois  Cent.   R.  Co.  v.  Green,  81   111. 
19    (1875)  ;  Chicago,  etc.,  R.  Co.  v.  Hazzard, 
26  111.  373    (1861);    President,  etc.  v.  Cason, 
72  Md    377,  20  Atl.  113   (1890). 

75.  Leary  v.  Fitchhurg  Ry.  Co.,   173  Mass. 
373,  53  X.  E.  817    (1899)    (custom  in  alight- 
ing  from   cars).     It   need   not   be   proved   to 
a  court  that  more  passengers  and  other  per- 
sons frequent  a  station  in  a  large  city  than 
in  a  small  town.     Cincinnati,  X.  O.  &  T.  P. 
Ry.   Co    v.   Harrod's  Adm'r    (Ky.   1000),   115 
>.    \V.    609.     Courts   know   that   a   passenger 
need    not   retire   beyond   the   range   of    flying 
cinders   to  escape  them.     He  can  effectually 
accomplish  the  same  result  simply  by  shading 
liis  pyes.     Houston  &  T.  C.  Ry   Co.  v.  Pollock 
(Tex    Civ.  App.  1909),  115  S.  AV.  843. 


76.  Anderson  v.  Blood,  86  Hun  (X.  Y.)  244, 
33  X.  Y.  Suppl.  233   (1895). 

Mortgagor's  payment  of  charges  of  nego- 
tiating mortgage. —  The  custom  of  requiring 
one  borrowing  on  mortgage  to  pay  all  in- 
cumbrances  and  expenses  of  effecting  the  loan 
out  of  the  amount  of  the  loan  is  a  proper  sub- 
ject for  judicial  knowledge.  Pennsylvania 
Steel  Co.  v.  Title  Guarantee  &  Trust  Co.,  193 
X.  Y.  37,  85  X.  E.  820  (1908)  [judgment 
reversed,  105  X.  Y.  Suppl.  1135.  120  App.  Div. 
879  (1907)]  [which  affirms  100  X.  Y.  Suppl. 
299,  50  Misc.  51  (1906)]. 

77.  Fox  v.  Hale,  etc.,  Silver  Min.  Co.,  108 
Cal.  369,  41  Pac.  308  (1895). 

78.  Meyer    v.    Krauter,    56    X,  J.    L.    696, 
29  Atl.  426    (1894);   Cook  v.  Decker,  63  Mo. 
328   (1876)  ;  Towne  v.  St.  Anthony,  etc.,  Co., 
8  X.  Dak.  200,  77  X.  AV.  608   (1898)  ;  Book- 
man v.  N.  Y.  Elevated  R.  R.  Co.,  137  X.  Y. 
302    (1893);    Geist   v.    Detroit   City   R.    Co., 
91  Mich.  446,  51  X.  AV.  1112   (1892). 

79.  Wells  v.  Jackson  Iron  Mfg.  Co..  47  X. 
H.   235,   00   Am.   Dec.  575    ( 1 866 )  ;  'infra,   §§ 
886,  1970,  2384;   Bryan  v.  Beckley,  Litt,  Sel. 
Cas.     (Ky.)    91,    12    Am.    Dec.    276     (1809); 
Putnam  v.  AVhite,  76  Me.  551   (1884). 

80.  Mobile  &  O.  R.  Co.  v.  Postal  T.  C.  Co., 
120  Ala.   21,  24   So.  408    (1897):    People  v. 
AVestern  I'nion  Tel.  Co.,  166  111.  15,  46  X.  E. 
731    (1897):    State  v.   Indiana,  etc.,   R.   Co., 
133   Ind.   69.  32   X.   E.  817,   18  L.  R.  A.  502 
(1892);    Yoiiree   v.    Vicksburg,   etc.,    R.    Co., 
ilO  La.  791,  34  So.  779   (1903). 

81.  Kansas  City  v.  Butt,  88  Mo.  App.  237 
(1901);    >chollenberger  v.   Pennsylvania,   171 
U.  S.   1,   18  S.  Ct.  757.  43  L    ed.  49    (1897). 

82.  Bouden  v.  Long  Acre  Square  Bldg.  Co., 
86    X.    Y.    Suppl.    1080,    92    App.    Div.    32.5 
(1004).     .£tna    Indemnity    Co.   of   Hartford, 
Conn.  v.  George  A.  Fuller  Co.,  Ill   Md.  321, 
73   Atl.   738    (1900)    [reargument  denied,   74 
Atl.   369]. 

83.  Harper  Furniture  Co.  v.  Southern  Ex- 
press Co.,  144  X.  C.  639,  57  S.  E.  758  (1907). 


§§  363,364  KNOWLEDGE;  COMMON.  200 

known  points,84  or  the  meaning  of  phrases  85  and  methods  of  transportation,86 
are  also  within  the  rule. 

§  363.  How  Actual  Knowledge  May  be  Acquired.ST —  In  matters  of  fact,  the 
actual  knowledge  of  a  particular  judge  may  be  either  greater  or  less  than  that 
of  the  general  community.  His  knowledge  is  greater  when  the  attempt  is 
made  by  him  to  dispense  with  evidence  of  a  fact  because  he  chances  to  know 
one  which  is  not  generally  known  or  ascertainable  by  resort  to  a  recognized 
source  of  information.  When  it  is  said  that  a  judge  judicially  knows  a  fact, 
i.e.,  accepts  it  as  one  of  common  knowledge,  it  is  by  no  means  implied  that  the 
judge  actually  knows  it.  All  that  is  meant  is  that  he  either  knows  the  fact  or 
as  to  how  he  may  readily  learn  the  truth  with  regard  to  it.88 

Where  the  judge's  actual  knowledge  is  less  than  that  of  the  average  member 
of  the  community,  or  where,  for  any  reason,  he  declines  to  know  a  particular 
fact,  he  may  do  one  of  several  things:  (1)  He  may  absolutely  decline  to  know 
the  fact,  (2)  he  may  invoke  the  assistance  of  the  party  who  requests  judicial 
cognizance,  (3)  he  may  investigate  the  question  for  himself  as  a  matter  of  ad- 
ministration, with  or  without  the  aid  of  the  parties,  i.e.,  he  may  gain  such  light 
as  he  can  from  them  and  seek  fuller  mental  certitude  by  an  examination  con- 
ducted in  his  own  way  and  on  his  own  initiative.89 

§  364.  [How  Actual  Knowledge  May  be  Acquired] ;  Judge  May  Decline  to 
Know  Fact.90 —  There  is  authority  for  the  proposition  that  it  is  the  duty  of  the 
court  to  take  cognizance  of  facts  of  common  knowledge,91  if  a  party  asks  for 
it.92  But,  regarding  matters  of  fact,  the  better  rule  is  that  the  court  may 
decline  to  take  any  fact  as  being  one  of  common  knowledge  —  even  when  it  is 
only  a  probative  one  —  and  may  require  proof  of  it.93  A  judge  is  not  re- 
quired to  know  a  particular  fact  judicially.94  He  may  decline  to  take  any 
cognizance  whatever  of  an  alleged  fact  of  common  knowledge.95 

84.  State  v.  Seery.  95   Iowa  (552,  64  N.  W.  88.  Ball   v.    Flora,    26   App.    Cas.    (D.    C.) 
631     (lS!)o);    Williams   v.    Rrown,    65    N.    Y.       394    (1905). 

Suppl.    1049,  53   App.   Div.   486    (1900);   Op-  89.  Atty.-Gen.    v.    Dublin,    38    N.    H.    459 

penheim  v.   Leo  Wolf,  3  Sandf.  Ch.    (N.  Y.)  (1859);   Atty.-Gen.  v.  Drummond,  1   C.  &  L. 

571    (1846);    Pearce  v.   Langfit,    101   Pa.   St.  210,    1   Dr.   &  Wai.   353    (1842). 

507,  47  Am.  Rep.  737    (1882).  90.   1  Chamberlayne,   Evidence,   §   849. 

85.  Kilmer  v.  Moneyweijrht  Scale  Co.   (Tnd.  91.   State  v.  Makers,  35  Or.  520,  57  Pac.  197 
App.    1905)    76    X.    K.   271:    Vo<rt   v.   Rhiene-  (1899)     (time   of   sunset);    Gilbert   v.   Flint, 
beck   (Wis.,  1904),  67  L.  R.  A.  756,  100  X.  W.  etc.,  R.  Co.,  51   Mich.  488,   16  N.  W.  868,  47 
820.  Am.   Rep.   592    (1883). 

86.  Gamble  v.   Central   M.  Co.,  SO  Ga.  595,  92.  Amundson  v.  Wilson,  11  N.  D.  193,  91 
12  Am.  St.  276,  7   S.  E.  315    (1888);   Michi-  N.  W.  37   (1902). 

gan  R.  Co.  v.  McDonoush,  21   Mich.  165,   194  93.  People  v    Mayes,  113  Cal.  618,  45  Pac 

(1870)     (cattle);    Burlington,  etc.,  R.  Co.   v.  861     (1896);     Littlehale    v     Dix.    11     Gush. 

Dey,  82  Iowa  312,  48  X.  W.  98.   12  L.  R.  A.  (Mass)       364       (1853)        (distance      between 

436,   31   Am.  St.    Hep.  477    (1891);    Isaacson  places). 

v.    New   York   Cent,,   etc.,   R.    Co.,   94   N.   Y.  94.  Hunter  v.  N.  Y.,  O.  &   W.  R.   Co.,   116 

278,46  Am.  Rep.  142   (1884)  N.    Y.   615,   621,   23   X.   E.   9    (1S89);    In  re 

87.  1  Chamberlayne,   Evidence,  §   848.  Osborne,  52  C.  C.  A.  595,  115  Fed.  1   (1902). 


201  How  ACQUIKED.  §§  365,366 

§  365.  [How  Actual  Knowledge  May  be  Acquired] ;  May  Kequire  Aid  of  Par- 

ties.yG —  In  such  an  event,  the  party  is  put  to  his  proof.97  While  a  judge  may 
properly  require  that  the  parties  aid  him  by  evidence  in  completing  or  re- 
freshing his  knowledge  as  to  matters  of  general  notoriety,  he  cannot  require 
evidence  from  the  parties  as  to  matters  which  he  is  required  judicially  to 
know,  e.g.,  the  adoption  of  a  constitution  or  of  an  amendment  to  it.98  Nat- 
urally, however,  a  judge  is  at  liberty  to  use  his  common  knowledge  in  dis- 
charging his  judicial  function  in  announcing  a  rule  of  law.  In  construing 
statutes  the  court  is  ruling  on  a  matter  of  law."  The  judge  may,  therefore,  in 
preparing  to  do  so,  reject  any  evidence  offered  by  the  party  which  is  contrary 
to  his  judicial  knowledge,1  or  may,  in  his  discretion,  request  such  evidence,  or 
take  judicial  cognizance  of  relevant  facts.2  But,  in  such  cases,  the  knowledge 
is  judicial,  rather  than  common. 

§  366.  [How  Actual  Knowledge  is  Acquired] ;  Examination  by  Judge.3 —  The 
course  and  range  of  any  investigation  carried  on  by  the  judge,  or  under  his 
direction,  is  entirely  within  his  administrative  power;  —  i.e.,  as  is  commonly 
said,  it  is  a  matter  entirely  within  his  own  discretion.  As  in  cases  involving 
judicial  knowledge  of  law,4  the  judge  is  preparing  himself  to  discharge  a  judi- 
cial function.  The  responsibility  is  entirely  his  and  the  test  from  the  sources 
from  which  information  is  to  be  sought  is  absolutely  subjective ;  —  i.e.,  as  to 
what  is  helpful  to  him,  individually.5  He  is  controlled  by  no  rules  of  evi- 
dence. Xor  need  he  be  required  to  hear  testimony  on  such  a  subject.0  He 
.may  inquire  of  others,  in  whom  he  has  confidence.7  It  is  open  to  him  to  adopt 
or  reject  the  suggestion  of  a  party,8  as  he  deems  most  in  accordance  with  his 

On  the  contrary,  a  judge  cannot  well  regard  a  43  Am.  St.   Rep.   100    (1894)  ;   Jones  v.  Lake 

fact  as  of  common  knowledge  which  is  recog-  View,  151  111.  663,  38  N.  E.  688   (1894)  ;  Lit- 

nized  as  being  otherwise  by  a  statute.     Tim-  tlehale  v.  Dix,  11  Cush.  364   (1853);   Hunter 

son  v.  Manufacturers'  Coal  &  Coke  Co.,  220  v.  New  York,  etc.,  R.  Co.,  116  X.  Y.  615,  23 

Mo.   580,   119   S.   \V.  565    (1009).  N.   E.   9,  6   L.   R.   A.  246    (1889);    Underbill 

95.  Cary    v.    State,    76    Ala.    78     (1884);  v.  Hernandez,  168  U.  S.  250,  18  S.  Ct.  83,  42 
Gordon  v.  Tweedy,  74  Ala.  232,  49  Am.  Rep.  L.   ed.   456    (1897). 

S13     (1883);     Kaolatype    Engraving    Co.    v.  6.   People  v.   Mayes,   113  Cal.  618,  45   Pac. 

Hoke,   30   Fed.  444    i .1887).  860   (1896);  State  v.  Main,  69  Conn.  123,  37 

96.  1   Chamberlayne,  Evidence,  §§  850,  851.  Atl.  80,  61  Am.  St.  Rep.  30,  36  L.  R.  A.  623 

97.  People  v.  Mayes,   113  Cal.  618,  45  Pac.  (1897)    (what  "peach  yellows"  means). 

S61      (189ti);     Kaolatype    Engraving    Co.    v.  Massachusetts. —  Com.    v.    Maryznski,    149 

lloke,  30   Fed.  444    (1887).  Mass.  G8.  21   X.   E.  228    (1889)    (meaning  of 

98.  State  v.  Hoard  of  Com'rs  of  Silver  Bow  phrase    "drugs    and    medicines"). 
•Comity,  34  Mont    426,  87  Pac.  450   (1006).  7.  People  v.  Mayes,   113  Cal.   618,  45   Pac 

99.  .S'l/pnz,  §  57.  860    (1896).     "The    rule    has    been    held    in 

1.  Com.  v.  Mar/ynski,  149  Mass.  68,  21  X.       many    instances   to   embrace   information   de- 
228    (1889).  rived    informally   by   inquiry    from   experts." 

2.  Redell  v    Moores,  63  Xeb.  219,  88  X.  W.       Gordon  v.  Tweedy,  74  Ala.  232   (1883). 

243,   !)3    Am.   St.    Rep.   431    (1901).  8.  Rogers   v.   Cady,    104   Cal.   288,   38   Pac. 

3.  1   Chamberlayne,    Evidence,   §§    852-855.  81,  43   Am.  St.  Rep.   100    (1894);   Atty.-Gen. 

4.  Supra.  §  316.  v.  Dublin,  38  X.  H.  459   (1859). 

5.  Rogers  v.  Cady,  104  Cal.  288,  38  Pac.  81, 


367,368 


KNOWLEDGE;  COMMON. 


202 


own  needs.     He  may  consult  official  records,9  or  public  documents  of  any  kind,10 
almanacs  u  or  calendars,12  historical  works  13  or  encyclopedias.14 

§  367.  [How  Actual  Knowledge  is  Acquired] ;  Function  of  the  Jury.15 —  In 
cases  where  the  jury  are  to  decide  an  issue  of  fact  on  which  they  use  matters 
as  to  which  they  may  take  judicial  cognizance,  the  judge  may  properly  permit 
them  to  examine  publications  such  as  histories,10  encyclopedias  1T  and  the  like, 
which  he  feels  will  aid  them  in  reaching  a  correct  conclusion  as  to  the  fact  to 
be  judically  known.  He  will  so  exercise  his  administrative  power  as  to  allow 
them  to  consider  only  such  printed  statements  as  are  relevant,  because  made  by 
a  person  of  adequate  knowledge  and  without  motive  to  misrepresent.18 

§  368.  [How  Actual  Knowledge  is  Acquired] ;  Books  not  Evidence.10 —  The 
publications  resorted  to  for  the  purpose  of  enabling  the  judge  to  ascertain  a 
fact  of  common  knowledge  are  not,  in  reality,  evidence  at  all.20  They  are 
used  merely  for  the  purpose  of  aiding  the  '"  memory  and  understanding  of  the 
court."  21  While  therefore  the  publications,  books  and  other  documents  may 
be  rejected  when  offered  as  evidence,22  as  it  is  deemed  irregular  to  receive 
them,23  the  irregularity  of  receiving  them  as  evidence  may  take  place  and  still 


9.  People  v.  Williams,  64  Cal.  87,  27  Pao. 
939    (1883)     (census);    State  v.   Wagner,   61 
Me.    178,    186    (1873)     (census);    Whiten    v. 
Albany  City   Ins.   Co..   109  Mass.  24    (1871) 
(census)  :  Kirby  v.  Lewis,  39  Fed.  66   (1889) 
( land  office ) . 

10.  Keyser  v.   Coe,  37   Conn.  597    (1871); 
McMillen  v.  Blattner,  67  Iowa  287,  25  N.  W. 
245    (1885).     See  also  In  re  Decatur  St.  in 
City  of  New  York,  117  X.  Y.  Suppl.  855,  133 
App.  Div.  321   (1909)   [order  reversed.  Walker 
v.  Schauf.   196  N.  Y.  286,  89  N.  E.  829.] 

11.  Louisville,   etc.,   K.   Co.   v.   Brinkerhoff, 
119  Ala.  606,  24   So.   892    (1898);   Montenes 
v.   Metropolitan  St.  K.  Co.,  78  N.   Y.  Suppl. 
1059,  77  App.  Div.  493  (1902) 

12.  Cohn   v.   Kahn,    14  Misc.    (N.  Y.)    255, 
35  N.  Y.  Suppl.  829   (1895). 

13.  Darby    v.    Ouseley,    1    H.    &    N.    1,    12 
(1856)      (Papal    excommunication    of    kings, 
etc.).     Charlotte   v.    Chouteau,    33    Mo.    194, 
201     (1862)     Kramer's   History   of   Canada). 
A  history  of  the  Southern  Confederacy,  "  The 
Lost  Cause,"  may   he   resorted   to  for  dates 
and    events.     Swinnerton    v.    Columbian    Ins. 
Co.,  37  N.  Y.  174  (1867).     Keyser  v.  Coe.  37 
Conn     597     (1871):     Com.    v.    Alburger,     1 
Whart    (Pa.)  469  (1830)  :  U.  S.  v.  One  Thou- 
sand  Five  Hundred  Bales  of  Cotton,  27  Fed. 
Cas.    Xo.    1.1.058     (1872).     "Information    to 
guide  their  judgment  may  be  obtained  by  re- 


sort to  original  documents  in  the  public 
archives  or  to  books  of  history  or  science  or 
any  other  proper  source."  Hoyt  v.  Russell, 
117  U.  S.  401  (1885). 

14.  Steinbrunner  v.  R.  Co.,  146  Pa.  504,  515, 
23  Atl.  239   (1892)    (Britannica:  preparation 
of  life  tables). 

15.  1   Chamberlayne,  Evidence,  §§  856.  857. 

16.  McKinnon     v.     Bliss,     21     X.     Y.     206 
(1860)  ;  Gregory  v.  Baugh,  4  Rand.  (Va.)  611 
(1827). 

17.  Stainer     v.     Droitwich,     1     Salk.     281 
(1695)     (Camden's   Britannica). 

18.  Evans  v.  Getting,  6  C.  &  P.  586,  25  E. 
C.  L.  587    (1834). 

19.  1  Chamberlayne,  Evidence,  §   858. 

20.  Mobile,  etc.,   R.    Co.   v.   Ladd,  92   Ala. 
287,  9  So.  169  (1890)    (almanac). 

United  States. —  Brown  v.   Piper.  91   U.  S. 
37,  42,  23  L.  ed.  200  ( 1875)    (dictionaries). 

21.  Xix  v.  Hedden,  149  U.  S.  304,  13  S.  Ct. 
881.  37  L.  ed.  745  (1892). 

22.  Louisville  &  X.   R.  Co.  v.  BrinckerhofT, 
119   Ala.   606,   24   So.   893    (1898)     (almanac 
to    show    sunset )  :    Com.    v.    Marzynski,    149 
Mass.  68,  21   X.  E.   228    (1889):    Rodgers  v. 
Kline,  56  Miss.  808.  31  Am.  Rep.  389  (1879)  ; 
Atty.-Gen.  v.  Dublin,  38  N.  H.  459   (1859). 

23.  Rodger  v.  Kline,  56  Miss.  808,  31  Am. 
Rep.  389   (1879). 


203  How  ACQUIRED.  §  369 

no  error  be  committed.24     The  parties,  in  fact,  have  no  rights  in  the  matter 
whatever. 

§  369.  [How  Actual  Knowledge  is  Acquired] ;  Standard  Treatises.25 —  On  a 
matter  pertaining  to  geography  resort  may  be  had  to  maps,26  geographies,27 
histories,28  public  documents  '^  in  general.  The  meaning  of  words  as  a  rule 
may  be  ascertained  by  a  resort  to  the  dictionary, 3u  glossaries,31  grammars,32 
for  scientific  words  to  an  appropriate  treatise,3i{  or,  in  case  of  a  word  of  archaic 
or  other  than  current  meaning,  to  works  of  history,34  or  other  publications.35 
As  has  been  said  the  only  administrative  danger  in  the  use  of  standard  treatises 
is  that  the  jury  may  abuse  the  statements  by  taking  them  as  probative  facts. 

Situations  arise  upon  which  opposing  views  may  reasonably  be  held  and 
incessantly  clash.  Persons  of  equal  training  and  intelligence  may  not  un- 
naturally "  take  sides  "  on  such  a  question  and  partisanship  thus  replace  the 
disinterested  search  for  truth.  But  it  is  evident  that  these  characteristic  dif- 
ferences between  a  complete  and  an  incomplete  induction  in  reality  sketch  the 
essential  differentiations  between  an  exact  and  an  inexact  science.  Where  the 
statement  of  a  standard  authority  relates  to  some  part  of  the  subject-matter  of 
an  exact  or  mathematical  science,  i.e.,  where  the  deduction  follows  from  the 
relations  between  the  parts  of  hypothetical  constructions  involving  no  observa- 
tion of  fact  but  taking  cognizance  only  of  the  creations  of  the  mind,36  the 
danger  of  error  is  reduced  to  a  minimum.  The  result  must,  if  correctly  worked 
out,  correspond  to  the  postulate ;  —  for  the  dealing  is  altogether  with  arbi- 
trary subjective  conceptions  rather  than  with  the  realities  of  objective  exist- 
ence. 

Where  the  science  with  regard  to  which  the  treatise  speaks  is  an  inexact  or 
moral  one,  an  entirely  different  administrative  situation  is  presented.  The 
conclusions  of  the  text  writer  now  rest  not,  as  in  case  of  the  exact  science,  upon 
arbitrary  assumptions  or  hypotheses,  but  upon  the  objective  reality  of  nature; 
—  from  the  intricacy  of  whose  manifestations  various  inferences  may  properly 

24.  Cook  v.  State,   110  Ala.  40,  47,  20  So.          United  States.—  Xix  v.  Hedden,  149  U.  S. 
360  (189.5)    (Webster's  international  Diction-       304,    13    S.    Ct.    881,    37    L.    ed.    745     (1892) 
aryj.     But   see  Atty.-Gen.   v.   Dublin,   38    X.       ("fruit"  and  "vegetable"). 

H.  459,  516   (1859).  31.  Answer  of  Judges,  22  How.  St.  Tr.  302 

25.  1  Chamberlayne,  Evidence,  §§  859-864.  •(1789). 

26.  VVainright  v.  Lake  Shore,  etc.,  R.  Co..  32.  Answer   of   the   Judges    to   the   House 
11  Ohio  Cir.  Dec.  530   (1901)  of  Lords,  22  How.  St.  Tr.  302   (1789). 

27.  L".  S.  v.  The  Montello,  11  Wall.   (U.  S.)  33.  State  v.  Wilhite    (Iowa  1907),  109  X. 
411,  20  L.  ed.  191   (1870).  W.  730   (medical). 

28.  Keyser  v.   Coe,  37   Conn.  597    (1871)  ;  34.   Atty.-Gen.  v.  Dublin,  38  N.  H.  459,  516 
State  v.  Wagner,  61   Me.   178    (1873);   U.  S.  (1859). 

v.  The  Montello,  11  Wall.   (U.  S.)  411,  20  L.          35.  Com.  v.  Kneeland,  20  Pick.  (Mass.)  206 
ed.  191   (1870).  (1838);  Atty.-Gen.  v.  Dublin,  38  N.  H.  459 

29.  Keyser  v.   Coe,  37   Conn.  597    (1«71);       (1859). 

State  v.  \Vasner,  61  Me.  178,  190  (1873).  36.  Cent.  Diet,  in  verbo  SciEJfCB. 

30.  Illinois.—  Parker   v.   Orr,    158   111.  609, 
41  N.  E.  1003  (1895)    (Webster). 


370 


KNOWLEDGE;  COMMON. 


204 


be  drawn.  The  administrative  danger  of  permitting  the  unsworn  written 
statement  of  an  author  to  act  with  an  undiscriminating  tribunal  as  proof  of 
the  facts  asserted  in  it  remains  unabated. 

Probative  facts  are  frequently  proved  by  such  means  especially  in  case  of 
mathematical  calculations  :J7  as  those  contained  in  mortality  tables  3!>  or  trade 
manuals/50  as  well  as  historical  works  to  prove  ancient  facts/"  or  market  re- 
ports,41 registers  of  pedigree42  and  the  like.  The  same  considerations  apply 
to  deliberative  facts  4;{  which  may  be  shown  to  the  jury  by  means  of  diction- 
aries,44 encyclopedias,  histories  45  and  law  reports  4ti  and  this  use  is  often  ap- 
proved by  statute.47 

Courts  have  however  often  declined  to  use  this  practice  on  the  ground  that  it 
is  a  clear  infringement  on  the  hearsay  rule.48 

§  370.  [How   Actual   Knowledge    is   Acquired] ;    Testimony   of   Skilled   Wit- 


37.  Huffman  v.  Click,  77  N.  C.  55   11877). 

38.  Pearl  v.  Omaha,  etc.,  R.  Co.,   115  lovva 
538,    88    N.    W.    1078     (1902);    Sternfels    v. 
Metropolitan   St.   R.   Co.,   174   N.    Y.   512,  66 
N.    E.    1117    [afiirminy   77   N.  Y.   Suppl.   309, 
73  App   Div.  494]    (1903), 

Mortality  tables  may  be  put  in  evidence  to 
show  probable  length  of  life  where  injuries 
claimed  are  permanent.  Coons  v.  Pritchard, 
69  Fla.  362,  68  So.  225,  L.  R.  A.  1915  F  558 
(1915). 

Mortality  tables  may  be  admissible  even 
in  a  case  of  a  person  afflicted  with  ill-health 
or  diseased  or  in  a  hazardous  employment. 
Such  evidence  may  impair  or  destroy  their 
probative  effect  but  it  does  not  make  them 
inadmissible.  Broz  v.  Omaha  Maternity,  etc., 
Ass'n.,  96  Neb.  648,  148  N.  W.  575,  L.  R.  A 
1915  D  334  (1914). 

39.  Western  Assur.  Co.  v.  J.  H.  Mohlman 
Co.,  83  Fed.  811,  28  C.  C.  A.  157,  40  L.  R.  A. 
651     (1897)     (engineers    tables    on    strength 
of  materials).     Jones  v.  McMillan,  129  Mich. 
86,  88  N.  W.  206    ( 1901  :   Galveston,  etc.,  R. 
Co.   v.   Johnson,    24   Tev.    Civ.    App.    180,  .58 
S.  W.  622   (1900)  ;  Cherry  Point  Fish  Co.  v. 
Nelson,   25    Wash.   558,    66    Pac.   55    (1901). 

40.  Morris  v.  Harmer,  7  Pet.    (U.  S.)    554, 
8  L.  ed.  781   (1833). 

41.  Nash  v.  Classen,  163  111.  409,  45  N.  E. 
276   (1896)  ;  Aulls  v.  Young,  98  Mich.  231,  57 
N.    W.     119     (1893);     Terry    v.    McNiel,    58 
Barb.   (N.  Y.)   241    (1870);  Cliquot  v.  U.  S., 
3  Wall.   (U.  S.)    114,  18  L.  ed.  116   (1865). 

42.  Pittsburgh,    etc.,    R.    Co.    v.    Sheppard, 
56  Ohio  St.  68,  46  N.  E.  61,  60  Am.  St.  Rep. 
732  (1897)  ;  Louisville,  etc.,  R.  Co.  v.  Frazee, 
71  S.  W.  437,  24  Ky.  L.  Rep.  1273   (1903). 


43.  Western    Assur.    Co.    v.    Mohlman    Co., 
83   Fed.   811,  28   C.   C.   A.   157,   40   L.   R.   A. 
561    (1897). 

44.  Nix   v.   Hedden,    149   U.   S.   304,    13   S. 
Ct.  881,  37  L.  ed.  745  (1893)  ;  Zante  Currants, 
73  Fed.  183   (1896).     See  also  Cook  v.  State, 
110  Ala.  40,  20  So.  360   (1895). 

45.  Morris  v.  Harmer,  7  Pet.    (U.  S.)   554, 
8  L.  ed.  781    (1883);   Bow  v.  Allenstown,  34 
N.  H.  351,  69  Am.  Dec.  489    (1857)    (report 
of  secretary  of  state  from  a  state  historical 
collection)  ;  Com.  v.  Alburger,  1  Whart.  (Pa.) 
469    (1836);    Banco    de    Sonora   v.    Bankers' 
Mut.   Casualty   Co.    (Iowa   1903),   95  N.  W. 
232   (Bouvier's  Dictionary  as  to  law  of  Mex- 
ico). 

46.  Supra,    §    333;    Mackay   v.   Easton,    19 
Wall.    (U.    S.)    619,    22    L.    ed.    211     (1873) 
[affirming    16    Fed.    Cas.    No.    8,843,    2    Dill. 
41].     See  also  Stayner  v.  Baker,   12  Mod.  86 

(1796).  Donellan  v.  Hardy,  57  Ind.  393 
(1877);  Freeman  v.  Bigham,  65  Ga.  580 
(1880);  Charlotte  v.  Chouteau,  33  Mo.  194 
(1862)  ;  Marguerite  v.  Chouteau,  33  Mo.  540 
(1862)  ;  Inge  v.  Murphy,  10  Ala.  885  (1846)  ; 
'  Billingsley  v.  Dean,  11  Ind.  331  (1858); 
Musser  v.  Stauffer,  192  Pa.  St.  398,  43  Atl. 
1018  (1899). 

47.  Burg  v.  Chicago,  etc.,  R.  Co.,  90  Iowa 
106,    57    N.    W.    680,    48    Am.    St.    Rep.    419 
(1894). 

48.  Bloomington   v.    Schrock,    110    Til.    221 
(1884);    Epps   v.    State,    102    Ind.    539,   550, 
1  N.  E.  491    (1885)  ;  Com.  v.  Marzynski,  149 
Mass.  72,  21  N.  E.  228    (1889);   New  Jersey 
Z.  &  I.  Co.  v.  L.  Z.  &  I.  Co.,  59  N.  J.  L.  189, 
35  Atl.  915   (1896). 


205  How  FAR  BINDING.  §§  371-373 

nesses.49 —  Should  the  court  decline  to  learn,  in  this  way,  the  existence  of  a 
fact  of  common  knowledge,  the  only  available  method  is  to  use  the  witness  of 
special  knowledge,  the  "  expert,"  as  he  is  called.50 

§  371.  How  Far  Knowledge  is  Binding.51 —  The  effect  of  the  court's  tak- 
ing judicial  or  common  knowledge  has  been  said,  by  certain  courts,  to  be  tiiial. 
The  reasoning  is  that  judicial  knowledge  takes  the  place  of  proof  —  conse- 
quently, that  it  is  proof  and  equally  conclusive.52  A  marked  difference  ap- 
parently exists,  however,  in  this  connection,  according  as  the  knowledge  of  the 
judge  is  judicial  or  common;  - —  i.e.,  according  as  the  court's  knowledge  relates 
to  matter  of  law,  or  to  matter  of  fact. 

§  372.  [How  Far  Knowledge  is  Binding] ;  Matter  of  Fact.5;J —  The  line  of 
demarcation  between  law  and  fact  is  frequently,  however,  hard  to  draw.  This 
is  not  to  be  regarded  as  unexpected  in  case  of  a  differentiation  which  has  no 
basis  in  the  reality  of  things.  Indeed,  to  refuse  to  hear  evidence,  whether 
this  is  done  by  way  of  a  so-called  "  conclusive  presumption,"  or  of  judicial 
cognizance,  is.  in  itself,  to  leave  the  field  of  fact  and  lay  down  a  rule  of  sub- 
stantive law.  But  so  far  as  the  court's  knowledge  retains  the  position  of  an 
assumption  of  the  truth  of  a  notorious  fact  or  of  easily  accessible  statements, 
a  party  should  be  permitted  to  contravene  and,  if  possible,  control,  the  judge's 
opinion. 

§  373.  [How  Far  Knowledge  is  Binding] ;  Matter  of  Law.-"4 —  As  a  manor  of 
course  the  action  of  the  parties  cannot  conclude  the  judicial  knowledge  of  the 
court  with  regard  to  matters  of  law.  In  this  class  would  therefore  fall  the 
construction  of  a  document,  the  effect  of  a  public  statute  and  so  on.55  The 
court  may  properly  decline  to  hear  evidence  to  aid  it  in  construing  a  statute.06 
or  other  document.  It  is  eminently  proper  to  hold,  in  such  cases,  that  where 
a  judge  reaches  a  wrong  conclusion  in  knowing  judicially  such  a  fact  the  act 
is  as  much  error  as  if  he  had  mistaken  a  rule  of  law.57 

Where  the  knowledge  is  judicial,  i.e.,  relates  to  matter  of  law,  the  action  of 
the  judge  is  final,  for  the  purposes  of  the  case;  —  even  in  connection  with  the 
direct  results  of  law,  or  with  respect  to  the  construction  of  a  statute,  where  the 
matter  is  for  the  judge,  though  properly  one  of  fact.58  Thus,  a  judge  in  con- 
struing a  statute  is  not  required  to  hear  evidence  to  an  effect  which  he  feels  is 

49.  1  Chamberlayne    Evidence,    §    865.  55.   People    v.    Oakland    Water-Front    Co., 

50.  Infra,  §  713  Stoudenmeier  v.  William-  118    Cal.    234,    50    Pac.    305     (1807)     (incor- 
son,  29  Ala.  558   (1857).  poration  of  a  city). 

51.  1  Chamberlayne.    Evidence,   §   866.  56.  Com.   v.    Marzynski,    14ft   Mass.   68,   72, 

52.  Com.     v.     Mar?yn«ki,     149     Mass      6^  21  X.  E.  228   ( 1SSO> .     Hupra.  §  57. 
(1S89);      Thomson- Houston,      etc..      Co.      v.  57.  C.ilbert    v     Flint,   etc.,   R.  Co.,  51    Mich. 
Palmer,   52   Minn.    174,    177.   53   X.   W.    1137  4SS,  If,  \.  W.  86H,  47  Am.  Rep.  502   (1883)  ; 
'1803);    Brown    v.    Piper,    01    U.    S     37,    43  U   S.  v.  One  Thousand  Five  Hundred  Bales  of 
<1875).  Cotton,  27   Fed.   Cas.  No.   15,958    (1872). 

.53.  1   Chamberlayne.   Evidence.   §   867.  58.  Supra,  §  57. 

54.   1  Cbamberlayne,    Evidence.   §   868. 


§  37-i  KNOWLEDGE;  COMMON.  206 

contrary  to  common  knowledge.59  In  other  words,  the  situation  is  adminis- 
trative where  the  knowledge  of  the  trial  judge  is  judicial.  The  parties  have 
no  more  right  to  control  by  their  agreements  the  action  of  the  court  than  they 
would  have  to  determine,  in  the  same  way,  what  should  be  the  rule  of  law 
applicable  to  the  case.  Tlie  judge  is  preparing  to  discharge  an  administrative 
function  anil  he  is  entirely  unfettered,  except  by  the  rules  of  reason,  as  to 
what  effect  he  may  give  the  information,  arguments  or  agreements  of  the 
parties. 

§  374.  Cognizance  as  Affected  by  Action  of  the  Parties ;  Waiver.60 —  To  the 
number  of  facts  not  requiring  proof  because  judicially  noticed  as  commonly 
known  may  properly  be  added  facts  of  little  or  no  notoriety  which  are  as- 
sumed as  true  during  the  course  of  the  trial  because  asserted  on  the  one  side 
and  not  denied  on  the  other.  Xo  rule  of  law  demands  that  a  party  should 
insist  upon  proof  of  such  facts.  Few  administrative  expedients  for  expe- 
diting trials  are  more  effective  in  the  hands  of  a  competent  judge  than  this 
recognition  that  not  all  facts  are  controverted  between  the  parties  with  equal 
vehemence.  While  not  intruding  into  the  actual  management  of  the  case  so 
far  as  to  remove  the  function  of  initiative  from  the  parties  where  it  properly 
belongs,  wise  judicial  administration  may  well  employ  a  considerable  portion 
of  its  energy  in  increasing,  in  any  given  case,  the  number  of  uncoutroverted 
facts.  It  not  infrequently  happens  that  this  is,  intentionally  or  unintention- 
ally, accomplished  by  the  presiding  justice  through  the  formula  of  announcing 
that  he  judicially  knows  a  certain  fact,  or  that  it  is  commonly  known. 

59.  Ex   parte   Kair    (Nev.    1905),    80    Pac.      ducing  ores  is  not  prejudicial  to  health). 
463    (that  prolonged  labor  in  a  mill  for  re-          60.  1  Chamberlayne,  Evidence,  §   869. 


CHAPTER  X. 

E;   SPECIAL. 


Special  knowledge,  375. 

reason  for  excluding  knowledge  in  general,  376. 

administrative  action  of  judge,  377. 
necessity  .of  relevancy,  378. 
adequate  knowledge,  379. 
Technical  or  scientific  facts,  380. 

administrative  considerations,  381. 

scope,  382. 

properties  of  matter,  383. 

business  affairs,  384. 

various  matters,  385. 

interstate  or  foreign  law,  386. 

maritime  affairs,  387. 

mechanic  arts,  388. 

mining,  natural  history,  389. 

professional  facts;  medicine,  390. 

railroad  facts;  rules,  391. 

§  375.  Special  Knowledge.1  —  Secondary  in  importance  only  to  the  judicial 
or  law  knowledge  of  the  judge  ~  and  the  common  knowledge  of  both  judge  and 
jury  as  to  facts  of  notoriety  3  is  the  special  knowledge  of  skilled  or  experienced 
witnesses  ;  —  the  consideration  of  which  will  occupy  the  present  chapter. 
The  judicial  office  of  special  knowledge  is  to  supply  the  inadequacies  of  the 
common  knowledge  of  the  jury.  The  underlying  necessity  for  using  it  is  the 
limited  experience  of  the  average  member  of  the  community.  As  is  elsewhere 
observed,  and  as,  indeed,  is  obvious,  the  inferences  which  both  court  and  jury 
are  constantly  drawing  as  a  very  large  part  of  the  required  exercise  of  reason 
in  connection  with  their  judicial  acts,  rest  ultimately  upon  some  general 
proposition  of  experience  which  is  part  of  common  knowledge.  From  this  as 
a  major  premise,  and  some  fact  in  evidence  as  a  minor,  a  conclusion  is  reached. 
This,  in  its  turn,  alone  or  in  connection  with  other  facts,  becomes  the  major 
premise  of  a  second  and  usually  more  comprehensive  syllogism,  and  so  on, 
until  the  supposed  res  gestce  are  established. 

1.  1  CliamlMM-layne,   Evidence,   §   870.  3.  Supra,  §  351. 

2.  Supra,   §   .".16. 

207 


§§  376,377  KNOWLEDGE;  SPECIAL.  20S 

§  376.  [Special  Knowledge] ;  Reason  for  Excluding  Knowledge  in  General.4 

-  In  testifying  to  special  knowledge,  rather  than  particular  knowledge  a  wit- 
ness is  exercising  a  function  usually  denied  to  those  who  testify.  Witnesses 
are  not  to  reason.5  The  precise  basis  for  this  rule  is  that  it  is  not,  in  general, 
within  the  province  of  a  witness  to  state  knowledge.  In  view  of  the  fact,  just 
mentioned,  that  the  major  premise  of  reasoning  is  some  proposition  derived 
ultimately  from  experience  in  the  community  which,  as  affected  by  reflection 
and  the  experience  of  others  constitutes  common  knowledge,  the  use  of  reason 
on  the  part  of  a  witness  implies  and  requires  the  transfer  into  the  case  of  the 
general  or  special  knowledge  of  the  witness,  in  the  form  of  his  inference,  con- 
clusion or  judgment."  Common  knowledge  it  is  the  function  of  the  counsel, 
judge  and  jury  to  "utilize  in  course  of  the  reasoning  process.  The  witness,  so 
far  as  reasonably  feasible,  must  be  content  to  furnish  eyes  and  ears  for  the 
tribunal,  to  place  a  judge  and  jury,  to  the  extent  of  his  ability,  in  the  position 
of  original  observers  of  the  scene  reproduced  in  the  evidence.  This  is  his 
ancient  oath  and  at  all  times  his  characteristic  duty.7  His  office  is  as  it  were 
to  supply  the  "  raw  materials  "  for  judgment,  the  minor  premises  of  logical 
syllogisms  of  which  knowledge  or,  more  direct  experience,  supplies  to  each  a 
major  premise. 

§  377.  [Special  Knowledge] ;  Administrative  Action  of  Judge. s —  As  an  ad- 
ministrative matter,  the  right  of  a  party  to  prove  his  case  by  the  best  evidence 
in  his  power  is  paramount.9  Unquestionably  it  is  the  general  procedural  rule, 
dating  from  very  early  times  in  English  law.10  that  jurors  should  reason  and 
witnesses  should  not.  To  harmonize  these  two  administrative  or  procedural 
principles,  the  court  is,  in  effect  compelled  to  say,  that  so  far  as  the  common 
knowledge  of  the  jury  enables  them  rationally  to  deal  with  a  particular  set  of 
facts,  they  must  be  permitted  to  do  so;  and  that  where  they  are  not,  the  pro- 
ponent may  supplement  this  general  knowledge  by  special  knowledge  or  even 
by  inferences  from  such  special  knowledge.  In  other  words,  as  to  matters  of 
common  knowledge,  a  jury  can,  generally  speaking,  gain  nothing  of  essential 
value  from  the  judgment  of  witnesses,  however  experienced  or  skillful.11  To 
form  the  major  premise  of  the  syllogism  which  gives  relevancy  to  any  minor 
premise  supplied  by  a  fact  in  evidence  knowledge  is  needed.  So  far  as  pos- 
sible, this  knowledge  should  be  that  of  the  average  juror,  i.e.,  common  knowl- 

4.  1   Chamberlayne,    Evidence,    §    871.  8.   1   Chamberlayne,    Evidence,    §    872. 

5.  Infra,  §   072  et  seq.  9.  Hupra,   §   140. 

6.  His    conclusion    is    a    function    of    two  10.  Rttpra,  §   120. 

variables; —  (1)    the  knowledge  of  the  wit-  11.  Compton    v.    Bates,     10    111.    App.    1? 

ness  and    (2)    the  existence  of  certain   facts  (1881);    Knoll  v.  State,  55  \Yis.  240,   12  N. 

as  proved  by  the  evidence.     To  receive  his  con-  W.  369,  42  Am.  Rep.  704   (1882);   Wright  v. 

elusion  imports  his  general  knowledge  and  ac-  Com.,    72    S.    W.    340,   24   Ky.    L.    Rep.    1838 

cepts  his  finding  as  to  the  effect  of  the  evi-  (1903)  ;     Hovey    v.     Sawyer,     5     Allen     554 

dence  or  phenomena  observed  by  him.  (1863)  ;  McCall  v.  Moschcowitz,  10  N.  Y.  Civ. 

7.  Infra,  §  674.  Proc.   107    (1886). 


209  ACTION  OF  JUDGE.  §§  378, 379 

edge.  Whenever  a  judge  finds,  as  a  matter  of  administration,  that  in  his  opin- 
ion, the  common  knowledge  of  the  jury  may  reasonably  be  assumed  to  be  in- 
sufficient, he  may  properly  allow  it  to  be  supplemented  by  that  possessed  by 
persons  of  special  experience.  With  regularity  and  little  consideration,  the 
judge  will  permit  relevant  facts  of  special  knowledge  and  experience  to  be 
placed  before  the  jury.  With  greater  hesitancy  and  the  establishment  of 
stronger  administrative  reasons,  he  will  allow  the  skilled  witness,  as  an  expert, 
to  use  his  own  mental  faculties  upon  the  basis  of  this  special  knowledge  in  the 

formation  of  judgments,  in  which  the  facts  in  evidence,  or  certain  of  them, 

• 

constitute  the  minor  premise,  being  submitted  to  the  witness  by  means  of  hypo- 
thetical questions.12 

§  378.  [Special  Knowledge] ;  Necessity  of  Relevancy.13 —  It  follows  from  what 
has  been  said  that  evidence  of  special  knowledge  is  not  only  supplementary  to 
common,  but  that  it  is,  in  a  sense,  secondary  to  it.  Under  these  circumstances, 
the  ordinary  rule  of  administration  obtains  that  the  secondary  evidence  will 
be  admitted  only  (1)  when  an  adequate  forensic  necessity  has  been  shown  for 
using  it  and,  (-2)  that  it  be  affirmatively  shown  by  the  proponent  or  assumed 
by  the  court  that  the  secondary  evidence  is  relevant,  i.e.,  is  from  a  person  of 
adequate  knowledge  and  without  controlling  motive  to  misrepresent. 

§  379.  [Special  Knowledge] ;  Adequate  Knowledge.14 —  Among  the  elements 
of  relevancy  those  which  are  subjective  are  of  special  importance  in  this  con- 
nection and,  as  between  the  two  elements  of  subjective  relevancy,  adequate 
knowledge  is  of  higher  conseqeunce.  The  testimony  of  a  skilled  witness  may 
be  valuable  to  the  jury  if  he  be  suitably  equipped  by  professional  knowledge 
and  experience  although  biased  in  favor  of  the  party  calling  him,  while,  however 
disinterested  he  may  be,  his  evidence  will  be  of  little  value  should  he  know 
nothing  about  the  technical  subject  on  which  he  proposes  to  testify.  It  is 
therefore  an  important  part  of  the  administrative  action  of  the  court  in  this 
connection  that  only  such  technical  testimony  should  be  allowed  to  go  to  the 
jury  as  is  reasonably  calculated  to  aid  their  deliberations.  The  skilled  wit- 
ness may,  as  a  matter  of  course,  testify  to  the  same  facts  as  would  an  ordinary 
witness  —  the  "  man  on  the  street."  .But  he  may  go  further,  into  fields  where 
an  ordinary  witness  cannot  follow  him  and  it  is  in  these  that  his  qualifications 
become  of  especial  importance.  Tn  other  words,  the  skilled  observer  may 

12.  Infra.  §§  8!6  ft  seq.  The  principle  holding  that  the  subject-matter  is  sufficiently 
being  entirely  settled  that  common  knowl-  within  the  common  knowledge  of  the  jury 
edge  is  to  be  primarily  relied  upon  as  the  to  enable  them  to  deal  with  it  in  a  satis- 
major  premise  for  judicial  inferences  so  far  factory  manner. 

as    it   extend*,    to    the   exclusion    of   •"•  expert  Per  contra,  admitting  expert  knowledge  is 

knowledge,"  so  called,  a  ruling  or  finding  as  in  reality  a  ruling  or  finding  that  the  c'ommon 

to    the    admissibility    of    the    judgments    of  knowlt-dge  of  the  jury  is  inadequate  to  deal 

sl'.illed  witnesses  is.  in  effect,  deciding  as  to  with  the  matter  disclosed  in  the  evidence, 

v/hat  constitutes  common  knowledge.     If  ex-  13.    1   Chamberlayne.    Evidence,   §   873. 

pert  testimony  is   rejected   it  amounts  to   a  14.  1  Chamberlayne,   Evidence,   §   874. 


^   :J80,  381  KNOWLEDGE;  SPECIAL.  210 

testify  as  to  any  relevant  fact  but  should  it  be  one  of  special  knowledge,15  i.e., 
one  connected  with  a  particular  profession,  trade  or  calling,  the  court  will  re- 
quire that  the  witness  should  qualify  as  possessing  the  knowledge  appropriate 
to  a  member  of  it.1"  Such  a  fact  may  either  have  been  one  observed  by  him  17 
or  generally  known  in  the  calling  in  which  his  experience  lie.s.  An  individual 
fact  of  common  technical  knowledge  may  have  fallen  but  rarely  under  his  own 
observation;  he  may  not  have  chanced  actually  to  observe  it  at  all.  That 
makes  no  difference.18 

§  380.  Technical  or  Scientific  Facts.19 —  The  development  of  the  modern  law 
of  evidence  requires  that  knowledge,  in  many  and  varied  directions,  should  be 
brought  to  the  jury  to  supplement  their  common  knowledge.  The  complexity 
of  business  or  social  life  and  the  rapidly  expanding  field  of  knowledge  leave 
common  knowledge  but  a  sorry  tool  with  which  to  shape  the  reasoned  conclu- 
sions of  the  jury.  The  deficiency  is  obvious.  The  best  method  of  supplying 
it  is  not  so  clear.  Apart  from  an  essential  modification  of  the  jury  system  and 
its  replacement  by  a  more  scholarly  and  teachable  tribunal,  the  remedies  adopted 
in  main  are  three.  1.  A  direct  extension  of  the  scope  of  common  knowledge 
through  investigations  conducted  by  the  presiding  judge  as  the  executive  officer 
of  the  court.20  -  2.  Where  the  jury  may  be  so  informed  concerning  matters 
outside  their  judicial  knowledge  as  to  be  able  to  co-ordinate  them  into  a  reason- 
able judgment,  suitably  skilled  witnesses  will  be  permitted  to  state  appropriate 
facts  to  them.  They  are  then  left  to  exercise  their  function  of  judging  without 
further  assistance.  3.  Where  the  knowledge  required  for  drawing  a  reasonable 
inference  from  the  facts  covers  matters  which  are  too  numerous  to  be  readily 
imparted  to  the  jury  from  the  witness  stand  or  requires  for  its  adequate  appre- 
ciation certain  specially  developed  qualities  of  mind  or  habits  of  looking  at 
things  only  obtained  by  specialized  training,  the  facts  assumed  to  exist  in  the 
jury's  mind  are  placed  before  the  skilled  witness  in  the  form  of  a  hypothetical 
question  and  he  is  permitted  to  state  the  judgment  which  his  learning,  skill 
and  training  enable  him  to  form ;  —  the  jury,  in  turn,  being  at  liberty  to 
follow  the  mental  operations  of  the  skilled  witness,  precisely,  within  limits  of 
reason,  as  they  see  fit. 

§  381.  [Technical  or  Scientific  Facts] ;  Administrative  Considerations.21 —  The 
incessant  operation  of  slight  differences  of  fact  produces,  in  addition  to  lack  of 

15.  Supra,  §  ,375.  Civ.  App.  1893)   22  S.  W.  235.     Where  a  wit- 

16.  Osborne  v.  Troup,  60  Conn.  485,  23  Atl.  ness    has    never    personally    done    an    act    of 
157    (1891)  ;   Baxter  v.  Chicago,  etc.,  R.  Co.,  which  he  has  learned  the  theory,  but  thinks 
104  Wis.  307,  80  N.  W.  644    (1899).  he  could  do  it  if  called  upon  he  is  not  neces- 

17.  Infra,  §§  713  et  seq.  sarily    to    be    excluded.     Childs    v.    O'Leary, 

18.  Boswelf  v.  State,   114  Ga.  40,  39  S.  E.  174  Mass.  Ill,  54  N.  E.  490   (1899). 
897    ( 1901 )  ;   Helfenstein  v.  Medart,  136  Mo.  19.   1   Chamberlayne,    Evidence,   §   875. 
595,  36   S.   \V.   863,  37   S.  W.  829,  38  S.  W.  20.  1  Supra,   §   366. 

294  (1896):  State  v.  Wilcox,  132  N.  C.  1120,          21.  1  Chamberlayne,  Evidence,  §   876. 
44  S.  E.  625  (1903)  ;  Fordyce  v.  Moore,  (Tex. 


211  TECHNICAL  FACTS.  §  382 

value  as  precedents,  the  effect  of  great  apparent  conflict  of  decision  among  cases 
sustaining  the  same  general  principle  of  administration.  This  contrariety  of 
ruling  will  be,  perhaps,  less  inexplicable,  if  certain  general  considerations  af- 
fecting the  practical  administration  of  the  principle  be  borne  in  mind.  Among 
these  are ;  ( 1 )  The  entire  state  of  the  case  in  all  particulars  must  have  been 
considered  by  the  presiding  judge  in  determining  how  necessary  the  evidence 
of  the  skilled  witness  actually  was  to  the  proponent,  and,  consequently,  how 
his  administrative  function  should  be  exercised.  (:M  The  same  considerations 
may  very  well  appear 'to  different  judges  as  possessing  different  relative  impor- 
tance. (3)  In  proportion  as  the  subject-matter  becomes  vital  to  the  issue,  the 
judge's  impulse  to  exclude  special  knowledge  in  which  an  element  of  inference 
may  lurk  is  intensified.  (4)  It  is  not  sufficient  that  the  inquiry  relate,  more 
or  less  directly,  to  a  matter  which  is  largely,  or,  indeed,  almost  exclusively, 
known  only  to  persons  who  have  had  a  special  experience.  Certain  things  may 
be  commonly  known  about  very  recondite  or  technical  subjects.  (5)  The 
judge  may  properly  consider  whether  the  special  knowledge  is  not  of  such  a 
nature  that  the  jury  could  conveniently  be  instructed  in  the  matter  sufficiently 
for  all  essential  purposes  of  the  trial.  If  the  presiding  judge,  in  discharge  of 
his  administrative  function,22  is  persuaded  that  the  subject-matter  is  one  on 
which  the  jury  may  be  adequately  instructed  during  the  course  of  the  trial  he 
may  require  that  the  jury  exercise  their  own  judgment  2-<i  upon  facts  supplied 
by  skilled  witnesses.  (6)  The  court  may  reasonably  admit  evidence  as  to  the 
special  knowledge  of  the  skilled  witness  under  circumstances  where  it  would 
decline  to  permit  the  same  witness  to  apply  this  knowledge  to  the  evidence 
either  in  the  form  of  a  conclusion  24  or  that  of  a  judgment.25  That  the  special 
knowledge  of  an  expert  should  be  received  in  the  form  of  his  judgment  re- 
garding definite  propositions  of  fact  it  is  necessary  that  the  precise  subject  of 
inquiry  be  outside  the  realm  of  common  knowledge.26  If  the  fact  as  to  which 
inquiry  is  made  be  within  the  jury's  field  of  knowledge  the  judgment  of  the 
expert  is  excluded,  though  as  to  the  great  number  of  correlated  facts,  knowledge 
is  confined  to  technically  trained  persons. 

§  382.  [Technical  or  Scientific  Facts] ;  Scope.27 —  The  range  of  facts  relating 
to  any  calling  which  the  witness  skilled  or  experienced  in  that  vocation  may 

22.  Middlebury    Bank    v.   Rutland,    33    Vt.          26.  The  subject-matter  as  to  which  inquiry 
414  (1860).  is  made  must  so  far  partake  of  the  nature  of 

23.  Muldowney  v.   Illinois  Cent.  R.  Co..  36  a  science  as  to  require  a  course  of  previous 
Iowa  462  (1873).  habit  or  study  in  order  to  the  attainment  of  a 

Massachusetts. —  Higgins     v.     Dewey,     107  knowledge  of  it.     Wight-  Fire-proofing  Co.  v. 

Mass.  494,  9  Am.  Rep    63    (1871)  :  Xourie  v.  Poczekai,  130   III.  13!),  22  X.  E.  543   (1889)  ; 

Theobald,  68  N.  H.  564,  41  Atl.  182    (1896)  ;  People  v.  Barber.  115  X.  Y.  475,  22  X.  E.  182 

Huberts  v  Xew  York  El.  R.  Co.,  128  X.Y.  455,  (1889);    Fairchild    v.    Bascomb.    35   Vt.    398 

_S  X.  E.  486,  13  L  R.  A.  499   (1891).  (1862). 

24.  Infra,  §§  792  et  seq.,  803  et  seq.  27.  1   Chamber  layne,  Evidence,  §  877. 

25.  Infra,  §§  808  et  seq. 


§  383  KNOWLEDGE;  SPECIAL.  212 

state  is  limited  only  by  the  bounds  of  human  knowledge  and  facts  of  which  the 
human  brain  is  capable  of  forming  a  concept.  Obviously,  it  is  not  limited  to 
any  particular  profession.-'8  The  entire  list  of  human  activities  physical,  busi- 
ness and  social  are  embraced  within  this  range.  Any  fact  not  one  of  particular 
knowledge  which  the  witness  knows  and  the  jury  presumably  do  not,  and  which 
the  court,  in  the  exercise  of  its  administrative  powers,  feels  would  be  helpful  to 
the  tribunal,  may  be  received,-1*  provided  that  the  fact  is  relevant ''"'  and  that 
the  witness  limit  himself  to  giving  the  fact  within  his  knowledge  and  does  not 
undertake  to  state  the  bearing  of  the  fact  upon  the  truth  of  a  proposition  in 
issue.31 

Ao  Moral  Requirement. —  "No  requirement  that  the  trade  or  calling  to  which 
the  fact  relates  should  be  beneficial  to  society  or  even  moral  in  itself  has  been 
imposed.  The  gambler  may  show  the  jury  how  a  novice  can  be  cheated  by 
tricks  at  cards  :12  or  how  to  play  a  gambling  game.:!;>> 

Witnesses  not  "  Experts." —  No  reason  is  perceived  for  speaking  of  such 
witnesses  as  to  matters  of  special  knowledge  as  "  experts  v  ::4  though  the  use  of 
the  term  is  frequent.35  ISo  customary  a  use  is,  indeed,  made  natural  by  the 
fact  that  only  from  among  those  possessed  of  technical  facts  relating  to  a  par- 
ticular business,  etc.,  can  the  *k  expert,"  as  a  rule,  be  selected.  Any  such  wit- 
ness, moreover,  upon  an  ordinary  subpoena,  may  be  required  to  give  his  judg- 
ment as  an  expert.30  Conversely,  those  competent  to  testify  as  experts  may 
fairly  be  expected  to  have  in  mind  the  facts  c<  minonly  known  to  those  versed 
in  that  specialized  pursuit.37  Frequently  such  facts  form  part  of  the  major 
premise  of  his  judgment  when  testifying 'hypothetic-ally.'"* 

§  383.  [Technical  or  Scientific  Facts] ;  Properties  of  Matter.-1-'—  While  the 
more  familiar  properties  of  matter  are  commonly  known,  the  moiv  obscure  may 
be  stated  to  the  tribunal  by  any  one  adequately  versed  in  an  art  in  which 
such  properties  are  known  4l)  or  who  otherwise,  for  any  reason  knows  the  fact.41 

28.  McFadden   v.  Murdock,   15   Wkly,   Rep.  36.  Larimer   County   v.   Lee,   3    Colo.   App. 
107!)    (1867).  177,  32  Pac.  841    (1803). 

29.  Kmerson  v.  Lowell  Gaslight  Co.,  6  Allen  37.  Emerson  v.  Lowell  Gaslight  Co.,  0  Allen 
(Mass.)    146..  83  Am.  Dec.  621    (1863):    Fol-  (Mass.)    146,    148,   83   Am.   Dec.   621    (1863). 
som  v.  Concord,  etc.,  R.  Co.,  68  N.  H.  454,  38  "  One   who   is   an   expert   may   not   only  give 
Atl.   209    (1896).  opinions,   but   may  state  general   fact>  which 

30.  \Vynn  v.  Central  Park,  etc.,  R.  Co.,  14  are  the  result  of  scientific  knowledge  or  pro- 
Is.  Y    Suppl.  172    (1891).  fessional  skill."     Emerson  v.  Lowell  Gaslight 

31.  Lake  Erie,  etc.,  R.  Co.  v.  Mulcahy.   16  Co..  6   Allen    (Mass.)    146.   148,  83   Am.  Dec. 
Ohio  Cir.  Ct  204,  9  Ohio  Cir.  Dec.  82   (1898).  621    (  1863). 

32.  Hall    v.    State,    6    Baxt.     (Tenn.)     522  38.  .Anderson  v.   Illinois  Cent.   R.  Co.,   109 
(1873).  Iowa  524,  80  X.  \V.  561    (1899). 

33.  Xuckolls  v.  Com.,  32  Gratt.    (Va.)    884  39.   1   Chamberlayne.  Evidence.  §§  S7S,  879. 
(1879)    ("keno").  40.  Shufeldt   v.    Searing.   59   111.    App.  341 

34.  State  v.  Melvern,  32  Wash.  7,  72  Pac.  (1895)     (explosion   of  dust):    St.   Louis  Gas- 
489  .(1903).  light    Co.   v.    Philadelphia   American    F.  Ins. 

35.  Shields  v.  State,  149  Tnd.  395.  49  N.  E.  Co.,  33  Mo.   App.  348    (1889)    (ga.s). 

351  (1897)  ;  Cottrill  v.  Myrick,  12  Me.  222  41.  Standard  Oil  Co.  v.  Tierney,  96  Ky.  89, 
(1835). 


213 


TECHNICAL  FACTS. 


§§  384,385 


State  of  the  Art. —  The  "  state  of  the  art"  at  any  given  time  in  his  trade 
or  calling,42  and  the  facts  which  naturally  flow  from  it,  as,  for  example, 
whether  a  certain  device  has  novelty,43  may  be  stated  by  the  specially  experi- 
enced witness.  Nor  is  such  a  statement  deemed  objectionable  by  reason  of 
the  fact  that  it  covers  the  precise  proposition  in  issue.44  This  is  apt  to  be  of 
special  prominence  in  patent  causes.45 

§  384.  [Technical  or  Scientific  Facts] ;  Business  Affairs.46 —  While  many  of 
the  more  familiar  facts  relating  to  business  matters  are  of  sufficient  notoriety 
to  be  covered  by  common  knowledge,  a  multitude  of  them  are  constantly  pre- 
senting themselves  as  to  which  the  evidence  of  an  experienced  witness  is  re- 
ceived and  still  others,  of  a  more  technical  nature,  in  proof  of  which  such  evi- 
dence is  required.  These  considerations  apply  to  the  duties  of  clerical  assist- 
ants,47 mercantile  marks,48  to  the  elements  of  profit  and  loss,49  to  business  cus- 
toms,50 and  technical  terms  used  in  business.51 

§  385.  [Technical  or  Scientific  Facts] ;  Various  Matters.52 —  Testimony  of  this 
nature  may  be  given  by  persons  having  special  knowledge  or  skill  in  building,53 
chemistry,54  ecclesiastical  matters,55  in  engineering  questions  whether  civil,56 
electrict/'7  hydraulic  5S  or  mining,59  in  farming,60  stock-raising61  or  insurance 
whether  tire,02  life,1'3  or  marine.64 


27    S.    W.   t>83,    16    Ky.    L.    Rep.    327    (1894) 
(properties  of  illuminating  oil). 

42.  \\  inan-s   v.   New   York,   etc.,   R.   Co.,  21 
How.  (U.  S.)  88,  100,  16  L.  ed.  (1858). 

43.  Haley   v.   Flaecus,   193   Pa.   St.  521,  44 
Atl.  506    (1899). 

44.  Tillotson      v.      Ramsay.     51      Vt.      309 
(1878). 

45.  Burton    v.    Burton    Stock-Car   Co.,    171 
Mass.  437,  50  X.  E.  1029    (1898). 

46.  1   Chamherlayne.   Evidence.  §§  880-882. 

47.  Pepper  v    Planters  Nat.  Bank,  5  Ky.  L. 
Rep.   85    (1883)     (cashier). 

48.  Downing   v.   State,   66   Ga.    110    (1880) 
(kerosene) . 

49.  Sexton   v.   Lamb,   27    Kan.   426    (1882) 
(handling  ice) . 

50.  (leorgia. —  Horan    v.    Strachan,    86   Ga. 
408,  12  S.  E.  678,  22  Am.  St.  Rep  471  ( 1890  I  : 
Tliayer  v.  Smoky  Hollow  Coal  Co..  121   Iowa 
121,  96  X.  W.  71S   (  1903)  ;  Gorham  v.  Gross. 
125    Mass.    232,    28    Am.    Rep.    234     (1878): 
Hart  v.   Brooklyn.   52   N.   V.   Suppl.    113.   31 
App    Div.  517    (1898). 

51.  Webb  v.  Mears.  4.1  Pa.  St.  222   (1863)  : 
Evans  v.  Commercial   Mut.   Ins.   Co..  6   R.   I. 
47    (1859);    Butte.   etc..   Consol.   Min.   Co.   v. 
Montana   Ore   Purchasing  Co.,   121   Fed.  524. 
58  C.  C.  A.  0°'r    (1903). 


Experience  in  the  business  rather  than 
formal  inclusion  in  it  is  the  test.  In  seeking, 
for  example,  to  testify  as  to  the  meaning  of 
terms  used  in  the  wholesale  grocery  business 
a  retail  grocer  of  large  transactions  may  be 
better  qualified  as  a  witness  than  a  whole- 
sale grocer  doing  a  smaller  business.  Xord- 
linger  v.  U.  S.,  115  Fed.  828  (1902). 

52.  1  Chamberlayne,  Evidence,  §§  883-893. 

53.  Caven  v.   Bodwell  Granite  Co.,  97   Me. 
381,  54  Atl.  851    (1903)    (coal  stage);   Rock- 
land  First  Cong.  Church  v.  Holyoke  Mut.  F. 
Ins.    Co.,    158    Mass.    475,    33    X.    E.    572,   35 
Am.   St.   Rep.   508,    19   L.   R.   A.   587    (1893) 
( removing  paint ) . 

54.  Birmingham  Xat.  Bank  v.  Bradley,  116 
Ala.    142,  23  So.  53    (1896);    People  v.  Dole. 
122  Cal.   486.  55   Pac.  581.  68  Am.   St.  Rep. 
50   (1898)  :  Otey  v.  Hoyt,  47  X.  C.  70   (1854) 
(acid  applied  to  ink). 

55.  Bird    v.    St.    Mark's    Church.    62    Iowa 
567,    11    X.   W.   747    (1883):    Sussex   Peerage 
Case.    11    Cl.    &    F.    85,    R    Jur. -793.    8    Eng. 
Reprint   1034    (1844)    (Roman  Catholic). 

56.  Union  Pac.  R.  Co.  v.  Clopper,  131  U.  S. 
appendix  cxcii.  26  L.  ed.  243    (1881)    (bridge 
and  abutments). 

57.  Houston,  etc.,  R.  Co.  v.  Hopson    (Tex. 
Civ.    App.    1902)    67    S.    W.    458;    Excelsior 


§  386  KNOWLEDGE;  SPECIAL. 

§  386.  [Technical  or  Scientific  Facts] ;  Interstate  or  Foreign  Law.65 —  The  ex- 
istence of  written  or  unwritten  Jaw  in  a  foreign  country  6(!  or  sister  state  of  the 
American  Union  t;7  is  a  fact  and,  in  the  absence  of  statutory'  regulation,  is  to 
be  proved,  as  other  facts  are -proved,  by  the  statement  of  one  who  knows  it. 
In  any  event,  the  answer  of  the  witness  must,  in  order  to  be  relevant,  cover 
specifically  the  question  raised,08  and,  where  the  evidence  is  in  conflict,  it  has 
been  held,  that  the  court  must  examine  text-books  and  other  authorities  and 
decide  the  point  for  itself.'"' 

The  written  law  of  a  foreign  country70  or  sister  state71  stands  in  the  same 
position.  Anyone  who,  in  the  opinion  of  the  court,  knows  what  the  foreign 
law  is,  may  state  it ;  identifying,  if  convenient  to  the  judge,  the  volume  in 
which  the  written  law  is  contained,  and  pointing  out,  if  desired,  the  written  law 
itself.  A  conflict  of  views  exists  as  to  whether  the  oral  evidence  of  a  qualified 
witness  is  still  competent  in  jurisdictions  which  prescribe  that  the  written 
law  of  a  sister  state  may  be  proved  by  official  printed  copies  of  its  laws  and 
decisions.  In  the  view  of  certain  courts,  the  witness'  oral  statement  may  still 
be  received.72  Other  courts  have  adopted  a  different  administrative  prin- 
ciple and  hold  that  the  means  of  proof  provided  by  the  statute  constitute  the 
"  best  evidence  "  i.e.,  the  original  or  primary  grade  of  evidence  and  must  be 
produced  or  a  sufficient  reason  given  for  its  absence.73  Where  the  printed  book 
or  written  document  is  received  affirmatively  proof  of  its  authentic  nature  must 
be  offered  "4  as  called  for  by  the  laws  of  the  forum.75  The  interpretation  given 

Electric  Co.  v.  Sweet,  57  N.  J.  L.  224,  30  Atl.  64.  Leitch  v.  Atlantic  Mut.  Ins.  Co.,  66  N. 

553   (1894).  Y.  100   (1876)  ;  Hawes  v.  New  England  Mut. 

58.  Ohio,  etc.,  R.  Co.  v.  Xuetzel,  143  111.  46,  Mar.  In**.  Co.,  11  Fed.  Cas.  No.  6,241,  2  Curt. 
32   X.   E.   529    (reversing  43   111.   App.    108]  229    (1855). 

(1892.)  65.   1   Chamberlayne,  Evidence.  §§  894-900. 

59.  Clark  v.  Babcock,  23  Mich.  164   (1871)  66.  Temple  v.   Pasquotank  County,   111   N. 
(salt  wells).  C.  36,  15  S.  E.  886   (1892)    (Cuba). 

60.  Thresher    v.    Gregory    (Cal.    1895),    42  67.   Chattanooga,    etc.,    R.    Co.   v.   Jackson, 
Pac.   421;   Krippner  v.   Biebl,  28  Minn.   139,  86  Ga.  676,  13  S.  E.  109   (1890)  :  Barrowa  v. 
9  N.  W.  671    (1881)  ;   Wells  v.  Eastman,  61  Downs,  9  R.  I.  446,  11  Am.  Rep.  283    (1870) 
X.  H.  507    (1881);    Ferguson  v.  Hubbell,  26  (New  York). 

Hun    (N.  Y.)    250   (1882).  68.  Clardy   v.    Wilson,    24    Tex.    Civ.    App. 

61.  Dunham  v.  Rix,  86  Iowa  300,  53  N.  W.       196,   58   S.   W7.   52    (1900). 

252    (1892)  ;   Folsom  v.  Concord,  etc.,  R.  Co.,  69.  Rice  v.  Gunn,  4  Ont.   579    (1884). 

68  N.  H.  454,  38  Atl.  209   (1896)  :  New  York,  70.  Short  v.  Kingsmill.  7  U.  C.  Q.  B.  350 

etc.,  R.  Co.  v.  Estill,  147  U.  S.  591,  612,  13  (1850). 

S.  Ct.  444,  37  L.  ed.  292   (1893).  71.  People  v.  McQuaid,  85  Mich.  123,  48  N. 

62.  Traders'    Ins.    Co.    v.    Catlin,    163    111.  W.   161    (1891). 

256,  45  N.  E.  255.  35  L.  R.  A.  595    (1896)  :  72.  Brady  v.  Palmer,  19  Ohio  Cir.  Ct.  687, 

Cornish  v.  Farm  Buildings  F.  Ins.  Co.,  74  N.  10  Ohio  Cir.  Dec.  27   (1899). 

\.  295  [affirming  10  Hun  466]    (1878).     See  73.  Johnson  v.  Hesser,  61  Neb.  631,  85  N. 

also  Pepper  v.  Planters'  Nat.  Bank,  5  Ky.  L.  W.  894  ( 1901 ) . 

Rep.   85    (1883).  74.  Mexican    Nat.    R.    Co.    v.    Ware    (Tex. 

63.  Shover  v.   Myrick,   4   Ind.    App.   7,   30  Civ.  App.  1900),  60  S.  W.  343. 

N.  E.  207    (1891)  ;   Fry  v.  New  York  Provi-          75.  Mexican  Nat.  R.  Co.  v.  Ware  (Tex.  Civ. 
dent   Sav  Assur.    Soc.    (Tenn.    Ch.    App.      App.  1900),  60  S.  W.  343. 

1896),  3;-      .  \V.  116. 


TECHNICAL  FACTS.  §  387 

to  the  law  of  the  foreign  country,70  state,77  or  territory,  by  its  tribunals  is  an 
integral  and  essential  part  of  the  law  itself  and  should  be  stated  by  the  witness. 

The  standard  of  administrative  requirement  prevailing  in  many  jurisdictions 
of  the  American  Union  regarding  the  qualifications  for  testifying  as  to  foreign 
law  is  much  lower  than  that  prevailing  in  England. 

The  practicing  attorney  of  the  foreign  county  or  sister  state  78  or  one  who 
has  so  practiced  79  for  a  reasonable  time,  is  deemed  competent  to  testify  as  a 
skilled  witness  on  the  subject.  Attorneys  80  practicing  in  a  sister  state  or  for- 
eign country,81  and  other  persons  deemed  by  the  judge  to  be  sufficiently  quali- 
fied s2  to  do  so  may  state  the  existence  and  effect  of  an  unwritten  law  in  their 
respective  jurisdictions,  all  other  witnesses  being  rejected.8" 

It  is  not,  however,  necessary  that  the  witness  should  be  a  lawyer.84  All 
that  is  required  is  what  the  presiding  judge  regards  as  a  sufficiently  intelligent 
and  thorough  acquaintance  with  the  foreign  law ;  85 —  the  connection  through 
which  the  knowledge  may  have  been  acquired  being  regarded  as  a  matter  of 
comparative  indifference. 

The  fact  that  the  question  is  one  of  law  naturally  places  it,  in  many  points 
of  administration,  within  the  hands  of  the  presiding  judge,  familiar  with  the 
decisions  of  questions  of  domestic  law.  His  finding  is  not  absolutely  con- 
trolled by  the  testimony  of  the  witness ;  —  even  when  uncontradicted.  Thus, 
the  most  unequivocal  testimony  of  a  skilled  witness  as  to  the  construction 
given  to  the  foreign  law,  cannot  control  the  court's  understanding  of  the  mean- 
ing of  the  written  law  and  the  plain  decisions  of  the  foreign  court.86  In  other 
words,  the  presiding  judge  may  examine  for  himself  the  documents  which  the 
skilled  witness  refers  to  as  a  correct  statement  of  the  foreign  law,  "  not  as  evi- 
dence per  se  but  as  part  of  the  testimony  of  the  witness."  87 

§  387.   [Technical  or  Scientific  Facts] ;  Maritime  Affairs.88 —  The  sea  has  also 

76.  Barrows    v.    Downs,    9    R.    I.    446,    11  82.  "  In  proof  of  the  laws  of  a  foreign  coun- 
Am     Rep.   283    (1870).  try,  the  testimony  of  any  person,  whether  a 

77.  Crafts   v.   Clark,   38    Iowa   237    (1874)  professed  lawyer  or  not,  who  appears  to  the 
(Pennsylvania);   Jenne  v.  Harrisville,  63  X.  court  to   be  well   informed   on   the  point,   is 
H.  405    (1885);   Title  Guarantee,  etc.,  Co.  v.  competent."     Hall  v.  Costello,  48  X.  H.   176, 
Trenton   Potteries  Co.,  56   X.  J.   Eq.  441,   38  179,   2    Am.    Rep.   207    (1868). 

Atl.   422    (1897)     (Xew   York):    Bellinger  v.  83.  Phelps  v.   Town,   14  Mich.   374    (1866) 

Gallagher.   163   Pa.   St.   245,   29   Atl.   751.  43  (banker);     City    Sav.    Bank    v.    Kensington 

Am.    St.    Rep.    791     (1894)     (Maryland).  Land   Co.    (Tenn.  Ch.  App.   1896),   37   S.  W. 

78.  Baltimore    Consol.     Real     Estate,    etc.,  1037. 

Co.  v.   Cashow,  41   Md.  59    (1874):    (law  of  84.  Hall  v.  Costello,  48  X.  H.   176,  2  Am. 

New  York).  Rep.  207    (1868). 

79.  Union  Cent.  L.  Ins.  Co.  v    Caldwell,  68  85.  State   v.    Behrman,    114   X.   C.   797,    19 
Ark.    505,    58    S.    W.    355     (1900)      (law    of  S.  E.  220,  25  L.   R.  A.  449    (1894). 
Ohio).  86.  China,  etc.,  Bank  v.  Morse.   168   X.  Y. 

80.  Baltimore  Consol.  Real  Estate,  etc.,  Co.  458,  61  X.  E.  774,  85  Am.  St.  Rep.  676,  56 
v.  Caahow,  41  Md.  59  (1874)  :  Hall  v.  Costello,  L.  R.  A.  139    (1901). 

48   X.   H.    176,   2   Am.   Rep.   207    (1868).  87.  Concha  v.  Murrieta.  40  Ch.  D.  453.  60 

81.  Concha  v.  Murrieta.  40  Ch.  D.  543,  60      L.  T.  Rep.  X.  S.  798    (1889). 

L.  T.  Rep    (X.  S.)    798    (1889).  88.  1   Chamberlayne,  Evidence,  §  901. 


388 


KNOWLEDGE;  SPECIAL. 


216 


its  technical  side.  Men  of  nautical  experience  or  training  may  state  the  spe- 
cial facts  known  to  those  who  "  follow  the  sea/'  Principal  among  these  are 
the  influences  of  the  natural  forces  of  winds  and  waves  'Vt)  upon  vessels  !l"  or, 
to  put  the  same  idea  in  different  words,  what  a  vessel  will  do  under  given  con- 
ditions 01  may  be  proved  in  this  way.  In  like  manner  an  experienced  witness 
may  state  the  duties  of  the  captain,1'2  officers  l'3  and  crew  of  a  vessel  under  a 
given  set  of  circumstances  and  the  general  usages  of  navigation  u4  are  impor- 
tant matters  of  nautical  knowledge. 

§  388.  [Technical  and  Scientific  Facts] ;  Mechanic  Arts.05  Ofi —  Manufactur- 
ing and  the  mechanic  arts  present  a  favorite  field  for  the  employment  of  evi- 
dence regarding  technical  facts,  which,  when  relevant  may  be  stated  by  those 
qualified  either  through  experience  9T  or  technical  training  98  to  do  so.  .The 
knowledge  of  the  witness  must  be  affirmatively  shown  or  reasonably  assumed 
to  be  as  specific  as  is  the  fact  which  the  testimony  covers.  Mere  general  knowl- 
edge and  experience  in  a  particular  branch  of  manufacturing  is  not  sufficient 
unless  it  may  be  assumed  to  qualify  the  witness  as  to  the  precise  question  which 
is  asked  him."  For  a  still  stronger  reason,  absence  of  even  this  general  experi- 
ence disqualifies  the  witness.1 

These  considerations  apply  to  the  dangers  of  manufacturing,2  the  proper 
management  of  the  business,3  the  strength  of  mechanical  appliances,4  the  use 


89.  Eastern  Transp.  Line  v.  Hope,  95  U.  S. 
297,  299,  24  L.  ed.  477   (1877).     See  infra,  §§ 
718,  811. 

90.  Western  Ins.  Co.  v.  Tobin,  32  Ohio  St. 
.77   (1877)    (certain  type  of  vessel  will  leak). 

91.  Price  v.  Hartshorn,  44  X.  Y.  94,  4  Am. 
Rep.  645   (1870);  Walsh  v.  Washington  Mar. 
Ins.  Co.,  32  X.  Y.  427    (1865)  :   Western  Ins. 
Co.  v.  Tobin,  32  Ohio  St.  77    (1877)  ;   Folkes 
v.    Chadd,    3    Dougl.    157,    26    E.    C.    L.    Ill 

(1782). 

92.  Sills  v.  Brown,  9  C.  &  P.  601,  38  E.  C. 
L.  351    (1840). 

93.  Malton  v.  Xesbit,  1  C.  &  P.  70,  12  E.  C. 
L.  51    (1824). 

94.  The   Alaska,   33    Fed.    107    (1887). 

95.  1   Chamberlayne,  Evidence,  §§  902-908. 

96.  tiupra,  §§  358,  362,  infra,  §§  719,  811. 

97.  Dyas    v.    Southern    Pac.    Co.,    140    Cal. 
296,   73   Pac.    972    (1903)     (engineer);    Pull- 
man's   Palace-Car    Co.    v.    Harkins,    55    Fed. 
932,  5  C.  C.  A.  326   (1893)    (machinist). 

98.  Bradley    v.    District    of    Columbia,    20 
App.  Cas.    (D.  C.)    169    (1902). 

Familiarity  with  a  physical  effect  of  nat- 
ural laws  will  not,  of  itself,  qualify  the  per- 
son to  speak  as  to  the  operation  of  these 
laws.  A  fireman,  for  instance,  is  not  qualified 


to  state  the  natural  process  by  which  a  fire 
creates  its  own  current  of  air.  State  v. 
Watson,  65  Me.  74  (1876).  Xor  is  a  mill- 
wright competent  to  testify  as  to  the  cause 
of  anchor  ice  in  a  particular  stream.  Woods 
v.  Allen,  18  N.  H.  28  (1845). 

99.  Fraim  v.  Xational  F.  Ins.  Co.,  170  Pa. 
St.  151,  32  Atl.  613,  50  Am.  St.  Rep.  753 
(1895)  (gasoline  in  silver  plating). 

1.  Merchants    Wharf-Boat   Assoc.   v.   Wood 
(Miss.   1887),  3  So.  248. 

2.  Judson    v.    Giant   Powder   Co.,    107    Cal. 
549,  40   Pac.   1020,  48   Am.  St.   Rep.   146,  29 
L.   R.  A.  718    (1895)     (powder  mill);   Plant- 
ers' Mut.  Ins.  Co.  v.  Rowland,  66  Md.  236,  7 
Atl.  257    (1886)     (roller  mills). 

3.  Leslie  v.  Granite  R.  Co.,  172  Mass.  468, 
52  X.   E.   542    (1899)     (derricks  for   stone); 
Nut/mann  v.  Germania  L.  Ins.  Co.,  78  Minn. 
504.    SI    X.    W.    518    (1900)     (hydraulic   ele- 
vator) ;  Scheider  v.  American  Bridge  Co.,  78 
X.   Y.   App.   Div.    163,   79   X.   Y.    Suppl.   634 
(1903)     (guying  derricks)  ;   Fritz  v.  Western 
Union    Tel.    Co.,   25    Utah   263,    71    Pac.    209 
(1902)    (telephone  wires);   Parlett  v.  Dunn, 
102  Va.  459,  46  S.  E.  467    (1904)     (erecting 
hoisting  gear ) . 

4.  Louisville,  etc.,  R.  Co.  v.  Berkey,  136  Ind. 


217  TECHNICAL  FACTS. 

of  firearms,5  the  value,  weight  or  strength  of  materials,6  and  other  matters 
connected  peculiarly  with  mechanics. 

§  389.  [Technical  or  Scientific  Facts];  Mining;  Natural  History.7 — The  art 
of  mining  presents  a  number  of  facts  not  covered  by  the  scope  of  common 
knowledge  and  miners  of  experience  may  testify  to  such  facts  as  the  details 
of  mine  construction  s  and  their  operation.9  So  one  who  has  made  a  special 
study  of  natural  history  may  state  to  a  tribunal  facts  of  special  knowledge  as 
to  the  habits  of  animals  or  their  characteristics.10 

§  390.  [Technical  or  Scientific  Facts];  Professional  Facts;  Medicine.11 — The 
presiding  judge  will  receive  as  a  witness  to  facts  of  special  knowledge  relating 
to  the  medical  profession  any  person  who  has  been  proved  to  his  satisfaction 
or  whom  he  can  reasonably  assume  to  know  the  fact  as  to  which  he  proposes  to 
testify  with  such  fullness  and  accuracy  as  to  make  his  evidence  helpful  to  the 
jury.  As  in  other  matters  presenting  administrative  questions  regarding  the 
adequacy  of  the  knowledge  of  a  witness,  the  qualification  required  is  only  such 
as  is  commensurate  with  the  testimony  which  is  offered.  Were  the  question 
asked  a  medical  practitioner  one  which  involved  a  wide  experience  and  mature 
judgment  the  court  might  well  insist  upon  receiving  testimony  of  a  professional 
witness  who  might  be  assumed  to  possess  these  qualities.  But  certain  profes- 
sional facts,  obtainable  in  their  entirety  by  reading  may  be  equally  well  known, 
or  even  better  remembered,  by  a  young  doctor  just  graduated  from  the  medical 
school  than  by  an  older  and  more  experienced  practitioner.12  But  nurses,13 
undertakers  14  and  other  nonscientific  and  nonprofessional  witnesses,  will,  as  a 
rule,  not  be  received  merely  by  virtue  of  their  occupation,  though,  in  such  case, 
as  in  that  of  any  other  witness,  proof  of  special  and  adequate  knowledge  and 
experience,  quoad  the  fact  to  be  elicited  will  render  them  competent  witnesses. 

Those  duly  qualified  may  testify  concerning  the  state  of  medical  knowl- 

181,  35  N.  E.  3   (1893)    (coupling  pin)  ;  Lau  Ohio  St.  608,  56  X.  E.  457,  76  Am.  St.  Rep. 

v.    Fletcher,    104    Mich.    295,    62    X.    \V.    357  437    (1899)     (blasting);    Beaman    v.   Martha 

(1895)    (saw).  Washington  Min.  Co.,  23   Utah   139,  63  Pac. 

5.  Long   v.   Travellers'   Ins.   Co..    113   Iowa  631   (1900)    ("  skip  "  out  of  an  incline  shaft ). 
259,  85  X.  \V.  24    (1901)    (effect  of  gas  gen-  10.  Smith     v.     People,    46     111.    App.     130 
eration    by    discharge    of    a    gun).     See    also  (1891);     Cottrill     v.     Myrick.     12     Me.     222 
Dugan  v.   Com.,   102  Ky.  241,  43  S.  W    418,  (1835);   Lewis  v.  Hartford  Dredging  Co..  68 
19  Ky.  L.  Rep.  1273    ( 1897  i .  Conn   221,  35  Atl.  1127   (1896)    (seeding  oys- 

6.  McFaul  v.  Madera  Flume,  etc.,  Co.,  134  ters)  ;    State  v.  Mclntosh,   109   Iowa  209,  80 
Cal.  313,  66   Pac.  308    (1901)     (wrought  and  X.  \V.  349   (1899)    /wolf). 

cast  iron)  ;  Caven  v.  Bodwell  Granite  Co.,  97  11.   1   Chamherlayne,  Evidence,  §§  913-918. 

Me.  381,  54  Atl.  851   (1903)    f  wood  and  iron ).  12.  Tullis   v.    Kidd,    12    Ala.    648    (1847); 

7.  1  Chamberlayne,  Evidence.  §§  009-912.  Murphy  v    Murphy,  65  S.  \Y.   165,  23  Ky.  L. 

8.  Grant  v.   Varney.  21   Colo    329.  40  Pac  Kep.    1460    (1901)     (effect    of   alcoholism   on 
771     (  1895);    McN'amara   v     Logan.    100   Ala.  the  human  will). 

187,  14  So.  175   (  ISU.ri    (safe  distance  between  13.  State  v.  Cook,  17  Kan.  392    (1877). 

wall  and  car).  .14.  Osborne  v.  Troup,  60  Conn.  485,  23  Atl. 

9.  Ohio,  etc.,  Torpedo  Co.  v.  Fishburn,  61       157   (1891). 


391 


KNOWLEDGE;  SPECIAL. 


218 


edge,15  tjae  symptoms  of  disease,10  or  insanity,17  their  proper  treatment  18  and 
the  facts  of  surgery  either  human  19  or  veterinary.20 

§  391.  [Technical  or  Scientific  Facts];  Kailroad  Facts;  Rules.21  22  —  The  great 
prominence  of  the  railroad  in  the  social  and  industrial  life  of  the  modern 
community  and  in  the  practical  work  of  the  courts  not  only  make  a  number  of 
facts  relating  to  such  a  carrier  matter  of  common  or  judicial  knowledge  23  but 
constantly  call  for  proof  of  cognate  facts  more  or  less  technical  in  their  nature, 
as  to  which  special  knowledge  is  required.  Facts  of  the  latter  class  may  be 
furnished  by  those  who  are  found  by  the  court  to  have  had  adequate  technical 
training  or  practical  experience  in  regard  to  the  fact  in  question.24  A  person 
not  in  the  railroad  business  may  state  a  fact  relating  to  railroad  matters  ;  — 
provided  it  be  shown  that  he  knows  it,-7'  and  not  merely  that  he  has  had  suf- 
licient  opportunities  for  observation  to  enable  him  to  ascertain  it.26 


15.  State    v.    Knight,    43    Me.    11     (1857) 
(blood   stains)  ;    Johnson   v.   Winston,    (Neb. 
1903),    94    N.    W.    607;    State    v.    Miller,    9 
Houst.    (Del.)    564,  32  Atl.   137    (1892)     (hu- 
man   blood);  'State    v.    White,    76    Mo.    96 
(1882)    (undergoing  child  birth  while  stand- 
ing) ;    People   v.   Osmond,    138   N.   Y.   80,   33 
X.   E.  739  -(1893). 

16.  State  v.   Meyers,   99   Mo.    107,    121,    12 
S.  W.  516  (1889). 

Conversely,  the  witness  may  testify  as  to 
what  certain  medical  phenomena  indicate  as 
to  disease;  its  cause,  etc.,  assuming  the  infer- 
ence is  a  necessary  and  unreasoned  one. 
Louisville,  etc.,  R.  Co.  v.  Falvey,  104  Tnd. 
409,  3  N.  E.  389,  4  N.  E.  908  (1885)  ;  Kelly 
v.  Erie  Tel.  etc.,  Co.,  34  Minn.  321,  25  X.  W. 
706  (1885)  ;  Dilleber  v.  Home  L.  Tns.  Co.,  87 
X.  Y.  79  (1881)  :  State  v.  Wilcox,  132  N.  C. 
1120,  44  S.  E.  625  (1903)  (no  Avater  in  stom- 
ach ) . 

17.  State  v.  Reddick,  7  Kan.   143    (1871)  ; 
State  v.  Meyers,  1)9  Mo.  107,  121,  12  S.  W.  516 
(1889);    Williams   v.   State    (Fla.    1903),   34 
So.  279;  State  v.  Reddick,  7  Kan.  143  (1871)  ; 
State  v.   Meyers,  99   Mo.    107.   121,   12   S.   W. 
516    (1889)  ;'  People  v.  Goldsworthy,  130  Cal. 
COO,  62  Pac.  1074  (1900)    (portable  aluminum 
boiler) . 

18.  State   v.   Meyers.   99   Mo.    107,    121,   12 
S.  W.  516    (1889)  ;   Bonart  v.  Lee   (Tex.  Civ. 
App.   1898),   46   S.   W.  906    (''medical   treat- 
ment") ;  Hartung  v.  People,  4  Park.  Cr.   (N. 
Y. )    319    (1859)    (cause  of  inflammation  dis- 
covered on  post  mortem  examination)  :.Baldi 
v.   Metropolitan    Ins.   Co.,    18    Pa.   Super.   Ct. 
599    (1902). 

19.  Johnson    v.    Winston     (Neb.    1903),    94 
X.  W.  607 ;  Crites  v.  XBAV  Richmond,  98  Wis. 


55,  73  N.  W.  322   (  1897  )  ;  Kelly  v.  U.  S.,  27 
Fed.  616   (1885).     Infra,  §  722. 

In  states  which  permit  it,  the  evidence  of 
technical  facts  may  be  elicited  on  cross  exami- 
nation. Rowell  v.  Lowell,  11  Gray  (Mass.) 
420  (1858);  Kelly  v.  U.  S.,  27  Fed.  616 
(1885);  Powers  v.  Mitchell.  77  Me.  361 
(1885)  (concussion  of  the  spine). 

20.  Grayson  v.  Lynch,  163  U.  S.  468,  16  S. 
Ct.    1064,  41    L.   ed.  230    (1896);    Pearson   v. 
Zehr,   138  111.  48,  29  N.  E.  854,   32  Am.  St. 
Rep.   113    (1891). 

A  physician,  though  he  has  never  acted  as 
a  veterinary  surgeon  regarding  it  may  state 
the  symptoms  of  a  given  disease.  State  v. 
Sheets.  89  N.  C.  543  (1883). 

21.  1  Chamberlayne,  Evidence,  §§  919-929. 

22.  Supra,  §§  359,  362,  infra,  731   et  seq  , 
814  et  seq. 

23.  Kupra,  §§  345  et  seq.,  362. 

Skilled  witnesses  are  not  required  to  state 
such  facts.  —  For  example,  the  community 
knows  how  a  cattle  guard  should  be  con- 
structed. New  York,  etc.,  R.  C'o.  v.  Zum- 
baugh,  12  Ind.  App.  272,  39  N.  E.  1058 
(18«)4):  Swartout  v.  New  York  Cent.,  etc., 
R.  Co.,  7  Hun  (  N'.  Y.)  571  (1876). 

24.  Qualifications    must    be    affirmatively 
shown.     Tnless  this  is  done,  the  witness  may 
be   rejected.     Born    v.    Philadelphia,    etc.,    R. 
Co.,  198  Pa.  St.  409,  48  Atl.  263    (1901). 

25.  Missouri  Pac.  R.  Co.  v.  Mac-key,  33  Kan. 
298,  6  Pac.  291    (1885)  ;  Chesapeake,  etc.,  R. 
Co.  v.  Stephens,  15  Ky.  L.  Rep.  815    (1894)  ; 
Detroit,    etc.,    R.    Co.    v.    Van    Steinhurg,    17 
Mich.  99    (1868)     (mail   clerk);   Robertson   v. 
\\ahash.  etc.,  R.  Co.,  84  Mo.  T19    (1884). 

26.  Manhattan,  etc.,  R.  Co.  v.  Stewart,  30 
Kan.  226,  2  Pac.   151    (1883);   Mammerberg 


210 


TECHNICAL  FACTS. 


§  391 


Evidence  of  this  character  may  be  offered  of  the  duties  of 'officers  or  em- 
ployees,27 the  operation  of  the  road,28  freight'29  and  passenger  30  transporta- 
tion, the  possibilities  and  probabilities  of  railroads,31  and  facts  concerning  the 
roadbed  and  equipment.32  So  facts  as  to  the  construction,  equipment  and 
operation  of  street  railways,33  the  duties  of  their  officers  and  employees  34  and 
the  possibilities  of  street  railways  :'"'  may  be  shown  in  the  same  way.  The 
rules  of  the  company  may  be  put  in  evidence  to  show  the  proper  standard  of 
care/ 


86 


v.  Metropolitan  St.  R.  Co.,  62  Mo.  App.  563 
(1895). 

27.  Galveston,  etc.,   R.  Co.  v.  Brown    (Tex. 
Civ.  App.  1900),  59  S.  W.  930;  Culver  v.  Ala- 
bama Midland   R.  Co.,   108   Ala.   330,   18   So. 
827  (1895)    (proper  position)  ;  Quinlan  v.  Chi- 
cago, etc.,  R.  Co.,  113  Iowa  89,  84  N.  W.  960 
(1901). 

28.  Birmingham,  etc.,  Ry.  Co.  v.  Harris,  98 
Ala.   326,   13  So.  377    (1893);   Kerns  v.  Chi- 
cago, etc.,  R.  Co.,  94  Iowa  121,  62  N.  W.  692 
(1895)    (pilot  bar);   Price  v.  Richmond,  etc., 
R.   Co.,   38   S.   C.    199,    17   S.   E.   732    (1892) 
(make  up  train)  ;  Walker  v.  Lake  Shore,  etc., 
R.  Co..  104  Mich.  606,  62  N.  W.  1032   (1895) 
(usinsr   lantern)  ;    Louisville,    etc.,   R.   Co.   v. 
Reagan,  96  Tenn.   128,  33  S.  W.   105    (1895) 
(uncoupling) . 

29.  Price  v.  Richmond,  etc.,  R.  Co.,  38  S.  C. 
199,  17  S.  E.  732   (1892)  ;  Vicksburg,  etc.,  R. 
Co.   v.    Stocking    (Miss.    1892),    13   So.    469; 
Conway  v.  Fitzgerald,  70  Vt.  103,  39  Atl.  634 
(1897)    (lumber). 

30.  Union    Pac.   R.   Co.   v.   Novak,   61    Fed. 
573.  9  C.  C.  A.  629    (1894)  ;   Louisville,  etc., 
R.   Co.   v.   Banks,    132   Ala.   471,   31    So.   573 
(1901). 

31.  Chicago,  etc.,  R.  Co.  v.  Kreig,  22  Ind. 
App    3<»3,   53    X.    E.    1033    (1899)     (spark); 
Whitsett  v.  Chicago,  etc.,  R.  Co.,  67  Iowa  150, 
25  N".  W.  104  (  1885)  ;  Frace  v.  New  York,  etc., 
R.    Co..    68    Hun    325,    22    N.    Y.    Suppl.    958 
(1893). 

Ohio. —  Bellefontaine.  etc.,  R.  Co.  v.  Bailey, 
11  Ohio  St.  33:3  (1860)  (prevent  accident). 

Conway  v.  Fitzgerald,  70  Vt.  103,  30  Atl. 
634  (1897)  ;  Davidson  v.  St.  Paul,  etc.,  R.  Co., 
34  Minn.  51,  24  N.  W.  324  (1885)  (throw 
sparks)  ;  .Tamieson  v.  New  York.  etc..  R.  Co.. 
162  N.  Y.  630,  57  N.  E.  1113  (1900)  (spark 
arrester  door  open). 

32.  Kerns  v.  Chicago,  etc..  R.  Co.,  94  Iowa 
121,  62  N.  W.  692    (1895);    Walker  v.  Lake 
Shore,  etc.,  R.  Co.,   104   Mich.  606,  62  X.  W. 
1032  (1895)    ( roadmaster  i -.  Kelly  v.  Southern 
Minnesota  R.  Co..  28  Minn    98,  9  X.  W.  588 

(1881)  ;  State  v.  Toledo  R..  etc.,  Co.,  24  Ohio 


Cir.  Ct.  321  (1903)  (side  track)  ;  Ft.  Worth, 
etc.,  R.  Co.  v.  Wilson,  3  Tex.  Civ.  App.  583, 
24  S.  W.  686  (1893)  (good  construction); 
Baltimore,  etc.,  R.  Co.  v.  Elliott,  9  App.  Cas. 
(D.  C.)  341  (1896)  (draw  head):  McDonald 
v.  Michigan  Cent.  R.  Co.,  108  Mich.  7,  65  X. 
W.  597  (1895)  (cross-bar). 

33.  Supra,  §  362,  infra,  §§  732,  815;  North 
Kankakee  St.   Ry.  Co.  v.   Blatchford,   81   111. 
App.  609    (1898)     (use  of  fenders);   Chicago 
City  R.  Co.  v.  McLaughlin,  146  111.  353,  34  N. 
E.  796   (1893)  ;  Geist  v.  Detroit  City  R.  Co., 
91  Mich.  446,  51  N   W.  1112   (1892)' 

34.  Czezewzka    v.    Benton-Bellefontaine    R. 
Co.,  121  Mo.  201,  25  S.  W.  911   (1894). 

35.  Chicago  City  R.  Co.  v.  McLaughlin,  146 
111.  353,  34  N.  E.  796    (1893)  ;   Geist  v.  De- 
troit City  R.  Co.,  91  Mich.  446,  51  N.  W.  1112 
(1892)  ;  Watson  v.  Minneapolis  St.  R.  Co.,  53 
Minn.  551,  55  X.  W.  742   (1893). 

36.  Rules  of  a  railway  company  as  to  the 
operation  of  its  trains  are  some  evidence  when 
promulgated  for  the  safety  of  the  public  of 
the  proper  care  and  precaution  ..aich  should 
be  used.     Deister  v.  Atchison  T.  &  S.  F.  R.  Co., 
99   Kan.   525,    172   Pac.   282,   L.   R.   A.    1017 
C  784    (1917).     A  rule  of  a  common  carrier 
forbidding  passengers  from  going  on  the  steps 
is  admissible  to  show  that  a  conductor  was 
not  negligent  in  allowing  a  passenger  to  stand 
on  the  platform  where  he  did  not  know  that 
he  was  there,  as  the  rule  shows  that  he  had 
no  reason  to  look  for  him.     Renaud  v.   Xew 
\ork,    Xew    Haven    &    Hartford    R.    Co..    210 
Mass.  553,  97  X.  E.  98.  38  L.  R.  A.    ( X.  S.) 
689    (19121.     In  an  action  for  negligence  the 
plaintiff   may   not   introduce   evidence   of   the 
rules   of   the  defendant  company   as   showing 
the  proper  standard  of  care  to  be  used  by  the 
employees.     Such    rules    should    not    be   used 
to   show   an   admission,   as  they   may   simply 
show  that  the  company  tries  to  maintain  a 
high    standard    of   care    unless    they   show    a 
general    practice   of   those    in    that    business. 
Virginia  Railway  &  Power  Co.  v.  Godsey,  117 
Va.  167,  83  S.  E.  1072. 


CHAPTER  XI. 

BURL)  EX  OF  PROOF. 

Preliminaries  to  a  trial  by  jury,  39:>. 
Burden  of  proof  has  a  double  meaning,  30:;. 

Position  of  burden  of  proof;  who  wuld  fail  'if  no  further  evidence  were  intro- 
duced, 394. 

never  shifts,  395. 

common  law  pleading,  396. 

equity  pleading,  397. 

statutory  pleading,  398. 

actions  in  rem,  etc.,  399. 

criminal  cases:  burden  on  prosecution,  400. 
affirmative  defences,  401. 

§  392.  Preliminaries  to  a  Trial  by  Jury. —  That  any  forensic  contest  what- 
ever between  contending  parties  should  be  conducted  to  a  definite  and  speedy 
conclusion,  at  least  three  things,  among  others,  should  be  predetermined.  (1) 
What  facts  must  be  proved  by  any  litigant  to  insure  his  success.  This  is  en- 
tirely a  matter  of  substantive  law.1  (2)  Tpon  whom  lies  the  duty  of  proving 
the  truth  of  a  particular  proposition  or  of  introducing  evidence  as  to  the  ex- 
istence of  any  given  individual  fact.  .This  falls  under  the  head  of  Burden 
of  Proof,  the  topic  under  consideration.2  (3)  What  happens  should  the  per- 
son upon  whom  this  duty  rests  fail  to  discharge  it.  '  This  is  determined  by 
procedure  at  a  subsequent  stage,  with  which  the  law  of  evidence  has  no  imme- 
diate concern.3 

§  393.  Burden  of  Proof  has  a  Double  Meaning. —  As  commonly  employed,— 
and  few  phrases  are  utilized  more  constantly, — "  burden  of  proof  "  is  am- 
biguous in  meaning.  It  represents  one  or  the  other  of  two  entirely  distinct 
things;4  (1)  the  burden  or  necessity  of  establishing  a  case,  of  making  good 

1.  2  Chamberlayne,   Evidence,  §§  930,  031,  Buswell  v.  Fuller,  80  Me.  600    (1807);   Mor- 
032,  033.  gan  v.  Morse,   13  Gray    (Mass.)    1/50    (1859). 

2.  2  Chamberlayne,  Evidence,  §§  932.  035.  An     increasing     clearness     in     statement 

3.  2  Chamberlayne,  Evidence,  §§  032,  935a.  seems  observable  in  the  decisions.     See  Ruth 

4.  2  Chamb.,  Ev.,  §  936  and  cases  cited  in  v.    Crone,    10    Cal.    App.    770.    103    Pac.    060 
note  3.     Contra:     State  v.  Thornton,  10  S.  D.  (1900)  ;  Cody  v.  Market  St.  Ry.  Co..  148  Cal. 
349,  73  N.  W.  106.  90,  82  Pac.  667    (1905);    Alabama  &  V.   Ry. 

Not  always  is  this  done. —  Certain  courts  Co.  v.  Groome,  97  Miss.  201.  52  So.  703 
have  taken  the  proper  distinctions  with  great  (1010)  ;  Foss  v.  McRae,  105  Me.  140,  73  Atl. 
clearness.  Scott  v.  Wood,  81  Cal.  398  (1889)  ;  827  (1909)  ;  Dorrell  v.  Sparks,  142  Mo.  App. 

220 


221  POSITION  OF  BURDEN.  §§  394, 395 

against  all  opposition  the  truth  of  a  proposition  is  issue  or,  (2)  the  burden  or 
duty  of  going  forward  and  producing  evidence  to  make  a  prima  facie  case  in 
his  own  favor  or  to  meet,  minimize  and  counteract  such  a  case  when  estab- 
lished against  him.5  This  has  led  to  much  confusion  of  thought.5  A  very 
slight  change,  in  the  single  word, —  "  proof  "  to  "  evidence  "  when  the  phrase 
is  used  in  its  secondary  meaning,  suffices  to  eliminate  the  difficulty.7 

§  394.  Position  of  Burden  of  Proof;  Who  Would  Fail  if  no  Further  Evidence 
Were  Introduced. —  The  position  of  the  burden  of  establishing  has  been  lo- 
catecl  in  different  ways  by  different  authorities ;  —  though  it  is  fairly  obvious 
at  times  that  the  statement  relates  rather  to  the  position  of  the  burden  of 
evidence  than  of  that  of  establishing.  Thus,  for  example,  it  has  been  said 
that  the  burden  is  on  him  who  would  lose  his  case  if  no  further  evidence  were 
produced.8  It  is  certainly  true  that  at  the  beginning  of  any  trial  at  law  the 
burden  of  proof  and  the  burden  of  evidence  rest  on  the  same  person.9  Here, 
therefore,  the  test  applies.  It  applies  equally  where  the  actor  1()  is  the  losing 
party  at  the  end  of  the  trial ;  —  for  the  two  burdens  are  again  together.  At 
other  stages  of  the  trial  the  test  is  workable  with  regard  to  the  burden  of  evi- 
dence. Jt  is  not  necessarily  applicable  to  the  burden  of  proof,  properly  so- 
called; —  except  where  the  party  not  having  the  burden  of  establishing,  i.e., 
the  non-actor,  has  destroyed  the  actor's  prima  facie  case.  It  scarcely  need  be 
said  that  the  burden  of  proof  cannot  be  on  both  parties  at  the  same  time.11 

§  395.  [Position  of  Burden  of  Proof] ;  Never  Shifts. —  That  the  burden  of 

460,  127  S.  W.  1D3   (1910):  Toube  v.  Rubin-  (1900);   Herndon  v.  Louisville  Nat.  Banking 

Blankfort    Co.,   63    Misc.    Rep.    (X.    Y.)    298,  Co.    (Ky.  1910),   124  S.  W.  835;   John  Turl'a 

11(5  X.  Y.  Supp.  673    (100!))  Sons,  Inc.,  v.  Williams  Eng.  &  Con.  Co.,  121 

5.  This  last  mentioned  duty  is  spoken  of  in  N.   Y.  Supp.  478   (1910)  ;  Hauser  v.  Western 
Chamberlayne's  treatise  and  in  this  digest  as  Union  Telegraph  Co.,  150  X.  C.  557,  64  S.  E. 
the  "burden  of  evidence,''  as  it  should  more  503    (1909)  :   2  Chamb.,  Ev.,  §  937  and  cases 
properly   be   called.     The   phrase   "  burden   of  cited.     Occasionally,    this    test    of    the    posi- 
proof  "  is  restricted  to  its  original   and  pri-  tion  of  the  burden  of  proof  has  been  adopted 
mary  meaning  of  the  burden  of  establishing  a  by    statute.     Chaplin,    etc.,    Turnpike    Co.    v. 
ca»e*  Xelson  Co.,  25  Ky.  L.  Rep.    1154,  77   S.  W. 

6.  See  Borton  v.  Blin,  23   Vt.   151    (1851).  377    (1903). 

It  has  been  proposed  that  the  use  of  the  ob-  9.  Veiths  v.  Hagge,  8  Iowa  163,  192  (1859)  ; 

jectionable    phrase     be     abandoned      Thayer.  Reagan  v.  El  Paso  &  X.  E.  Ry.  Co.,  15  X.  M. 

Prelim.   Treat,   384;    Abrath   v.   Xorth    East-  270,  106  Pac.  376   (1910). 

ern  R.  Co.,  11  (}.  B.  D.  440,  47  J.  P.  602.  52  10.  The  term  "actor"  is  used  to  designate 

L.  J.  Q.  B.  620   (1883).     2  Cham.,  Ev.,  §  034.  the  party  on  whom  rests  the  burden  of  estab- 

7.  "Proof"  ambiguous. —  For  a  discussion  lishing  —  burden  of  proof  in  its  correct  and 
of  this  question  and  the  divergent  views  which  primary   meaning.     By   "  non-actor  "  or  reus 
the  civil   law  procedure  and   its  modern  sue-  is  designated  the  party  on  whom  the  burden 
cessors  of  equity  and  code  pleading  took   as  of   establishing   does   not   rest: — though,   of 
compared  with  the  common  law.  of  the  nature  course,  the  burden  of  evidence  may  and  fre- 
of  a  trial,  see  2  Chamb..  Ev.,  §  936,  note  7.  quently  does. 

8.  Dieterle  v.  Bekin,  143  Cal.  683,  77  Pac.  11.  State  v.  Rosenthal,   123  Wis.  442,   102 
664    (1904).     See  also,  Mayer  v.   C.   P.  Lesh  X.  W.  49    (1905). 

Paper  Co.,   45   Ind.   App.   250,   89  X.   E.   894 


§  396  BURDEX  OF  PROOF.  222 

proof,  properly  so-called,  never  shifts,  in  civil  causes,  seems  established  by 
the  great  weight  of  authority;  —  when  correctly  interpreted,  iii  any  instance.12 
The  same  rule  is  equally  applicable  and  controlling  in  criminal  cases.1"  On  a 
criminal  jjroceeding,  the  burden  of  proof  never  leaves  the  prosecution.  The 
issue  has  been  fixed  once  for  all  by  the  pleadings,  and  the  rules  of  pleading  do 
not  permit  it  to  be  altered  during  the  progress  of  a  trial  on  those  pleadings.14 
So  far  as  the  party  having  the  burden  of  proof  is  concerned,  two  results  obvi- 
ously follow  from  the  rule.  (1 )  The  two  burdens  are  upon  the  same  person  at 
the  beginning  of  the  trial;  (2)  if  the  actor  fails  to  maintain  his  case, .they 
are  united  at  the  end  of  it.15  At  other  stages  of  the  trial,  the  burden  of  evi- 
dence follows  automatically  the  logical  necessities  of  the  situation.  The  bur- 
den of  proof  is  voluntarily  assumed  by  one  or  other  of  the  parties,  once  for  all. 
and  cannot  be  displaced  except  upon  the  formation  of  a  new  issue.  It  re- 
mains persistent  through  all  the  fluctuations  of  the  burden  of  evidence.  The 
position  of  the  burden  of  evidence,  however,  at  any  time,  is  determined  by 
answering  the  question  as  to  who  would  lose  if  no  further  evidence  were  intro- 
duced.10 The  confusion,  and  consequent  error,  lies  in  speaking  of  this  burden 
of  evidence  as  the  "  burden  of  proof.'"  17 

§  396.  [Position  of  Burden  of  Proof] ;  Common  Law  Pleading. —  Under 
common-law  pleading,  procedure  in  assigning  the  burden  of  proof  to  one  of 
the  respective  parties,  adopts  as  its  final  and  determinative  guide,  the  condi- 
tion of  the  issues  formed  by  the  pleadings.  Whichever  of  the  parties  has 

12.   Williams  v.   Casebeer,   126  Cal.   77,   58  13.  Boykin  v.  People,  22  Colo.  496,  45  Pac. 

Pac.  380    (1889);   Baxter  v.  Camp.  71   Conn.  419    (1896);   Daoey  v.  People.  116  111.  555,  6 

245,   41    Atl.   803,   71    Am.    St.    Rep.    109,   42  X.  E.  165  (1886);  Trogdon  v.  State,  133  1ml 

L.  R.  A.  514  (1898)  ;  Foss  v.  McRae,  105  Me.  1,  32  N.  E.  725   (1892)  :  State  v.  Conway.  56 

140,   73   Atl.  827    (1909)  ;    Carroll   v.   Boston  Kan.  682,  44  Pac.  627    (1896);  State  v.  Har- 

Elevated   Ry.   Co.,   200   Mass.   527,   86   N.   E.  delein,   169   Mo.  579,   70   S.   W.   130    (1902); 

793    (1909):    Aulls   v.   Young,   98   Mich.   231  People   v.   Downs,    123   N.    Y.   558,   23   X.   E. 

(1893);    Vertress    v.   Gage   County,   75    Neb.  988   (1890):   Agnew  v.  U    S.,  lf,5  U.  S.  17  S. 

332,    102    X.    W.    242    (1905):    Heineman    v.  Ct.   235    (1897);    2   Chamh..   Ev.,   §   939  and 

Heard,  02  X.  Y.  448   (1875):   2  Chamb.,  Ev..  cases  cited. 

§  938  and  cases  cited.     The  burden  of  proof  14.   2  Chamb.,  Ev.,  §  939  and  cases  cited: 

is  not  shifted  even  by  the  failure  of  a  party  Wright  v.   Wright,   139  Mass.   177    (1885). 

in  court  to  take  the  stand  in  his  own  behalf,  15.  2  Chamb.,  Ev..  §  940. 

if  it  originally   rested  upon  the  other  party.  16.  Scott  v.  Wood.  81  Cal.  398.  22  Pac.  871 

Meyer  v.  Minsky.  128  App    Div.   (X.  Y.)   589,  (1889);    Fornes  v.   Wright.  91    Iowa   392,  59 

112   X.   V    Snpp.   860    (1908).     Xor  docs  the  X.    W.   51    (1894):    Porter   v.   Still.   63   Miss, 

non-actor  assume  the  burden  of  proof  merely  357    (1885)  :    Raines  v.  Merrill  Trust   v'o.,  56 

by  introducing  evidence  tending  to  break  down  X.  J.  L.  312,  28  Atl.  "96    (1803):    Baulec  v. 

the   actor's   case.     Wylie    v.    Marinofskv.    201  Xew  York,  etc.,  R.  Co..  59  X.  Y.  3.~>6.  17  Am. 

Mass.  f>83,  88  X.  E.  448    (1909).     The  burden  Rep.   325    (1874);    Union    Pac.  R.   Co.   v.   Mc- 

of  proof  does   not   shift   in   a   case   involving  Donald.   152   U.  S.  262.   14  S.   Ct.   619,  38  L. 

fraud  but  remains  on  him  who  claims  fraud.  ed.   434    (1894);    2   Chamb.,   Ev.,   §   940   and 

though   the  duty  of  going  forward  with   the  cases  cited. 

evidence  may  shift.     Boardman  v.  Lorentzen,  17.  2  Chamb..   Ev..   §   940.     See  Discussion 

155   Wis.   566,    145   X.   W.   750,   52   L.   R.   A.  of   Simile  of   the   Scales,   in   connection    with 

(X.  S.)   476   (1914).  trials  at  law,  2  Chamb..  Ev.,  §  941. 


2-23 


POSITION  OF  BURDEN. 


the  affirmative  of  the  issue  as  determined  by  the  pleadings,  has  the  burden  of 
proof,18  to  establish  his  contention  by  the  legally  required  preponderance  of 
the  evidence.19  This  burden  necessarily  includes  the  fact  that  all  conditions 
precedent  to  the  right  claimed  have  been  performed.20 

For  example  in  actions  for  negligence  the  burden  rests  on  the  plaintiff  to 
prove  all  facts  necessary  to  show  negligence  21  but  in  most  jurisdictions  the 
burden  is  on  the  defendant  to  prove  that  the  plaintiff  was  guilty  .of  contribu- 
tory negligence.22  All  the  necessary  elements  in  an  action  for  breach  of  con- 
tract must  likewise  be  proved  by  the  plaintiff.23 

Burden  on  Plaintiff. —  Where  the  defendant  traverses,  or  denies  one  or 
more  material  allegations  24  of  the  plaintiff's  declaration,  either  in  an  action 
of  tort,25  or  contract,20  or  concerning  land,27  the  burden  of  proof  is  on  the 
plaintiff ;  -s —  even  where  the  traverse  is  an  argumentative  one,  in  the  form 


18.  English  v.  Porter,  109  111.  285   (1884)  . 
McCollister  v    Yard,  90   Iowa  621,  57  X.  W. 

447  (1894);    Heineman   v.   Heard,   62   X.   Y. 

448  (1875);    Klunk   v.    Hocking   Valley    Ry. 
Co,  74  Ohio  St.   125,  77  X.   E.  752    (1906); 
Connor  v    Green  Pond,  etc.,  R.  Co.,  23  S.  C. 
42,     ,lssj.V)  -.   2  Chamb.,  Ev.,  §§  942,  943  and 
cases  cited. 

19.  Chicago,   etc.,   R     Co.    v.   Lambert,    119 
111    255,  10  X.  E   219   (1887)  ;  Oaks  v.  Harri- 
son, 24  Iowa  179   (1868). 

20.  Sext  v    Geise.  SO  Ga.  698,  6  S.  E.   174 
(1888)  ;   Home  L.  Assoc    v.  Randall,  30  Can. 
Sup.  Ct.  97    (1899).     But  see  Thayer  v.  Con- 
nor,  5   Allen    (Mass)    25    (1862);    Coffin   v. 
Grand   Rapids   FTvdraulic  Co,   136  X.  Y    655, 
32   X.   Y    1076    (1893).     Burden   of  proof  — 
where  it  lies,  see  note.  Bender  ed.,  11  X.  Y.  9, 
121.     Burden   to   show    ultra  vires,   see  note, 
Bender  ed.,  143  X.   Y.  632.     Of  bona  fides  of 
purchase,  see  note,  Bender  ed.,   153  X.  Y.  76. 
Burden  to  show  bona  fides  in  purchasing  note, 
see  note.  Bender  ed..  123  X    Y.  207.     Burden 
of  proof  to  show  bona  fides  in  holder  of  fraud- 
ulent  note,   see   note.    Bender   ed.,    119   X    Y. 
372.     Burden  of  proof  upon  proposing  will  for 
probate,  see  note,  Bender  ed.,  11  X.  Y.  9.  121. 

21.  One   who   had   the   burden   of  proof   to 
show  the  cause  of  ice  formed  near  a  railroad 
track  cannot  go  to  the  jury  by  showing  that  it 
was   possible  that   the   ice  was   formed   from 
water  cast  there  by  one  of  defendant's  engines 
when  there  is  an  equal  possibility  that  it  was 
'.•ast  there  by  other  individuals.     Eisentracrer 
v   Great  NTorthern  R.  Co  ,  178  Towa  713.  160  X. 
\V.  311,  L.  R.  A.  1917  B  1245  (  1916) .     Burden 
to   prove  cause  of  accident,  see  note.  Bender 
ed  ,    IS    Nf.   Y.   534.     Burden   to   prove   negli- 


gence, see  note,  Bender  ed.,  47  XT.  V.  282. 
Burden  of  proof  in  action  by  servant  to  re- 
cover for  personal  injuries,  see  note,  Bender 
ed.,  145  X'.  Y.  409.  Burden  of  proof  of  neg- 
ligence and  contributory  negligence,  see  note, 
Bender's  ed.,  113  X.  Y"  386. 

22.  Comvay  v.  Salt   Lake  &  Ogden  R.  Co., 
47  Utah  510,  155  Pac.  339,  L.  R.  A.  1916  D. 
1109    (1916).     Right  to  infer  absence  of  con- 
tributory negligence,  burden  of  proving  it,  see 
note,  Bender  ed., 

23.  One  who  seeks  to  prove  breach  of  war- 
ranty in  a  heating  apparatus  has  the  burden 
of  showing  that  it  was  operated  under  proper 
conditions.     Waterman-Waterbury       Co.       v. 
School  Dist.,   182  Mich    498.   148  X.  YV.   673, 
L.  R.  A.  1015  B  626  f  1914) .     Burden  of  proof 
in  insurance  cases,  see  note.  Bender  ed.,  149 
N.  Y.  735. 

24.  Ma  rootle  v.   Sheridan,  91   X.  Y.   Supp. 
744  (1905)  ;  John  Ainsfield  Co.  v.  Rasmussen, 
30  Utah  453.  85  Pac.  1002   (1906)  ;  2  Chamb., 
Ev..  §  944  and  cases  cited. 

25.  Hudson     v     Miller,     97     Til.     App.     74 
(1901);   Sheley.v.  Brooks,  114  Mich.   11.  72 
X    W.  37    (1897)  :  Taylor  v.  Guest,  58  X.  Y. 
262    (1874);   Griswold  v.  Gebhie.  126  Pa.  St. 
353.  17  Atl.  673,  12  Am.  St.  Rep.  878  (18S9)  : 
2  Chamb.,  Ev.,  §  944  and  cases  cited. 

26.  Florida  Ry.  Co.  v.  Thomas,  55  Fla.  287, 
45  So   720   (1908)  ;  Hark  v.  Hoffman.  128  111. 
App.   422    ( 1 906 )  :    Laubheimer   v.   Xaill.   88 
Md,  174,  40  Atl.  888   (1898)  :   Ford  v.  Stand- 
ard  Oil   Co.,   32   App.   Div.    (X.   Y.)    596.   53 
X.  Y.  Supp.  48    (1898). 

27.  Clifton  v.  Town  of  Weston,  54  W.  Va. 
250,  46  S.  E    360   (1003). 

28.  Western  R.  Co.  v.  Williamson,  114  Ala. 


§   396  BURDEX  OF  PROOF.  224 

of  an  affirmative  plea,29 —  though  a  party  is  not  called  to  explain  or  disprove 
his  opponent's  allegations.'50  If  the  form  of  the  defendant's  pleading  is  nega- 
tive,—  as  where  he  files  a  general  issue,  the  burden  of  proof  is  upon  the 
plaintiff  even  should  the  defendant  introduce  an  affirmative  defense  under 
this  negative  allegation/'1 

JUj[)tication. —  Should  the  defendant  set  up  an  affirmative  defense,  the 
plaintiff  may  compel  his  opponent  to  assume  the  burden  of  proof  by  denying 
or  traversing  the  new  matter  set  up  by  the  defendant.  But  he  may  adopt  a 
different  course  by  alleging  on  his  own  behalf,  new  facts  in  confession  and 
avoidance.  Should  this  affirmative  replication  be  traversed  by  the  defendant, 
the  burden  of  proof  is  on  the  plaintiff.32 

Burden  on  Defendant. —  Where  the  defendant  does  not  traverse,  but  sets  up 
affirmative  matter,  as  by  pleading  in  abatement/'3  by  claiming  -'4  or  setting  up 
new  matter  in  avoidance  of  the  plaintiff's  action,35  the  burden  of  proof  is  on 
him;30  although  the  plaintiff  answers  by  anticipation  in  his  declaration  the 
facts  which  he  assumes  will  be  set  up  by  the  defendant,37  or  make^  an  argu- 
mentative traverse  in  his  replication.38  Xor,  is  it  important,  in  this  connec- 
tion, should  the  plaintiff  take  issue  on  this  new  matter,  by  denying  or  traversing 
it,  that  such  affirmative  defense  involves  proof  of  negative  propositions.39 
Should  the  plaintiff's  replication  set  up  an  affirmative  defense  which  flie  de- 
fendant meets  with  a  rejoinder  by  way  of  confession  and  avoidance  the  burden 
of  proof  is  upon  the  defendant.4"  and  it  is  said  not  to  be  material  that  the 
plaintiff  undertakes  to  establish,  by  evidence,  the  truth  of  his  replication. 

131,  21   So.  827    (1806)  ;   Starratt  v.  Mullen,  Gilmer  v.  Grand  Rapids,  16  Fed.  70S   <1883)  ; 

148  Mass.  570.  20   N".  E.   178,  2  L.  R.  A.  697  2  Chamb.,  Ev.,  §  946  and  cases  cited. 

(1889)  ;   Pares  v.  St.  Louis,  etc.,  R.  Co.   (Tex.  35.   Bliley  v.  Wheeler.  5  Colo.  App    287,  38 

Civ.  App.  i,  57  S.  \V.  301.  Pac.  603   (1894)  ;  Swift  v.  Ratliff.  74  Ind.  426 

29.  Wilder  v.  Cowles,  100  Mass.  487  M868K  (  l«Sl  |  ;  Sayles  v.  Quinn,  196  Mass.  492.  82  X. 

30.  Schallman    v.    Royal    ins.    Co.,    94    111.  E.   71:5    (1907):    Truax  v.  Heartt,   13. I   Mich. 
App.  364    (1901).  150,   97   X.   W.  394    (1903):    Coffin   v.   Grand 

31.  Adams    v.     Pease.     113    Til     App.    356  Rapids  Hydraulic  Co.,  136  X.  Y.  635.  32  X.  E. 
(1904).  1076,  affirming  61   NT.  Y.  Super.  Ct.  51,  18  XT. 

32.  Chicago  &  A.  Ry.  Co.  v.  Jennings.  114  Y.   Supp.   782    (1892);    Home   Ben.   Assoc.   v. 
111.   App.  022   (1904)  ;   Meeh  v.  Missouri  Pac.  Sargent,   142  U.  S.  691,  12  S.  Ct.  332,  35  L. 
R.    Co..    61    Kan.    630,    60   Pac.   319    (1900):  ed.    1160    (1892);    2   Chamb.,  Ev.,   §  946  and 
Blunt    v     Barrett,   54    \.   Y.   Super.    Ct,   548  cases  cited. 

(1«*7)  :  2  Chamb.,  Ev..  §  945  and  cases  cited.  36.  Pickup  v.  Thames  Ins.  Co.,  3  Q.  B.  D. 

The  burden  of  showing  that  an  automobile  in  594  (1875). 

which  plaintiff  was  riding  was  not  registered  37.  Henry  v.  Ward.  49  Xeb.  392,  68  X".  W. 

is  upon  the  defendant.     Conroy  v.  Mather,  217  5l8     (1896);    Hill    v.    Allison,    51    Tex.    390 

Mass.  91,  104  X.  E.  487.  52  L.  R.  A.    (X.  S.)  (1879). 

801    (1914).  38.  Fox  v.  Hilliard,  35  Miss.   160    (1858); 

33.  Seidschlag  v.  Town  of  Antioch,  109  111.  Wilson  v.  Hodges,  2  East  312   (1802  i. 
App.   291    (1904)-.    Boyoe   v.    Augusta   Camp,  39.  Craig  v.  Proctor,  6  R.  T.  547   (I860). 
No.  7429,  M.  W.  A.,  14  Okl.  642,  78  Pac.  322  40.  Miller    v.    Sollitt,     131     111.    App.     196 
(19041.  (1907),  and  it  is  said  not  to  lie  material  that 

34.  Jewett  v.  Davis,  fi  X'    H.  518    (1834):  the  plaintiff  undertakes  to  »sta»>lish,  by  evi- 
Robertson  v.  Ephraim,   18  Tex.   118    (1856);  dence,  the  truth  of  his  replication. 


225 


POSITION  OF  BUBDEN. 


396 


What  Defenses  are  Affirmative  is  a  matter  of  some  technicality  and  a  natural 
divergence  of  ruling  exists  in  different  jurisdictions.  "  Undoubtedly  many  mat- 
ters which,  if  true,  would  show  that  the  plaintiff  never  had  a  cause  of  action, 
or  even  that  he  never  had  a  valid  contract,  must  be  pleaded  and  proved 
by  the  defendant;  for  instance,  infancy,  coverture,  or,  probably,  illegality."41 
in  general,  however,  such  affirmative  defenses  agree  by  implication  of  law 
that  the  cause  of  action  relied  upon  by  the  plaintiff  once  existed  as  claimed,  but 
assert  that  it  has  been  lost  or  modified  by  subsequent  events.4-  The  non- 
actor  or  reus,  by  simply  relying  on  a  defense  affirmative  in  form  which,  in 
reality,  merely  traverses  the  affirmative  case  of  the  actor  does  not  necessarily 
shift  the  burden  of  proof.  Thus,  for  example,  where  a  defendant  relies  upon 
lack  of  consideration  for  a  contract,  this  does  not  shift  the  burden  of  proving 
the  existence  of  a  consideration  as  essential  to  a  valid  contract.43 

Neyatiie  Allegations. —  It  is  the  affirmative  of  the  issue,  not  the  affirmative 
in  point  of  form  of  the  proposition  submitted  to  investigation,  which  deter- 
mines the  position  of  the  burden  of  proof.44  The  affirmative  of  the  issue  may 
require,  under  the  rules  of  substantive  law,  proof  of  negative  allegations,45  by 
the  party  having  the  burden  of  proof,  whether  he  be  plaintiff  46  or  defendant.47 


41.  Starratt    v.    Muilen,    supra.     See    also 
Pendleton  v.  Cline,  85  (ill.    142,  24  Pac.  659 
(1890)  ;  2  Chamb.,  Ev.,  §  947  and  cases  cited. 

42.  Moore   v.    Barber    Asphalt   Paving   Co., 
IIS   Ala.   5H3,  23  So.    798    (IS97);    Chandler 
v.    Smith,   70    111.   App.   658    (1S97);    Swift   v. 
Ratliff,     supra;     Truax     v.     Heartt.     supra. 
Knoche     v.     Whiteman,     S6     Mo.     App      568 
(1900)  ;   Hood  v.  Smiley.  5  Wyo.  70,  36  Pac. 
856    (1894)  :  2  Chamb.,   Ev.,  §  947  and  cases 
cited.     Light    v.    Woodstock,   etc.,    R.   Co.,    13 
U.  C.  Q   B.  216  (1857). 

43.  Chaplin  &  15.  Turnpike  Road  Co.  v.  Xel- 
son  County,  25   Ky    L.   Rep.    1154,  77   S.  W. 
37  /  ;   Crownhishield  v.  Crowninshield,  2  Gray 

(Mass)     524,    531     (1854).     See    Roberts    v. 
Padgett,  82  Ark.  331,  101  S.  W.  753   (1907). 

44.  Small  v.   Clewley.  62   Me.   155    (1873): 
Harris   v.    Harris,    154    Pa.    St.   501     (1893): 
Jones   v.   Simpson,    116    U.   S.   609 :    Clark    v. 
hills,  67  Tex.   141    (18S6):   2  Chamb.,  Ev..  § 
949  and  cases  cited.     It  is  said,  for  example, 
that  "he  who  affirms  must  prove."  Marigny 
v.   Union  Bank,    12  Rob.    (La.i    2S3    (1844): 
Crowninshield  v.  Crowninshield.  supra:  prae- 
xumitur   pro    negante,    Union    Xat.    Bank    v. 
Maldenwick,  45  111.  375    C1S67):   that  no  one 
t-  obliged  to  prove  a  negative,  Carroll  v.  Ma- 

•ne,  28  Ala.  521  (1856)  :  State  v.  Melton.  8 
•  .o.  417  (1844);  State  v.  Morrison,  14  X.  C. 
. '.»0  (1831);  or  that  the  party  who  has  the 


"  affirmative  of  any  proposition  "  has  the  bur- 
den of  proof.     People  v.  Schryver,  42  N.  Y.  1, 

1  Am.  Rep.  480  (1870)  ;  Simon  v.  Krimko,  123 
N.  Y.  Supp.  697    (1910).     This  is.  in  reality, 
a  misapprehension.     Where  the  defendant  in 
a  civil  action  for  wrongful  death  admits  the 
killing  but  puts  in  evidence  sufficient  to  jus- 
tify it  as  in  self-defense,  it  has  been  recently 
held   that  the   burden   is  on   the   plaintiff  to 
show  by  independent  testimony  that  the  kill- 
ing was  wrongful.     This  decision  seems  to  be 
contrary  to  the  weight  of  authority      Welch 
v.  Creech,  88  Wash.  429.  153  Pac.  355,  L.  R. 
A.  1918A  353. 

45.  Douglass    v.    Willard.    129    Cal.    38,    61 
Pac.  572    (1900)  ;  Cleveland.  O.,  etc.,  Ry.  Co. 
v.  Moore,  170  Ind.  328,  82  X.  E.  52,  84  N.  E. 
540  (1908)  ;  Phipps  v.  Mahon.  141  Mass.  471, 
5  X.  E.  835  (1886)  ;  Schlesinger  v.  Hexter,  34 
N.  Y.  Super.  Ct,  499  I  1872)  ;  Pusey  v.  Wright. 
31   Pa.  St.  3S7    (  1858)  :  2  Chamb..  Ev.,  §  049, 
note  6,  and  cases  cited. 

46.  Baird     v      Brown,     28     La.     Ann.     842 
(1876):     Eastman    v    Gould.    63    X.    H.    89 
(1884):    2   Chamb.,   Ev..   §  949,   note  7,   and 
cases  cited 

47.  Atlantic  Trust  Co.  v.  Crystal  Water  Co., 
72   X.  Y.   App.  Div.  539,   76  X.  Y.  Supp.  647 
(1902):    Western   Union  Tel.  Co.  v.  Jackson, 
19  Tex  Civ    App.  273.  4fi  S    W.  279    (1898)  ; 

2  Chamb.,  Ev.,  §  949,  note  8,  and  cases  cited. 


§§  397,398  BURDEN  OF  PKOOF.  226 

The  substantive  law  may  require- that  the  existence  of  conditions  antecedent 
to  liability  should  be  negatived ;  4S  and,  so  far  as  can  reasonably  be  demanded 
in  any  particular  case,41*  the  party  having  the  burden  of  proof  may  fairly  be 
expected  to  establish  the  truth  of  such  negative  allegations,  even  where  special 
knowledge  is  possessed  by  his  antagonist. 

§  397.  [Position  of  Burden  of  Proof] ;  Equity  Pleading. —  In  equity,  as  at 
law,  the  burden  of  proof  is  on  the  party  who  has  the  affirmative  of  the  issue 
raised  by  the  pleadings.50  There  being  no  constructive  admission  in  equity, 
as  distinguished  from  common  law  pleading,  a  plaintiff  or  complainant  has 
the  burden  of  proof  as  to  all  material  facts  not  expressly  admitted  by  the 
answer.51  Under  the  general  rule  the  defendant  has  the  affirmative  of  the 
issue  as  to  any  plea  set  up  by  him,52  or  any  affirmative  defences  relied  upon  in 
the  answer,  and,  by  consequence,  as  to  these  has  the  burden  of  proof. 

§  398.  [Position  of  Burden  of  Proof] ;  Statutory  Pleading — Under  code 
pleading  the  plaintiff,  or  complainant,  states  such  facts  as,  in  his  opinion,  en- 
title him  to  relief.  The  burden  of  proof  is  on  him  as  to  all  allegations  not 
specifically  admitted  by  the  defendant  in  his  answer.53  Such  allegations  are 
regarded  as  denied,54  though  the  denial  be  merely  argumentative:  55 —  as  where 
it  sets  up  a  different  price,50  or  relies  upon  another  contract.57  Should  the 
distinct  admissions  made  by  the  defendant's  answer  suffice  to  establish  the 
plaintiff's  prima  facie  case,58  the  burden  of  proof  is  upon  the  defendant  as  to 
any  matter  relied  upon  in  avoidance  of  the  effect  of  these  admissions.59 

48.  Bufford  v.  Eaney.  122  Ala.  565,  26  So.  (1867).     It  is  an  established  rule  of  evidence 
120    (1898)  ;    Atlantic   Trust   Co.    v.   Crystal  in  equity,  that  where  an  answer  which  is  put 
Water  Co.,  supra;  2  Chamb.,  Ev.,  §  949,  note  in  issue,  admits  a  fact,  and  insists  upon  a  dis- 
9,  and  cases  cited.  tinct  fact  by  way  of  avoidance,  the  fact  ad- 

49.  Delachaise    v.    Maginnis,    44    La.    Ann.  mitted   is   established,   but   the   fact    insisted 
1043,    11    So.    715    (1892);    Thayer    v.    Viles,  upon   must  be  proved:    otherwise  the  admis- 
23  Vt.  494   (1851).  sion  stands  as  if  the  fact  in  avoidance  had 

Administrative    Details. —  In    many    juris-  not  been  averred.     Id. 

dictions,   the   right   to   "  open    and    close   the  53.  Chamberlain    Banking   House   v.   Wool- 
case  itself"  rest  upon  the  party  having  the  sey,  60  Neb.  516,  83  X    W.  729    (1900). 
burden  of  proof.     New  Ellerslie  Fishing  Club  54.  Carver   v.    Eads,   65    Ala.    190    (1880); 
v.  Stewart,  29  Ky.  L.  Rep.  414,  93  S.  W.  598  Woodson  Mach.  Co.  v.  Morse,  47  Kan.  429,  28 
(1906).  Pac.  152    (1891). 

50.  Pusey     v.    .Wright,     31     Pa.     St.     387  55.  Homire  v.  Rodgers,  74  Iowa  395,  37  N. 
(1859)  ;   Pritchard  v.   Pritchard,  2  Tenn.  Cr.  W.  572   (1888). 

App.  294   (1902):  Cochran  v.  Blount,  161  U.  56.  Connolly    v.    Clark.    20   Misc.    (N.   Y.) 

S.  350.   16  S.  Ct.   454,  40  L.  ed.   729    (1895).  415.  45  N.  Y.  Supp.   1042    (1897). 
But  see  Huston  v.  Harrison.  168  Pa.  St.  136,  57.  Mott   v    Baxter,  20   Colo    418.  68  Pac. 

31   Atl.  987   (1895).  220  (1920)  :  Phipps  v.  Mahon.  141  Mass.  471, 

51.  Pusey  v.  Wright,  supra:  Clifton  v.  Wes-  5  N.  E.  835   (1886)  :  Consumers'  Brewing  Co. 
ton,  54  W.  Va.,  250.  46  S.  E.  360    (1903);   2  v.    Lipot.    21    Misc.     (X     Y  )    532.    47    N.    Y. 
Chamb..  Ev..  §  951,  note  3,  and  cases  cited.  Supp.  718  (1897)  :  2  Chamb,  Ev..  §  952.  note 

52.  Mcfihee   Irr.    Ditch   Co    v    Hudson.   85  5,  and  cases  cited. 

Tex.   587.  22  S.  W.  398    (1893)  :    Clements  v.  58.  §  409.  infra:  2  Chamb..  Ev..  §  992. 

Voore.  (1  Wall.   (T.  S.)  299.  315.  18  L.  ed.  786  59.  Hunter  v.   Sanders,   113  Ga.   140,  38  S. 


-•21  POSITION  OF  BURDEX.  §  39S 

Where  the  plaintiff  files  a  replication,  or  the  law  files  one  for  him,  he  has 
the  burden  of  proof  as  to  any  new  matter  which  is  set  up."0  This  looseness  of 
pleading  frequently  causes  a  change  of  legal  situation  which  strongly  resembles 
a  shifting  of  the  burden  of  proof,  which  is  said  to  take  place.  This,  in  reality, 
is  impossible.61  A  party,  being  at  liberty,  at  the  trial,  to  bring  out  in  his 
evidence  what,  under  a  more  scientific  system  of  pleading,  would  be  matter  of 
an  affirmative  plea,  although  his  position  is  still,  on  the  record,  merely  that  of 
denying  the  allegations  of  his  antagonist,  the  burden  of  proof,  being  upon  him 
as  to  this  affirmative  plea,  this  burden  is  said  to  have  shifted.  "  The  simple 
fact  is,  that  under  this  mode  of  pleading,  as  compared  with  a  strictly  accurate 
mode,  the  time  fixed  for  setting  up  the  affirmative  case  is  different ;  instead  of 
requiring  that  it  be  disclosed  before  the  pleadings  are  ended,  it  is  allowed  to 
be  made  known  during  the  progress  of  the  trial."  62  Some  slight  color  of 
principle  is  given  this  process  by  the  fact,  above  referred  to,63  that  many  de- 
fences which,  under  common  law  pleading  were  affirmative,  e.g.,  infancy, 
coverture  and  the  like,  really  show  that  the  other  party  never  had  a  cause  of 
action.04  Of  these  the  defendant  in  a  trial  conducted  under  statutory  plead- 
ing may  properly  avail  himself,  though  his  only  statement  is  a  general  denial 
of  the  plaintiff's  case.65 

Counterclaim  or  Set-Off. —  The  filing  of  a  counterclaim  or  set-off  does  not 
affect  the  burden  of  proof  in  the  main  action.66  It  merely  amounts  to  a  cross- 
action,  in  which  the  burden  of  proof  is  as  it  would  have  been  if  that  suit  had 
been  brought  as  an  independent  proceeding.  As  to  all  allegations  in  his 
declaration,  or  affirmative  replication  which  are  denied,  the  plaintiff  in  set-off 
or  counterclaim  has  this  burden  of  proof.67  including  the  allegation  of  dam- 
ages.08 As  to  any  affirmative  plea,  either  in  answer.69  or  rejoinder,  the  de- 

E.  406    (1901)  ;  Chapman  v.  Meiling,  147  111.  of  pleading  may  be  found  in  the  defence  of 

App.    411     (1909);    Pierce    v.    Stolhand,    141  contributory  negligence,  Indianapolis,  etc.,  R. 

\Vis.  286,   124  X.  \V.  259    (1910)  ;   2  Chamb.,  R.  v.  Horst,  93  U.  S.  291    (1876)  :  which  the 

Ev.,  §  952,  note  7,  and  cases  cited.  common    law    frequently    required    should    be 

60.  Gatlin  v.  Vaut,  6  Ind.  Terr.  254.  91  S.  taken  by  affirmative  plea.     Stone  v.  Hunt.  94 
W.  38   (1901).  Mo.  475   (1887). 

61.  §§  et  se<j  ;  2  Chamb..  Ev..  §§  938  et  seq.;  66.  Gile  v.  Sawtelle,  94  Me.  46.  46  Atl.  786 
Tarbox  v.  Eastern  Steamboat  Co..  50  Me.  339  (1900). 

(1S62);  Brown  v.  King.  5  Mete    (Mass.)   173  67.  Wetherell    v    Hollister,    73   Conn.    622, 

(1842).  48   Atl.    826    (1901):    Holmes   v.   McKennan, 

62.  2  Chamb.,  Ev.,  §  953:   Thayer,  Prelim.  120  111.  App.  320   (1905)  :  Murphy  v.  Cooper. 
Treat.  Ev.,  379  41    Mont.   72.   108  Pac.   576    (1910):    Liberty 

63.  §  396.  note  41;   2  Chamb,   Ev.,  §  947.  Wall   Paper   Co    v.   Stoner   Wall   Paper  Mfg. 
note  1.  Co..    178    X.    Y.    210.    70    X.    E.    501     (1904); 

64.  Starratt  v.   Mullen.   148  Mass.   570,  20  Davis-Colby  Ore   Roaster  Co.   v.   Rogers.   191 
X    E.  178,  2  L.  R.  A    697    (1889).  Pa.  St.   229.  43   Atl    567    (1899):   2  Chamb.. 

65.  "  When  a  general  denial  is  pleaded,  all  Ev  ,  §  954.  n.  2.  and  cases  cited 

defences  may  be  proved  under  the  issues  just  68.  Pocono  Spring  Water  Tee  Co.  v.  Ameri- 

formed,  except  a  set-off  or  a  counterclaim."  can  Ice  Co..  214  Pa    640.  64  Atl.  398   (1906). 

AlcCloskey  v   Davis.  8  Tnd    App.   190   (1893).  69.  Rumbouah    v.    Southern    Imp     Co.,    109 

A  further  example  of  this  anomalous  method  N.  C.  703,  14  S.  E.  314  (1891) 


§§  299,400  BURDEN  OF  PEOOF.  22S 

fendant  in  set-off  or  counterclaim  has  the  burden  of  proof.  The  same  rule 
applies  when  cross  bills  in  equity  or  cross  complaints  at  the  law  are  tried  to- 
gether. Each  of  the  contending  parties  has  the  same  burden  as  if  the  suit,  as 
to  which  the  inquiry  is  made,  had  presented  the  sole  issue  for  trial."' 

§  399.  [Position  of  Burden  of  Proof] ;  Actions  in  Rem,  etc. —  Where  there  are 
no  common  law  pleadings,  as  where  one  intervenes  in  a  pending  proceeding  as 
claimant,'1  the  burden  of  proof  is  place..!  by  procedure  or  administration  in 
accordance  with  the  natural  rule  upon  the  defendant,  claimant  or  party  seek- 
ing affirmative  action.  tSo,  where  one  institutes  an  action  in  rein,  seeking 
affirmative  action  in  his  own  behalf:  —  as  for  the  probate  of  a  will,72  or  seeks 
relief  in  any  other  special  proceeding  as  where  the  party  appeals  from  an 
order,73  or  sues  to  condemn  land,74  or  to  recover  damages  arising  from  the 
exercise  of  the  right  of  eminent  domain,75  the  burden  of  proof  is  upon  him. 
So  also,  where  a  petitioner  asks  to  be  declared  elected  to  an  office.70  An  inter- 
veiior  who  fails  to  support  his  claim  by  proof  will  be  defeated.77 

§  400.  [Position  of  Burden  of  Proof] ;  Criminal  Cases ;  Burden  on  Prosecution. 
• —  The  rules  regulating  the  burden  of  proof  in  either  of  its  dual  senses,  are  the 
Bame  in  criminal  as  in  civil  cases.  Where  no  statutory  regulation  exists  to 
the  contrary,78  the  burden  of  proof  is  upon  the  government  to  establish  beyond 
a  reasonable  doubt,7"  every  material  allegation  necessary  to  the  existence  of  the 
offence  charged, s"  including  that  alleging  any  specific  intent  necessary  to  con- 
stitutes the  offence,**1  or  any  mental  state,  such  as  knowledge.82  required  by 

70.  Fit/herald  v.  Goff,  90  Tnd.  28    (1884)  ;       X.  W   84   (1892)  ;  2  Chamb.,  Ev.,  §  956,  n.  1, 
Muir  v.  Kalama/oo  Corset  Co.,  155  Mich.  441,       and  cases  cited. 

119    X.    \V.    589,    15    Detroit    Lejr    N.    1074  79.   Dorsey  v.  State,   110  Ga.  331,  35  S.  E. 

(1909).  tiol   (1900)  ;  Schintz  v.  People,  178  111.  320.  52 

71.  Eastmore  v.   Bunkley,   113  Ga.   637.  39  X.    E.  903    (1899);   State  v.   Scheve,  65  Neb. 
S.  E.  105   (1901):  Miller  v.  Pryse.  20  Ky.  L.  *53,  93  X.  W.   169.  59  L.  R.  A.  927    (1903); 
Rep.   1544,  49  S.  W.  776    (1899)  :   2  Chamb.,  People  v.  Baker,  96  X.  Y.  340  (1884)  ;  Agnew 
Ev.,  §  955,  n    1,  and  cases  cited.  v.  T.  S.,  165  U.  S.  36,  17  S.  Ct.  235    (1896)  ; 

72.  Ware    v.    Ware.    8    Greenl.     (Me.)     42  2  Chamb..  Ev.,  §  956,  n.  2.  and  cases  cited. 
(1831):    Crowninshield    v.    Crowninshield.    2  80.  Fitch  v.   People.  45  Colo.  298.  100  Pac. 
Gray    (Mass.)   524    (1854);  2  Chamb.,  Ev.,  §  1132    (1909):    Jones   v.    State.    113   Ga.    271, 
955,  n.  2,  and   cases  cited.  38  S.  E.  851    (1901);   State  v.  Grimstead,  62 

73.  Lloyd     v.     Trimleston,     2     Molloy     81  Kan.    593.    64    Pac     49     (1901);     People    v. 
(1829).  Downs,  123  X.  Y.  558.  25  X.  E.  988    (1890)  ; 

74.  Xeff  v.  Reed,  98  Tnd   341    (1884).  Guatavenson  v    State,   10  Wyo.   300.  68   Pac. 

75.  Montgomery  Southern  R.  Co    v.  Sayre,  1006   (1902)  ;  2  Chamh.,  Ev.,  §  950,  n.  3,  and 
72  Ala.  443   (1882)  :  Williams  v.  Macon,  etc.,  cases  cited. 

R.  Co..  94  Ga.  709.  21   S.  E.  997    (1894).  81.  Com.  v.  McKie.  1  Gray    (Mass.)   61.  61 

76.  In  re  Stanstead  Election  Case,  20  Can.  Am.    Dec.    410     (1854):    State    v.    Judd,    20 
Supreme  Ct    12    (1891).  Mont.    420.   51    Pac.    1033    (1S9S):    Jones   v. 

77.  Campbell  v   J.  I.  Campbell  Co.,  117  La.  State.  51   Ohio  St.  331.  38  X.   E.  79    (1894); 
402.  41   So.  696    (1906).  2  Cliamb..  Ev..  §  956.  n    4.  and  capes  rited. 

78.  Sanders  v    State,  94  Tnd.   147    (1S83)  -.  82.  Binklpy  v    State,  51  Tex.  Cr.  R.  54,  100 
Ortwein  v.  Com.,  76  Pa.  St.  414.  18  Am    Rep.  S.  W.  7SO    (1907). 

420    (1874);   Revoir  v.  State.  8  Wis.  295,  52 


229  POSITION  OF  BUKDEN.  §  400 

substantive  law  to  prove  the  criminal  liability  of  the  accused.83  The  truth  of 
all  such  allegations  is'  put  in  issue  by  the  general  negative  plea  of  not 
guilty.84 

Presumption  of  Innocence. —  The  procedural  rule  of  the  burden  of  proof 
upon  the  prosecution  is  stated  in  the  reverse  form,  i.e.,  in  terms  of  the  de- 
fendant's right  to  insist  upon  the  more  affirmative  rule.  Thus,  "all  persons 
are  presumed  to  be  absolutely  innocent  of  the  crime  charged  against  them,  in 
its  entirety  and  in  all  its  material  parts,  until  the  jury  tinds  to  the  contrary,  on 
proper  instructions,  based  on  competent  and  relevant  testimony.''  s5 

Corpus  Delicti. —  The  affirmative  proof  logically  and  therefore  legally  SG  in- 
volves, in  a  criminal  case,  two  main  propositions;  —  (1)  The  crime  charged 
was  committed;  (2)  It  was  committed  by  the  accused.  Proof  that  some  one 
has  committed  the  offence  charged,  i.e.,  that  the  corpus  delicti,  the  body  of  the 
offence,  or  the  offence  itself,  must  be  clearly  established,87  as  a  necessary  pre- 
liminary in  order  that  the  attention  of  the  tribunal  should  be  directed  to  the 
second  proposition,  i.e.,  that  the  accused  committed  it.88 

Competency  of  Evidence. —  It  is  the  duty  of  the  state  to  show  affirmatively 
that  its  evidence  is  competent,  that  its  witnesses  are  qualified  by  knowledge 
and  otherwise,  to  testify,  that  no  privilege  exists  in  the  matter.  The  state 
must  show,  if  objection  is  made,  that  it  is  not  valid.  Tn  case  of  documentary 
evidence,  it  must  show  that  it  is  admissible.  Thus,  a  confession  89  must  be 

* 

affirmatively  shown  to  have  been  voluntary.90 

Negative  Allegations. —  Where  proof  of  the  offence  charged  involves  show- 
ing negative  allegations,  the  state's  burden  of  proof  may  require,  that  so  far  as 
reasonably  capable  of  proof,  these  should  be  established  by  the  prosecution. 
And  where  the  legislature  or  judiciary  has  established  certain  exceptional 
states  of  fact  under  which  the  penalties  prescribed  by  law  do  not  attach,  it  is 
the  duty  of  the  state  to  negative  the  existence  of  these  both  in  allegation  and 
proof.91  So  where  the  observance  of  a  particular  procedural  requirement, 
e.g.,  corroboration,92  is  made  a  proviso  upon  the  operation  of  a  statute,  the 
burden  is  on  the  prosecution  to  show  compliance  with  the  condition. 

Offence  Not  Outlawed,  etc. —  The  state  is  compelled  of  necessity  to  show 

83.  State  v.  Lax,  71   X.  J.   L.  386,  59  Atl.  87.  Younkins  v   State.  2  Cold.   (Tenn.)   219 
18    (1904).  (1865)  ;   2  Chamb.,  Ev..  §  95S. 

84.  Cooper  v.  State,  2  Qa.  App.  730.  59  S.  88.  I".  S.  v.  Searcey,  26  Fed.  435   (1885). 
E.  20  (  1907)  ;  State  v.  Pressler,  16  Wyo.  214,  89.  2  Chamb.,  Ev.,  §§  959,  1472  et  seq. 

92  Pac.  806   (1907).     Special  pleas  in  bar  are  90.  Smith  v.  State,  74  Ark.  397.  85  S.  W. 

not,  as  a  rule,  required,  and  affirmative  pleas  1123    M905i. 

by  way  of  confession  and  avoidance  are  but  91.  Ferguson  v.  State,   1   Ga.  App.  841,  58 

seldom  required.  S.  E.  57    (1907)  ;  2  Chamb..  Ev.,  §  960. 

85.  Cook  v.  State.  85  Miss.  738.  749.  38  So.  92.  State  v.  Connor,  142  X.  C.  700.  55  S.  E. 
110   (19051.     See  United  States  v    Heike   (N.  787    (1906).     Certain   distinctions   are,   how- 
Y.     1910),     175     Fed.    852.     2    Chamb.,    Ev.,  ever,  to  be  taken.     See  Richardson  v.   State, 
§   957.  77    \rk.  321.  91    S.   VY    758    (1905)-.    State  v. 

86.  2  Chamb.,  Ev..  §§  385  et  seq.  Mills,  182  Mo.  370,  81  S.  W.  867   (1940). 


§  401  BURDEN  OF  PROOF.  230 

that  the  alleged  acts  were  done  at  a  time  when  it  was  unlawful  to  do  them,93 
i.e.,  after  the  passage  of  a  statute  prohibiting  the  doing  of  the  acts  in  question,94 
before  the  finding  of  the  indictment,95  and  also  that  the  prosecution  is  not 
barred  by  any  general  or  special  statute  of  limitation.96 

Sanity. —  Within  this  burden  is  that  of  showing  that  the  act  alleged  was 
committed  by  a  person  mentally  responsible,  in  a  legal  sense ;  97 —  that  is,  that 
the  accused  was  sane  at  the  time  he  did  the  act  in  question  to  an  extent  which 
makes  him  amenable  to  its  legal  consequences.  The  defence  of  insanity,  there- 
fore, merely  raises  a  question  as  to  the  position  of  the  burden  of  evidence.98  It 
is  not  an  affirmative  defence.99  Evidence  with  regard  to  it  may  be  given 
under  a  general  plea  of  not  guilty,1  and  should  a  reasonable  doubt  as  to  the 
prisoner's  sanity  be  found  by  the  jury  he  is  entitled  to  be  adjudged  not  guilty 
by  reason  of  insanity.  As  in  civil  cases,2  and  actions  in  rem,  e.g.,  proceedings 
involving  the  probate  of  a  will,3  the  presumption  of  law  as  to  sanity  4  has  no 
effect  upon  the  burden  of  proof ; 5 —  however  strongly  it  may  sustain  or 
"  shift  "  the  burden  of  evidence? 

Venue. —  The  government's  proof  must  meet  the  requirements  of  place,  as 
well  as  those  of  time.  The  offence  must  be  shown  to  have  been  committed  in 
the  county  alleged  in  the  indictment,  i.e.,  the  proper  venue  must  be  estab- 
lished.7 Thus,  on  an  indictment  in  the  Federal  courts  it  must  be  shown  by 
the  state,  if  the  offence  was  committed  on  land  that  the  particular  place  was 
within  the  jurisdiction  of  the  United  States.  If  on  the  high  seas,  the  proof  is 
that  it  was  committed  011  a  vessel  belonging  to  a  citizen  of  the  country.8 

§  401.  [Position  of  Burden  of  Proof];  Affirmative  Defences. —  The  prosecu- 
tion's burden  of  proof  in  criminal  cases  requires  from  it  ultimate  proof  of 

93.  State  v.  Newton,  39  Wash.  491,  81  Pac.  S.Baxter    v.    Abbot,    7    Gray    (Mass.)    71 
1002   (190.5).  (1856). 

94.  Lawrenceville  v.  Crawford,  60  Ga.   162  4.  §         ,  infra;  2  Chamb.,  Ev.,  §  1055. 
(1878).  5.  Dacey   v.   People,    116   111.   555    (1886); 

95.  Com.  v.  Graves,  112  Mass.  282   (1873)  ;  People  v.  Garbutt,  17  Mich.  9   (1868)  ;  Broth- 
State  v.  Hughes,  82  Mo.  86  (1884)  ;  2  Chamb.,  erton  v.  People,  75  N.  Y.  159   (1878). 

Ev.,  §  961,  n.  3,  and  cases  cited.  6.  Com.    v.    Heath,    11    Gray    (Mass.)    303 

96.  Askew  v.  State,  3  Ga    App.  79,  59  S.  E.  (1858)  ;  2  Chamb.,  Ev.,  §  962,  n.  9,  and  cases 
311    f  190" )  ;  State  v.  Schuerman,  70  Mo.  App.  cited.     See  also  Davis  v.  LT.  S.,  160  V.  S.  469, 
518   (1897)  ;  State  v.  Carpenter,  74  X.  C.  230  485   (1895). 

(1876)  ;  2  Chamb.,  Ev.,  §  961.  n.  4,  and  cases  7.  Barnes  v.  State,  134  Ala.  36,  32  So.  670 

cited.  (1901);     People     v.     Tarpey,     59     Cal.     371 

97.  State  v.  Crawford,  11  Kan.  32   (1873)  ;  (1881)  ;  Jones  v.  State.  113  Ga.  271,  38  S.  E. 
Fife  v.  Com.,  29  Pa.  429   (1857);   2  Chamb.,  851    (1901);   Huston   v.   People,   53   111.   App. 
Ev.,  §  962,  n.  1.  501    (1893)  :  State  v.  Tosney,  26  Minn.  262,  3 

98.  §  404:  2  Chamb.,  Ev.,  §  974.  X.   W.   345    (1879);   State  v.   Young,  99  Mo. 

99.  State  v.  Pressler.  supra.  284,  12  S.  W.  642    (1889);  Larkin  v.  People, 

1.  State  v.  Speyer,  207  Mo.  540,  106  S.   VV.  61    Barb.    (X.  Y.)   226;  2  Chamb.,  Ev.,  §  963 
505    (1907).  and  oases  cited. 

2.  See  Jones  v.  Granite  State  Fire  Ins.  Co.,          8.  I".  S.  v.  Tmbert,  26  Fed.  Gas.  No.  15,438, 
90  Me.  40,  37  Atl.  326  (1897).  4  Wash.  702   (1827). 


231  POSITION  OF  BURDEN.  §  401 

propositions  which  may  be  negative  in  form ;  —  as  the  non-existence  of  justi- 
fication,9 mitigating  circumstances  10  and  the  like.  The  burden  of  evidence, 
however,  is  frequently  transferred  to  the  defendant,  in  respect  to  these  matters, 
whenever  the  government  succeeds  in  establishing  a  prima  facie  case,11  i.e., 
by  proof  beyond  a  reasonable  doubt.  Even  in  the  case  of  an  affirmative  defence, 
there  is,  however,  no  burden  of  proof  upon  the  defendant  in  a  criminal  case. 
"  It  is  a  prisoner's  burden,  the  only  burden  ever  put  upon  him  by  law,  that  of 
satisfying  the  jury  that  there  is  a  reasonable  doubt  of  his  guilt."  12 

Insanity. —  In  large  part  by  reason  of  the  confusion  between  burden  of  proof 
and  burden  of  evidence,  a  rule,  entirely  indefensible  in  point  of  principle,  has., 
in  several  jurisdictions,  been  adopted  to  the  effect  that  where  the  defendant 
relies  on  the  defence  of  insanity  the  burden  of  proof  is  on  him  to  establish  it 
by  a  "  fair  preponderance  of  the  evidence  "  13 —  or  "  to  the  satisfaction  of  the 
jury  by  a  preponderance  of  the  evidence."'  14  Until  the  preponderance  of  evi- 
dence is  furnished,  the  government's  presumption  of  sanity  15  is  said  to  be  a 
"  full  equivalent "  of  express  proof  of  sanity.16  The  proposition  actually  an- 
nounced is  that  insanity,  in  a  criminal  case,  is  an  affirmative  defence. 

9.  State  v.  Morphy,  33   Iowa  270,   11    Am.       St.  317,  73  X.  E.  218   (1005)  :  2  Chamh.,  Ev., 
Kep.  122   (1877)  ;  State  v.  Hirsch,  45  Mo.  429       §  966,  n.  1,  and  cases  cited. 

(1870).  14.  Fults  v.  State,  50  Tex.  Cr.  R.  502,  98 

10.  \Vharton  v.  State,  73  Ala.  366   (1883);  S.  W.   1057    (1906).     A  closer  approximation 
Agnew  v.   17.  S.,  165  U.  S.  36,  17  S.  Ct.  235,  to  the  true  rule  is  reached  when  the  state- 
41  L.  ed.  624    (1896)  ;  2  Chamb.,  Ev.,  §  965,  ment  is  made  that  the  burden  of  proof  is  on 
n.  2,  and  cases  cited.  the  defendant  in  a  criminal  case  to  raise  a 

11.  §  409,  infra;  2  Chamb.,  Ev.,  §  992.  reasonable  doubt  as  to  his  sanity.     Johnson 

12.  Com.  v.    York's  Case,  9   Mete.    (Mass.)  v.  State,  57  Fla.  18,  49  So.  40    (1909).     See 
93,  98    (1845).     And  see  State  v.  Schweitzer,  State   v.   Craig,   52    Wash.    66,    100   Pac.    167 
57  Conn.  532    (1889),  as  to  the  proper  rela-  (1909),  the  state  has  not  the  burden  of  re- 
tions    l>etween   the   two   burdens   of   '"  proof  "  moving  such  doubt  by  a  preponderance  of  evi- 
and  "  evidence."  dence. 

13.  People  v.  \Yillard.  150  Cal.  543,  89  Pac.  15.  Infra.  §  404:  2  Chamb.,  Evv  §  974. 
124   (1907)  :  State  v    Porter.  213  Mo.  43.  Ill  16.  State  v.  Austin,  supra.     See  2  Chamb., 
S.  W.  529   (1908)  ;   State  v.  Austin,  71  Ohio  Ev.,  §  966. 


CHAPTER  XII. 

BURDEN  OF  EVIDENCE. 

Burden  of  evidence,  402. 
Position  of  burden  of  evidence,  403. 
criminal  cases,  404. 
facts  known  to  adverse  party,  405. 
negative  facts,  406. 
Scope  of  burden  of  evidence,  407. 

quantum  of  proof  required ;  number  of  witnesses,  408. 
•prima  facie  case,  409. 
special  inertia  of  the  Court;  civil  cases,  410. 

documents,  411. 
criminal  cases,  412. 
Effect  of  presumptions,  413. 

g  402.  Burden  of  Evidence —  The  burden  of  evidence  presents  radical  dif- 
ferences both  in  quality  and  position  from  the  burden  of  proof.  In  position, 
the  burden  of  proof  is  unchanging;  once  imposed,  it  remains.  The  burden 
of  evidence  may  "shift''  to  any  extent,  alternating  between  the  parties  ac- 
cording to  the  exigencies  of  the  trial.  The  position  of  the  burden  of  proof 
is  determined  by  the  pleadings.  That  of  the  burden  of  evidence  has  no 
necessary  or  invariable  connection  with  them.1  In  quality,  the  burden  of 
proof  is  a  forensic  necessity.  The  burden  of  evidence  is  a  logical  necessity.2 

§  403.  Position  of  Burden  of  Evidence. —  The  incidence  of  the  burden  of 
evidence  at  the  beginning  of  the  trial  is  upon  the  party  having  the  burden  of 
proof,  i.e.,  upon  the  actor,  until  he  shall  have  established  a  prima  facie  case 
in  his  favor  as  to  the  truth  of  every  material  allegation  embraced  in  his  affirma- 
tive case.3  As  soon  as  the  party  having  the  burden  of  proof  establishes  these 
facts  the  burden  of  evidence,  so  far  as  he  is  concerned,  is  discharged,4  and  is 

1.  2  Chamb.,  Ev.,  §  967.     See  Farmers'  L.  burden   of  evidence  may  establish   his  primn 
&  T.   Co.   v.   Siefke,   144  N.   Y.   354,   359.   39  farie  case  entirely  by  adducing  evidence,   or 
N.  E.  358    (1895).  be  may  establish  a  prima  farie  inference  or 

2.  2   Chamb.,   Ev.,   §§   967,   908.   and   cases  presumption  of  law,  as  it  is  called.     2  Chamb., 
cited.  Ev.,  §§  969.  1035  et  seq.:  1184  et  seq. 

3.  Peck   v.   Sciville   Mfjr.   Co..   43   Til.   App.  4.   Williams    v.    Casebeer,    126    Cal.    77,   53 
360  (  1891  )  :  Sun  L.  Ins.  Co.  v.  Sei?ler.  19  Ky  Pac.   380    .'1809}  :    Turner  v.  Wells.  64  N.  J. 
L.  Rep.    1227    (1897),  42   S.  \V.    1137:    Star-  L.    269.    45    Atl.    041     (1900);    Heineman    v. 
ratt  v.  Mullen,  148  Mass.  570.  20  X.  E.  178,  Heard,  02  X.  V.  448    (1875)  :   2  Chamb.,  Ev., 
2  L.  R.  A.  697   (1889)  :  2  Chamb..  Ev..  §  909.  §  969,  n.  5,  and  cases  cited. 

n.  1,  and  cases  cited.     The  party  having  the 

232 


233 


POSITION    OF    Bt'KUEX. 


transferred  to  his  adversary,  the  reus  or  i  .nactor,  and  remains  with  him  so 
long  as  the  actor's  original  case  continues  to  retain  its  prima  facie  quality.0 
The  position  of  the  burden  of  proof  in  the  meantime  stands  in  no  way  af- 
fected.6 The  burden  of  evidence  may,  and  frequently  does,  vibrate  between 
the  parties;  —  and  is  a  necessary  and  usual  incident  of  any  contest  to  be 
determined  by  the  use  of  facts,  as  the  establishment  of  a  prima  facie  case 
presents  to  a  party  the  alternative  of  producing  evidence  to  meet  it  or  of 
being  defeated  in  the  action.7 

§  404.  [Position  of  Burden  of  Evidence] ;  Criminal  Cases. —  The  burden  of 
proof,  in  point  of  principle,  never  rests  in  a  criminal  case  anywhere  save 
upon  the  government.  All  the  accused  need  do  in  any  event,  whether  he  13 
directly  assailing  the  constituent  facts  of  the  government's  case  or  setting  up 
new  facts  inconsistent  with  it,  is  to  raise  a  reasonable  doubt8  While  there 
is  no  affirmative  plea  in  criminal  cases  in  the  sense  of  a  shifting  of  the 
burden  of  prof,  there  is  an  affirmative  defense  under  the  general  negative 
traverse  of  not  guilty  which  resembles  an  affirmative  plea  in  so  far  as  the 
burden  of  evidence  as  to  it  is  on  the  defendant,9  the  accused  at  the  same  time 
being,  of  course,  at  liberty  to  use  any  facts  favorable  to  his  contention  which 
have  developed  during  the  proof  of  the  government's  original  case.10 

5.  Jones   v.    Ualvern    Lumber   Co.  58   Ark.       an  operation  the  surgeon  has  the  burden  of 

proving  that  he  used  due  care  after  evidence 
is  introduced  that  the  sponge  was  left  and  he 
does  not  meet  this  burden  by  showing  that 
the  nurses  reported  to  him  that  the  sponges 
had  all  been  removed,  as  it  may  have  been 
his  duty  to  count  the  sponges  or  investigate 
personally,  and  there  should  be  some  evidence 
showing  why  he  did  not  or  could  not  do  this. 
Davis  v.  Kerr,  239  Pa.  351.  86  Atl.  1007,  46 
L.  R.  A.  (X.  S.)  611  (1913). 

8.  People  v.  Bushton,  80  Cal.  160,  22  Pac. 
127,  549  (1889);  State  v.  Beasley,  84  Iowa 
83,  50  X  W.  570  (1891);  State  v.  Howell, 
100  Mo.  628,  14  S.  W.  4  (1890)  ;  People  v. 


125,  23  S    W.  679    (1893)  ;   Whitney  v.  Mor- 
row, 50  Wis.  197,  6  X.  W.  494   (1880). 

6.  Phipps  v    Mahon,    141    Mass.  471,  5   N. 
E     835     (1886);     Caldwell    v.    Xew    Jersey 
Steamboat  Co.,  47  X.  Y.  282    (1872)  :   Atkin- 
son v.  Goodrich  Transp    Co.,  69  Wis.  5,   13, 
31  X.  W.  164   (1887);  2  Chamb ,  Ev  ,  §  969, 
n.    <,   and    cases    cited.     As    to   Difficulty    of 
Proof,  see  2   Chamb.,  Ev.,   §  970,  and  cases 
cited. 

7.  Carroll  v.  Boston  Elevated  Ry.  Co.,  200 
Mass.   527.  86   X.   E.   793    (1909);    Berger  v. 
St.  Louis  Storage  &  Commission  Co..  13f»  Mo. 
App.    36,    116    S     W.    444    (1909);    Toube   v. 
Rubin-Blankfort  Co,  63  Misc.  298,  116  X    Y. 
Supp   673   (1909)  :  2  Chamb.,  Ev  .  §  971,  and 
cases  cited.     In  an  action  against  a  bailee  to 
recover   for   loss  of   goods   when  the  loss   is 
established,  the  burden  then  rests  on  the  de- 
fendant to  establish  a  defence,  but  when  he 
proves  that  the  loss  took  place  through  fire, 
robbery  or  theft  or  by  any  other  means  which 
would  seem  to  be  unavoidable,  the  burden  of 
proving  negligence  then  shifts  to  the  plaintiff, 
but  on  the  whole  case  the  burden  of  proving 
the   facts   essential  to  recovery   rests   on  the 
plaintiff.     Stone  v.  Case.  34  Okla.  5.  124  Pac. 
960,  43  L.  R.  A.  (X.  S.)  116S  (1912).     In  an 
action  for  leaving  a  sponge  in  a  patient  after 


Riordan,  117  X*.  Y.  71,  22  X  E.  455  (1889); 
2  Chamb  ,  Ev.,  §  972,  n.  2,  and  cases  cited. 

9.  Rayburn  v.  State,  69  Ark.  177,  63  X". 
W.  356  (1901)  :  State  v.  Schweitzer.  57  Conn. 
532,  18  Atl.  787.  6  L.  R.  A.  125  (1889): 
Pierce  v.  State.  53  Oa.  365  (1874)  :  Williams 
v.  People,  121  Til.  84,  11  X.  E.  881  (1887): 
State  v.  Wright,  134  Mo.  404,  35  S.  W7.  1145 

(1896)  ;  Com.  v.  Zelt.  138  Pa.  St.  615.  21  Atl. 
7,  11  L.  R.  A.  602  (189H  :  Agnew  v.  U.  S.. 
165  L.  S  36.  17  S.  Ct.  235.  41  L.  ed.  624 

(1896)  ;  2  Chamb..  Ev.,  §  072,  n.  3.  and  cases 
cited. 

10.  Leslie  v.  State.  35  Fla    171,  17  So.  555 
(1895)  ;  Dacey  v.  People.  116  111.  555,  6  N".  E. 


§  404  BURDEN  OF  EVIDENCE.  234 

Alibi. —  Prominent  among  these  defences  is  that  of  alibi.  It  is  not  an 
affirmative  defense  as  to  which  the  defendant  has  assumed  the  burden  of 
proof.11  In  a  majority  of  jurisdictions,  the  correct  rule  is  adopted;  —  that  it 
is  a  necessary  part  of  the  government's  case  to  show,  when  disputed,  that  the 
defendant  was  present  at  the  scene  of  the  doing  of  the  alleged  act  at  the  time 
when  he  is  claimed  to  have  done  it.  Consequently,  it  has  been  held  that 
while  the  burden  is  on  the  defendant  to  introduce  evidence  sufficient  to  raise 
a  reasonable  doubt  that  the  burden  of  proof  still  continues  to  be  on  the  prose- 
cution as  to  this  necessary  element  of  its  case,  and  that,  if  a  reasonable  doubt  is 
left  in  the  minds  of  the  jury  as  to  whether  the  accused  actually  was  present 
at  the  scene  of  the  crime  at  the  time  when  he  must  have  been  there  in  order  to 
have  committed  it,  he  is  entitled  to  an  acquittal.12 

Insanity. —  The  same  rule  is  to  be  applied  in  cases  where  the  defence  is 
that  the  defendant  is  not  responsible  by  reason  of  idiocy  or  insanity.  The 
burden  of  proof  upon  the  state  in  a  criminal  case  extends  to  establishing  the 
proposition  that  the  defendant,  at  the  time  of  committing  the  offense,  was 
not  rendered  irresponsible  by  reason  of  inability  to  recognize  the  nature  and 
consequences  of  his  act ;  —  otherwise  stated,  for  legal  purposes,  that  he  is  of 
sound  mind.13  In  other  words,  the  burden  of  proof  is  on  the  government 
to  prove  defendant's  sanity  beyond  a  reasonable  doubt.14 

/J 'resumption  of  Sanity. —  As  experience  shows  that  men  in  general  possess 
this  degree  of  mental  capacity,  it  will  be  inferred  that  the  defendant  in  any 
particular  case  was  sane.1"  Upon  this,  so-called  "  presumption  of  sanity  "  the 
government  may  rest  this  particular  portion  of  its  prima  facie  case;  and,  if 
on  the  whole  case,  whether  the  inferences  are  drawn  from  facts  presented  by 
the  government  or  from  those  submitted  by  the  defendant,  the  latter  succeeds 
in  creating  a  reasonable  doubt,  he  should  be  acquitted.16  But  until  a  reason- 
able doubt  appears  the  burden  of  evidence  is  upon  the  accused  to  create  one.17 

165    (1886)  ;  2  Chamb.,  Ev.,  §  972,  n.  4,  and  Fla.  51    (1886)  ;  Klein  v.  People.  113  111.  596 

cases  cited.  (1885)  :  State  v.  Fenlason.  78  Me.  495,  7  Atl. 

11.  Com.  v.  Choate,  105  Mass.  451    (1870)  :  385    (1886)  ;    2   Chamb.,   Ev.,  §   973,  notes   3 
Briceland    v.    Com..    74    Pa.    463    (1873);    2  and  4,  and  cases  cited. 

Chamb.,  Ev.,  §  973  and  cases  cited.  13.  A   deaf   and   dumb   defendant   must   be 

12.  McXamara   v.   People,   24   Colo.   61,   48  shown  to  have  been   sane.     State   v.  Draper, 
Pac.  541    (1897);   Harrison  v.  State.  83  Ga.  Houston    Cr.    Cas.     (Del.)     291     (1868);     2 
129,  9   S.   E.  242    (1889);    State   v.   Conway,  Chamb.,  Ev.,  §  974. 

55  Kan.  323,  56  Kan.  582,  40  Pac  661   ( 1895)  ;  14.  State  v.  Crawford,  11  Kan.  32   (1873)  ; 

People  v.   Pichette,   111  Mich.  461.  69  N.  VV.  Com.  v.   Eddy.  7  Gray    (Mass.)    583    (1856); 

739    (1897);    Sherlock   v.   State.  60  N.   ,1.   L.  People  v.  Garbutt,  17  Mich.  9    (1868):  State 

31.  37  Atl.  435   (1*07)  ;   Walters  v.  State,  39  v.  Jones,  50  N.  H.  369.  400  (1871)  :  2  Chamb., 

Ohio   St.   215    (1883):    Glover   v.   U    S..    147  Ev..  §  974,  notes  2  and  3. 

Fed.  426.  77  C.  C.  A.  450   (1906)  :  2  Chamb.,  15.  Sutton    v.    teadler,    3    C.    B.    N.    S.    87 

Ev.,    §    973.    n.    2.    and    cases    cited.     Other  (1857);  Baxter  v.  Abbot,  7  Gray   (Mass.)   71 

courts  treat  alibi  as  if  it  were  an  affirmative  (1856)  ;  2  Chamb.,  Ev.,  §  974,  n.  4.  and  cases 

defense  in  a  civil  action  on  which  the  accused  cited. 

has  the  burden  of  proof.     Bacon  v.  State,  22  16.  Montag  v.  People,  141  111.  75,  30  N.  E 


235  POSITION  OF  BURDEN. 

Continuance  of  Mental  State. —  There  is  an  inference  from  experience  that 
when  a  permanent  type  of  insanity  has  been  >hown  to  exist  it  will  continue 
until  shown  to  have  ceased.  Where  it  is  the  claim  of  the  government  that  the 
mental  derangement  has  ceased,  or  that,  notwithstanding  its  continuance,  the 
act  in  question  was  done  in  an  interval  of  mental  lucidity,  the  burden  of  evidence 
is  upon  the  government.  This  is  commonly  stated  thus;  —  that  where  a 
permanent  state  of  insanity  is  shown  to  exist,  the  burden  of  proof  is  upon  the 
state  to  show  that  the  offense  was  committed  during  a  lucid  interval.18  Like- 
wise, it  is  said  that  in  a  case  of  temporary  insanity,  the  burden  of  proof  is  not 
upon  the  government  to  establish  that  the  act  was  done  during  a  lucid  interval,19 
or  that,  where  the  accused  is  shown  to  have  had  lucid  intervals,  it  will  be  pre- 
sumed that  the  offense  was  committed  during  one  of  them.20 

Contrary  Views. —  It  has  proved  easy  to  turn  the  rule  that  the  burden  of 
evidence  is  on  the  defendant  in  a  criminal  case  to  introduce  evidence  of  his 
insanity,  if  such  evidence  does  not  already  appear  in  the  case  of  the  prosecu- 
tion, into  a  statement  that  the  burden  of  proof  is  on  the  defendant  to  establish 
his  insanity  by  preponderance  of  the  evidence ;  21  or,  as  is  said,  with  nearly  equal 
frequency,  to  the  satisfaction  of  the  jury.22 

Intoxication. —  While  intoxication  is  not  a  defence  to  crime  by  way  of 
justification  or  excuse,  still,  where  the  existence  of  a  specific  intent  is  a  con- 
stituent part  of  the  offence  charged  and  is  part  of  the  state's  burden  of  proof, 
the  accused  may  show  that  at  the  time  of  the  commission  of  the  offense  he 
was  incapacitated  from  mentally  forming  that  intent  by  reason  of  intoxication. 
As  to  this  he  has  the  burden  of  evidence.  This  has  been  stated  in  the  cases  to 

337    I  1892 1  :    Com    v    Gilbert,   165  Mass.   45,  19.  People  v.  Schmitt,  106  Cal.  48,  39  Pac. 

42  X    E    336    (1895)-    Kni»hts  v.   State,  58  204    (1895);    Montgomery   v.    Com.,    89    Ky. 

Neb'    2->i    78    X     W.   608,    76    Am.   Rep.    78  509,  11  S.  W.  475,  11  Ky.  L.  Rep.  40  (1889)  ; 

U8<H»  •   People  v.  Taylor,  138  X.  Y.  398,  34  Hunt  v.  State,  33  Tex.  Cr.  252,  26  S.  W.  206 

N.  E.  275  ( 1893)  :  2  Chamb.,  Ev.,  §  974,  n.  6,  ( i894)  ;  2  Chamb.,  Ev.,  §  975,  n.  3,  and  cases 

and  cases  cited.  cited. 

17    People  v  Hettick.  126  Cal.  425.  58  Pac.          20.  Ford  v.  State,  73  Miss.  ,34,  19  So   665, 

918  (1899)  ;  Keener  v.  State,  97  Ga.  388,  24  S.  35  L.  R.  A.  117    (1896)  :  U.  S.  v.  Ridgeway, 

E.  (1895)  ;  State  v.  Jones,  64  Iowa  349,  17  N.  31    Fed.    144    (1887)  ;   2  Chamb.,  Ev.,   §  975 

W    911,  20  N.  W.  470   (1884)  ;  State  v.  Law-  and  cases  cited. 

rence    57  Me    574   (1870)  ;   State  v.  Peel,  23          21.  Cavane**  v.  State.  43  Ark.  331   ( 

Mont.'  359,  59  Pac.  169,  75  Am.  St.  Rep.  52!)  People  v.  Hettrick.  126  Cal   425.  58  Pac.  ! 

(1899)  ;  O'Connell  v.  People,  87  N.  Y.  377,  41  (1809)  :    State  v    Davis.   109  N. 

Am    Rep.  379   (1882)  ;  Maas  v.  Territory,  10  S.  E.  55  (1891)  :  State  v.  Hansen.  25  Or.  .' 

Okla     714     63    Pac.    960,    53    L.    R.    A.    814  35    Pac.   976.    36   Pac.   296    (1894):    Boswell 

(1901)-  Revois  v.  State,  82  Wis.  295,  52  N.  v.    Com..    20    Gratt.     (Va.)    860     i 

W   84  ( 1892)  ;  2  Chamb.,  Ev.,  §  974,  n.  7,  and  Chamb.,  Ev.,  §  976.  n.  1  and  cases  cited. 
ca«es  cited  22    state  v-   Cole'   2  Pennew     (DeL)      44' 

18.  Armstrong  v.  State,  30  Fla.  170,  11  So.  45   Atl.   391    (1890)  :   State  v.  Scott,  4 

618    17  L  R    A   484  (1892)  :  People  v.  Mont-  Ann.  253,  21  So.  271.  26  L.  R    A.  721 

eoniery    13    Abb.  Pr.    (N.   S.)     (N.   Y.)    207  Ortwein  v  Com..  76  Pa.  414.  18  Am.  Rep.  4 

(1872)  ;   Wheeler  v.  State.  34  Ohio  St.  394.  (1874)  ;  2  Chamb.,  Ev.,  §  976,  n.  2  and  ca8es 

32  Am.' Rep.  372    (1878);   2  Chamb.,  Ev.,  §  cited. 
975,  n.  2,  and  cases  cited. 


§  405 


X  OF  EVIDENCE. 


236 


the  effect  that  the  accused  has  the  burden  of  proof  to  establish  the  fact  of  in- 
toxication by  a  fair  preponderance  of  the  evidence,23  or  even,  ft  is  said,  beyond 
a  reasonable  doubt.24 

Self-defence. —  The  burden  of  evidence  to  establish  facts  showing  action  in 
self-defence  may  rest  upon  the  accused.-0  It  has  however  been  ruled  to  the 
effect  that  where  the  accused  relies  upon  evidence  of  self-defence,  he  must 
establish  the  truth  of  that  proposition  by  a  fair  preponderance  of  the  evidence.20 

§  405.  Same ;  Facts  Known  to  Adverse  Party —  The  circumstance  that  one's 
opponent  possesses  peculiarly  full  and  complete  knowledge  relating  to  a-  fact, 
does  not,  in  and  of  itself,  proprio  v  if/ore,  shift  the  burden  of  evidence  upon 
him.27  It  is  often  said  that  facts  which  are  especially  within  the  knowledge 
of  a  party  must  be  proved  by  him.28  This  rule  is  especially  applied  where  the 
fact  particularly  well  known  to  the  other  side  presents  the  further  difficulty 
in  the  way  of  adequate  proof  that  it  is  negative.  Under  these  circumstances, 
it  occurs  with  special  frequency  that  the  other  party  is  called  upon  to  prove  it.29 


23.  .State  v.  Kavanaugh,  4  Pen.   (Del.)   131, 
5;{    Atl.    33,5     (1902);    State    v.    Sparegrove, 
134   Iowa  599,   112  N.   W.   83    (1907):    Com. 
v.  McXamee,  112  Mass.  285   (1873)  :  State  v. 
Grear,  29  Minn.  221,  13  N.  \V.  140   (18S2)  ;  2 
Chamb.,  Ev.,  §  977,  n.  2  and  cases  cited. 

24.  State  v.  Spencer,  21  X.  ,].  L.  196  (1846). 

25.  State  v.  Lee,  1   Boyce's   (24  Del.)    Rep. 
18,  74  Atl.  4   (1909)  ;  2  Chamb.,  Ev.,  §  977a. 

26.  People  v.  Schryver,  42  X.  Y.  L.  (1870)  : 
State  v.  Lee,  supra. 

27.  Anderson  v   Suggs,  42  Ga.  265   (1871)  ; 
Colorado  Coal,  etc.,  Co   v.  U.  S.  307,  8  S.  Ct. 
131,   31    L.   ed.    1S2    (1S87):    2   Chamb,   Ev., 
§  978,  n.  2  and  cases  cited. 

28.  Dirks  v.   California   Safe  Deposit,   etc., 
Co.,  136  Cal.  84,  68  Pac.  487    (1902):   Swin- 
hart  v.  St.  Louis  &  S.  Ry.  Co'.,  207  Mo.  423, 
105   S.   W.    1043    (19071:    l?rooks   v.   Garner, 
20  Okla.  236,  94  Pac.  694.  97  Pac.  995   ( 1908)  ; 
Fleming  v.   People,  27   N.  Y.   329    i 1863)  :   2 
Chamb..  Ev.,  §  978,  n.  4  and  cases  cited. 

29.  Holmes    v.    Warren.    145    Cal.    457,    78 
Pac.   954    (1904):    Fulwider  v.  Trenton   Gas, 
Light  &  Power  Co.,  216  Mo.  582.  1 16  S.  \V.  508 
(1909)  ;  2  Chamb.,  Ev.,  §  978,  n.  5  and  cases 
cited.     See  also,   §§  406.  n.   30,  n.   47.  infra. 
In    an    indictment    for    an    assault    with    a 
deadly  weapon  where  there  is  evidence  that 
the  defendant   pointed   a   pistol   at  the   com- 
plainant the  burden  of  showing  that  the  pistol 
was  not  loaded  is  upon  the  defendant.     The 
court   remarks   that   it    would   be   impossible 
in    most    cases    to   prove   this    by    the    state 


and  that  a  technical  rule  should  not  be 
allowed  to  be  set  up  in  such  a  case.  It  would 
seem  that  the  usual  rule  might  apply  that 
where  the  evidence  is  in  the  possession  of 
a  party  and  he  does  not  produce  it  this 
raises  a  presumption  against  him.  Territory 
v.  Gome-/,  14  Ariz.  139,  125  Pac.  702,  42 
L.  R.  A.  (N.  S.)  975  (1912). 

Agency. —  Where  an  automobile  which  does 
damage  belongs  to  the  defendant  this  is  prima 
facie  evidence  that  the  driver  was  the  serv- 
ant of  the  owner  and  was  driving  for  the 
owner  and  the  burden  is  upon  the  defendant 
to  overcome  this  presumption  by  competent 
evidence.  Birch  v.  Abercrombie,  74  Wash. 
486.  133  Pac.  1020,  50  L.  R.  A.  (N.  S.)  59 
(1913). 

30.  People  v.  Boo  Doo  Hong,  122  Cal.  606, 
55  Pac.  402  (1898);  Williams  v.  People, 
121  111.  84,  11  X.  E.  881  (1887);  People  v. 
Xyce,  34  Hun  (N.  Y.)  298  (1884).  See  § 
405,  n.  29,  supra,  2  Chamb..  Ev.,  §  979,  n.  1 
nd  cases  cited  Where  a  former  conviction  is 
shown  by  the  judgment  roll  the  burden  then 
falls  on  the  other  side  to  show  that  the  judg 
ment  lias  been  reversed.  State  v  Findling, 
123  Minn  413.  144  X.  W  142.  49  L  R.  A.  (N. 
S.)  449  (1913). 

Exceptions  in  Insurance  Policy. —  In  an 
action  on  an  insurance  policy  the  burden  is 
on  the  company  to  show  that  death  occurred 
from  a  cause  excepted  from  liability  by  the 
policy.  Red  Men's  Fraternal  Ass'n.  v.  Rip- 
pey,  181  Ind.  454,  103  N.  E.  345.  50  L.  R.  A. 


POSITIOX  OF  BURDEN.  §  -iOG 

§  406.  [Position  of  Burden  of  Evidence] ;  Negative  Facts —  A  special  and 
peculiarly  forcible  instance  of  the  application  of  these  rules  regarding  dis- 
charge of  the  burden  of  evidence  concerning  facts  which  are  within  the  knowl- 
edge or  control  of  the  other  party  is  afforded  where  the  fact  or  proposition  to 
which  the  burden  relates  is  in  substance  negative.30  The  rule  that  the  party 
to  whose  contention  in  the  cause  a  fact  is  essential  has  the  burden  of  evidence 
in  regard  to  it  is  in  no  way  displaced  by  the  circumstance/'1  It  is  still  part 
of  the  litigant's  burden  of  evidence  to  prove  the  negative  proposition  of  fact; 
-  as  that  a  certain  quality  does  not  exist  in  a  process,32  thing,33  or  per- 
son/'54 lie  may  properly  be  required  to  prove  that  a  certain  event  has  not 
happened,"  that  a  fact  did  not  exist,36  or  that  a  given  person  has  not  done  a 
certain  thing.37  Mere  difficulty  of  making  proof  does  not  prevent  the  tribunal 
from  requiring  him  to  show,  as  best  he  may,  that  a  designated  individual  does 
?io^  possess  a  certain  thing.38 

Quantum  of  Evidence  Required. —  But  the  quantum  of  evidence  to  be 
demanded  from  him  is  conditioned,  by  way  of  limitation,  by  the  well  recognized 
logical  difficulty  of  affirmatively  establishing  a  negative  proposition ;  :!i 
which  though  not,  as  has  been  intimated,40  a  "  maxim  of  law,"  still  presents  a 
logical  difficulty  which  usually  increases  in  proportion  to  the  universality  of 
the  negation.41  The  amount  of  proof  required  to  support  the  negative  propo- 
sition and  to  shift  the  burden  will  vary  according  to  the  circumstances  of 
the  case;  and  very  slight  evidence  will  often  be  sufficient  to  shift  the  burden 
to  the  party  having  the  greatest  opportunities  of  knowledge  concerning  the 
fact  to  be  inquired  into.42 

Methods  of  Proving  <t  Xc(/atire. —  Frequently  all  that  is  practically  possible, 
in  the  absence  of  direct  evidence,  is  the  introduction  of  testimony  establishing 

(X.   S.)    1006    (1913).     Where   an   insurance  574,    21    X.    E.    445,    12    Am.    St.    Rep.    453 

policy  excepts  accidental  injuries  the  Imrden  (1889)  ;  2  Chamb.,  Ev.,  §  979,  n.  6  and  eases 

is  on  the  insurer  to  show  that  a  wound  from  a  cited. 

burglar's  revolver  was  not  accidental  but  was  36.  Columbus  Watch  Co.  v.  Hod^npyl,   135 

intentional.     Allen    v.    Travellers'  ,  Protective  N.  Y.  430,  32  N.  E.  239    (1892) 

Asso.,  103  Iowa  217,  14.3  X.  W.  574,  48  L.  K.  37.   Bastrop   State   Bank   v.   Levy.    106   La. 

A     (X    S)    600    (1913).  586>  31  s°-   lfi4    '1902):  Little  v.  Thompson, 

31.  Pollak  v.  Winter,   166   Ala.  255.  -r>l   So.  2  Me.  228    (1823)  :   2  Chamb.,  Ev.,  §  979,  n. 
998    (1910):    State  v.  Morphy.  33  Iowa  270,  8  and  cases  cited. 

11    \m    Rep.   122    (1871):   State  v.  Read.   12  38.  Beardstown     v.     Virginia.     76     111.     34 

R    I     135    (1878)  •   °  Chamb..  Ev.,  §  979.  n.  2  (1875^  :  Com,  v.  Locke,  114  Mass.  288  (1873)  ; 

and  'cases  cited.    '  P«»ple   v.   Pease.   27    X.   V.    45.   63,    84    Am. 

32.  Kelley  v.  Owens,  95  Cal.  xvii,  M  Pac.  Dec.   242    (1863):    2   Chamb.,   Ev.,   §   979,   n. 
596   (1899)  ^  and   cases  cited 

33    State  v    Hirsch.  45  Mo.  429    (1S70K  39.  2  Chamb.  Ev..  §§  50.  980. 

34.  Lenig  v.  Eisenhart,  127  Pa.  59.  17   Atl.  40.  Colorado  Coal.  etc.  Co.  v.  1 
684   (1889";  Colorado  Coal.  etc.  Co.  v   U.  S.,  41.  2  Chamb..  Fv..  §  980.  n.  3. 

123  F    S.  307.  317.  8  S.  Ct.  131.  31   L.  cd.  1«2  42.  Kelly   v.    Owens,   supra :   Succession   of 

("jflS-n  "Delachaise    v.    Maginnis,    44    La.    Ann.    1043 

35.  Weaver  v.  State.  89  Ha.  639.   15  S.  E.  (1892). 
840    (1892):    Boulden   v.   Mclntire,   119   Ind 


§  406  BUKDEN  OF  EVIDENCE.  238 

some  particular  fact  inconsistent  with  the  converse  affirmative  proposition.43 
In  many  ways,  analogous  in  nature,  the  negative  proposition  may  be  estab- 
lished by  the  inference  arising  from  circumstantially  probative  facts  incon- 
sistent with  the  affirmative  proposition  of  which  the  negative  is  proposed  for 
proof.44  This  has  been  held  to  be  prima  facie  sufficient.45  Xatimdly,  proof 
to,  the  point  of  demonstration  is  not  required.4* 

Burden  of  Evidence  Not  Shifted. —  The  probative  force  of  evidence  of  this 
nature  may  be,  when  produced,  inconclusive;  coucliisiveness,  however,  may  be 
added  by  the  failure  of  the  other  party  to  produce  the  more  conclusive  or 
affirmative  evidence  which  is  within  his  control.47  It  is  sound  administra- 
tion, therefore,  to  hold  that  where  one  who  has  the  burden  of  evidence  to 
prove  a  negative  proposition  produces  any  proof  which  renders  its  existence 
probable,  such  evidence  shall,  where  the  concjusive  facts  are  within  the  knowl- 
edge of  the  other  party,  be  regarded  as  a  prima  facie  case.48 

Modern  Instances. —  The  rule  that  he  who  has  the  better  knowledge,  espe- 
cially if  he  can  with  it  make  affirmative  proof,  is  under  the  burden  of  evidence, 
has  been  widely  accepted  both  in  England  and  America.  It  has  often  been 
held  that  "  when  a  fact  is  peculiarly  within  the  knowledge  of  a  party,  the 
burden  is  on  him  to  prove  such  fact  whether  the  proposition  be  affirmative  or 
negative."  49  Thus,  where  one  is  accused  of  doing  an  act  which  would  be 
unlawful  unless  the  doer  has  received  a  special  authority  by  permission  of  law, 
the  government  may  properly  allege  that  he  has  done  the  act  —  e.g.,  that 
he  has  operated  a  ferry,50  practiced  medicine,51  sold  intoxicating  liquor52 
or  the  like  without  license  or  authority  in  law.  When  the  act  itself  is  proved, 
it  may  then  be  required  of  the  defendant  that  he  then  himself  exhibit  and 
prove  his  license  and  authority ; 53 —  the  burden  of  evidence  being  shifted 
to  him  for  that  purpose.  The  short  reason  for  this  requirement  is  that 

43.  For  example,  the  statement  being  that  49.  Robinson  v.  Robinson,  51  111.  App.  317 
A.  did  not  hear  a  certain  sound,  evidence  of  (1893)  ;    2    Chamb.,    Ev.,    §    983.     See    also, 
conduct    on    his    part    inconsistent   with    his  Clapp    v.    Ellington,    87    Hun     (X.    Y.)     542 
probable  action  if  be  had  heard  it,  is  compe-  (1895). 

tent.     Young     v.     Stephens,     9     Mich.     500  50.  Wheat  v.  State,  6  Mo.  455    (1840). 

(1S62),   2   Chamb.,  Ev.,   §   981.  51.   People  v.  Boo  Doo  Hong,  122  Cal.  606, 

44.  Com.  v.  Locke,   114  Mass.  288    (1873).  55  Pac.  402   (1898);  Williams  v.  People,  121 
Viles,  23  Vt.  494-  (1.851).  111.  84   (1887). 

45.  Young  v.    Stephens,   supra;   Thayer   v.  52.  State  v.   Shaw,   35  X.   H.  217    (1857). 

46.  Kelley  v.  Owens,  supra;  Vigus  v.  O'Ban-  In    civil    cases   the    licensee    must   prove   his 
non,  118  111.  334  (1886)  :  Bastrop  State  Bank  license  whenever  the  fact  is  essential  to  his 
v.  Levy,  supra;  2  Chamb.,  Ev.,   §   981,  n.   5  case.     Solomon    v.    Dreachler,    4    Minn.    278 
and  cases  cited.  (1860).     But  see  Wilson  v.  Melvin,  13  Gray 

47.  2  Oiamb.,  Ev..  §§  082.  1070  *t  *eq.  (Mass.)    73    (1850).  2  Chamb.,  Ev..  §  983,  n. 

48.  Kelley       Owens,  supra :  Vigus  v.  O'Ban-  5  and  cases  cited. 

non.    supra,;    Boulden    v.     Mclntire,    supra:  53.  Shearer   v.   State.   7   Blackf.    (Tnd.)    99 

State  v.  Hirsch.  supra;  2  Chamb.,  Ev.,  §  982,        (1844)  -.  State  v.  Crowell,  25  Me.  171   (1845)  ; 
n.  4  and  cases  cited.  2  Chamb.,  Ev.,  §  983,  n.  6  and  cases  cited. 


239  SCOPE  OF  BUKDEN.  §§  407,408 

license  or  authority  is  a  fact  easy  for  him  to  prove  and  difficult   for  the 
prosecution  to  disprove.54 

The  founder  View.—  But  such  is  not,  in  point  of  principle,  in  accordance 
with  the  rules  of  evidence  at  common  law.  The  burden  of  evidence  as  to  a 
particular  fact  is  always,  properly,  on  the  party  to  whose  case  it  is  essential. 
The  quantum  of  proof  required  to  produce  a  prima  facie  case  is,  however, 
materially  affected  by  the  relative  knowledge  of  the  parties  regarding  the 
existence  of  a  particular  fact  or  the  truth  of  a  given  proposition.55 

§  407.  Scope  of  Burden  of  Evidence. —  The  actor  in  the  tirst  instance  and 
either  party  at  any  subsequent  stage  when  he  has  the  burden  of  evidence 
must,  in  order  to  relieve  himself  of  this  onus  and  cast  it  upon  his  opponent, 
show  the  existence  of  every  fact  essential  to  the  proof  of  his  allegations ; ; 
including  all  probative  facts  necessary  to  the  admissibility  of  those  which  are 
res  (jestae  or  constituent.'" 

Media  of  Proof. —  The  actor  or  other  party  having  the  burden  of  evidence 
will  be  logically  required  to  establish  the  truth  of  the  facts  stated  by  his 
witnesses  showing  their  credibility.58  He  must  establish,  against  all  counter 
proof,  the  geuuiuess,  character,59  and  legal  validity60  of  the  documents  in- 
troduced by  him  in  evidence ;  —  although,  where  a  writing  free  from  suspicion 
and  apparently  genuine  is  produced,01  its  authenticity  may  be,  in  many  cases, 
assumed  as  a  matter  of  administration. 

§  408.  [Scope  of  Burden  of  Evidence];   Quantum  of  Proof  Required;   Num- 

54    •>  Chamb     Ev.,   §   983,   n.   7   and   cases  jurisdiction   of   the  court.     Shaw   v.   Carder, 

cited   "  2  Montreal  Super.  Ct   282   (1886)  ;  Kosenthal 

"55"  See  discussion  of  this  view,  2  Chamb.,  v.  Rosenthal,  151  Mich.  493,  14  Detroit  Leg. 

Ev.,  §984  and  notes.  *•  998,   115  X.  W.  729    (1908). 

56    Penitentiary   Co.   No.   2   v.   Gordon.   85  58.  Higgins  v.  Robillard,   12  L.   C.  Rep.   . 

ua     159     11    S    W     584    (1890);    Willett   v.  (1861);     Elliott     v.     Bussell,     19     Ont.    413 

Rich    142  Mass.  356,  7  N.  E.  776,  5(5  Am.  Rep.  ( 1890)  ;   2  Chamb..   Ev,  §  986. 

684  '(1886)-    Whitney    v.    Morrow.    50    Wis.  59.' Ross  v.  Gould,  5  Me.  204    (1828). 

10-    6   X    W    494    (1880}  j   "2  Chamb.,  Ev.,  §  60.  Kitner  v.  Whitlock,  88  111    513   (1878) 

98o',  n.Y  and  cases  cited.  Burnham    v.     Allen,     1     Gray     (Mass)     496 

Conditional  Promise.- In  an  action  on  a  (1854);  Farmers'  L.  &  T.  Co.  v.  S.efke.  1 

promise  to  pav  a  debt  when  able  the  burden  X.  Y.  354,  39  N.  W.  358    (1895)  :   2  Chamb., 

rests   on   the   plaintiff  to   show   that   the   de-  Ev.,  §  986.  n.  3  and  case,  cited, 

fendant   was   able   to    pay.     Van    Buskirk   v.  61.  Simpson   v.    Davis,    110   Mass.   26* 

Kuhns    104  Cal    472,  129  Pac.  587,  44  L.  R.  Am.   Rep.   324    (1876):    Manistee  Xat.   Bank 

A     (XT>  S  )   710   (1013).  v-    Seymour,    64    Mich.    59,    31     X.    W. 

•7.  «  838.  «./«.     State  v.  Swift.  57  Conn.  (1887):     Farmers'    L.    &    T.    Co.    v.    Siefke. 

496    18    Atl    664    '  1889)  :  Grimes  v.  Hilliary,  supra;  Xewlin  v.  Beard.  6  V\ .  \  a.  1 

ISo'lll    141    36  X    E    977   (1894)  :  Hansen  v.  2   Chamh..   Ev.,  §   986,  n.  4  and   cases  cited. 

American   Ins.   Co.,  57   Towa  741,   11   X.   W  The    proponent    of    the    evidence    must    also. 

670    (1882)  :   2  Chamb.,  Ev.,  §  985.  n.  2  and  as   a   part   of   the  burden    of   evidence,   s 

^..j  that   the   evidence   was    not    obtained    by   an 

^Jurisdiction.- The  actor  may  also  be  called  illegal   search    of   one's   person.     Sherman   v. 

upon   to  establish  all  facts  essential  to  the  State.  2  Ga.  App.  148,  58  S.  E.  393   (1907). 


§  409 


BURDEN  OF  EVIDENCE. 


her  of  Witnesses.02 —  In  civil  cases,  a  fair  preponderance  of  the  evidence  is 
needed ;  in  criminal  cases,  preponderance  to  a  moral  certainty  or  beyond  a 
reasonable  doubt  is  required.  The  English  law  of  evidence  has  so  far  evolved 
out  of  the  stage  of  formalism,  into  that  of  reason  as  to  eliminate  number;  — 
except  as  an  element  of  probative  weight,015  i.e.,  of  belief*4  A'o  numerical, 
or  other  physical  tests  for  truth  °°  obtain,  as  a  rule,  in  the  English  law  of  evi- 
dence. Few  propositions  are  presented  for  judicial  determination  which  may 
not  be  satisfactorily  established  by  the  evidence  of  a  single  witness.0'5  A  mere 
numerical  preponderance  in  witnesses  produced  by  one  side  as  to  a  given  point 
over  those  produced  by  the  other  side  can  no  longer  automatically  control  the 
decision  of  a  court.  A  jury  may  reasonably  and  properly  credit  a  single  witness 
against  many.  Xor,  on  the  contrary,  is  a  witness  who  is  uncontradicted  and  not 
directly  impeached,  entitled,  as  of  right,  to  be  believed.07 

§  409.  Scope  of  Burden  of  Evidence;  Prima  Facie  Case.os — A  prinia  facie 
case  is  such  a  collection  of  facts  as  will  suffice,  as  a  matter  of  logic,  to  over- 
come the  inertia  of  the  court.  Such  a  case  as  a  court  or  jury  might  reason- 
ably act  upon  is  a  prinia  facie  case.09  A  ruling  that  such  a  prinia  facie 
case  has  been  made  out  has  several  important  consequences.  (1)  It  shifts 


62.  2  Chamb.,    Ev.,    §    987. 

63.  2  Chamb.,  Ev.,  §  988.     See  Callanaii  v. 
bhavv,    24    Iowa    441,    445     (1868).     Number 
in  witnesses,  however,  may  furnish  corrobora- 
tion  and  so  be  an  element  in  inducing  belief 
where  the  effort  is  made  to  decide  disputed 
propositions    by    the    use    of    reason.     West 
Chicago   St.    R.    Co.    v.   Lieserowitz,    197    111. 
607,  64  X.  E.  718   (1902)  ;   People  v.  Tuczke- 
witz,   149  X.  Y.  240,  43  X.  E.  549    (1896). 

64.  See  Belief  Induced  by  Reason,  2  Chamb., 
Ev.,   §   989. 

65.  Callanan  v.  Shaw,  supra;  2  Chamb.,  Ev., 
§  991,  n.    1.     "  It   is   impossible  to   prescribe 
any   fixed    rule   by    which   the   credibility   of 
the   witness   is   to  be   tested   or   which   shall 
bind   the   conscience   of   the   court   as   to   the 
conclusiveness    of    the    evidence    in    a    given 
case."     U.  S.  v.  Lee  Huen,  118  Fed.  442,  457 
(1902). 

66.  Fengar  v.  Brown,  57  Conn.  60,  17  Atl. 
321    (1889);    Gould   v.   SafTord,    30   Vt.   498, 
505    (1866).     "The  evidence  of  a   single  wit- 
ness to  a  fact,  there  being  nothing  to  throw 
discredit    thereon,    cannot    be    disregarded." 
Bourda  v.  .Tone?.   110  Wis.  52,  60,  85  X.  W. 
671   ( 1901 ) .     California  follows  the  same  rule. 
Lee  Sing  Far  v.  U.  S.,  35  C.   C.  A.   327,  94 
Fed.  834,  839    (1899)  ;  2  Chamb.,  Ev.,  §  991-, 
n.    2    and    cases   cited.     As   to   Basis    of    the 
Earlier  Rule  requiring  more  than  one  witness 


for    affirmative    action    on    the    part    of    the 
court,  see  2  Chamb.,  Ev.,  §  990. 

67.  "  Testimony,   regardless  of  the  amount 
of    it,    which    is    contrary    to    all    reasonable 
probabilities    or    conceded    facts  —  testimony 
which  no  sensible  man  can  believe  —  goes  for 
nothing."     Bourda    v.    Jones,    supra.     Never- 
theless,  there   seems   to   be   a    feeling,   which 
occasionally  manifests  itself  in  the  jury  box, 
that,  by  virtue  of  some  legal   necessity,   un- 
contradicted evidence,  free  from  inherent  im- 
probability, when  given  by  even  '•  a  disinter- 
ested witness,  who  is  in  no  way  discredited," 
must,  as  by  some  compulsion  be  given  proba- 
tive weight  according  to  its  face  value.     This 
is  but  a  recrudescence  of  the  ancient  formal- 
ism.    Quock  Ting  v.  U.  S,  140  U.  S.  417,  11 
S.  Ct.   734    (1891):   U.   S.  v.  Lee  Huen,   118 
Fed.   442,   457    (1902).     Occasionally,   it  has 
been   said  that  the  rule  of  law  was  to  that 
effect.     Southwest   Va.   M.   Co.    v.    Chase,   95 
Va.    50,   27    S.    E.   826    .(1897).     This   is   ob- 
viously  an   error. 

68.  2  Chamberlayne,  Evidence,  §§  992-996h. 

69.  Catlett  v.  St.  Louis,  etc..  R.  Co.,  57  Ark. 
461,  21  S.  W.  1062  (1893)    ("evidence  legally 
sufficient  to  warrant  a  verdict)  :  Ohio  &  M.  R. 
Co.  v.  Dunn.   138  Ind.   18.  27,  36  X.  E.  702, 
37  X.  E.  546    (1893)    (evidence  warranting  a 
finding  if  undisputed)  ;  2  Chamb.,  Ev  ,  §  992, 
n.  1  and  cases  cited.     "  Evidence  which  if  un- 


241  SCOPE  OF  BUEDES. 

the  burden  of  evidence.     (2)  It  states,  in  many  cases,  a  rule  of  substantive 
law  as  to  what  is  reasonable  regarding  a  certain  state  of  facts  in  connection 
witb  a  rule  of  substantive  law.     (3)   It  enables  the  presidmg  judge    at 
same  time,  to  expedite  the  trial  and  perfect  the  substantive  law.     \\  1 
iudo-e  mav  rule  as  what  facts  constitute  a  vn,m  facie  case,  m  any  givei 
stance,  it'  is  the  provmce  of  the  jury  to  determine  whether  such  a  case  has 
actuallv  been  established  by  the  evidence.-     This  power  on  the  pan 
jnrv  is  still,  however,  subject  to  the  right  upon  the  part  of  the  judge    to 

nsLt  upon  ,he  use  of  sound  logical  P  and  legal  reasomng,  .ncludmg  ;  the  effec 
of  presumptions   of   law.   and   to   withdraw   the  case   from  the  ju*  J  £ 

wouM  set  aside  their  verdict  on  it  as  against  the  everwhelm.ng  we.ght 

evidence.'  2 

Inertia  of  Court—  Nothing  less  probative  thaii  a  pnma  facie  case  overcoi 
the  court's  inertia.     This  is  a  matter  of  definition;  «   -a  scintilla  not 
regarded  as  sufficient.'4  . 

Not  a  Question  of  Evidence.—  A  ruling  as  to  the  existence  of  a  pnma  facie 
case  is  merelv  provisional  and  temporary.  Until  the  end  of  the  case  such  a  rule 
affects  merelv  the  position  of  the  burden  of  evidence  and  is  not  final  as  to 
the  discharge'  of  the  burden  of  proof.  These  rules,  regulating  the  existence  of 
a  pnma  facie  case  in  any  given  controversy,  while  they  are  rules  o  :  law, 
not  rules  in  the  law  of  evidence. 

Statutory  Requirement.—  The  legislature  may  determine  that  certain  facts 
shall  be  taken  by  the  tribunals  of  the  jurisdiction  to  be  prima  facie  evidence  of 
others.     Thus,  in  civil  cases,  the  findings  of  fact  by  an  auditor,  , 
butted  or  unexplained  is  sufficient  to  main-      with    rules    of    practice    not    sufficient),    2 

mH  •  warrant  the  i-onolu-       Chamb.,  Ev.,  §  093,  n.  1  and  cases  cited. 

tarn  the  proposition  and    *-~"Sto£*  **•  Offutt  v.   Expos.    Co,    175  111.   472,  51 

sion    U>    «««"»**   :1  "o  243      X-    E.,    650    (1808)     (evidence    "tending   to 


-er,  80  Me.  000,  36 

Atl"   10°9  .    T     p    Pn     154  X    Y  75.  "What    is   prima   facie   evidence   of   a 

°  fact.     It  is  such  as  in  jeot  of 


0;     ovi    40  ^o  W     -1S07):   2   Chamb,       sufficient  to   establish   the   fact;    and   if   not 


rebutted  remains  sufficient  for  the  purpose. 
Ev     5  002.  n    3  and  ea.es  ,  ^  ^  JP^   fi   ^     ^   ^     ^  ^  g 

72.  Forties  v.   \\rvjht    •»  -  •  Rtorv<  j      The  burden 

'  K  "       oV  ^oofls  not  alreLd  in  position  bv  such  a 

rule  of  law  nor  by  a  statutory  requirement 


(1910)' 


.       • 

47,   Atl    641    (1900)    (mere  failure  to  comply 


§  40'J  BUKDEN  OF  EVIDENCE.  242 

or  appraisers  77  may  by  statute  be  accorded  a  prima  facie  force.  In  offences 
against  the  laws  regulating  the  sale  of  intoxicating  liquor  proof  of  certain 
acts  78  is  frequently  declared  sufficient  to  sustain  the  state's  burden  of  evidence 
in  the  original  instance,  i.e.,  to  call  upon  the  defendant  to  show  a  justification 
or  excuse. 

"By  a  Fair  Preponderance  of  the  Evidence."-  -  It  is  customary  to  lay 
down  the  rule  as  to  quantum  of  proof  in  civil  cases  by  saying  that  it  is  the 
duty  of  the  actor,79  of  the  party  having  the  burden  of  proof,  to  establish  the 
truth  of  his  contention  "  by  a  fair  preponderance  of  the  evidence  " ;  8" —  the 
necessary  result  being  that  where  the  evidence  is  evenly  balanced,  the  actor 
losses.81  To  discharge  the  burden  of  proof,  by  the  creation  of  a  prima  facie 
case,  it  is,  first  of  all,  necessary  that  the  actor  establish,  either  by  proof,  or 
by  some  administrative  substitute  for  it  by  way  of  assumption,  presump- 
tion or  the  like,  a  prima  facie  case,  i.e.,  such  a  quantum  of  evidence  that  the 
tribunal  in  view  of  the  subject-matter  and  other  salient  circumstances,  might 
reasonably  act  in  accordance.82  When  the  truth  of  any  material  portion  of 
this  case  is  controverted  by  the  other  side,  it  is  the  duty  of  the  actor  to  main- 
tain it,  against  all  assaults,  "  by  a  fair  preponderance  of  the  evidence.''  83 

"  Beyond  a  Reasonable  Doubt."-  -  In  criminal  cases  it  is  customary  to  charge 
that  it  is  the  duty  of  the  state  to  satisfy  the  jury  "  beyond  a  reasonable  doubt ''  84 
as  to  the  truth  of  every  material  8r>  fact,  i.e..  proposition  of  fact  alleged  in  the 
indictment.  A  mere  preponderance  of  evidence  is  not  sufficient. M:  The  re- 
quirement applies  to  criminal  prosecutions  for  misdemeanor  as  well  as  for 
felony.87  The  jury  are  not  required  to  acquit  the  accused  merely  because  one 

77.  Railroad  v.  Crider,  01  Tenn.  480  (1802).  1022    (1007).     The  phrases  "to  a  moral  cer- 

78.  Com.  v.  Minor,  88  Ky.  422   (1880)  tainty  ''  and  "  beyond  a  reasonable  doubt  "  are 

79.  §  156,  supra.  synonymous.     People  v.  Bonifacio,  190  N.  Y. 

80.  Chicago   Transit  Co    v.    Campbell,    110  150.  82   X.   E    1008    (1007). 

111.   App.   366    (1003):    Nash   v.   Cooney,   108  85.  State  v    Fisk.   170   Ind.   Ififi.   83  X.   E. 

111.   App.   211    (1003):    Suffering  v.  Heyl   &  005    (1008);    State  v.   Reeder.   72   S.   C.  223, 

Patterson,    130    Wis.    510,    121    N.    W.    251  51  S    E.  702    (1905);  2  Chamb.,  Ev.,  §  996a, 

(1900)  ;  2  Chamb..  Ev.,  §  906.  n.  2  and  cases  cited. 

81.  Indianapolis    St.    Ky.    Co.    v.    Schmidt,  86.  Glover  v.  State.  114  Ga.  828,  40  S.  E. 
163  Ind.  360.  71   N.  E.  201    (1004).  908    (1002):    Marlatt  v.  People,   104  111.  364 

82.  Peat  v.  Chicago.  M.  &   St.  P.   Ry.  Co.,  (1882):    State    v.    Porter.    64    Iowa    237,    20 
128  Wis    86,  107  N.  W.  355    (1006).  N.    W.    168    (1884):    Atkinson    v.    State,    58 

83.  2  Chamb.,  Ev..  §  006.  Neb.   356.   78   N.   W.   621    (1800):    People  v. 

84.  McDonald  v.  State.  56   Fla.  74,  47   So.  Shanley,    30    Misc.    (N.    Y.)    200.   62    N.    Y. 
485    (1008);    State  v.  McQueen,  60   N.  J.  L.  Supp.   380,   14  N.   Y.   Cr.   263    (1890);   Mun- 
522.  55  Atl.  1006  (1003)  :  U.  S.  v.  Breese,  131  den  v.  State,  37  Tex.  353    (1806)  :   Goldman 
Fed.  915    (1004):   2  Chamb.,  Ev.,  §  006a,  n.  v.  Com.,   100  Ya.  865,  42  S.  E.  023    (1002); 
1    and    cases    cited.     The    presence    of    some  I      S.    v.    Jackson,    20    Fed.    503     (1886);    2 
proof,  not  sufficient  to  establish  guilt  beyond  a  Chamb.,  Ev.,  §  006a.  n.  3  and  cases  cited, 
reasonable   doubt,    as   required    by    Code    Cr.  87.  State   v.    King,    20    Ark     166    (1850): 
Proc.,  §  380,  is  not  sufficient  to  warrant  the  Stewart  v   State.  44  Ind.  237   (1873)  :  Com.  v. 
submission   of   a   criminal   case   to   the   .jury.  Certain  Intoxicating  Liquors,  115  Mass.  142, 
People  v.   Gluck,    188   N.    Y.   167,   80  N.   E.  105   Mass.   595    (1874);    People   v.   Davis,    1 


SCOPE  OF  BURDEN. 


409 


of  tlie  jurors  knows  that  a  '  doubt  *  is  a  fluctuation  or  uncertainty  of  mind  aris- 
ing and  that  a  probability  of  innocence  requires  the  acquittal  of  the  defendant. s" 

Definition  of  "  Reasonable  Doubt." —  A  satisfactory  definition  of  "  reason- 
able doubt  "  seems  difficulty  of  procurement ;  attempts  at  explanation  tend 
rather  to  confuse  and  bewilder  than  to  clarify.  "  Language  that  is  within  the 
comprehension  of  persons  of  ordinary  intelligence  can  seldom  be  made  plainer 
by  further  definition  or  refining.  All  persons  who  possess  the  qualifications 
of  jurors  know  that  a  '  doubt '  is  a  fluctuation  or  uncertainty  of  mind  arising 
from  defect  of  knowledge  or  of  evidence,  and  that  a  doubt  of  the  guilt  of  the 
accused,  honestly  entertained,  is  a  '  reasonable  doubt.' " 90  Conjecture,91 
whim  92  or  surmises  as  to  possibilities  93  do  not  constitute  reasonable  doubt.94 
It  must,  on  the  contrary,  be  a  substantial  doubt  —  one  with  something  to  rest 
upon  95  in  connection  with  the  evidence  or  lack  of  it.96  It  is  a  fair  doubt, 
one  which  a  reasonable  man,  who  was  desirous  of  ascertaining  the  exact  truth  and 
doing  his  full  duty  between  the  accused  and  society,  might  reasonably  entertain. 
A  firm  and  abiding  conviction  conscientiously  held  is  belief  beyond  a  rea- 
sonable doubt."7 

In  other  words,  a  reasonable  doubt  is  such  a  mental  hesitancy  to  act  as  a 
conscientious  and  resolute  man  might  reasonably  entertain.98 

Quantum  in  Civil  and  Criminal  Cases  Contrasted. —  In  a  civil  case  the 


Wheel.  Cr.  235  (1828);  Fuller  v.  State,  12 
Ohio  St.  433  (1861)  ;  2  Chamb.,  Ev.,  §  996a, 
n.  3  and  cases  cited. 

Burden  of  proof. —  In  an  action  for  viola- 
tion of  ordinance  the  evidence  must  prove  a 
violation  by  a  preponderance  only  and 
such  proof  need  not  be  direct  but  it  may  con- 
sist of  a  reasonable  inference  only.  Portland 
v.  Western  Union  Telegraph  Co..  75  Or.  37, 
146  Pac.  14S,  L.  E.  A.  1915  D  260 
(1915). 

88.  Teague   v.   State,    144    Ala.    42,   40   So. 
312   (  1906). 

89.  Gainey   v.   State,    141    Ala.   72,   37    So. 
355    (1904)';    Xelms   v.   State,   58   Miss.    362 
(1904). 

90.  People  v.   Stubenvoll,  62  Mich.  329,  28 
X.  W.  883    (1880). 

91.  Fletcher  v.  State,  90  Ga.  468,  17  S.  E. 
100  (1892).     A  va<rue.  fanciful  or  speculative 
doubt    is    not    a    reasonable    one.     State    v. 
Adams,  6  Pen.   (Del.)   178,  65  Atl.  510. 

92.  State  v.  Bodekee,  34  Iowa  520   (1872)  ; 
Com.  v.  Drum.  58  Pa.  9    (1868);   2  Chamb., 
Ev ,   §   996b.   n.    4   and   cases   cited. 

93.  Way  v.  State.  155  Ala   52  (1908)  :  State 
v.  Briscoe,  6  Pen.    (Del.)    401    (1907):    State 
v.    Levy,    9    Ida.    483.    75    Pac.    227     (1904): 
State  v.   Wells.   Ill   Mo.   533.   20   S.   W.   232 


(1892);    2    Chamb.,    Ev.,   §    996b,   n.    5    and 
cases  cited. 

94.  Giles  v.  State,  6  Ga.  276  (1849)  ;  loops 
v.  State,  92  Ind.  13  (1883)  ;  State  v.  Bridges, 
29  Kan.   138    (1883)  ;   McGuire  v.  People,  44 
Mich.   286,   6   N.   W.   669,   38   Am.    Rep.   265 
(1889);   Lawhead  v.  State,  46  Neb.  607.  65 
N.   W.   779    (1895);    People  v.   Hughes,    137 
X.   Y.   29,   32   N.   E.    1105    (1893);    Miles   v. 
U.  S..   103  U.  S.  304,  26  L.  ed.  481    (1880); 
2  Chamb.,  EV.,  §  996b,  n.  6  and  cases  cited. 

95.  Fletcher  v.  State,  90  Ga.  468,  17  S.  E. 
100   (1892):  U.  S.  v.  Richards,  149  Fed.  443 
(1906)  -.   State  v.  Abbott,  64  W.  Va.  411,  62 
S.    E.    693    (1908);    2   Chamb.,   Ev.,   §   996b, 
n.  7  and  cases  cited. 

96.  Wood  v.  State.  31  Fla.  221,  12  So.  539 
(1893)  ;   State  v.  Davidson,  44  Mo.  App.  513 
(1891)  :   People  v.  Barker,  153  X.  Y.  Ill,  47 
X'.  E.  31    (1897)  :  State  v.  McCune.  16  Utah 
170,  51  Pac.  818   (1898)  ;  People  v.  Ross,  115 
Cal.   233,   46   Pac.    1059    (1896):    2   Chamb., 
Ev.,   §   996b.   n.   8   and   cases   cited. 

97.  Harrison  v.  State.   144  Ala.  20,  40  So. 
568   (1906)  :  2  Chamb..  Ev.,  §  996b.  n.  9  and 
cases  cited. 

98.  State  v.  Stewart.  6  Pen.   (Del.)   435.  67 
Atl.    786     (1907):    Miller    v.    State     (Miss. 
1904),  35  So.  690. 


§  409  BURDEN  OF  EVIDENCE.  :244 

party  having  the  burden  of  proof  must,  for  affirmative  action  by  the  tribunal, 
produce  what  constitutes  relatively  to  his  opponent,  a  fair  preponderance  of  the 
evidence  and  absolutely  and  intrinsically  one  such  that  a  jury  can  rationally 
act  in  accordance  with  it.;ni  In  criminal  proceedings,  the  prosecution  must 
produce  a  case  clear  beyond  a  reasonable  doubt.1  In  the  civil  proceeding,  the 
actor  need  furnish  only  a  case  in  accordance  with  which  men  may  reason- 
ably act.  In  a  criminal  one,  on  the  contrary,  such  an  amount  of  evidence 
must  be  produced  that  a  reasonable  man  must  act  in  accordance  with  it, — 
i.e.,  that  he  can  rationally  act  in  no  other  way. 

Scope  of  Requirement. —  It  is  obviously  unnecessary  and,  indeed,  practically 
impossible,  that  each  res  gestae  or  probative  fact  should  itself  be  established 
beyond  a  reasonable  doubt.2  It  is  sufficient  should  the  evidence  adduced  for 
affirmative  action  on  the  part  of  the  tribunal  establish  a  conviction  of  guilt  to 
that  extent.  It  is  the  entire  contents  of  the  scale  which  must  preponderate  to 
the  designated  extent.3  Failure  to  prove  a  single  one  among  such  probative 
facts  beyond  a  reasonable  doubt  cannot  be  a  satisfactory  ground  for  refusing  to 
follow  an  affirmative  case  which,  as  a  whole,  excludes  any  doubt  whatever.4 
It  has,  however,  been  very  properly  held  that  all  propositions  essential  to  or 
component  of  the  liability  of  the  accused  must  be  established  beyond  a  reason- 
able doubt.5  In  other  words,  collateral  or  subsidiary  facts  or  propositions  of 
fact  need  not  be  proved  to  the  same  degree  of  mental  certainty." 

99.  2  Chamb.,  Ev.,  §  996c:    1  Chamb.,  Ev.,  State    v.    Maher,    25    Nev.   405,    62    Pac.    236 

§   385.  (1899);     State    v.    Snell,    5    Ohio    Dec.    670 

1.  Jurors    should    doubt    in    their    judicial  (1895);   Hod-je  v.  Territory.   12  Okl.   108,  69 
capacity    what    they    would    doubt    in    their  Pac.    1077    ( 1902*)  ;    2   Chamb.,    Ev.,   §   996d. 
private  relations.     U.   S.  v.  Heath.  20  D.  C.  n.  7  and  cases  cited. 

272    (1891);    Spies  v.   People.   122   Til.    1,    12  6.  Hauk   v.   State,   148   Ind.   238,   46  X.   E. 

N.  E.  865,  17  N.  E.  898,  3  Am.  St.  Rep.  320  127,  47  N.  E.  465    (1897)  ;   State  v.  Jackson, 

(1889)  ;  State  v  Rounds,  7fi  Me.  123   (1884)  ;  90  Mo.    156.  2   S.  \V.   128    (1886)  :    People  v. 

2  Chamb.,  Ev.,  §  996c,  n.  2.  Davis,  21  Wend.    (X.  Y.)    309    (1839);   State 

2.  Butt  v.  State,  81  Ark.  173.  98  S.  W.  723  v.  Turner,  119  X.  C.  841,  25  S.  E.  810  (1896)  ; 
(1906):    Olson   v.   People,    125    111.   App.   460  C.olonbieski  v.  State,  101  Wis.  33.3,  77  X.  W. 
(1906).  189   (1898);  2  Chamb..  Ev..  §  99(id.  n.  8  and 

3.  Pitts  v.   State.   140  Ala.  70.  37  So.   101  cases  cited.     Corroboration  may  in  like  man- 
(1904);   State  v.  Skillman,  76  X*.  J.  L.  464,  ner   be   proved   by   evidence   which,    in    itself 
70  Atl.  83    (1908)  ;   Territory  v.  Tais,   14   X.  considered,  admits  of  the  existence  of  a  rea- 
Mex.'    309.    94    Pac.    947     (190S);    2    Chamb.,  sonable    doubt.     Lasater    v.    State,    77    Ark. 
Ev.,  §  996d.  n.  2  and  cases  cited.  468,   94   S.    W.    59    (1906). 

4.  llouser  v.  State.  58  Oa.  78   (1877)  ;  Kas-  Good  Character. —  On   the  other  hand,  the 
sakowski   v.    People,    177    111.    563,   53   X*.    E.  proof  of  a  <rood  character  may   in   itself  es- 
115     (1898);    State    v.    Hayden,    45    Iowa    11  tablish  a  reasonable  doubt.  Teapue  v.   State. 
(1876):    State    v.    Schoenwald,    31     Mo.    147  144    Ala.    42,   40    So.    312    (1906);    Sweet   v. 
(1860)  ;  Rudy  v.  People.  128  Pa.  500,  18  Atl.  State,  75  Xeb.  263.  106  X.  W.  31    (1905)  :  but 
344    (1889)  :  Barr  v.  State.  10  Tex.  App.  507  it  is  not  error  to  refuse  to  charpe  in  a  case 
(1881)  ;  2  Chamb..  Ev.,  §  996d,  n.  5  and  cases  dependent    on    circumstantial    evidence    thai 
cited.  proof  of  wood  character  is  in  and  of  itself  suf 

5.  People  v    Ah  Chuncr.  54  Cal.  398  (1879)  :  ficient  to  create  a  reasonable  doubt  to  which 
Gavin  v.  State,  42  Fla.  553  29  So.  405  (1900)  :  the  defendant  is  entitled.     U.  S.  v.  Cohn,  128 


245  SCOPE  OF  BITBDEJT.  §  410 

Criminal  Capacity. —  The  capacity  of  the  accused  to  commit  the  crime  in 
question  is  so  far  a  material  part  of  the  case  of  the  prosecution  that  it  must 
be  established  beyond  a  reasonable  doubt.7 

Grade  of  Offense. —  Where  the  offense  charged  in  the  indictment  may  be 
established  in  one  of  several  grades,  it  is  a  necessary  corollary  of  the  rules 
relating  to  reasonable  doubt  that  should  the  jury  entertain  such  a  doubt  as  to 
the  grade  of  the  defendant's  offense  but  experience  none  that  he  is  guilty 
of  the  offense  itself,  they  should  convict  him  of  the  less  serious  degree  of 
the  crime.8 

Identity  of  Accused. —  It  is  necessary  that  the  identity  of  the  defendant 
with  the  doer  of  the  acts  charged  in  the  indictment  should  be  established  by 
the  prosecution  beyond  a  reasonable  doubt.9  The  element  of  inference  is, 
however,  present  in  all  cases  to  a  greater  or  less  extent.  Still,  a  witness  who 
declares  his  "  belief  "  that  the  accused  was  the  person  whom  he  saw  commit  the 
crime  in  question  may  well  be  regarded  as  furnishing  evidence  which  would 
justify  the  jury  in  acting  upon  it.10 

Psychological  Constituents. —  Where  a  mental  state  is  a  necessary  part  of 
the  liability  of  the  accused,  the  prosecution  must  establish  its  existence  be- 
yond a  reasonable  doubt.11  This  proof,  in  the  absence  of  an  admission,12  must 
be  by  establishing  probative  facts,  including  those  of  manifestation.13 

§  410.  Scope  of  Burden  of  Evidence;  Special  Inertia  of  the  Court;  Civil  Cases. 
—  In  order  that  a  i>rima  facie  case  may  be  produced,  such  as  would  reasonably 
overcome  the  inertia  of  the  tribunal,  the  rules  of  procedure  require  in  civil 
cases  merely  that  a  fair  preponderance  of  the  evidence  shall  appear  in  favor 
of  the  person  having  the  burden  of  proof.  Such  a  preponderance  alone  is 
sufficient  to  justify  the  affirmative  action  of  the  court,  and,  when  produced, 
reason  is  satisfied.14  Proof  of  the  necessary  facts  "  beyond  a  reasonable 

Fed.  615    (1904);   U.  8.  v.  Browne,   126  Fed.  acy,   for   example,   if   it   is  uncertain   on   the 

766   (1903).     See  also  Com.  v.  Miller,  31  Pa.  evidence   which   one   of   several   persons   was 

Super.  Ct.  309   (1906).  the  particular  person  who  committed  the  act, 

7.  Wilcox    v.    State,    32    Tex.    Cr.    284,    22  all  must  be  acquitted.     People  v.  Woody,  45 
S.  W    1109   (1893).     See  also,  Foltz  v.  State,  Cal.  289    (1872);   Campbell  v.  People,  16  111. 
33    Ind     215     (1870):    State    v.    Congot.    121  17,  61   Am.  Dec.  49    (1854). 

Mo.   458,   26    S.   \V.   566    (1893);    2    Chamb..  10.  Com.   v.   Cunningham,  supra:   State   v. 

Ev.,  §  996e.  Franke,  159  Mo.  535,  60  S.  W.  1053    (1900). 

8.  Xewport  v    State.    140  Ind.   299.   39   X.  11.  State  v.  Seymour.  Houston  Cr     (Del.) 
E    926    (1894);    People  v.   Cahoon,   88   Mich.  ( 1877)  :  State  v.  Porter.  34  Iowa  131   (1871); 
456.  50  X.  W.  384    (1891);   People  v    Lamb,  Roberts   v.    People.    19   Mich.   401    (1870);    2 
2   Abb.   Pr.    (X.  S)     (X.  Y.)    148    (1S66):    2  Chamb..  Ev..  §  996h,  n.   1   and  oases  cited. 
ClKimb.,  Ev.,  §  996f,  n.  1  and  cases  cited  12.  See   Admissions   Defined,   §   499,   infra; 

9.  Com.    v.    Cunningham.    104    Mass.    545  2  Chamb .  Ev..  §  1233. 

(1870)  ;   State  v.  Jones.  71   Mo    591    (1879)  -.  .        13.  People  v.  Hiltel.  131   Cal.  577.  63  Pac. 

People  v.  Smith,  7  X.  Y.  Supp.  841.  7  X.  Y.  910    (1900)  :  Roberts  v.  People.  19  Mich.  401 

Cr.    425    HS80)  :    Bill   v.    State.    5    Humphr  (1870):    2    Chamb.    Ev.,    §    996h.   n.    3    and 

(Tenn  )    155    (1844):   2  Chamb.  Ev  ,  §  906g.  cases  cited, 

n.    1   and  cases  cited.     In   a  case  of  conspir-  14.  *Shinn  v.  Tucker,  37  Ark.  580    (1881); 


410 


BUBDEN  OF  EVIDENCE. 


246 


doubt  "  is  not  required  in  civil  cases,15  even  where  such  an  action  involves 
proof  of  facts  sufficient  to  constitute  a  criminal  offense.10 

Allegations  of  Crime. —  It  is  not  material  whether  facts  constituent  of 
crime  are  part  of  the  affirmative  case.  Only  the  civil  preponderance  is  re- 
quired in  cases  where  divorce  is  sought  on  the  ground  of  adultery,17  or  a  civil 
action  is  brought  for  seduction,1"  or  to  obtain  contribution  to  the  support  of 
a  bastard  child.10  Even  should  illegality  be  claimed  as  ground  for  an  in- 
junction,2" or  other  affirmative  action,  or,  is  on  the  contrary,  pleaded  in  defense, 
as  where  truth  is  alleged  to  defamation  of  character  in  charging  the  commis- 
sion of  a  crime,21  or  arson  by  the  insured  is  set  up  by  the  insurer  under  a  fire 
insurance  contract,22  no  variation  from  the  ordinary  requirement  is  permitted. 

Suits  for  Penalties. —  The  law  even  follows,  in  this  matter,  form  rather  than 
substance.  It  requires  only  a  preponderance  of  the  evidence,  provided  a 
prima  facie  case  has  been  established,  where  the  consequences  of  the  court's 
action  are  criminal;  —  provided  only  that  the  form  of  proceeding  is  civil. 
Of  this  nature  are  suits  brought  for  the  recovery  of  a  penalty,23  multiplied 


Scott  v.  Wood,  81  Cal.  398,  22  Pac.  871 
(1889);  Anderson  v.  Savannah  Press  Pub. 
Co.,  100  Ga.  454,  28  S.  E.  216  (1897)  ;  North 
Chicago  St.  Ry.  Co.  v.  Fitzgibbons,  180  111. 
466,  54  N.  E.  483  (1899)  ;  Cottrell  v.  Piatt, 
•101  Iowa  231,  70  N.  W.  177  (1897)  ;  Hoffman 
v.  Loud,  111  Mich.  156,  69  N.  W.  231  (1896)  ; 
Long  v.  Martin,  152  Mo.  668,  54  S.  W.  473 
(1899);  New  York,  etc.,  Ferry  Co  v.  Moore, 
102  N.  Y.  667,  6  N.  ti.  293  (1886)  ;  Hodges 
v.  Southern  R.  Co.,  122  N.  C.  992,  29  S.  E. 
939  (1898);  Nelson  v.  Pierce.  18  R.  I.  539, 
28  Atl.  806  (1894)  ;  Evans  v.  Rugee,  57  Wis. 
623,  16  N.  W.  49  (1883)  :  u.  S.  v.  Lee  Huen, 
118  Fed.  442  (1902);  2  Chamb.,  Ev.,  §  997, 
n.  1  and  cases  cited. 

15.  Rowe  v.  Baber,  93  Ala.  422,  8  So. 
865  (1859);  Schnell  v.  Toomer,  56  Ga.  168 

(1876)  ;  Baltimore,  etc.,  R.  Co.  v.  Shipley,  39 
Md.  251  (1873);  Huntington  v.  Attrill,  118 
N.  Y.  365,  23  N.  E.  544  (1890);  Chapman 
v.  Me  Adams,  1  Lea  (Tenn  )  500  (1878); 
Scott  v.  Pettigrew,  72  Tex.  321,  12  S.  W.  161 

(1888)  ;  2  Chamb.,  Ev.,  §  997,  n.  2  and  cases 
cited. 

16.  Smith  v.  Smith,  16  Colo.  App.  333,  65 
Pac.  401   (1901)  :  McDonald  v.  McDonald.  142 
Ind.    55,   41    N.    E.    336    (1895):    Sinclair   v. 
Jackson,  47  Me.  102,  74  Am.  Dec.  476  (1860)  ; 
Roberge  v.  Burnham,  124  Mass.  277    (1878)  ; 
Nebraska  Nat.  Bank  v.  Johnson,  51  Neb.  546, 
71   N.   W.   294    (1897):   Dean  v.  Raplee,   145 
N.   Y.   319.   39   N.    E.   952    (1895);    Shaul    v. 
Norman,  34  Ohio  St.  157   (1877)  ;  Catasauqua 


Mfg.  Co.  v.  Hopkins,  141  Pa.  30,  21  Atl  638 
(1891);  Weston  v.  Gravlin,  49  Vt.  507 
(1877)  ;  New  York  Ace.  Ins.  Co.  v.  Clayton, 
59  Fed.  559,  8  C.  C.  A.  213  1893)  ;  2  Chamb., 
Ev.,  §  997,  n.  3  and  cases  cited 

17.  Lenning  v.  Lenning,  176  111.  180,  52  N. 
E.    46    (1898);    Lindley    v.    Lindley,    68    Vt. 
421,  35  Atl.  349  (1896). 

18.  Nelson  v.  Pierce,  18  R.  I.  539,  28  Atl. 
806     (1894). 

19.  People  v.  Christman,  66  111.  162  (1872)  ; 
Dukehart  v.  Coughman,  36  Neb.  412,  54  N.  W. 
680    (1893)  ;   2  Chamb.,  Ev..  §  998,  n.  3  and 
cases  cited. 

20.  State  v.  Collins   (N.  H.  1895),  44  Atl. 
495. 

21.  Hearne  v.   De Young,    119   Cal.   670,   52 
Pac.  150  (1898)  ;  Ellis  v.  Buzzell,  60  Me.  209 
(1872)  :  2  Chamb.,  Ev.,  §  998,  n.  5  and  cases 
cited. 

22.  Blackburn   v.   Ins.   Co.,   116  N.   C.  821, 
21    S.    E.    922    (1895);    First   Nat.    Bank   v. 
Commercial   Assur.  Co.,   33   Or.   43,  52   Pac. 
1050    (1898).     See  contra,  McConnels  v.  Ins. 
Co.,  18 'ill.  228  (1856). 

23.  White  v.   Farris,   124  Ala.  461,  27   So. 
259    (1900)  :   Campbell  v.  Burns,  94  Me.  127, 
46  Atl.  812  (1900)  ;  Roberge  v.  Burnham,  124 
Mass.  277  (1878)  ;  2  Chamb.,  Ev.,  §  999,  n.  1 
and  cases  cited. 

Conflicting  Views. —  The  courts  of  Vermont 
require  proof  beyond  a  reasonable  doubt. 
Rikor  v.  Hooper,  35  Vt.  457,  82  Am.  Rep.  646 
(1862).  In  Illinois,  a  strong  case  is  neces- 


247  SCOPE  OF  BURDEN.  §  411 

damages,24  or  for  a  forfeiture.  Proceedings  for  disbarment,25  for  contempt 
of  court,26  or  other  charges  involving  the  existence  of  facts  tending  to  establish 
the  commission  of  a  criminal  offense,27  stand  in  the  same  position. 

§  411.  Scope  of  the  Burden  of  Evidence;  Documents. —  The  substantive  law 
of  documents  lays  conspicuous  difficulties  often  amounting  to  prohibitions  in 
the  way  of  establishing  alterations  in  them  by  parol  evidence  or  allowing 
evidence  of  that  class  to  till  the  appropriate  office  of  a  formal  instrument.28  The 
substantive  law  has  provided  that  in  case  of  wills,  or  conveyances  of  interests 
in  lauds,  or  agreements  to  convey  such  interests,  the  dispositive  instrument  or 
agreement  shall  be  in  writing  or  shown  by  written  evidence;  and  that  in  con- 
nection with  the  transfer  or  personal  property  above  a  certain  value,  and  in 
case  of  agreements  of  particular  kinds,  a  writing,  or  evidence  deemed  equivalent, 
should  be  furnished  in  order  to  constitute  a  prima  facie  case,  i.e,  sufficient 
to  induce  affirmative  action  by  the  court.29 

Equitable  Relief. —  The  same  feeling  is  manifested  in  equity ;  —  in  cases 
where  its  courts,  as  a  rule,  while  declining  to  vary  the  ascertained  purport 
of  a  detiuitive  document,  will  relieve  a  party,  in  whole  or  in  part,  from 
its  eifects  on  the  ground  that  assent  was  procured  to  the  instrument  by  fraud, 
accident  or  mistake.  Equity  jurisdiction,  moreover,  may  afford  relief  when 
a  deed  absolute  on  its  face  is  declared  to  be  a  trust  or  a  mere  security  for  an 
indebtedness.  But  a  prima  facie  case  is  not  readily  established ;  30  evidence 
of  especial  clearness  and  cogency  is  deemed  necessary  to  secure  relief.31  It 

sary.     Kuth  v.  Abington,  80  111    418   (1875).  erable  extent  this  effort  to  protect  individual 

A  distinction  has  been  attempted  to  the  effect  rights  is  reinforced  by  broad   considerations 

that  an  action  civil  in  form  which  is  prose-  of    public    policy.     These    frequently    lead    to 

outed  by  the  public  and  not  by  a  private  in-  the  enactment  of  statutes  which,  while  they 

dividual  should  be  treated  a?  a  criminal  case.  protect    the    interests    of    the    parties    in    a 

(Ilenwood  v.  Roberts.  59  Mo   App.  167  (1894);  particular   case,   are,   to  a    large   extent,   de- 

l"   S.  v.  Shapleigh,  54  Fed    126.  4  C.  C.  A   237  signed  to  safeguard  the  general  interests  of 

(11)03).     This  demarcation  has  been  expressly  the  public,  irrespective  of  the  relation  which 

repudiated  in   New   York.      I'eople  v    Rriggs,  an  individual  may  sustain  to  the  document  in 

114  X.  X.  56,  20  N.  E   820  (1889).  question      Id      See  also,   Convention  of   Par- 

24.  Munson     v.     Atwood,     30     Conn.      102  ties.  2  Chamb.,  Ev.,  §   1001. 

(1861);   Burnet  v.  Ward,  42  Vt    SO    (1869).  29.  See  Considerations  of  Public  Policy,  2 

But  see  contra,  I*.  S.  v.  Shapleigh.  supra  Chamb.,    Ev.,    §    1002. 

25.  lie   Wellcome,   23   Mont.    450,   59    Pac.  A  misleading  form  of  statement  has  been 
445    (1899).     But   see   contra.    Re  Evans,   22  employed    to    represent    this    inertia    of    the 
Utah  366,  62  Pac.  913  (1900).  court   when  it  is  said  that  a   preponderance 

26.  Drakeford    v.    Adams,    98    Ga     722,    25  of   the   evidence    is   not   sufficient.     Sallenger 
S.  E.  833   (1896).  v.  Perry,  130  X    C    134,  41  S.  E.  11    (1902)  ; 

27.  People    v.    Briggs.    supra :    Deveaux    v.  Olinger    v.    McGufFey,    55    Ohio    St.    661,    48 
Clemens.  17  Ohio  Cir    Ct   33.  9  Ohio  Cir.  Dec.  X    E.   1115    (1896)  ;   Dewey  v.  Spring  Valley 
647    (1898)  ;   2  Chamb.,  Ev.,  §  999.  n.  o  and  Land  Co,  98  Wis.  83,  73  X.  W.  565    (1897). 
cases  cited.  A  preponderance  in  any  case  is  sufficient. 

28.  2   Chamb.,   Ev.,   §   1000      In  part,   this  30.  2  Chamb.,  Ev.,  §   1003.     See  also,  Re- 
proceeds  upon  the  theory  that  by  these  pro-  lief  at  Law,  2  Chamb..  Ev..  §   1004. 
visions  effect  may  best  be  given   to  the   in-  31.  2  Chamb.,  Ev.,  §  1005. 

tention  of  the  parties:  but  to  a  very  consid- 


§  411 


BUEDEN    OF 


248 


is  to  be  observed,  however,  that  all  this  has  no  connection  with  the  law  of 
evidence.  These  questions  belong  to  other  branches  of  the  law. 

Impeachment. —  To  impeach  the  purport :!*  or  refute  the  prima  facie  effect 
of  a  formal  instrument,''5'5  as  by  annulling  a  judgment,154  demands  clear  evi- 
dence. 

Modification. —  For  like  reasons,  to  modify  a  written  definitive  instrument 
by  parol  proof  of  a  collateral  agreement,35  the  existence  of  a  subsequent  parol 
arrangement,"0  or  other  fact,  reasonably  demands  strong  evidence.  For  the 
same  reasons  to  control  the  eifect  of  documents,  even  of  those,  which,  like 
receipts,37  are  not  deiinitive  in  their  nature,  requires  cogent  and  unambiguous 
proof,  frequently  referred  to  in  language  indicating  a  necessity  for  more 
than  a  bare  preponderance. 

Waiver  of  Riyhts  L  )ider  a  Valid  Instrument. —  A  parol  waiver  of  rights 
under  a  written  definitive  instrument  stands  in  the  same  position  3S  and  any 
disavowal  or  renunciation  of  a  claim,  must  be  strictly  proved,30  though  a 
preponderance  of  evidence  has  been  held  sufficient.40 

Parol  Proof  of  Contents  of  Documents;  Extention  of  Evidence. —  The  con- 
tents of  an  instrument  which  is  illegible,41  lost,  mutilated42  or  wholly  de- 
stroyed, may  be  established  by  satisfactory  43  parol 44  evidence  as  to  the  sub- 


32.  Rowe  v.  Hibernia  8.  &  L.  Soc.,  134  Cal. 
403,  66  Pac.  569  ( 1901 ) . 

33.  Dickaon  v.   St.   Paul,   etc.,   R.   Co.,   168 
Mo.  90,  98,  67  S.  W    642    (1002)  ;   Souverbye 
v.  Arden,  1  Johns.  Ch.    (X.  Y. )   240    (1814); 
Boehm   v.    Kress,    179    Pa.    386,    36    Atl.    226 
(1897)  ;  2  Chamb.,  Ev.,  §  1006,  n.  2  and  cases 
cited. 

In  a  suit  for  infringement  of  a  patent, 
the  defense  of  lack  of  novelty  muat,  it  is  said, 
be  proved  beyond  a  reasonable  doubt.  Wash- 
burn,  etc.,  Mfg.  Co.  v.  Wiler,  143  U.  S.  275, 
12  S.  Ct.  450,  36  L.  ed.  161  (1891) 

34.  Hayes  v.  Kerr,  45  N.  Y.  Supp.  1050,  19 
App.   Div.  91    (1897);   Chandler  v.   Hough.  7 
La.   Ann.   440    (1852). 

35.  Hawralty  v.  Warren,  18  N.  J    Eq.  124. 
90  Am.  Dec.  613    (1866)  ;  Moore  v.  Brooklyn 
Advertising    Co.,    69    Hun     (X.    Y)     63,    23 
N.   Y.   Supp.   381    (1893);    In  re   Sntch,   201 
Pa.  305,  50  Atl.  943   (1002);   2  Chamb.,  Ev., 
§  1007,  n.  1  and  cases  cited. 

36.  McKinstry   v.    Runk.    12   X.   J.   Eq.    60 
(1858);    Gibson    v.    Vetter,    162    Pa.    26,    29 
Atl.  292   (1894). 

37.  Hewett  v.  Lewis.  4  Mackey   (D   C.)    10 
(1885):    Vigus   v.   O'Bannon.    118    111.   334,   8 
N.   E.   778    (1886):    Rouss   v.   Goldgraber,    3 
Neb.    (Unoff.)    424,  91   X.  W.  712    (1902);   2 
Chamb.,  Ev.,  §  1007,  n.  3  and  cases  cited. 


38.  Bergeron  v.  Pamlico  Ins,  etc.,  Co,  111 
X.   C.   45,   15   S.   E.  883    (1892);    Woarms  v. 
Becker,  82  N.  Y7.  Supp.  1086,  84  App.  Div.  491 
(  1903)  ;  Ashley  v.  Henahan,  56  Ohio  St    559, 
47  N.  E.  573    (1897)  ;  2  Chamb.,  Ev.,  §  1008. 

39.  Irby  v.  McCrae,  4  Desauss.   (S.  C.)   422 
(1814). 

40.  McCord-Brady  Co.  v.  Moneyhan,  59  Xeb. 
593,  81'  N.  W.  608    (1900). 

41.  Peart    v.    Taylor,    2    Bibb.     (Ky .)     556 
(1812)  ;  Rhoades  v.  Selin,  4  Wash.  C.  C.  715 
(1827). 

42.  Foster  v.  Foster,  1  Add.  462   (1823). 

43.  Camp's   Estate,    134   Cal.    233.   60   Pac. 
227     (1901);    Johnson's    Will,    40    Conn.    587 

(1874);  Anderson  v.  Irwin,  101  111.  411 
(1882)  ;  Coddington  v.  Jenner,  57  X.  J.  Eq. 
528,  41  Atl.  874  (1898)  :  Dudley  v.  Wardner, 
41  Vt.  59  (1868):  Thomas  v.  Ribble  (Va. 
1896),  24  S.  E.  241. 

Certainty  of  knowledge  on  the  part  of  the 
witness  is  an  essential  clement  of  satisfactory 
testimony,  Graham  v.  Chrystal,  2  Abb.  App. 
Cas.  (X  Y.)  263  (1865)  ("  thought  he  might 
perhaps  state  "  not  enough)  ;  Riggs  v.  Tayloe, 
1  Pet.  (U.  S.)  591,  600  (1828)  ("vague, 
uncertain  recollection"  excluded).  See  2 
Chamb.,  Ev.,  §  1009.  n  3  and  cases  cited. 

44.  Abstracts  as  Evidence. —  Registry  cop- 
ies are,  naturally,  when  available,  the  usual 


249 


SCOPE    OF    BUKDEN. 


stance  45  or  tenor  4G  of  the  docunieut  in  all  material  details.47  The  rule  ap- 
plies to  any  document  shown  to  have  been  executed48  so  far  as  the  contents 
are  relevant  to  the  issue.49 

Same;  Intension  of  Evidence. —  Absolute  reproduction  of  the  exact  language 
is  not  required5"  nor  would  such  precision  of  statement  be  convincing.  That 
effect  should  be  given  to  parol  evidence  of  a  lost  instrument  51  such  as  a  will,52 
which  is  required  to  be  in  writing,  the  substantive  law  requires  that  the  judge 
should  act  only  upon  precise  and  convincing  evidence 0;{  and  the  provisions 
are  the  same  where  the  attempt  is  made  to  supply  a  lost  record.54 


method  of  proof  of  lost  or  mutilated  instru- 
ments. §§  1084  et  seq.  When  the  registry 
law  provides  for  recording  merely  an  abstract, 
the  court  is  at  liberty  to  decline  receiving  it  if 
there  is  better  available  evidence  or  the  evi- 
dence furnished  is  not  sufficiently  clear  and 
complete.  Xew  Jersey  R.  &  T  Co.  v.  Suy- 
dam,  17  X.  J.  L.  25,  59  (1839).  See  also 
2  Chamb.,  Ev.,  §  1009,  n.  4  and  cases  cited. 

45.  Edwards   v.   Rives.   35    Fla.   89,    17   So. 
416   (1895)  ;  Ross  v.  Loomis,  64  Iowa  437,  20 
X.   W.  749    (1884);   Camden  v.   Belgrade,  78 
Me.  204,  3  Atl.  652    (1886)  :   Holmes  v.  Dep- 
pert,  122  Mich.  275,  80  X.  W.  1094   (1899)  ; 
Strange  v.  Crowley,  91  Mo.  287,  2  S.  W.  421 
(1886);    Edwards    v.    Noyes,    65    X.    Y.    125 
(1875)  ;  U.  S.  v.  McComb,  5  McLean   ( U.  S.) 

286,  298  (1851);  McLeod's  Estate,  23  X.  S, 
154,  162  (1890);  2  Chamb.,  Ev.,  §  1009,  n. 
5  and  cases  cited. 

46.  Thompson  v.  Thompson,  9  Ind.  323,  333 
(1857);    Peart    v.    Taylor,    supra.     Proof   of 
mere   "  similarity "   is   not   sufficient.     South 
Chicago    B     Co.    v.   Taylor,    205    111     132.   68 
X   E.  732  (  1903).     See  2  Chamb.,  Ev.,  §  1009. 
n.   6  and  cases  cited. 

47.  Potts   v.    Coleman.   86   Ala.    94,    100,   5 
So.    ISO    (188);    Sturtevant   v.    Robinson,    18 
Pick.    (Mass.)    175,    179    (1836.1;    Metcalf   v. 
Van    Benthuysen.   3    X.   Y.   424,   428    (1850): 
(operative  parts  of  the  instrument  must   be 

stated  in  substance).  \\hetJier  the  affixing 
of  n  seal  must  be  affirmatively  established, 
see  Pease  v.  Sanderson,  188  111  597.  59  X.  E 
425  (1900);  Strain  v.  Fit/gerald.  128  X.  C. 
3!)6.  3S  S:  E.  929  M901)  ;  Williams  v.  Bass, 
22  Yt.  352  (1850);  Peters  v.  Reichenbach, 
114  Wis.  209,  90  X  W.  184  ( 1902)  :  2  Chamb.. 
Ev..  §  1009,  n  7  and  cases  cited. 

48.  Xeely  v.   Carter.  96  Oa.   197.  23   S.   E. 
313   (1896)  ;  Montefiore  v.  Montefiore.  2  Add. 
Keel.  354    (1824). 

49.  Dickey    v.    Malechi,    6    Mo.    177,    184 


(1839);  Sizer  v.  Burt,  4  Den.  (X  Y.  426 
( 1847 ) .  It  must,  however,  affirmatively  ap- 
pear that  the  portions  of  the  instrument  not 
proved  to  the  tribunal  do  not  materially 
affect  or  modify  the  legal  purport  of  these 
portions  of  which  satisfactory  proof  is  fur- 
nished Butler  v.  Butler,  5  Harr.  (Del.) 
178  (1849).  Xo  more  definite  rule  can  well 
be  established.  Roe  &  McDowell  v.  Doe  &. 
Irwin,  32  Ga.  39,  50  ( 1861 )  ;  Bell  v.  Young,  1 
Grant  (Pa.)  175  (1854).  Less  than  this 
would  fail  to  present  the  certainty  necessary 
to  warrant  the  court  in  acting.  Perry  v.  Bur- 
ton, 111  111.  138  (1884);  Poague  v.  Spriggs, 
21  Gratt.  (Va.)  220,231  (1871).  To  require 
more,  would,  in  'many  instances,  be  prohibi- 
tory. Anderson  v.  Irwin,  101  111.  411,  414 
(1882). 

50.  Perry  v.  Burton.  Ill  111.   138    (1884); 
Thompson    v.    Thompson,    9    Ind.    323,    333 
(1857). 

51.  In  re  Johnson,  40  Conn.   587    (1874); 
Osborne   v.   Rich,   53    111.   App.   661     (1894); 
Loftin   v.   Loftin,   96   X.   C.   94,    1    S.    E.   837 
( 1887)  ;  2  Chamb.,  Ev.,  §  1010,  n.  2  and  cases 
cited. 

52.  Skeggs   v.   Horton,   82   Ala.   353.  2   So. 
110  (1886)  ;  Kearns  v.  Kearns.  4  Harr.  (Del  ) 
83   (1843)  ;  Scott  v    Maddox.  113  Ga.  795,  39 
S.   E.   500    (1901:    Dickey   v.  Malechi,  6   Mo 
177,   184    (1839);   2  Chamb.,  Ev..  §   1010,  n. 
3  and  cases  cited. 

53.  McDonald  v.  Thompson,  16  Colo.  13.  26 
Pac     146    (1891);    McCarn    v.    Kundall.    Ill 
Iowa   406.   8-2   X.   W    924    ( 1900)  ;   Connor  v. 
Pushor.    S6    Me     300,    29    Atl.    1083    (1894); 
Wyckoff  v    Wyckoff,  16  X.  J    Eq    401   (1863)  ; 
Edwards  v.  Xoyes,  65  N.  Y.  125   (1875)  :  Mc- 
Manus  v.  Commow,   10  X.  D.  340.  87   X.  W. 
8    (1901):    Yan    Horn    v.    Munnell.    145    Pa. 
497,   22   Atl.   985    (1891):    2   Chamb..   Ev.,   § 
1010.  n.  4  and  cases  cited. 

54.  Com.  v.    Roark,   8   Cush.    (Mass.)    210 


411 


BUEDEN  OF  EVIDENCE. 


250 


Reformation  of  Instrument. —  The  requirement  for  convincing  proof  in 
cases  of  fraud  becomes  especially  clear  where  the  logical  necessity  to  which 
reference  has  above  been  made/'5  is  reinforced  by  the  caution  imposed  by 
the  positive,  i.e.,  substantive,  law  for  the  protection  of  written  documents. 
Caution,  for  example,  may  well  be  felt  in  taking  affirmative  action  where  it  is 
proposed  to  cancel  a  deed,50  laud  grant/'7  patent/'*  release  5U  or  other  sealed 
instrument.00  Similarly,  a  strong  case  must  be  made  out  to  authorize  the 
court,  in  the  exercise  of  sound  reason,  to  rescind  61  or  vary  °2  a  written  con- 
tract, on  account  of  alleged  fraud.  This  is  especially  true  where  the  con- 
tract has  been  executed.03  The  reformation  of  instruments,  in  general,  will 
only  be  ordered  upon  strong  and  satisfactory  proof,04  whether  the  ground  of 
relief  prayed  for  is  fraud  °5  or  mutual  mistake.06  It  has  been  said  that  a 
preponderance  of  evidence  is  not  sufficient  °"  though  proof  beyond  reasonable 
doubt  need  not  be  furnished.08 


(1851);  Cunningham  v.  R.  Co.,  61  Mo.  33 
(1876);  Mandeville  v.  Reynolds,  68  N.  Y. 
528,  533  (1877)  ;  2  Cbamb.,  Ev.,  §  1010,  n.  5 
and  cases  cited.  Proof  beyond  a  reasonable 
doubt  is  not  required.  Skeggs  v.  Horton, 
supra. 

55.  See  §  993,  supra. 

56.  Parlin   v.   Small,   68   Me.   289    (1878); 
Eaton  v.  Eaton,  37  N.  J.  L.  108,  18  Am.  Rep. 
d6    (1874). 

57.  U.  S.  v.  San  Jacinto  Tin  Co.,  125  U.  S. 
273,  8  S.  Ct.  850,  31  L.  ed.  747   (1888)  ;  Colo- 
rado Coal,  etc.,  Co.  v.  U.  S  ,  123  U.  S.  307,  8 
to.  Ct.  131,  31  L.  ed.  182   (1887). 

58.  U.  S.  v.  American   Bell  Telephone  Co., 
167   U.   S.  224,   17   S.  Ct.  809.  42   L    ed.   144 
( 1896 )    ( beyond  reasonable  doubt ) . 

59.  De  Douglas  v.   v.  nion  Traction  Co.,  198 
Pa.  430,48  Atl.  262  (1901). 

60.  Pinner    v.    Sharp,    23    X.    J     Eq.    274 
(1S72). 

61.  Conner   v.   Groh,   90   Md.    674,   45   Atl. 
1024    (1900);    Breemerch  v.  Linn,   101   Mich. 
64,  59   X.   W.   406    (1894). 

62.  Mayberry    v.    Xichol    (Tenn.    Ch.    App. 
1896),  39  S.  W.  881. 

63.  Atlantic  Delaine  Co.  v.  James,  94  U.  S. 
207,  24  L.  ed.  112  (1876). 

64.  Cox  v.  Woods.  67  Cal.  317.  7  Pac.  722 
(1885);   Connecticut  Fire  Ins.   Co.  v.  Smith. 
10    Colo.    App.     121.    51    Pac.     170     (1897); 
Muller  v.  Rhuman.  62  Ga    332   (1879)  :  Suth- 
erland   v.    Sutherland.    69    III.    481     M873): 
Tufts  v.  Lamed.  27  Iowa  330  MS69)  :  Herman 
Amer.     Ins     Co.     v.     Davis,     131     Mass.     316 
(1881)  :  Bartlett  v.  Brown.  121  Mo.  353.  25  S. 
W.    1108    (1894);    Mead    v.    Westchester    F. 


Ins.  Co.,  64  N.  Y.  453  (1876);  Rothschild  v. 
Bell,  10  Ohio  Dec.  (Reprint)  176,  19  Cine. 
L.  Bui.  137  (1887);  Koen  v.  Kearns,  47  W. 
Va.  575,  35  S.  E.  902  (1900):  2  Chamb., 
Ev.,  §  1011,  n.  10  and  cases  cited. 

65.  Keith    v.    Woodruff,    13(5    Ala.    443,    34 
So.    911     (1902);    Xeal    v.    Gregory,    19    Fla. 
356    (1882);    Habbe   v.   Viele,    148*  Ind.    116, 
45   X.   E.   783,  47  X.   E.   1    (1897);   Burns  v. 
Caskey,  100  Mich.  94,  58  X.  W.  642    (1894)  ; 
Martini   v.   Cristensen.   60   Minn.   491.   62   X. 
W.  1127   (1895)  :  Xebraaka  L.  &  T.  Co   v.  Ig- 
nowski,  54  Xeb.   398,  74  X.  W.  852    (1898); 
Allison  Bros.  Co.  v.  Allison,  144  X.  Y   21,  38 
X.   E.   956    (1894):    Kleinsorge   v.   Rohse,  25 
Or.  51,  34  Pac   874   (1893)  :  Shattuck  v.  Gay, 
45  Vt.  87    (1872)  ;   Kropp  v.  Kropp,  97.  Wis. 
137,  72  X.  W   331   (1897)  :  Baltzer  v.  Raleigh, 
etc,  R.  Co.,  115  U.  S    634,  6  S.  Ct.  216.  29  L. 
ed.  505   (1885)  :  2  Chamb.,  Ev..  §  1011,  n    11 
and   cases   cited 

66.  Stockbridge    Iron    Co.    v.   Hudson    Iron 
Co.,  107  Mass.  290,  317    (1871):   Seitz  Brew- 
ing Co.  v   Ayres.  60  X.  J   Eq.  190.  46  Atl   535 
(1900)  :  Southard  v.  Cnrley,  134  N.  Y.  148,  31 
X.   FJ.   330    (1892). 

67.  Warrick    v.    Smith.    36    Til.    App.    619 
(1889):    Mikiaka   v.   Mikiska.   90   Minn.   258, 
95  X    W    910    (1903):   Devereux  v.   Sun  Fire 
Office.  4  X.  Y.  Supp   655,  51  Hun  147   (  1889)  : 
2  Chamb..  Ev.,  §   1011.  n.  13  and  cases  cited 

68.  Miller  v.   Morris.   123  Ala     164,  27   So. 
401     HS9S)  ;    Crockett    v.    Crockett.    73    Ga 
647    (1884):    Southard  v.   Cnrley.  siiprn :  Ja- 
maica Sav.  Bank  v.  Taylor,  76  X.  Y.  Supp.  790 
(1902). 


251 


SCOPE  OF  BUBDEX. 


Reformation  of  Absolute  Deed  into  Trust  or  Mortgage. —  Equity  requires 
that  evidence  beyond  all  reasonable  controversy  be  furnished  as  a  basis  for 
turning  a  deed  absolute  on  its  face  into  a  mortgage.69  In  like  manner  a  parol 
trust  in  lauds  can  only  be  declared  upon  satisfying  the  conscience  of  the  court 
by  such  evidence  as  leaves  no  legitimate  doubt  in  his  mind.7u  Evidence  be- 
yond a  reasonable  doubt  will  not  be  required.71  The  rule  is  the  same  in 
relation  to  a  trust  in  personal  property  72  or  to  show  that  a  gift  of  land  was 
encumbered  by  a  trust.73 

Specific  Performance. —  Equity  requires  that  specific  performance  of  a  parol 
contract  relating  to  the  sale  of  lauds  74  which  is  within  the  statute  of  frauds,75 
should  be  decreed  only  upon  evidence  satisfactory  to  the  conscience  of  the 
court.  This  has  been  understood  as  requiring  a  high  degree  of  probative 
force.  Specific  performance  of  a  parol  ante-nuptial  agreement,76  of  a  parol 
contract  to  make  a  will  disposing  of  real  estate  7T  and  other  parol  agreements, 
such  as  those  to  purchase  personal  property,78  to  assign  choses  in  action,79 
to  guarantee  against  fire,  death  or  other  casualty  80  and  the  like,  demands  that 
a  clear  and  satisfactory  affirmative  case  should  be  submitted. 

Substitutes  for  Documents. —  Where  the  substantive  law  prescribes  that 
a  conveyance  of  laud  shall  be  by  deed,  strong  evidence  will  be  required  to 
give  effect  to  any  substitutes  for  a  deed,  as  where  the  effort  made  is  to  give 


69.  \\orley  v.  Dryden,  57  Mo.  226   (1874)  ; 
Wilde  v.  Homan,  58  Xeb.  634,  79  X.  W.  546 
(1899);    Sid  way   v.    Sidway,   7    X.    Y.   Supp. 

421  (1889);  Lance's  Appeal.  112  Pa.  456,  4 
Atl.  375  (1886)  ;  2  Chamb.,  Ev.,  §  1012,  n.  1 
and  cases  cited 

70.  Emfinger  v.  Emfinger.  137  Ala.  337.  34 
So.  346   (1902);  Rice  v    Rigley,  7  Idaho  115, 
61    Pac.    290    (1900);    Moore   v.    Wood,    100 
111.   451    (1881):    Maple  v.   Xelson,   31    Iowa 
322    (1871):    Burleigh   v.   White.   64   Me.   23 
(1874):    Brinkman  v.   Sunken.   174  Mo.   709, 
74   S.    W     963    (1903):    Grouse   v.    Frothing- 
ham,  97  X.  Y.  105  (1S84)  :  Smithsonian  Inst. 
v    Meech.    169  JJ.   S.  398,    18   S    Ct.   396.  42 
L.  ed.  793   (1898)  ;  2  Chamb.,  Ev.,  §  1012,  n. 
2  and  cases  cited. 

71.  Sherrin  v.  Flinn,  155  Ind.  422,  5S  X.  E. 
549    (IflOO)  ;  Doane  v.  Dunham,  64  Xeb.  135. 
89  X.  \V.  640    i  1902 )  :  King  v.  Gilleland.  60 
Tex.  271    (1883). 

72.  Allen  v.  Withrow,  110  U.  S.  119,  3  S.  Ct. 
517,  28  L.  ed.  90   (1884). 

73. 'Lemon   v.   Wright.   31   Ga.   317    (I860). 

74.  Seitman  v.  Seitman.  204  111.  504.  68  X. 
E.  461  (1903):  Wylie  v.  Charlton.  43  Xeb. 
840,  62  X.  W.  220  i  H95)  :  Moore  v.  Galupo. 
65  X.  J.  Eq  I!i4.  ."•  Atl  628  H903)  ;  2 
Chamb.,  Ev.,  §  1013,  n.  1  and  cases  cited. 


75.  Higginbotham  v.  Cooper,  116  Ga.  741, 
42  S.  E.  1000  (1902)  ;  Wright  v.  Raftree,  181 
111.    464,    54    X.    E.    998     (1899);    Gibbs    v. 
Whitwell,  164  Mo.  387,  64  S.  W.  110  (1901)  ; 
Winne  v.  Winne,  166  X.  Y.  263,  59  X.  E.  832, 
82  Am.  St.  Rep.  647   ( 1901 )  ;  Sample  v.  Hor- 
lacher,    177    Pa.    247,    35    Atl.    615     (1896): 
White  v.  Wansey.  116  Fed.  345,  53  C.  C.  A. 
634  -(1902)  :   McCully  v.  McLean,  48  W.  Va. 
625,  37   S.   E.  559    (1900);   2  Chamb.,  Ev.,  § 
1013,  n.  2  and  cases  cited. 

76.  In  re  Krug,   196   Pa.  484,  46  Atl.  484 
(1900). 

77.  McElvain  v.  McElvain,  171  Mo.  244,  71 
fc>.   W.    142    (1902):    Gall   v.   Gall.    19    X.    Y. 
Supp.  332,  64  Hun  600  (1892)  :  Richardson  v. 
Orth.   40  Or    252,   66  Pac.  925,  69  Pac.   455 
(1901):    Hennessy  v.   Woohvorth.   128   U.   S. 
438.   9   S.   Ct.    109.   32  L    ed    500    (1888):   2 
Chamb..  Ev..  §  1013.  n.  4  and  cases  cited. 

78.  Farley  v.  Hill.  150  T   S.  572.  14  S.  Ct 
186.  37   L.  ed.   11S6   (1893). 

79.  Rockecharlie      v.      Rorkecharlie       (Va. 
1898).  29  S.  E.  825:  Dalxell  v.  Dueber  Watch- 
Case  Mfg.  Co..  149  U.  S.  315,  13  S.  Ct.  886. 
37  L.  ed.   749    (1893). 

80.  McCann  v.   Aetna  Ins.  Co..  3  Xeb.   198 
(1874'  :  Xeville  v.  Merchants',  etc.,  Mut.  Ins. 
Co.,  19  Ohio  452   (1848). 


BURDEN  OF  EVIDENCE. 


effect  to  a  parol  gift  of  lands.81  While  the  policy  of  the  law  limits  the  general 
power  of  an  owner  of  property  to  make  a  valid  disposition  of  it  to  take  effect 
upon  his  decease  to  a  will  executed  with  certain  formalities,  it  does  not  ex- 
clude certain  other  special  forms  of  transfer,  which  attain  the  same  general 
result.  But  in  cases  where  the  court  is  asked  to  carry  out  such  an  arrange- 
ment, as  a  donatio  causa  mortis s2  or  a  nuncupative  will,83  the  tribunal  is 
justified  and,  indeed,  as  a  sound  exercise  of  the  reasoning  faculty,  frequently 
required,  to  insist  that  a  satisfactory  and  convincing  case  be  presented. 

Fraud. —  In  cases  involving  allegations  of  fraud,  the  rule  is  as  stated,  viz., 
that  when  fraud  is  involved  in  a  civil  case  it  need  be  proved  only  by  a  fair 
preponderance  of  the  evidence,84  and  proof  beyond  a  reasonable  doubt  is  not 
required.85  But  in  a  matter  involving  honesty  and  reputation  the  court, 
judge  and  jury  alike,  will  proceed  with  caution,86  a  mere  suspicion  87  being  in- 
sufficient. Clear  and  convincing  proof  is,  therefore,  needed  in  order  to  estab- 
lish fraudulent  conduct.88  The  same  idea  is,  probably,  intended  to  be  con- 
veyed in  the  statement  that  there  is  a  presumption  in  favor  of  honesty  and 
fair  dealing,89  so  far  as  anything  further  is  intended  than  a  mere  reference  to 
pleading  on  the  burden  of  evidence.90 

§  412.  Scope  of  the  Burden  of  Evidence ;  Criminal  Cases —  In  criminal  cases 
the  familiar  rule  requires  that  each  material  allegation  of  the  government's 


81.  Jones   v.   Tyler,    6   Mich.    364    (1859); 
Erie,   etc.,   R.    Co.    v.    Knowles,    117    Pa.    77, 
11  Atl.  250  (1887).     Proof  beyond  reasonable 
doubt  has  been   required      Poullain   v.   Poul- 
lain,  76  Ga.  420.  4  S.  E.  02   (1886) 

82.  Woodburn    v     Woodburn,   23  Jll     App. 
289    (1886);    Buecker  v.  Carr,  60  N.   J.  Eq. 
300,  47  Atl.  34    (1900)  :  Grymes  v.  Hone,  49 
N.  Y.  17.  10  Am.  Rep.  313  (1872)  ;  2  Chamb., 
Ev.,  §  1014,  n.  3  and  cases  cited. 

83.  Lucas    v.    Goff,    33    Miss.    629     (1857). 
The  rule  has  been  limited  to  a  requirement 
that  all  circumstances  raising  legitimate  sus- 
picions   should    be    satisfactorily    explained. 
Lewis   v.   Merritt,    113   N.   Y.   386,   21    N.   E. 
141    (1889);    Jamaica   Sav     Bank   v.   Taylor, 
76  X.  Y.  Supp.  790,  72  App.  Div.  567   (  1002). 
It  has  been  required  that  the  evidence  should 
be   "  free   from   uncertainty."     Citizens'    Sav. 
Hank  v.  Mitchell.   18  R.   T.   739,   30  Atl.   626 
(1894).     "Beyond   doubt."     Whalen    v.    Mil- 

holland.  89  Md.  199,  43  Atl.  45,  44  L.  R.  A. 
208   (1899). 

84.  Kingman  v.  Reinemcr,   166  Til.  208,  46 
X.   E.    786    (1897^:    Gordon   v.   Parmelee.    15 
Gray      (Mas«.)      413      (I860):      Gumbera     v. 
Trench.  103  Mich.  543.  HI  X.  W.  872   H805)  : 
Bauer  Grocery  Co.  v.  Sanders,  74  Mo.  App. 


657  (1898);  Freund  v.  Paten.  10  Daly  (X. 
Y.)  379  (1882);  Young  v.  Edwards,  72  Pa. 
257  (1872)  ;  2  Chamb.,  Ev.,  §  1015,  n.  1  and 
cases  cited. 

85.  Hanscom  v.   Drullard,   79   Cal.   234,  21 
Pac.  736   (1889)  ;  Turner  v.  Hardin,  80  Iowa 
691,  45  N.  W.  758   (1890)  ;  Sommer  v.  Oppen- 
heim,    44    N.    Y.    Supp.    396,    19    Misc.    605 
(1897)  :   Dohmen  Co.  v.  Niagara  F.  Ins.  Co., 
96  Wis.  38,  71  N.  W.  69    (1897)  ;   2  Chamb., 
Ev.,  §  1015,  n.  2  and  cases  cited. 

86.  Watkins     v.     Wallace,     19     Mich.     57 
(1869). 

87.  Toney  v.  McGehee,  38  Ark.  419   (1882)  ; 
Watkins  v.  Wallace,  supra. 

88.  Schroeder   v.    Walsh,    120    111.    403,    11 
N.  E.   70    (1887);   Henry  v.  Henry,   8  Barb. 
UN'.  Y.)   588   (1850)  ;  Dohmen  Co.  v.  Niagara 
j?.  Ins.  Co.,  supra;  King  v.  Davis,   16  X.  Y. 
Supp.  427   (1891)       But  sec  Coit  v.  Churchill, 
61  Iowa  296,   16  X.  W.   147    (1883). 

89.  Bixby  v.   Carskaddon,   55   Iowa   533,   8 
X.    W.    354     (1881);    Jones    v.    Greaves    20 
Ohio  St.  2,  20  Am.  Rep.  752    (1874);   Kaine 
v.   Weigley,   22   Pa.    179    (1853):    2    Chamb., 
Ev..  §  1015.  n.  6  and  cases  cited. 

90.  Decker  v.  Somerset  Mut.  F.  Ins.  Co.,  66 
Me.  406   (1877). 


253  EFFECT  OF  PRESUMPTIONS.  §  413 

claim  should  be  established  beyond  a  reasonable  doubt  91  though  the  require- 
ment applies  to  the  case  as  a  whole  rather  than  to  its  constituent  parts,  or  any 
particular  set  of  facts.92  Serious  doubt  exists  as  to  whether  such  a  phrase  can 
really  be  made  clearer  to  the  mind  by  dint  of  attempted  definition  and  ex- 
planation, although  many  attempts  have  been  made,  with  greater  or  less  suc- 
cess, to  explain  that  which,  so  far  as  intelligible  at  all  seems  already  well 
understood.93  "  It  needs  a  skillful  definer  who  shall  make  the  meaning  of 
the  term  '  beyond  a  reasonable  doubt  '  more  clear  by  the  multiplication  of 
words."  94  The  enchanced  weight  of  proof  demanded  is,  as  compared  to  the 
burden  imposed  in  civil  cases,95  a  concession  to  the  increased  inertia  which  a 
court  may  reasonably  feel  in  view  of  the  greater  seriousness  in  consequences 
of  criminal  prosecutions  as  distinguished  from  civil  actions. 

Grades  of  Offenses. —  Even  among  criminal  cases,  there  is  an  obvious  dif- 
ference in  the  nature  of  the  consequences  which  will  follow  the  affirmative 
action  of  the  court.96  The  proof  must  warrant  the  action  asked.97 

§  413.  Effect  of  Presumptions. —  Like  the  "  burden  of  proof,"  the  presump- 
tion of  law  has  both  a  procedural  and  an  evidentiary  aspect.  It  is  the  pro- 
visional assumption  of  procedure  that  an  inference  of  fact  has  a  prima  facie 
force.  Relating,  therefore,  as  it  does,  to  the  evidentiary  value  of  a  fact  or 
set  of  facts,  a  presumption  of  law  has  no  effect  upon  the  position  of  the 
burden  of  proof,  properly  so-called,  which  is  not  itself  dependent  upon  logic 
or  the  exercise  of  the  reasoning  faculty.  The  sole  relation  of  the  presumption 
of  law  is  with  the  burden  of  evidence  which,  at  least  provisionally,  it  operates 
to  discharge  as  to  the  point  covered  by  it.  This  it  is  the  more  important  to 

91.  §§  408,  412,  supra;  2  Chamb.,  Ev.,  §§  of   the   charge."     Com.   v.    Webster,    5    Cush. 
987,  9!)6a.   1016.  (Mass.)    295,   320    (1850).     "Proof   'beyond 

92.  Henry  v.  People,  198  111.  162,  65  X.  E.  reasonable  doubt  '  is  not  beyond  all  possible 
120    (1902);    State   v.    Gleim,    17    Mont.    17,  or   imaginary  doubt,  but  such  proof  as  pre- 
41  Pac.  998  (1895);  Morgan  v.  State,  51  Neb.  eludes    every    reasonable    hypothesis,    except 
672,   71    X.   W.   788    (1897);    2   Chamb.,   Ev.,  tbat  which  it  tends  to  support.     It  is  proof 
§   1016,  n    2  and  cases  cited.     Contra:  State  to  a  'moral  certainty,'  as  distinguished  from 
v.  Cohen,  108  Iowa  208,  78  X.  \V.  857  (1899)  ;  an   absolute  certainty.     As   applied  to  a  ju- 
State  v.   Flemming,   130  X.  C.  688,  41   S.  E.  dicial    trial    for   crime   the   two   phrases    are 
549    (1902).  synonymous  and  equivalent."     Com.  v.  Coet- 

93.  People  v.  Stubenvoll,  62  Mich.  329,  28  ley,  118  Mass.  1    (1875) 

X.  \V.  883    (1886)  ;   State  v.  Sauer,  38  Minn.  95.  §§   408,  409  supra:  2  Chamb.,  Ev..   §§ 

438,  38  X.  W.  355   (  1888)  ;   Buel  v.  State.  104  987,   996. 

Wis.    132.   80   X.    W.   78    (1899):    2   Cliamb..  96.  Decker   v.    Somerset   Mut.    F.   Ins.   Co., 

Ev.,    §    1016,   n.    3   and   cases   cited.  ti6  Me.  406   (1877). 

94.  Hoffman   v    State,   97   Wis.   576.   73   X.  97.  The  rule  has  been   stated,   in   a   some- 
\V.  52    (1897).     Failure  of  proof  beyond  rea-  what  misleading  way.  to  the  effect  that  "in 
sonable  doubt  has  been  defined  as  being  •' that  proportion   as  the  crime   imputed   is  heinous 
state  of  the  case,  which,  after  the  entire  com-  and  unnatural,  the  presumption  of  innocence 
parison  and  consideration  of  all  the  evidence.  grows    stronger    and    more    abiding."     Conti- 
leaves  the  minds  of  jurors  in  that  condition  nental  Ins.  Co    v.  Jachnichen,  110  Ind.  59,  10 
that  they  cannot  say  that  they  feel  an  abiding  X.  E.  636.  59  Am.  Rep.   194    (1886). 
conviction,  to  a  moral  certainty,  of  the  truth 


§  413  BUBDEN  or  EVIDENCE.  254 

observe  for  the  reason  that  it  is  commonly  said  that  "  a  presumption  of  law 
shifts  the  burden  of  proof."  98 

Burden  of  Proof. —  For  reasons  stated  above,"  the  burden  of  proof  properly 
so  called,  is  not  affected  in  the  least  by  the  creation  of  a  presumption  of 
law. 1 

Burden  of  Evidence. —  Tpon  the  burden  of  evidence,  however,  the  rules  of 
several  branches  of  substantive  law  requiring  that  certain  definite  inferences 
of  fact  shall  have  a  prima  facie  quality  has  of  necessity  a  very  important  effect. 
In  fact  it  is  the  appropriate  function  of  a  so-called  "  presumption  of  law  "  to 
confer  this  prima  facie  quality  upon  these  inferences  of  fact.2  Pro  tanto, 
therefore,  the  establishment  of  a  presumption  of  law  by  proof  of  facts  from 
which  it  arises,  sustains  the  burden  of  evidence  and,  so  far  as  it  extends, 
shifts  it  to  the  opposite  side.a 

98.  Ficken   v.  Jones,   28  Cal.   618    (1865)  ;       55  Am.  Rep.  53  (1885)  ;  Ceveland,  etc.,  R.  Co. 
Kitner  v.  Whitlock,  88  111.  513   (1878)  ;  Nico-       v.  Newell,  104  Ind.  264.  3  X.  E.  836   (1885)  ; 
demus  v.  Young,  90  Iowa  423,  57  X.  W.  906       Holmes  v.  Hunt,  122  Mass.  505,  514,  23  Am. 

(1894);    Rosenthal    v.    Maryland    Brick    Co..  Rep.  381   ( 1877)  ;  J.  D.  Marshall  Livery  Co.  v. 

61  Md.  590  (1883);  State  v.  Mastin,  103  Mo.  McKelvy,   55    Ao.    App.   240    (1893)  ;    Heine 

508,  15  S.  W.  529    (1890):    Bayliss  v.  Cock-  mann    v.    Heard,    62    X.    Y.    448     (1875);    2 

croft,  81   N.  Y.  363    (1880);   Maurice  v.  De-  Chamb.,  Ev  ,     101S.  n.  2  and  cases  cited, 

vol,    23    W.    Va.    247     (1883);    Lawrence    v.  2.  State  v.  Sattley.  131   Mo    464,  33  S.  W. 

Minturn,  17  How.    (U.  S.)    100,  58  L.  Ed.  58  41   (1895)  ;  Smith  v.  Asbell,  2  Strobh.  (S.  C.) 

(1854)  ;  2  Chamb.,  Ev.,  §  1017,  n.  2  and  cases  141,   147    (1846)  ;   2  Chamb.,  Ev.,  §   1019,  n. 

cited.  1  and  cases  cited. 

99.  §  395,  supra;  2  Chamb.,  Ev.,  §§  938  et  3.  Alabama  G.  E.  R.  Co.  v.  Taylor,  129  Ala. 
seq.  238,  29  So.  673    (1901). 

1.  Pease  v.  Cole,  53  Conn.  53,  22  Atl.  681, 


CHAPTER  XIII. 

PRESUMPTIONS;   INFERENCES  OP  FACT. 

Presumptions;  classification  of,  414. 
Inferences  of  fact:  rex  ipxa  loquitur,  415. 
inference  of  continuance,  416. 

nature  of  subject  matter,  417. 
legal  results,  418. 
legal  status  and  standing,  419. 
life,  420. 

mental  conditions,  421. 
personal  or  business  relations,  422. 

Inferences  of  regularity;  human  attributes;  physical,  423. 
mental  or  moral,  424. 
business  affairs,  425. 
official  business:  mail  service,  426. 

rebuttal  of  inference  of  receipt  from  mailing,  42T. 
inference  rebuttable.  428. 
telegrams  —  statutes,  429. 
Omnia  contra  spoliatorem,  430. 

spoliation  a  deliberative  fact,  431. 
spoliation  as  an  insult  to  the  court,  432. 
fabrication    (a]   witnesses,  433. 
(&)    writings,  434. 
suppression  (a)  witnesses:  failure  to  call,  435. 

failure  to  testify,  436. 
removal  or  concealment,  437. 
probative  force  of  inference,  438. 
(Z>)  writings  destruction.  430. 

failure  or  refusal  to  produce,  440. 
refusal  to  produce  on  demand,  441. 
mutilation,  alteration,  etc.,  442. 
reaZ  evidence.  443. 

§  414.  Presumptions ;  Classification  of.1 —  As  an  inference,  a  presumption  is 
based  upon  lojric.  the  experience  of  mankind:  as  an  assumption,  it  is  based 
upon  or  reflated  hy  either  m  substantive  law  or  (2)  administration.2 
other  word-,  under  the  -eneral   term   "  presumption  "  nro  arrmiped  three  di< 

1.  2  Chan.berhm,e.  Evidence,  §  1026.  2.  §  147  supra;  1  Chamb.,  Ev.,  §  332  et  seq. 

255 


415 


PBESUMPTIOXS  ;  INFERENCES  OF  FACT. 


256 


tinct,  though  cognate,  matters:  (1)  Inferences  of  Fact,  (2)  Presumptions  or 
Assumptions  of  Law,  (-j)  Assumptions  of  Administrations.  Outside  this 
classification,  but  receiving  the  appellation  of  "  presumptions/'  is  a  class  of 
maxims,  rhetorical  paraphrases  of  rules  of  law  more  correctly  stated  in  an- 
other form,  commonplaces  of  jurisprudence,  and  the  like,  to  which  the  designa- 
tion of  (4)  Pseudo-Presumptions  seems  apprepriate.3 

§  415.  Inferences  of  Fact;  Res  Ipsa  Loquitur.^ — When  used  in  its  primary 
and  original  siguiticance  **  (and  this  is  the  only  sense  in  which  it  has  any 
proper  relation  to  the  law  of  evidence)  all  presumptions  are  of  fact.0  The 
relation  spoken  of  as  a  "  presumption  "  or  probable  inference  of  fact  is  that 
which  exists  between  a  factum  probans  and  the  factum  probandum.1  As  be- 
tween themselves,  the  two  facts,  factum  probans  and  factum  probandum,  are 
said  to  be  probatively  or  logically  relevant*  The  mental  process  by  which  this 
relevancy  is  perceived  and  made  effective  for  purposes  of  proof  is  that  of 
inference; — which  when  probable  is  properly  spoken  of  as  a  presumption.9 


3.  2  Chamb.,  Ev.,  §   1020 

4.  2  Chamberlayne,  Evidence,  §§  1027-1029. 

5.  In  its  broad  acceptance  a  presumption  is 
a    strong    or    probable    inference.     Douglass 
v.  Mitchell,  35  Pa.  440,  443    (1860):   Austin 
v.  Bingham.  31   Vt.  577,  581    (1850). 

6.  Philadelphia  City  Pass.   K.  Co.  v.  Hen- 
rice,  92  Pa.  431,  37  Am.  Rep.  699  (  ISSIM 

7.  §  34,  supra;   1  Chamb.,  Ev.,  §  51.     "A 
presumption  of  fact  is  an  inference  which  a 
reasonable  man  would  draw  from  certain  facts 
which  have  been  proved  to  him.     Its  basis  is 
in  logic:  its  source  is  probability."     Liverpool 
&  L    &  G    Ins.  Co.  v.  Southern  Pac    Co..  125 
Cal.  434   (1809).     "A  presumption  of  fact  is 
an  inference  of  the  existence  of  a  certain  fact 
arising    from    its    necessary    and    usual    con- 
nection  with  other   facts  which  are   known.'' 
Roberts  v.   People.  0  Colo.   458,   13   Pac.   630 
(1886):   Lane  v    Missouri  Pac.  Ry.  Co.,   132 

Mo.  4,  33  S.  \V.  645  (1895):  Hilton  v.  Ben- 
der. 69  N  V.  75,  82  (  1S77  i  :  Home  Ins.  Co.  v. 
Weide.  78  U.  S.  (11  Wall.)  438.  20  L.  ed. 
197  (187H.  "Presumptions  of  fact  are  but 
inferences  drawn  from  other  facts  and  cir- 
cumstances in  the  case,  and  should  be  made 
upon  the  common  principles  of-  induction. 
U  S  v  Griego.  11  X.  Mcx.  302.  72  Par.  20 
(1002)  :  Dietrich  v.  Dietrich.  112  X.  Y  Supp. 
968.  128  App.  Div  564  (1008  i.  "  A  presump 
tion  of  fact  is  a  mere  inference  from  certain 
evidence,  and,  as  the  evidence  changes,  the 
presumption  necessarilv  varie^  "  Chicago, 
etc.,  Ry  Co.  v.  Bryant,  65  Fed.  969,  13  C.  C. 
A.  249  (1895). 


Probative  force  of  inferences  of  fact. — 
"  Presumptions  of  fact  have  been  classified  by 
text  writers  and  judicial  decisions  as  strong, 
probable  and  slight.  When  a  fact  proved  al- 
ways accompancis  a  fact  sought  to  be  proved, 
it  gives  rise  to  a  strong  presumption  that 
may  control  a  jury  in  their  investigation. 
When  the  fact  proved  usually  accompanies 
the  fact  sought  to  be  proved  a  probable  pre- 
sumption arises  Slight  presumptions,  which 
arise  from  the  occasional  connection  of  dis- 
tinct facts,  are  generally  disregarded  by  a 
jury."  U.  S.  v.  Sykes,  58  Fed.  1000  (1893). 
See  2  Chamb.,  Ev.,  §  1027,  n.  3  and  cases 
cited. 

8.  The   term   presumption    of   fact    in   this 
connection    designates    the    inference,    based 
upon  experience,  that  an  unknown  fact  exists 
because   another,   which    usually,    in   common 
experience,  accompanies  or  is  connected  with 
it,    has    been    shown    to    exist      Graham    v. 
Badger,    164   Mass.   42.  41    X.   E.   61     (1895); 
Com.    v.    Frew.    3    Pa.   Co.    Ct.    402     (1886): 
t".  S.  v.  Searcy.  26   Fed    435    M885).     See  § 
36.  .s»pm;   1   Chamb..  Ev..  §  50. 

9.  Kodan  v.  St.  Louis  Transit  Co..  207  Mo 
302.   H).-,  S    W.    1061    (1007):   2  Chamb.   Ev.. 
§  1027.  n.  5  and  cases  cited.     The  term  "pre- 
sumption of  fact  ''  connotes  the  idea  that  the 
inference    is    one    which    naturally    or    spon- 
taneoiislv  suggests  itself  to' the  mind.     O'Gara 
v.     F.isenlnhr.    38    X.    V.    206.    200     (1868); 
Tanner  v   Hughes,  53  Pa.  289  (1866). 


257 


RES  IPSA  LOQUITUR. 


415 


Two  facts  are  relevant  when  the  existence  of  one  raises  a  presumption  as  to 
the  existence  of  the  other.10 

Of  this  class  are  the  presumptions  of  negligence  from  the  results  of  certain, 
actions  usually  spoken  of  as  the  doctrine  of  res  ipaa  loquitur.11 


10.  "  Presumptions  oi.  facts  are,  at  best,  but 
mere  arguments,  and  are  to  be  judged  by  the 
common   and    received   tests   of   the  truth   of 
propositions  and  the  validity  of  arguments." 
Lawhorn  v.  Carter,  11  Bush   (Ky.)   7   (1874). 

Negligence  in  Meat  Market. —  There  is  no 
preemption  of  negligence  against  the  owner 
of  a  meat  market  from  the  fact  that  the 
plaintiff  slipped  on  a  piece  of  meat  on  the 
tloor  where  there  is  nothing  to  show  how  the 
meat  got  there  or  how  long  it  had  been 
there  where  the  floor  was  constantly  being 
swept  by  a  man  employed  for  that  purpose. 
Norton  v.  Hudner,  213  Mass.  257,  100  N.  E. 
540,  44  I..  R.  A  (X.  S.)  79  (1913). 
The  burden  of  proof  is  sustained  in  an  ac- 
tion for  selling  unfit  food  by  showing  that 
the  food  sold  was  diseased  and  caused  the 
death  of  the  decedent  and  it  is  not  neces- 
sary to  show  knowledge  of  the  defendant  of 
the  condition  of  the  food,  ^tate  v.  Rossman. 
93  Wash.  330.  UN  Pac.  349,  L.  K.  A.  1917  B 
1276  (1916). 

11.  Doctrine  of  res  ipsa  loquitur  applica- 
ble.—  The  bursting  of  a  water  tank  in  itself 
proves   negligence  under   the  doctrine  of   res 
ipsn   loquitur.     Wigal  v.   Parkersburg,  74  W. 
Va    25,  81  S.  E.  554.  52  L.  R.  A.   (X.  S.)  465 
(1914). 

A  presumption  of  negligence  of  the  em- 
ployer arises  from  an  unexplained  sudden 
starting  of  a  machine.  Chiuccariello  v. 
Campbell,  210  Mass.  532.  96  X.  E.  1101.  44 
1,.  R.  A.  (X.  S)  1050  (1912).  The  fact 
that  the  head  of  a  mallet  flew  off  while 
it  was  being  used  as  intended  in  an  amuse- 
ment park  shows  negligence  under  the 
doctrine  of  res  ipsa  loquitur.  V.'odnik  v. 
Luna  Park  Amusement  Co.,  69  Wash.  63S.  125 
Pac.  941.  4-2  L.  R.  A.  ( X.  S.)  1070  <1912i 
The  doctrine  of  res  ipsa  In^it'tiir  applies 
where  the  roof  of  a  box  car  is  torn  off  by  a 
wind  not  strong  enough  to  prevent  a  person 
standing  on  the  top  of  the  moving  train. 
Ridge  v.  Xorfolk  Southern  R.  Co..  167  X.  C. 
510,  83  S.  E  762.  L.  R.  A.  1914  E  215  (1914). 
The  fact  that  a  wall  fell  after  a  fire  is 
print  a  farip  evidence  of  negligence  under  the 
doctrine  of  re*  ipsa  lof/iiitur.  where  the  wall 
was  left  standing  for  more  than  a  month 


alter  the  i.re.  Hall  v.  Gage,  116  Ark.  50,  172. 
IS.  W.  833,  L.  R.  A.  1915,  §  704  (1914), 
The  mere  bursting  of  an  electric  light  bulb 
in  a  street  car  does  not  place  on  the  com- 
pany the  burden  of  proof  sinCe  the  accident 
may  have  happened  through  some  cause  be- 
yond the  control  of  the  company.  It  was  as- 
sumed that  the  rule  of  res  ipsa  loquitur  ap- 
plies to  this  case  but  the  court  points  out 
that  this  rule  simply  provides  evidence  and 
does  not  alter  the  burden  of  proof.  It  simply 
requires  the  defendant  to  explain  and  his  ex- 
planation may  leave  the  matter  in  equipoise 
in  which  case  the  defendant  would  be  entitled 
to  a  verdict  because  the  plaintiff  had  failed 
to  prove  his  case  by  the  weight  of  the  evi- 
dence. Hughes  v.  Atlantic  City,  etc.,  R.  Co., 
85  X.  J.  L  212.  89  Atl.  769,  L.  R.  A.  1916  A 
927  and  note  (1914).  The  unexplained 
presence  on  the  public  highway  of  a  run- 
away horse  unattached  raises  a  presump- 
tion of  negligence  on  the  part  of  the 
owner.  Dennery  v.  Great  Atlantic  &  Pa- 
<-ific  Tea  Co.,  82  X.  J  L.  517,  81  Atl  861,  39 
L.  R.  A.  (X.  S.)  574  (1911).  Presumption 
of  negligence  from  proof  of  explosion,  see 
note,  Bender  ed..  122  X.  Y.  131.  Presumption 
of  negligence  from  injury,  see  note.  Bender 
ed.,  114  X.  Y.  463. 

Doctrine  of  res  ipsa  loquitur  not  applica- 
ble.—  A  passenger  injured  cannot  invoke  the 
rule  of  res  ipsa  loquitur  against  the  carrier 
unless  something  unusual  happens  and  the 
mere  fact  of  injury  is  not  enough.  Pointer  v. 
Mountain  R.  Co..  269  Mo.  104.  189  S.  W.  805, 
L.  R.  A.  1917  B  1091  (1916).  The  jolting  or 
jerking  of  a  train  which  causes  the  conductor 
to  fall  is  not  a  case  for  the  application  of  the 
doctrine  of  res  ipsa  Intuit i<r,  as  this  is  not 
enough  of  itself  to  show  negligence.  Hunt  v. 
Chicago.  Burlington  &  Quincy  R.  Co., 
Iowa.  165  X.  W.  105,  L.  R.  A.  191f>  B  369. 
The  doctrine  of  res  ipsa  loquitur  does  not 
apply  where  cars  on  a  siding  escape  on  to  the 
main  line  where  there  is  no  evidence  what 
caused  them  to  start  Denver,  etc..  R.  v.  Ash- 
ton-White-Skillicorn  Co..  49  Utah  82.  162 
Pac.  83.  T..  R.  A.  1917  C  768  (1916K  The 
mere  dropping  of  sparks  from  an  elevated 
railway  does  not  of  itself  prove  negligence  in 


416 


PRESUMPTIONS  ;  INFERENCES  OF  FACT. 


258 


Inferences  are  Eebuttabh. —  It  is  part  of  the  very  definition  of  a  presump- 
tion that  it  is  rebuttable.12  An  irrebuttable  or  conclusive  presumption  would 
be  a  contradiction  in  terms.13 

".A'o  Presumption  on  a  Presumption."-  -There  can  be,  in  the  great  major- 
ity of  cases,  no  presumption  upon  a  presumption.14  On  the  contrary,  the  fact 
used  as  the  basis  of  the  inference,  the  terminus  a  quo,  so  to  speak,  must  be 
established  in  a  clear  manner,  devoid  of  all  uncertainty.15 

§  416.  [Inferences  of  Fact] ;  Inference  of  Continuance.10 —  It  is  said  that  there 
is  a  "  presumption  against  change/'  A  given  state  of  affairs  being  shown  to 
> exist,  it  will  be  presumed  to  continue  for  a  reasonable  time.1'  Where  the 
subject-matter  is  of  a  permanent  character  but  slightly  subject  to  or  affected 
by  change  of  condition,  a  very  considerable  time  may  elapse  and  yet  leave  the 
suggestion  that  it  existed  at  a  later  time  because  it  did  so  at  an  earlier  period, 
one  of  rational  probative  force.16  On  the  other  hand,  establishing  the  existence 


the  company,  as  the  mere  lawful  doing  of  an 
act  permitted  by  statute  does  not  create  lia- 
bility for  injury  caused  in  so  doing.  Carney 
v.  Boston  Elevated  R.  Co.,  212  Mass.  170,  98 
X.  E.  605,  42  L.-  R.  A.  (N.  S. )  00  (1012). 
The  doctrine  of  res  ipsa  loquitur  does  not 
apply  to  a  defect  in  a  highway  to  show  negli- 
gence in  the  city,  as  the  defect  may  have 
been  caused  by  a  very  recent  accident  of 
which  the  city  bad  no  notice.  Corbin  v.  Ben- 
ton,  ir»l  Ky /4S3,  152  S.  W.  241,  43  L.  R.  A. 
(N.  S.)  591  ( 1913).  The  doctrine  of  res  ipsa 
loquitur  applied  to  machinery  which  does  not 
work  right  cannot  be  applied  to  show  that  be- 
cause ice  near  the  rail  of  a  track  presented  a 
straight  edge  this  showed  that  the  ice  was 
due  to  water  cast  by  the  engines.  Eisentrager 
v.  Great  Northern  R.  Co..  178  Iowa  713.  100 
N.  \V.  311,  L.  R.  A.  1917  B  1245  i  1016).  The 
doctrine  of  res  iptta  loquitur  does  not  apply  to 
a  case  where  a  bottle  tilled  with  carbonated 
water  exploded  when  the  ice-chest  in  which  it 
was  is  opened  on  a  hot  day.  This  does  not 
show  that  the  accident  was  caused  by  the 
negligence  of  the  bottler,  but  it  may  have 
been  caused  by  the  change  in  temperature 
when  the  ice-chest  was  opened.  Wheeler  v. 
Laurel  Bottling  Works.  Ill  Miss.  442,  71  So. 
743.  L.  R.  A  lOlfi  E  1074  (1016). 

12.  Chillingworth  v.  Eastern  Tinware  Co., 
66  Conn.  306.  33  Atl.  1000  (1805)-.  Donald- 
son v.  Donaldson.  142  111.  App  21  (1008): 
Morris  v.  McClavv.  43  Minn.  346,  46  N.  W. 
238  (1800):  Williams  v.  Fourth  Nat.  Bank, 
15  Okla.  477,  82  Par.  406  (1005)  :  2  Chamb., 
Ev..  §  1028,  n.  1,  and  cases  cited. 


13.  §   470,   infra;   2   Chamb.,   Ev.,   §§    1160 
et  seq. 

14.  Georgia  Ry.  &  Electric  Co.  v.  Harris,  1 
Ga.   App.   714,  57   *    E.    1076    (1907):   Globe 
Ace.  Ins.  Co.  v.  Gerisch,  163  111.  625.  45  X.  E. 
563,  54  Am.  St.   Rep.  486    (1896);   Atchison. 
etc.,   R.   Co.  v.  McFarland,  2  Kan.   App.  662. 
43  Pac.  788    ( 1896)  :   Huttig-McDermid   Pearl 
Button  Co.  v.  Springfield  Shirt  Co.,  140  Mo. 
App.   374,    124   S.   W.    1004    (1010);    Lamb  v. 
Union  Ry    Co.  of  New  York  City,   105  N.  Y. 
260,  88  N.  E.  371  (1900)  :  2  Chamb.,  Ev.,  1029, 
n.   I,  and  cases  cited. 

15.  Duncan  v.  Chicago,  etc..  Ry.  Co.,  82  Kan. 
230.   108  Pac.    101    (1910)  :    U    S.  v.  Ross,  92 
I*.  S.  281.  23  L.  ed..  707    (1875). 

16.  2    Chamberlayne.    Evidence,    §§     1030- 
1032. 

17.  Schander  v.  Gray.  149  Cal.  227,  86  Pac. 
695  (1906):  Sanford  v.  Millikin,  144  Mich. 
311.  13  Detroit  Leg.  N.  171,  107  N.  W.  884 

(1906):  In  re  Darrow's  Estate,  118  N.  Y. 
Supp.  1082,  64  Misc.  Rep.  224  (1900)  :  State 
v  Chittenden.  127  Wis.  468,  107  N.  W.  500 

(  1006)  :  2  Chamb.,  Ev.,  §  1030,  notes  1  and  2, 

and  cases  cited. 

18.  The  operation  of  natural  law  furnishes 
what  may  perbaps  be  deemed  the  maximum 
force  of  the   inference.     An    instance   is   fur- 
nished by  the  uniform  action  of  the  tides      It 
is,  for  example,  a  fair  inference  of  fact  that 
a  constant  shifting   in   the  various   inlets  of 
Rockaway  Beach,  or  Long  Island,  in  the  state 
of  New   York,   shown  to  be  going  on  at   the 
present  time  was   in   progress  in    1725.     San- 
diford  v.  Town  of  Hempstead.  186  N.  Y.  554, 


259 


INFERENCE  OF  CONTINUANCE. 


416 


of  a  purely  transitory  state  or  evanescent  fact  may  fail  to  furnish  any  reason- 
able mind  the  basis  of  an  inference  that  the  situation  was  in  the  same  condi- 
tion shortly  after  that  time.  The  true  inquiry  in  each  case  is  at  what  point 
in  the  past  will  evidence  of  the  existence  of  a  given  fact  or  state  of  affairs 
cease  to  be  probative  as  to  its  existence  at  a  later  period.  Or,  to  reverse  this 
statement,  how  loug  may  a  state  of  affairs  shown  to  exist  at  a  given  time  be 
presumed  to  continue  ?  19  The  established  rule  is  that  the  court  will  infer 
that  a  particular  fact  or  set  of  facts  continues  to  exist  as  long  as  such  facts 
usually,  as  a  matter  of  experience,20  have  been  found  so  to  continue.21 

Administrative  Assumptions. —  While  the  inference  of  continuance  is,  in 
many  cases,  an  inference  of  fact,  in  other  cases  this  so-called  "  presumption  " 
is  merely  an  administrative  assumption  of  regularity.22  Thus,  it  may  prop- 
erly be  said  that  no  administrative  assumption  is  made  that  a  fact  shown 
to  have  been  in  being  at  a  particular  time  was  in  existence  for  any  definite 
period  prior  to  that  time,23  or  that  it  will  continue  to  exist  for  any  given 
period  in  the  future.24  Where,  however,  a  state  of  affairs  is  presented,  as 
profound  intoxication,25  insolvency,26  and  the  like,27  which  obviously  has  re- 
quired a  certain  length  of  time  for  its  creation,  the  pre-existence  of  the  state 
or  of  its  efficient  causes  may  properly  be  assumed  to  have  existed  over  a  reason- 
able interval  in  the  past. 


79  X.  E  1115  (1906)  [affirming  100  X.  Y. 
Supp.  76,  97  App.  Div.  163  (1904)].  Where 
the  condition  of  a  railing  is  in  issue  and  evi- 
dence of  its  condition  immediately  before  the 
accident  is  not  available  evidence  may  be  re- 
ceived of  its  condition  within  such  a  reason- 
able time  as  will  in  the  nature  of  the  case 
fairly  tend  to  show  its  condition  at  the  mo- 
ment preceding  the  accident.  English  v. 
Thomas.  Okla.  (1915),  149  Pac.  906,  L  R  A. 
1916  F,  1110. 

19.  Toledo,   etc.,   R.   Co.   v.   Smith,   25   Tnd. 
288    (1865):   Martin   v.   Fishing  Ins    Co.,  20 
Pick.    (Mass.)   389,  32  Am.  Dec.  220   (1838); 
Ciernau  v.  Oceanic  Steam  Xav    Co.,  141  N.  "\  . 
588,  36  X.  E.  739    (1894):   2  Chamb,  Ev ..  § 
1030,  n.  4,  and  cases  cited. 

20.  The  law  will  not  presume  a  thing  con- 
trary   to   the   custom   of   men      Bright    v    .J. 
Bacon  &   Sons.    131    Ky.   S48.    116   S.   \V.  268. 
20  L.  R.  A.   (X.  S.)   386   (1009) 

21.  Bludworth  v    Bray.  .10  Fla.  437.  52  So. 
057    i  1910)  -.   \\~heelan  v    Chicago,  etc..  TC.  Co.. 
85  Towa   Ifi7.  52  X.  W.  110   -1802)  :  McOraw 
v.    McGraw.    171    Mass     146.    50    X.    E.    526 
(1898):    People   v.   McLeod.    I   Hill    (X    Y. ) 
377,  37  Am.  Dec.  328    (1841)  :  Oiler  v.  Bone- 
brake,    65    Pa.    338     (1870i:    Kosminsky    v. 
Estes.  27   Tex.   Civ.   App    69.   65   S.   W.   1108 


( 1901 )  ;  2  Chamb.,  Ev.,  §  1030.  n.  6.  and  caaea 
cited. 

22.  §  422,   infra;   2   Chamb.,   Ev.,   §§    1049 
et  seq. 

23.  Butler  v.  Henry,  48  Ark.  551,  3  S.  W. 
878   (1886)  ;  Windhaus  v.  Bootz,  92  Cal/617, 
28  Pac.  557   ( 1891 )  ;  Erskine  v.  Davis,  25  111. 
251    (1861):    Blank   v    Livonia,   79   Mich.    1, 
44  N*.  W.   157    (  1889 )  :  Jarvis  v.  Vanderford, 
116   X.  C.   147,  21   S.  E    302    (1895):   Cullen 
v.  Voss,   15  N.  Brunsw.    (Can.)    464    (1875); 
2  Chamb..  Ev.,  §  1031.  n.  4.  and  cases  cited. 

24.  Covert  v.  Gray.  34- How.   Pr.    (X.   Y.) 
450   (1865). 

25.  State  v.  Hubbard.  60  Towa  466,  15  X'. 
W.  287    (1883). 

26.  Emmerich  v.  Heffernan,  58  X.  Y.  Super. 
Ct   217,  9  X.  Y.  Supp.  801   (1890). 

27.  fiaulden     v.     Lawrence,     33     Ga.     159 
(1862):   Strong  v.  Lavrence.  58  Towa  55.   12 
X    W.  74    ilS82):   Carlisle  v.  Rich,  8  X.  H. 
44    '1835)  :  2  Chamb..  Ev..  §  1031.  n.  8.  and 
cases   rited.     Similarly,   no   inference  of   con- 
tinuance   in    the   future   can   be   raised   upon 
proof   of   a    state   of   things   which    is   essen- 
tially retroactive,  in  its  nature  or  operations. 
Ellis  v.  State,  138  Wis.  513.  119  X.  W.  1110 
(1909). 


§§  417,418  PRESUMPTIONS;  INFERENCES  OF  FACT.  260 

Length  of  Time. —  The  inference  of  continuance,  unless  reinforced  by  ad- 
ditional evidence  2S  grows  weaker  with  the  lapse  of  time.  It  is  strongest  in 
the  beginning,""  and  decreases  in  strength  at  various  rates  until  it  ceases  en- 
tirelv.  It  may  even,  perhaps,  as  in  case  of  the  continuance  of  life,  be  re- 
placed by  a  presumption  or  inference  to  the  contrary  etfect.:i"  The  value  of 
property,  real :;1  or  personal  is  a  function  of  so  many  variables  that  its  con- 
tinued unimpaired  existence  at  any  particular  time  can  scarcely  be  predicated. 

§  417.  [Inferences  of  Fact] ;  Nature  of  Subject-Matter/'-2 —  The  more  imper- 
manent the  fact  or  state  of  affairs,  the  shorter  will  be  the  time  during  which 
it  will  be  assumed  to  continue."1'5  Per  contra,  the  more  enduring  the  nature 
of  the  situation  shown  to  exist,  the  longer  will  it  be  taken  to  maintain  its 
present  condition. 

•Bodily  $tatex  or  Conditions. —  Life  will  be  *'  presumed  "  to  continue  so 
long  as,  under  the  conditions  shown  to  exist,  it  would  be  reasonable  to  think 
it  should  do  so.  In  case  of  a  young  person,  in  good  bodily  health,  exposed  to 
no  particular  contagion  or  other  danger,  the  inference  of  continued  bodily 
existence  would  be  strong.  In  proportion  as  any  of  these  circumstances  be- 
comes changed  or  replaced  by  its  opposite  it  would  natural! y  follow  that  a 
decrease  or  even  an  elimination  of  probative  force  would  occur.  For  the 
same  reasons,  the  inference  of  a  continuance  of  a  bodily  state  or  condition,  as 
to  health,34  will  lie  strong  or  Aveak. 

Habits. —  Bodily  habits,  such  as  those  of  drunkenness35  once  shoAvn  to  exist, 
will,  in  the  absence  of  conflicting  evidence,  be  presumed  to  continue  for  a  rea- 
sonable time.  In  tbe  same  way,  mental  habits  or  those  developed  in  carrying 
on  a  business.'5"  occupation  or  customary  pursuit  :>'~  will  be  given  the  degree 
of  continuance  commonly  manifested  by  such  habits,  under  the  conditions 
shown  to  have  existed  in  any  given  case. 

§  418.  [Inferences  of  Fact] ;  Legal  Besults.3* —  Legal  results,  such  as  the  lay- 

28.  Howland  v.  Davis.  40  Mich.  545  (1879).  33.  Hi»h  v.  Hank  of  America,  103  Cal.  525, 
See    also.    Coghill    v.    Boring,     15    Cal.    213  37    Pac.   508    MSU4)  ;    McCain-   v.   Com     (Pa. 
(I860)  1886),  8  Atl.  45;  2  Chamb.,  Ev.,  §  1033,  n.  1, 

29.  Xash     v.     Classon,     55     111      App.     350  and  oases  cited 

(1894):    Bexar    Bids.,    etc.,    Assoc.    v.    Seebe,  34.  Creen    v     Southern    Pac.    Co..    122  «Cal. 

(Tex.  Civ.  App.  I,  40  S.  \V.  875    (1807).  563,  55  Pac.  577   (1SH8)  ;  Draves  v    People,  97 

30.  Oliver    v.    Kll/.y.    11     Ala     032     (1847):  111.   App.  151    i  1001  )  :  2  Chain!).,  Ev.,  §   1034. 
Coodwin    v     Dean,   50   Conn     517    (1883):    2  35.  McCraw  v.  McCraw,   171   Mass.   146,  50 
Chamb.,  Ev..  §   1032.  n.  3.  and  cases  cited.  X.  E    526    (1898)  :   Hoagland  v.  Canfield    (N. 

31.  McDoiiL'ald   v.   Southern   Pac.   H.   Co..  9  Y.   1908).   1(10  Fed.   146. 

Cal.    App.    236.    98    Pac.    685     (1008^.     Pre-  36.  Leonard  v.  Mixon,  96  Oa.  239,  23  R.  E. 

sumption  that  condition  once  proved  to  exist  80.  51    Am.  St.  Rep.  134   (1895). 

continues.  «ee  note.  Bender  ed..  126  X.  Y.  545.  37.  MoMahon    v.    Harrison.    6    N.    Y.    443 

32.  2    Chamberlayne,    Evidence,    §§     1033-  (1852)     (gambling)  ;   2  Chamb.,  Ev.,  §   1035. 
1035.  38.  2  Chamberlayne,  Evidence,  §  1036. 


261 


LEGAL  STATUS. 


§  419 


out  of  a  highway,39  the  ownership,4"  possession  41  or  seizin  42  of  real  estate  43 
or  personal  property,44  stand  in  the  same  position.  Proper  allowance  should, 
however,  be  made  in  all  cases  for  the  ephemeral  nature  45  or  the  rapid  sale  46 
of  any  chattel  or  other  personal  property  involved  in  the  inquiry. 

§  419.  [Inferences  of  Fact] ;  Legal  Status  and  Standing.47 —  Legal  status,  e.g., 
the  citizenship  of  a  person  4b  or  the  incorporation  of  a  company  49  will  be  in- 
ferred to  possess  the  continuance  customary  in  such  matters.  In  like  manner, 
coverture,50  being  unmarried 51  or  other  personal  legal  status,52  once  shown 
to  exist,  wTill  be  presumed  to  continue  for  a  reasonable  time. 

Foreiyn  Law. —  Where  a  rule  of  foreign  law,  written  53  or  unwritten,34 
has  been  shown  to  the  courts  of  a  given  forum  53  and  has  been  judicially  recog- 

v.    Whalen,    65    X.    Y.    322 


39.  Beckwith 

(1875). 

40.  Hohenshell    v.    South    Riverside    Land, 
etc.,  Co.,   128  Cal.  627,  01   Pac.  371    (1900); 
Coleman,   etc.,   Co.   v.   Rice,   105   Ga.   163,   31 
S.  E    424    (1898);   Abbott  v.   Union  Mut.  L. 
Ins.  Co.,   127   Ind    70,  26  X.   E.   153    (1890): 
Magee  v.  Scott,  9  Cush.   (Mass.)    148,  55  Am. 
Dec.  49    (1851);   Lind  v.  Lind,  53  Minn.  48. 
r>4  X    \V    934   (1893)  ;  Flanders  v.  Merritt.  3 
Barb.   (X.  Y.)   201   (1848):  Stickney  v,  Stick- 
ney,   131    U.   S.   227.  9   S.   Ct.   677.   33   L.  ed. 
136   (  1889)  ;  2  Chamb.,  Ev  ,  §  1036,  n.  2,  and 
cases  cited.     An  appropriation  of  water  by  a 
public  water  supply  company  is  presumed  to 
be  permanent.     Wagner  v.  Purity  Water  Co., 
241  Pa.  328,  88  Atl    484,  L.  R    A.  1916  K  981 
(1913). 

41.  Alabama  State  Ld.  Co    v.  Kyle,  99  Ala. 
474    (1892):    Choisser  v.  People,.  140  111.  21, 
29   X.   E.  546    (1892):   Janssen  v.   Stone,  60 
Mo.   App    402    (1894);    Smith   v.   Hardy,   36 
Wis     417     (1874);    Laxarus    v.    Pbelps,    156 
U.  S.  202,  15  S.  Ct.  271.  39  L.  ed.  397   (1894)  : 
2    Chamb,     Ev.,     §     1036.    n     3,    and    cases 
cited. 

42.  Coblei.uh  v.  Young.  15  X.  H.  493 
(1844):  Adair  v.  Lott,  3  Hill  (X.  Y.)  182 
(1842):  State  v.  Atkinson,  24  Yt.  448 
(1852):  Balch  v.  Smith,  4  Wash  4<>7.  30 

Pac.   648    (1892H   Thomas  v.  Hatch.  23  Fed. 

Cap   Xo    13.899.  3  Sumn     i  U.  S. )   170  (1838)  ; 

2    Chamb.,     Ev.,     §     1036.     n      4.     and     cases 

cited. 

43.  l.eport  v.  Todd.  32  X.  J.  L.  124   i  1866)  : 
Bradt  v   Church.  39  Hun  (X.  Y  )  262  (1886)  ; 
Caffrey    v.    McFarland,    1    Phila      (Pa.)     555 
( 1855)  :  2  Chamb.,  Ev.,  §  1036.  n.  5.  and  cases 
cited. 


44.  Burgener  v.  Lippold,  128  111.  App.  590 
(1906);    Buckley    v.    Buckley,    16    Xev.    180 
(1881)  ;  Flanders  v.  Merritt,  3  Barb    (N.  Y.) 
201   (1848)  ;  2  Chamb.,  Ev.,  §  1036,  n.  6,  and 
cases  cited.     Occupation  of  tracks  by  a  street 
railway  company  stands  in  the  same  position. 
Jennings    v.    Brooklyn    Heights    R.    Co.,    106 
X      Y.     Supp.     279,      121      App.     Div.     587 
(1907) 

45.  Adams  v.  Clark,  53  X'.  C.  56   (1860). 

46.  Bethel   v.   Linn,  63  Mich.   464,   474,  30 
X.  VY.  84    (1886). 

47.  2    Chamberlayne.    Evidence,    §§    1037- 
1041. 

48.  State   v.   Jackson.   79   Vt.   504,   65   Atl. 
657   (1907). 

49.  Anglo-California  Bank  v.  Field,  146  Cal. 
644,  80  Pac.  1080   (1905). 

50.  Wilson  v.  Allen,   108  Ga.  279,  33  S.  E. 
979    (1899);   Goodwin  v.  Goodwin,   113  Iowa 
319,   85   N.   W.    31    (1901);    2   Chamb.,   Ev., 
§  1037,  n    3,  and  cases  cited. 

51.  Gibson  v.  Brown,  214  111.  330,  73  X.  E. 
578    (1905). 

52.  Montgomery,    etc.,    Plank-Road    Co.    v. 
Webb,  27  Ala.  618   (1855). 

53.  Seaboard   Air   Line  R.   Co.   v.   Phillips, 
117    Ga.    98.    43    S.    E.    494    (1902);    Miami 
Powder    Co.    v.    Hotchkiss,    17    111.   App.    622 
(1885)  :  State  v   Abheji'.  29  Vt.  BOj  67  Am.  Dec. 
754    (1856)  :  2  Chamb.,  Ev..  §  1038,  n.  1,  and 
cases  cited. 

54.  In   re  Huss.   126   X.   Y.   537.   27   X.   E. 
7S4.    1-2    L.    R.    A.    620    (1891);    Babcock    v. 
Marshall.  21  Tex    Civ.  App.  145,  50  S    W.  728 
( 1 899 ) . 

55.  Bush   v.   Garner,   73   Ala.    162    (1882); 
In  re  Huss,  supra. 


§  420  PKESUMPTIONS  ;  INFEBENCES  OF  FACT.  262 

nized  56  or  assumed  by  them  to  exist 5T  in  a  sister  state  58  or  foreign  country,59 
it  will  be  assumed,  in  the  absence  of  evidence  to  the  contrary,  that  it  has  not 
ceased  to  be  the  law. 

Foreign  Regulations. —  Where  a  foreign  nation,  state,  municipal,60  or  busi- 
ness corporation,01  is  shown  to  have  established  statutes,  ordinances  or  other 
regulations,  their  continued  operation  and  effect  will  be  inferred  until  reason 
is  shown  to  the  contrary. 

Official  and  Other  Fiduciary  Relations. —  The  tenure  of  office  under  a  state 
or  national  62  government  or  the  holding  by  an  individual  of  a  position  as  an 
officer  in  a  public  (i:i  or  private  64  corporation,  will  be  assumed  to  continue  to 
the  same  extent  that  is  usual  in  such  cases.  The  relation  of  a  given  in- 
dividual to  some  other  trust65  shows  occasionally  a  still  greater  intrinsic  per- 
manence. 

Qualification  or  Disqualification. —  A  state  of  qualification  or  disqualifica- 
tion oc  for  the  discharge  of  any  legal  privilege,  franchise,  or  function  will  be 
assumed  to  continue  until  the  contrary  is  shown,  unless  the  facts  constituting 
the  legal  standing  are  inherently  transitory. 

§  420.  [Inferences  of  Fact] ;  Life.67 —  Under  the  general  presumption  against 
change,68  human  life  once  shown  to  exist,  will,  in  the  absence  of  evidence 
to  the  contrary,  be  presumed  to  continue  tt9  for  a  reasonable  time.  The  test  is 
simply  that  of  what  is  reasonable  under  all  the  circumstances ;  70 —  including 
the  inference  of  fact,  if  any,  as  to  actual  continuance,  in  case  of  a  human 
being  of  the  age  in  question.71  The  presumption  of  life  has,  therefore,  been 

56.  Stokes    v.    Macken,   62    Barb.    (X.    Y.)  River    Mfg.    Co.,    80    Conn.    37,    66    All.    775 
145   (1861).  (1907)  ;  Sisk  v.  American  Central  F.  Ins.  Co., 

57.  Graham  v.  Williams,  21   La.  Ann.  594  95   Mo.   App.   695,   69   S.    W.   687    (1902);    2 
(1869).  '  Chamb.,  Ev.,  §  1040,  n.  3,  and  cases  cited. 

58.  Haynham   v.   Canton,   3    Pick.    (Mass.)  65.  In  re  Fisher's  Estate,  128  Iowa  18,  102 
293    (1825);    People  v.   Calder,   30   Mich.    85  N.    W.   797    (1905);    Sawyer   v.   Knowles,   33 
(1874);    State    v.    Armstrong,    4    Minn.    335  Me.  208    (1851). 

(1860)  ;  2  Chamb.,  Ev.,  §  1038,  n   6,  and  cases  66.  Esker  v.  McCoy,  5  Ohio  Dec.   (Reprint) 

cited.  73,  6  Am.  L.   Rec.  694   (1878)    (voter);   Boll- 

59.  In  re  HUBS,  supra.     See  also,  Arayo  v.  ing  v.  Anderson,  4  Bast.   (Tenri.)   550   (1874) 
Currel,  1  La.  528,  20  Am.  Dec.  286   (1S30).  (judge)  :  2  Chamb.,  Ev..  §  1041. 

«0.  Cleveland,  etc.,  R.  Co.  v.  Render.  6!)  Ill  67.  2  Chamberlayne,  Evidence,  §  1042. 

App    262    (1896).  68.  §  416.  supra;  2  Chamb.  Ev..  §  1030. 

61.  Paqui'n    v.    St.    Louis,    etc..    R.    Co.,   90  69.   Martin  v.  Chicago,  etc..   R.  Co.,  92  111. 
Mo.  App.  118   (1901)  ;  2  (  liamb.,  Ev.,  §  1030.  App.  133    (1900)  :   Hyde  Park  v.  Canton,  130 

62.  Doe   d.    Hoplcy   v.    Young.    8   Q    B    63  Mass.  505    (1881);    State  v.  Plym,  43  Minn 

(  1845)  :  2  Chamb..  Ev..  §  1040,  n.  1.  and  cases  385,    45    X.    W.     848     (1890):     Augustus    v. 

cited.  Craves.    9    Barb.     (X.    Y.)     595     (1850);    2 

63.  Kaufman  v.  Stone.  25  Ark   336  (1869)  :  Chamb.,  Ev.,  §  1042.  n.  2.  and  cases  cited. 
Kinyon  v.  Duchene,  21   Mich.  498    (1870):   2  70.   Pospy  v    Hanson.  10  App.  Cas    (D.  C.) 
Chamb.     Ev.,     §      1040.     n      2.     and     cases  496    (1897):    Sprigg   v    Moale.   28   Md.   497, 
cited.  92  Am.  Dec.  698    (1868) 

64.  Stafford  Springs  St.  Ry.  Co.  v.  Middle          71.  Hyde  Park  v.  Canton,  supra. 


263 


MENTAL  CONDITIONS, 


421 


said  not  only  to  continue  for  short  periods,72  for  more  extended  intervals  73 
but  even  up  to  the  age  of  a  hundred  years.74 

§  421.  [Inferences  of  Fact] ;  Mental  Conditions.75 —  Mental  conditions,  such 
as  sanity  76  or  insanity,77  will  be  taken  to  continue  according  to  their  intrinsic 
permanence  or  liability  to  alteration  from  subjective  or  outside  influences. 
Thus,  to  state  an  extreme  case,  the  imbecility  of  old  age  will  be  presumed 
to  continue,  in  the  absence  of  contrary  evidence.78  u  The  rule  does  not  apply 
to  cases  of  occasional  or  intermittent  insanity;79  but  it  does  to  all  cases  of 
habitual  or  apparently  confirmed  insanity,  of  whatever  nature ;  8U  even  where 
the  existence  of  lucid  intervals  may  have  been  shown.  This  proposition  seems 
well  settled. hl  The  same  rule  may  be  put  into  the  form  of  an  assumption  of 
administration.82 

Mental  States. —  Transient  states  of  consciousness  like  intent  S3  or  inten- 
tion S4  will  be  accorded  vitality  in  accordance  with  their  inherent  strength  or 

V 


72.  Chicago,  etc ,  R.  Co.  v.  Keegan,  185  111. 
70,  56  X.  E    1088    (1900)    (5  years);    Rosen- 
blum  v.  Eisenberg,   108  X.  Y.  Supp.  350,  123 
App.  Div.  896  (1908)    (9  months)  ;  2  Chamb., 
Ev.,  §  1042,  n.  7,  and  cases  cited. 

73.  Willis  v.  Ruddock  Cypress  Co.,  108  La. 
255.  32  So.  386    (1902)    (25  years)  ;   Dunn  v. 
xravis,  67  X.  Y.  Supp.  743,  6  App.  Div.  317 
(1900)    (30  years)  :   In  re  Sherwood's  Estate, 
206  Pa.  465,  56  Atl.  20    (1003)    (29  years)  ; 
2  Chamb.,  Ev.,  §  1042,  n.  8,  and  cases  cited. 
That  a  grantor  is  dead  eighty  years  after  he 
acknowledged  a  deed  has  been  assumed  as  an 
administrative  matter.     165  X.  Y.  385.  59  X, 
E.  135,  80  Am.  St.  Rep.  730   (IflOl),  affirming 
54  X.  Y.  Supp.  419,  35  App.  Div.  39   (1898). 

74.  Matter  of  Bd.  of  Education,  173  X.  Y. 
321,  66  X.  E.  11    (1903).     So  great  an  exten- 
sion of  the  presumption  is  especially  frequent 
under  the  civil  law.     \Villett  v    Andrews.  51 
La.  Ann    486,  25  So.  391    (1899)  -.  2  Chamb., 
Ev.  §  1042.  n.  10,  and  cases  cited 

Absence. —  An  absentee  must  be  presumed 
to  be  alive  until  his  death  is  proved  and  he 
will  not  be  presumed  dead  until  he  i*  one 
hundred  years  old.  So  there  is  no  presump- 
tion of  the  death  of  an  absentee  who  is  if 
alive  ninety-ei»ht  years  old.  Quaker  Realty 
Co.  v  Starkey.  130  La  281.  66  So  386.  L  R. 
A  1015  D  176  (1914). 

75.  2    Chamberlayne.    Evidence.    £?     1043- 
1045 

76.  In  re  Briaham's  Estate.   144  Towa   71. 
120  X    YV.    1054    (1909):    West   v.   McDonald 
(Ky.  1908),   113  S    W    872. 

77.  Lilly  v    Waggoner.  27  Til.  395   (1862); 


Beard  v.  Southern  Ry.  Co.,  143  X.  C.  137,  55 
S.  E.  505  (1906)  ;  2  Chamb.,  Ev.,  §  1043,  n. 
2,  and  cases  cited. 

78.  Rogers  v.   Rogers    (Del.   1907),  66  Atl. 
374;    Mason    v.    Rodriguez     (Tex.    Civ.    App. 
1909),  115  S.  W.  868. 

79.  Branstrator  v.  Crow,   162    Ind    362,  69 
X    h.  668   (1904). 

80.  Hallohan    v.   Rempe.    120   X.    Y.   Supp. 
901     (1910):    State   v.    Wilner,   40   Wis.    304 
(  1876)  ;  2  Chamb.,  Ev.,  §  1043.  n.  5,  and  cases 
cited. 

81.  Crouse    v.     Holman,     19     Ind.    30.     39 
i 1862). 

82.  As  where  it  is  said  that  one  who  claims 
insanity  to  have  existed  at  a  particular  time 
in   one   who  has  temporary   fits  of   insanity, 
Wooten   v.   State    (Tex.   Cr.   App.   1907),   102 
S.  W.  416:   or  to  establish  the  fact  that  one 
chronically  insane  did  a  particular  act  in  a 
lucid   interval.    In    re   Kehler    (X.   Y.    1908), 
159  Eed.  55.  86  C.  C.  A.  245:  2  Chamb..  Ev  , 
§  1043.  n.  8,  and  cases  cited,  is  said*  to  have 
the  burden  of  proof,  meaning  burden  of  evi- 
dence on  the  point.     Proof  of  present  insanity 
grounds  no  inference  as  to  its  past  existence. 
Schander  v    Oray.   149  Cal.  227.  86  Pac    695 
I  1!>06)       As  to  effect  of  indication,  see  Stil- 
/el    v.    Farley.    14S    111     App.   635    (1909)';    2 
Chamb..  Ev..  §  1043 

83  State  v.  Johns.  140  Iowa  125.  118  X.  W. 
295  (1908). 

84.  Oiler  v  Bonebrake.  65  Pa.  33^  HS70)  ; 
r,4  Mo.  367  (1877):  2  Chamb.,  Ev..  §  1044s 
n  2.  and  cases  cited. 


422 


PRESUMPTIONS;  INFERENCES  OF  FACT. 


264 


the  permanence  of  the  conditions  out  of  which  they  arise  or  by  which  they 
are  accompanied  and  stimulated. 

Mental  or  Moral  Character. —  Character,  meaning  the  actual  sum  of  bodily, 
mental  arid  moral  habits,  tastes  and  aptitudes,  will  be  taken  to  continue  in 
accordance  with  the  permanence  and  strength  of  the  composite  forces  of  which 
it  is  a  resultant.  The  same  is  true,  mutatis  mutandis,  of  any  single  trait 
in  this  character,85  as  want  of  chastity.66 

§  422.  [Inferences  ol  Fact] ;  Personal  or  Business  Relations.*7 —  .Relations  be- 
tween persons,88  whether  as  partners  sy  in  a  course  of  business  dealing  yo  or  ill 
some  other  contractual  ul  connection,  when  once  shown  to  exist,  will  be  pre- 
sumed to  continue  in  accordance  with  the  nature  of  such  arrangements.  Marital 
cohabitation  once  established  by  evidence,  will,  for  a  reasonable  time,  be  in- 
ferred to  continue..92  The  rule  is  the  same,  whether  the  relation  is  one  of 
legitimate  business  or  is  unlawful  or  is  even  immoral  in  its  nature.93 

Relations  to  Creditors. —  Relations  to  creditors,  such  as  solvency,  insolvency  94 
or  other  financial  conditions  95  will,  it  is  inferred,  continue  within  reasonable 
limits,  prescribed  by  experience.96 

Relations  to  Localities. —  What  inference  arises  as  to  the  continuance  of 
personal  relations  to  places,  as  presence  or  residence  in  !4T  or  absence  from  !'8  a 

85.  Sleeper  v.  Van  Middlesworth,  4  Den  Love  v.  Edmonston,  27  X.  C  354  (1845);  2 
(N.'Y.  1847)  431:  State  v.  Chittenden,  112  (Jhamb.,  Ev.,  §  1046.  n.  4,  and  cases  cited 


Wis.  569,  88  N.   VV    587    (1902);    2  Chamb., 
Ev.,  §  1045,  n.  1,  and  cases  cited. 

86.  People  v.  Squires,  49  Mich.  487,  13  N. 
VV.  828  (1882):  Kerr  v.  U  S.  ( Ind.  Terr. 
1907),.  104  S.  \V.  809. 


92.  Stoutenborough    v.     Rammel.     123    111. 
App    487    (  190r>). 

93.  Jones    v.    Jones.    45    Md.    144    (1876); 
Cau.jolle  v.  Ferrie.  23  X.  Y.  90  (1861)  ;  Read- 
ing  F.    Ins.,   etc..  Go's   Appeal,    113   Pa.   204, 


87.  2    Chamberlayne,    Evidence,    §§     1046-      6  Atl.  60,  57  Am    Hep.  448  i  1886)  ;  2  Cliamb., 


1050. 

88.  Eames  v    Eames,  41  X    H.  77    (1860)  ; 
Hilliard  v.  Wisconsin  Life  Ins.  Co,  137  Wis. 
208,   117   X    W.   999    (1908). 

Agency. —  There  is  a  presumption  of  the 
continuance  of  the  relation  of  master  and 
servant  and  where  a  business  is  sold  the  bur- 
den of  proof  is  on  those  seeking  to  show  notice 
or  knowledge  of  the  servant  of  the  new  rela- 
tionship. Benson  v.  Lehigh  Valley  Coal  Co., 
124  Minn.  222,  144  X.  W.  774,  50  L.  T?.  A. 
(N.  S.)  170  (1914). 

89.  Pursley  v.  Ramsey,  31  Ga.  403   (1860\  ; 
Anslyn  v.   Franke,  11   Mo.  App.  598    (1882); 
Cooper  v.  Dedrick.  22  Barb    (X.  Y.  1856)  516; 
2  Chamh.,  Ev  ,  §  1046.  n.  2.  and  cases  cited. 


Ev.,  §  1046,  n.  6,  and  cases  cited.  Thus,  im- 
proper sexual  relations  between  persons  will 
be  inferred  to  continue  in  the  absence  of  evi- 
dence tending  to  establish  the  fact  of  change. 
Caiijolle  v.  Ferrie.  supra;  Weidenhoft  v. 
Primm,  16  Wyo.  340.  94  Pac  453  (1908). 

94.  Wachsmuth   v.   Penn.  Mut.  L.  Ins    Co., 
147    111.   App.   510    (1909);    In   re  Brigham's 
Estate,  supra;  Mullen   v.   Pryor,   12  Mo.  307 
(1S4S)  ;  2  Chamb..  Ev.,  §  1047,  n.  1,  and  cases 
cited. 

95.  Wallace    v.    Hull,    28    On.    68     MS59)  : 
Scammon  v    Scammon,  28  X    II.  419    (1854) 
A    definite    indebtedness    is    under    the    same 
rule.     Carder    v.    Primm,    52    Mo.    App.    102 
(1892)  -.    Farr  v.  Pavne.  40  Vt.  615    (1868)  ; 


90.  Hastings  v.   Brooklyn   L.   Ins    Co..   138      2  Cliamb.,  Ev .  §   1047,  n    2,  and  cases  cited 


X  Y  473,  34  X.  E.  289  (1893):  Brooks  v 
U  S..  146  Fed.  223,  76  C.  C.  A  581  (1906). 
91.  Burlington  Tns.  Co.  v.  Threlkeld,  60 
Ark.  539,  31  S.  W.  265  (1895);  Hensel  v. 
M;ui  94  Mich.  563,  54  X.  W.  381  (1893): 


96.  Donahue    v.    Coleman.    49    Conn     464 
(1882).     See  also,  Coghill  v.  Boring,  15  Cal 
213   (1860). 

97.  Daniels     v.     Hamilton,     52     Ala.     105 
;1^75):  Xixon  v    Palmer,  10  Barb.    (N    Y.) 


265  PHYSICAL  ATTRIBUTES.  §  423 

given  locality,  is  a  question  merely  as  to  what  experience  shows  to  be  probable. 

§  423.  Inferences  of  Regularity;  Human  Attributes;  Physical." — Each  indi- 
vidual possesses  or  is  possessed  by  the  ordinary  physical,  mental  or  spiritual 
qualities  by  which  men  as  a  class  are  generally  inmienc-cd.1  A  given  individual 
will  be  presumed  or  inferred,  as  well  as  assumed  or  Taken,  to  have  the  ordinary 
physical  powers  of  sense-perception  usual  to  persons  of  the  same  age,  race 
and  other  conditioning  circumstances.  The  law  presumes  that  a  person  possess- 
ing good  eyesight  must  have  seen  that  which  was  within  range  of  his  vision, 
if  he  gave  attention  and  looked.2  In  like  manner,  the  ordinary  capability  of 
hearing  will  be  assumed.3 

Capacity  for  Child-Bearing. —  The  assumption  of  the  existence  of  a  capacity 
for  child-bearing  at  any  period  after  its  physical  conditions  exist  is  so  fully 
recognized  that  the  sole  issue  presented  in  this  connection  is  as  to  the  date 
of  its  termination.  In  the  United  States,  it  is  assumed  that  except  in  ex- 
treme age,4  or  when  other  strong  invalidating  circumstances  are  present,  that 
a  woman  is  capable  of  giving  birth  to  children  at  any  period  of  her  adult  life.5 
The  inference  is  especially  strong  where  the  presumption  is  reinforced  by  the 
previous  birth  of  children.6  In  England,  a  rather  more  discriminating  course 
has  been  adopted  by  judges,  especially  those  of  chancery  jurisdiction  or  land 
registration." 

Power  of  Procreation. —  It  will  be  assumed,  in  the  absence  of  evidence  to 
any  different  effect,  that  any  male  person  above  the  age  of  puberty  is  capable 
of  procreation.8  The  assumption  has  been  deemed  reasonable  even  up  to  an 
advanced  age.9 

175    (1850);    Burleigh  v    Hecht,  22   S.   Dak.  App.   614,   82   X.   E.   941    (1907);    2   Chamb., 

301    (1908)  :  2  Cbamb.,  Ev.,  §  1048,  n.  1,  and  Ev.,  §  1050 

cases  cited.  3.  Holcombe  v.  State,  supra. 

98.  Com.    v.    Pollitt,  "25    Ky.    L.    Rep.    790  4.  Bacot's   Case,  cited  in    In  re  Apgar,   37 
(1903),  76  S.  \V.  412      The  party  who  claims  X.  J.  Eq.  502    (1883)    (62). 

that  a  residence  shown  to  have  existed  within  5.  Hill  v.  Spencer,  196  111.  65.  63  X.  E.  614 

a    reasonable   length   of   time   has   since   been  (1902).     See     also,     In     re     Apgar,     supra. 

changed   is  under  the  burden   of  evidence  to  There  is  often  said  to  be  a  presumption  of  law 

prove  that  fact.     \Vray  v    Wray,  33  Ala.  187  that  one  dying  has  left  heirs.     Modern  \Vood- 

(1858);  Xixon  v.  Palmer,  supra;  Rixford  v.  men  v.  Ohromley.  41  Okla    532,  139  Pac   306, 

Miller,  49  Vt    319,  326   (1877).  L.  R.  A.   1915  B  728    (19)4). 

99.  2     Chamberlayne,    Evidence,     §§     1050,  6.  List  v.  Rodney.  83  Pa.  483    (1877)    (75; 
1051  married)  :    Flora    v.    Anderson,    67    Fed     182 

1.  Holcombe  v.  State.  5  Ga.  App.  47.  62  S.        (1895)      (49:     married);     2     Chamb.,     Ev., 
E.  647    (1908)       For  a  general  discussion  of       §  1050a. 

inferences   of  regularity   and   the  distinction  7.  2  Chamb.,  Ev..  §   1050a,  notes  4-13;   Re 

between  administrative  assumptions  of  regu-       G ,  21  Ont.  109   (1891). 

larity  and  inferences  or  presumptions  of  reg-  8.  Gardner  v.  State,  81  Ga.  144.  7  S.  E.  144 

ularity,    see    2    Chamb.,    Ev..    §§    1049,    1193  (1888);    2    Chamb..   Ev.,    §    1051.    and   cases 

et  seq.  cited- 

2.  Lowden    v.    Pennsylvania    Co..    41    Ind.  9.  Lushington   v.   Boldero,    15   Beav.    1,    16 

Jur.  140,  21  L.  J.  Ch.  49  (1851)    (age  of  95). 


§   424 


PKESL-MPTIOXS;  INFERENCES  OF  FACT. 


266 


§  424.  [Inferences  of  Regularity] ;  Mental  or  Moral.10 —  Prominent  among 
inferences  of  regularity  in  human  attributes,  mental  or  moral,  is  the  so-called 
'*  presumption  '*  that  a  given  individual,  in  the  absence  of  evidence  to  the 
contrary,  will  be  taken  to  be  sane,11  i.e.,  that  he  is  a  person  of  common  under- 
standing.1- The  procedural  effect  of  a  presumption  of  law  has  been  conferred 
at  times  upon  this  inference  of  fact.1"  In  much  the  same  way,  it  is  said  to 
be  presumed  that  a  child  of  14  is'sui  juris,14  and  that  one  under  12  is  not.1' 
A  deaf  mute  is  not  presumed  to  be  an  idiot.10  It  will  be  presumed  that  each 
human  being  has  the  ordinary  mental  powers  and  qualitications  connoted  bv 
the  term  man.11 

Moral  Attributes. —  In  the  same  way,  it  will  be  inferred  or  assumed  that 
each  man  has  the  usual  moral  attributes  attaching  to  the  race,  the  customary 
habits,  and  the  general  way  of  looking  at  questions  presented  for  consideration. 
Thus,  it  may  fairly  be  said  that  it  will  be  presumed  or  assumed  that  a  persou 
did  not  voluntarily  incur  the  risk  of  death.18 

Instinct  of  Self-Preservation. — :  Among  propositions  of  experience  relating 
to  the  probable  conduct  of  mankind  is  that  men  love  life  and,  therefore,  in- 
stinctively avoid  obvious  danger.1"  It  follows  that  where  a  deceased  person 
10.  2  Chamberlayne,  Evidence,  §§  1052,  12.  Holcombe  v.  State,  supra :  Fosnes  v.  Du- 


1053. 

11.  ^tanlill  v.  Johnson,  159  Ala  546.  40  So. 
223  (1909);  Kelly  v.  Nusbaum,  244  111  158, 
91  X.  E.  72  (1910)  ;  In  re  Phillips.  158  Mich 
155,  16  Detroit  Leg.  X.  623.  122  X  \V.  554 
i  1  Hi  19)  ;  Dodd  v.  Anderson,  115  X  Y.  Supp. 
688,  131  App.  Div.  224  (1909):  2  Chamb., 


luth  St.  Ry.  Co.,  140  Wis  455,  122  X  \\  .  10.34 
(1909).  The  rule  is  the  same  in  criminal 
cases.  L.  S.  v.  Chosholm,  153  Fed.  808 
(1907). 

13.  Rogers  v.   Rogers    (Del.   1907),  66  Atl. 
i<4. 

14.  Fortune  v.  Hall,  195  X.  Y.  578.  89  N. 


Ev.,  §  1052,  and  cases  cited.     There  is  a  pre-     XE.    1100    (1909),   affirming    106    X.    Y    Supp. 


sumption  of  sanity  even  of  a  suicide.  Ledy 
v.  Xational  Council,  etc.,  129  Minn.  137.  151 
X.  W.  905,  L.  R.  A  1915  D  1095  (1915). 
Presumption  as  to  suicide  in  action  on  life 
policy,  see  note.  Bender  ed  .  47  X.  Y.  58 

Presumption  of  sanity. —  Every  defendant 
is  presumed  to  be  sane  but  when  evidence  is 
introduced  sufficient  to  raise  a  reasonable 
doubt  of  sanity  the  law  imposes  on  the  state 
the  burden  of  establishing  his  sanity  the  *ame 
as  any  other  material  fact.  Alberty  v.  State. 
10  Okla.  Crim.  Rep  616.  140  Pac.  1025.  52 
(.N  S.)  L.  R  A  248  (1014)  In  a  criminal 
case  the  presumption  of  sanity  prevails  until 
it  is  met  by  evidence  and  if  any  evidence  is 
introduced  of  insanity  at  the  time  of  the  com- 
mission of  the  offence  charged  then  the  burden 
of  proving  sanity  devolves  on  the  prosecution 
and  the  state  is  bound  to  prove  his  sanity 
like  all  other  elements  of  the  crime  beyond  a 
reasonable  doubt.  Adair  v.  State.  6  Okla. 
Crim  Rep.  2*4.  US  Pac.  416,  44  L.  R.  A. 
(X.  S.)  119  (1911). 


787,    122    App.    Div.    250    I  1907 ) .     See   also, 
Gunter  v.  Hinson,  161  Ala.  536,  50  So.  86. 

15.  Grealish   v.   Brooklyn,  etc..  R.  Co.,   114 
X.   Y    Supp    582,   130' App    Div.  238    (1909), 
judg.   afTd.    197    X.    Y.    540,    91    X.    E     1114 
(1010). 

16.  Alexier   v.   Matzke,    151    Mich.   36.    115 
X.  \V.  251.  14  Detroit  Leg    X    955   (1908). 

17.  Succession  of  Jones.   120  La.  Ann.  986. 
45    So.    96.1     (1908i.     The   usual    limitations 
upon  mental  powers  will  also  be  presumed  or 
a->nnied      For  example,  the  law  will  not  pre- 
sume that  a  fact  once  known  will  always  re- 
main in  the  memory.     Fire  Ass'n  of  Phila.  v. 
La  Grange  &  Lockhart  Com.  Co.    (Tex.  Civ. 
App    1908).  109  S.  \\    1134 

18.  Chicago   Terminal    Transfer    R.    Co.    v. 
Redrlick.   131    III    App    515    (1907),  aff'd  230 
111    105,  82  X~    E.  59S   M907)  :  Lamb  v.  Union 
Ry.  Co    of  X    Y.  City,   109   X"    Y.  Supp.  97, 
125   App    Div.   286    (1008):    2   Chamb  .    Ev., 
§  1052.  n    12.  and  cases  cited 

19.  Atchison,  etc.,  R.  Co.  v.  Hill,  57  Kan. 


-  - 


BUSINESS  AFFAIRS. 


425 


wa?  ?ane  - "  at  the  time  of  his  death  the  prima  facie  inference  arises,  so  far  as 
these  facts  of  death  and  sanity  are  concerned,  that  the  death  was  not  self- 
inflicted.21  In  like  manner,  it  has  been  "  presumed,"  assumed  probably  being 
meant,  in  the  absence  of  evidence  to  the  contrary,  that  one  killed  by  a  locomo- 
tive engine  was,  at  the  time,  in  the  exercise  of  due  care.22 

§  425.  [Inferences  of  Regularity] ;  Business  Affairs.23 —  Certain  inferences  of 
fact  relating  to  regularity  in  business  matters  seem  to  be  bare  assumptions  made 
for  the  purposes  of  convenience  in  directing  the  course  of  the  trial.24  Their 
office  is  simply  to  sustain  the  burden  of  evidence  K  until  proof  on  the  subject 
is  introduced,  as  may  properly  be  done.2* 

Dates  and  Actual  Time. —  Whether  the  ruling  that  the  date  affixed  to  a 
document  as  the  date  of  its  execution  is  prima  facie  correct,  is  an  inference 
of  fact  or  purely  an  assumption  of  administration,  it  will  be  taken  that  an 


139,  45  Pac.  581  (1896);  Morrison  v.  New 
York  Cent.,  etc,  R.  Co.,  63  X.  Y.  643  (1875)  ; 
Texas,  etc.,  R.  Co  v.  Gentry,  163  U.  S  353, 
366,  16  S  Ct.  1104,  41  L.  ed.  186  (1896);  2 
Chamb.,  Ev ,  §  1053,  and  cases  cited.  This 
inference  as  to  what  is  probable  can,  as  a 
matter  of  necessity,  have  weight  only  in  the 
absence  of  evidence  of  the  actual.  Connerton 
v.  Delaware,  etc.,  Canal  Co.,  169  Pa.  339,  32 
Atl.  416  (1S95).  Little  reason,  therefore, 
exist?  for  applying  it  to  a  case  where  an  in- 
jured party  can  testify  as  to  the  real  circum- 
stances attending  the  happening  itself.  Reyn- 
olds v  Keokuk,  72  Iowa  371.  34  X.  W.  167 
<1887). 

20.  Germain   v.    Brooklyn   L.   Ins.   Co.,   26 
Hun   (X.  Y.)  604  (1882). 

21.  Devine  v.  National  Safe  Dep.  Co.,  145 
111.   App.   322    <1908),   judg.   afTd   88   X     E. 
804    (1909):   Mallory  v.  Travellers'  Ins.  Co., 
4,  X.  Y   .V2.  7  Am   Rep.  410  (1871)  :  Clemens 
v.  Royal  Xeishbors  of  America,  14  X.  D.  116, 
103  X.  \V.  402     190.il  :  2  Chamb..  Ev..  §  1053, 
n.  5.  and  cases  cited. 

22.  Davenport,  etc..  Ry.  Co.  v.  De  Yaeger, 
112  111.  App.  537   1 1904^  :  Cahill  v.  Chicago  ft 
A.  R   Co.  205  Mo.  303.  103  S.  W   532  (19O7). 
Presumptions   of  due  care,   see  note.   Bender 
ed..  112  X.  Y    22-3.     Presumption  as  to  neeli- 
gence  and  contributory   neslisenoe.   see  note, 
Bender  ed..   139  X.  Y    274      There  i~  a  pre- 
sumption that  a  switchman  moved  by  love  of 
life  and  the  ordinary  instinct  of  self-preserva- 
tion which  is  characteristic  of  all  living  beings 
was  in  the  exercise  of  reasonable  care  to  that 
end.     Korab  v.  Chicago.  Rock   Island  A:  Pa- 


cific R.  Co.,  149  Iowa  711,  128  X.  W.  529,  41 
L.  R.  A.  (X.  S.)  32  (1910).  Because  of  the 
natural  instinct  of  self-preservation  which 
generally  prompts  men  to  exercise  care  and 
caution  for  their  safety,  there  is  ordinarily  a 
presumption  that  due  care  and  caution  were 
observed  in  particular  instances.  But  this 
presumption  may  be  rebutted  where  it  is  in- 
compatible with  the  duly  proven  conduct  of 
the  person  in  particular  circumstances.  The 
burden  is  upon  the  defendant  to  show  con- 
tributory negligence  on  the  part  of  the  plain- 
tiff. Southern  Express  Co.  T.  Williamson.  66 
Fla.  286,  63  So.  433,  L.  R.  A.  1916  C  1208 
(1913).  In  an  action  against  a  railroad  com- 
pany running  a  park  for  the  death  by  drown- 
ing of  a  boy  to  whom  the  defendant  let  a 
row-boat  claimed  to  be  defective,  where  there 
was  no  witness  to  the  accident  and  no  direct 
evidence  as  to  how  it  happened,  the  court 
holds  that  there  is  a  presumption  of  due  care 
on  the  part  of  the  plaintiff  which  is  sufficient 
to  permit  recovery  if  negligence  is  shown  on 
the  part  of  the  defendant.  Lincoln  v.  De- 
troit ft  M.  R.  Co..  179  Mich.  1*9.  146  X.  W. 
710.  51  L.  R.  A.  (X.  S.)  710  r!914). 

23.  2    Chamberlayne.    Evidence.    §§    1O54- 
1056. 

24.  Infra,  f  490  rf  *rq.:  2  Chamr     Ev..  $f 
1054.  1193  ft  seq. 

25.  $*  4<V  et  seq.:  *  Chamb..  Ev.,  §§  967 
et  xtq. 

26  H.  A.  Pitts'  Sons  Mfe.  Co.  v.  Poor.  7 
111.  App.  24  H880)  :  Cntts  v.  York  Mfe-  Co. 
1«  Me.  190  (1841)  :  2  Chamb.,  ET.,  §  1054. 
and  cases  cited. 


£   425  PRESUMPTIONS;  INFERENCES  OF  FACT.  268 

abstract  of  title,27  power  of  attorney,28  or  other  document  29  was  executed,  or 
a  letter  written ;!"  on  the  day  of  its  date.  In  like  manner,  documents  of 
different  dates  will  be  taken  to  relate  to  separate  transactions.31  The  inference, 
in  the  nature  of  things,  is  rebuttable.32 

Usual  Methods  Followed. —  An  inference  of  fact,  justified  by  experience 
but  liable  to  be  disproved,''3  is  to  the  effect  that  the  customary  methods  of  doing 
business  in  general  are  followed  in  a  particular  case  which  naturally  falls 
within  the  rule.'54  For  example,  the  habit  of  business  men  to  retain  valuable 
collaterals  or  other  Valuable  papers  until  the  indebtedness  secured  by  them  is 
paid,  has  been  recognized  by  the  court^.  Therefore  the  possession  of  an  over- 
due note  by  its  maker  gives  rise  to  an  inference  that  its  obligation  has  been 
discharged/'5  The  custom  of  tradesmen  is  to  seek  their  own  interest  by  giving 
credit  to  solvent  persons  rather  than  to  others.'5'"'  Accordingly  it  will  be  in- 
ferred that  credit  was  given  to  a  responsible  principal  rather  than  to  an 
irresponsible  agent.35  For  a  like  reason,  where  the  holder  of  a  mortgage  takes 
no  steps  to  secure  payment,  it  will  be  inferred  that  the  mortgage  is  paid.:!8  In 
the  same  way,  men  in  business  offices  are  in  the  habit  of  signing  their  own 
names  to  their  correspondence,  of  having  persons  connected  with  the  office 
answer  telephone  communications  and  to  state  truly  with  whom  the  conversa- 
tion is  being  held.  An  inference,  therefore,  arises  that  the  signature  on  a 
business  letter,  in  answer  to  one  sent  to  him,™  especially  on  office  stationery.40 

27.  Chit-ago,  etc.,  R.  Co.  v.  Keegan,  152  111.  (1851);    Halfin   v.   Winkleman,   83   Tex.    165, 
41. '5,  39  X.  E.  33    (1894).  18  S.  W.  433    (1892);   Kincaid  v.   Kincaid.  8 

28.  Holbrook    v.   New   Jersey   Zinc   Co.,   57  Uumplir.    iTenn.)    17    i 1847  I:  2  Chamh.,  Ev., 
X.  V.  616   (1874).  §  1056,  n.  3,  and  eases  cited. 

29.  Hauervvas  v.  Goodloe,  101   Ala.   162,   13  36.  Banks    will    be    assumed    to    discount 
ro.   567    (1892);    Lauder    v.    Peoria   Agricul-  paper  only  on  the  indorsement  of  those  who 
tural,  etc.,  Soc.,   71    111.  App.  475    (1897);   2  are  able  to  pay  their  indebtedness.     German 
Chamb.,   Ev.,  §   1055,  n.  3,  and  cases  cited.  Security   Rank  v.  Columbia   Finance  &  Trust 

Negotiable  instruments  stand  in  the  same  Co.,    27    Ky.    Law    Rep.    581.    85    S.    VV.    761 

position.     They    will    be   taken    to   have    been  (1005). 

executed  on  the  day  of  their  date.     2  Chamb.,  37.   Ferris  v.  Kilmer,  47  Barb.   (X*.  Y.)   411 

Ev.,  §  1055,  n.  3,  and  cases  cited.  (1867). 

30.  Potez  v.  Glossop,  2  Exch.   191    (1848);  38.   Locke  v.  Caldwell,  91   Til.  417    (1879): 
2  Chamb.,  Ev.,  §  1055,  n.  4,  and  cases  cited.  Kellogg  v.  Dickinson,  147  Mass.  432,  18  X.  E. 

31.  Matter  of  Miller,   77    X.   Y.    App.   Div.  223,    1   L.   R.   A.   346    (188S);    Wilson   v.   Al- 
473.  78  X.   V.  Supp.  930.  rev'g  37   Misc.  449.  bert,   89   Mo.   537,    1    S.   W.   209    (1886);    Me 
75  X.  Y.  Supp.  929  (1902).  Murray  v.  McMurray,  17  X.  Y.  Supp.  657,  63 

32.  Dowie  v    Sutton,  126  111.  App.  47,  aff'd  Hun   183    (1892).  fifteen  years  sufficient,  the 
227   111.  183,  81  X.  E.  395    (1906).  mortgagor   being   solvent:    Lammer   v.    Stod- 

33.  Savings,  etc.,  Soc.  v.  Burnett,  106  Cal.  dard,  103  X.  Y.  672.  9  X.  E.  328  (1886)  ;  Ray 
514,  39  Pac.  922   (1895).  v.   Pearce,   84   X.   C.   485    (1881):    Sawyer  v. 

34.  Phillips   v.    Wright,    5    Sandf.    (X.   Y.)  Link,    193    Pa.    424,    44    Atl.    457     (1899);    2 
342     (1852);    First    Xat.    Bank    v.    Colonial  Chamb.,   Ev..   §    1056,   n.   6,   and   cases   cited. 
Hotel  Co.,  226  Pa.  292,  75  Atl    412    (1910)  ;  As  to  payment  of  a  bond.     Id. 

Adams  v.  Adams,  22  Vt.  50  (1849)  ;  2  Chamb.,  39.  Ragan  v.  Smith,  103  Ga.  556,  29  S.  E. 

Ev.,  §  1056,  n.  2,  and  cases  cited.  759   (1897)  ;  Melby  v.  Osborne,  33  Minn.  492, 

35.  Blodgett    v.    Webster,    24    N.    H.    91      24  N.  W.  253    (1885);   Newell  v.  White,  29 


269 


MAIL  SERVICE. 


is  that  of  the  writer  or  has  been  authorized  by  him.41  So  it  will  be  inferred 
that  one  answering  a  telephone  is  connected  with  the  office,42  and  is  actually 
the  person  whom  he  purports  to  be.4:! 

Minor  Instances. —  That  business  has  been  transacted  at  one's  office  rather 
than  at  his  residence,44  that  the  entries  upon  books  of  account  are  authorized,45 
that  estates  of  any  financial  value  will  receive  legal  administration,40  that 
business  enterprises  will  not  be  undertaken  until  all  necessary  legal  authority 
is  procured,47  and  the  like  4S  will  be  presumed,  or  assumed. 

Corporation  Business. —  Where  the  seal  of  a  corporation  has  been  affixed 
by  its  secretary,  it  will  be  inferred  that  the  act  was  done  under  authority  of 
the  company,  such  being  the  usual  course  of  business.49 

Officer's  tie  turns. —  In  the  same  way  the  correctness  of  an  officer's  return 
will  be  presumed/'" 

§  426.   [Inferences   of  Regularity];   Official   Business;   Mail   Service.51 — The 

regularity  of  the  mail  service  is  a  matter  established  by  experience.52  It  will, 
therefore,  be  inferred  that  in  a  particular  instance  of  transportation  by  mail 
the  same  regularity  of  transmission  was  applied.53  When  certain  necessary 


I.'.  1  343.  73  Atl.  7U8  (1908));  2  Chamb., 
Kv.,  §  1056,  ij.  7,  and  oases  cited.  It  has 
Iteen  held  that  no  presumption  arises  that  a 
person  whose  name  is  appended  to  a  business 
letter  actually  wrote  it.  Heard  v  Southern 
Ry.  Co..  143  X.  C.  137.  55  S.  E.  505  (1006). 
The  same  presumption  will  lie  indulged  in  case 
of  one  whose  name  is  affixed  to  a  telegram. 
\\estt-iii  I'nion  Tel.  Co  v.  Troth,  43  Ind.  App. 
7,  S4  N.  L.  727  (1908). 

40.  Ragan  v   Smith,  supra. 

41.  American  Bonding  Co.  of  Baltimore  v. 
Ensey,  105  Md.  211,  65  Atl    921    (1907). 

42.  Rock  Island,  etc.,   R.   Co.  v.  Potter,  36 
111    App.  590    (1888). 

43.  Guest  v.  Hannibal,  etc.,  R   Co.,  77  Mo. 
App.  258   (1898). 

44.  Varicks    v     Crane,    4    N.    J.    Eq.    128 
(1H37). 

45.  Henry   v.   Travelers'    Ins.    Co.,   42   Fed. 
363    (189(1). 

46    Johnson  v.  Burks,  103  Mo.  App.  221,  77 
S.  W.  133    (1903). 

47.  McWethy  v.  Aurora  Electric  Light,  etc., 
Co,   202    111     218.   67    X.    E.   9,   aff'g    104    111. 
App    479    (  1903). 

48.  Allen  v  Wilbur.  199  Mass.  366.  85  X.  E. 
429    (1908).  an   addressed  letter  delivered  at 
addressee's  office  was  received      It  will  be  a«- 
sumed  that  promissory  notes  are  worth  their 
face  value.     Anderson  v.  Grand  Forks  Nat. 


Bank,  6  X.  D.  497.  72  X.  VV.  916  (1897). 
\Yhen  a  month  is  referred  to,  without  further 
limitation,  it  will  be  taken  to  be  a  month  of 
the  current  year  Tipton  v.  State,  119  Ga. 
304,  46  S.  E.  436  «  11)03). 

49.  Bliss   v.    Harris,   38   Colo.   72.   87    Pac. 
1076  (1906).     It  will  be  inferred  that  a  busi- 
ness corporation  has  officers  and  stockholders, 
such    being    the    usual    custom.      Richards    v. 
Xorthwestern    Coal   &    Mining   Co.,    221    Mo. 
149,  119  S.  W.  953   (1909). 

50.  It  is  presumed  that  a  public  officer  does 
his  duty  and  this  presumption  applies  to  a 
return  on  the  summons  by  a  sheriff  showing 
that   he   received   it.     Galehouse   v.   Minneap- 
olis. St.  Paul.  etc..  R.  Co..  22  X    D    615.  135 
X*.  W.   189.  47  L.  R.  A.    (X    S. )   965    (1912K 

51.  2    Chamberlayne.    Evidence.    §§     1057- 
1061. 

52.  Ashley  Wire  Co.   v.   Illinois   Steel   Co., 
164  Til.  149.  45  X.  E.  410,  56  Am.  St.  Rep    187 
(1*06)  :  Dunlop  v.  U.  S.  165  U   S.  486,  17  S. 
Ct.  375.  41   L.  ed.  799   (1897). 

53.  The   presumption    has   been   said   to   be 
rather    that    postal    officials    do    their    duty 
Watson  v    Richardson.   110   Iowa  673.  80  X 
W    407    (1899}-.   Briirss  v.  Hervey.  130  Mass 
186    (1881);    Henderson   v.   Carbondale  Coal, 
etc..  Co.   140  F    S    25.  37.  11  S    Ct    691.  35 
L.  ed.  332   M890)  :  2  Chamb.,  Ev.,  §  1057,  n. 
2,  and  cases  cited. 


PRESUMPTIONS;  INFERENCES  or  FACT. 


270 


conditions  are  complied  with,"4  the  mailing  of  a  letter  or  other  postal  matter, 
gives  rise  to  an  inference  that  it  arrived  at  its  destination  in  due  course  of 
mail.55  The  presumption  or  inference  is  one  of  fact."'  The  force  of  the 
inference  of  receipt  from  mailing  is  not  suspended  by  any  so  called  ''  con- 
flicting ''  presumption  of  innocence."' 

Necessary  Conditions  on  Inference  of  Receipt  from  Mailiny;  (a)  Proper 
Address. —  That  the  inference  of  receipt  from  mailing  should  arise  it  is  essen- 
tial that  the  mail  matter  should  be  properly  posted.  This,  in  turn,  involves 
compliance  with  certain  familiar  conditions; — (a)  the  letter  or  article  must 
be  mailable  matter  and  properly  addressed,  (b)  the  postage  must  be  prepaid, 
so  far  as  required  by  the  postal  regulations  and  (c)  it  must  be  actually  de- 
posited in  the  mail.58  Accordingly,  no  inference  of  receipt  arises  from  mailing 
unless  the  letter  or  other  article  is  shown  r'!>  to  have  been  properly  addressed 
to  the  person  for  whom  it  was  intended,*5"  at  the  place  of  his  residence  01  at  the 

54.  Allen  v.  Blunt,  1  Fed.  Cas.  No.  217,  2 
Woodb.  &  M.   (U.  S.)   121,  131. 

55.  German  Nat.   Bank   v.-  Burns,   12  Colo. 
339,  21  Pac.  714,  13  Am.  St.  Rep.  247   (1889)  ; 
Bloom  v.   Wanner,  25   Ky.    L.    Rep.   1646,  77 
S.   W.   930    (1904);    McDowell   v    .Etna    Ins. 


L'o.,  164  Mass.  444.  <H  N.  E  665  (1895)  ;  Long 
Bell  Lumber  Co.  v.  Nyman,  145  Mich.  477,  13 
Detroit  Leg.  N.  577,  108  N.  W.  1019  (1906)  ; 
Sills  v.  Burge,  141  Mo.  App.  148,  124  S.  W. 
305  (1910);  Hastings  v.  Brooklyn  L.  Ins. 
Jo.,  138  N.  Y.  473,  34  N  E.  289  (1893): 
Jensen  v.  McCorkell,  154  Pa.  32.5.  26  Atl  366. 


58.  A  statement  that  a  person  ';  mailed  "  a 
letter  implies  compliance  \\ith  all  these  con- 
ditions     Ward   v.   Morr   Transfer   &   Storage 
Co.,   119  Mo.  App.   83,  95  S.   \V.  904    (1906)  ; 
Reynolds   v.   Maryland  Casualty  Co.,   30   Pa. 
Super    Ct,  456   (1906). 

59.  It    need    not    be    affirmatively    proved 
that  the  letter  in  an  envelope  is  the  one  in- 
tended for  the  person  whose  address  is  on  the 
envelope.     Phelan    v.    Northwestern    Mut.    L 
Ins.    Co.,    113    N     Y.    147,   20   N.    E.    827,    10 
Am.  St.  Rep.  441    (1889). 

60.  Bankers'  Mut.  Casualty  Co.  v.  People's 


5  Am.  St.  Rep.  843   (1893)  ;  Dunlop  v.  U.  S.,       Bank  of  Talbotton,  127  Ga    320,  56  S.  E.  429 


nipra:  2  Chamb.,  Ev.,  §  1057,  n.  4,  and  cases 
jited. 

Registered  Mail. —  The  inference  of  deliv- 
;ry  from  proper  posting  applies  though  the 
etter  was  registered,  under  the  postal  regu- 
ations  which  call  for  an  entry  of  receipt  on 
;he  books  of  the  receiving  office  and  no  such 
>ntry  is  offered  or  its  absence  explained. 
Bellefonte  First  Nat.  Bank  v  McManigle,  69 
tja.  156.  8  Am.  Rep.  236  (1871). 

56.  Pitts  v.   Hartford  L.,  etc.,  Ins    Co.,  66 


(1907):  Ward  v.  Hasbrouck,  60  N.  Y.  Supp. 
391.  44  App.  Div.  32  (189!)):  Reeves  &  Co. 
v.  Martin,  20  Okl.  558,  94  Pac.  1058  i 1908)  ; 
2  Chamb.,  Ev.,  §  1058,  n.  3,  and  cases  cited 
A  dcft'ctire  address  will  exclude  the  infer- 

nce  even  if  the  letter  enclosed  a  self-addressed 
postcard  which  was  net  returned.  U.  S. 
Equitable  L  Assur.  Soc  v  Frommhold,  75 
111.  App.  43  (1897).  A  correct  street  and 
number  and  a  wrong  place  —  e.g.,  "317  Main 
St.,  New  York  City,"  instead  of  317  Main  St., 


'onn.   376,   34    Atl    95,   50    Am.    St.   Rep.   96-      Cincinnati" — raises   no    presumption    of    re- 


(1895)  :  Pittsburg  Lawrence  Bank  v.  Raney, 
>tc..  Iron  Co.,  77  Md.  321,  26  Atl.  119  (1893)  ; 
Plath  v  Minnesota  Farmers'  Mut.  K.  Ins. 
\ssoc.,  23  Minn.  479,  23  Am  Rep.  697  (1877)  : 
\ustin  v.  Holland,  69  N.  Y.  571,  25  Am.  Rep. 
246  (1877);  Henderson  v.  Carbondale  Coal, 
>tc.,  Co.,  supra:  2  Chamb., -Ev.,  §  1057,  n.  5, 
ind  cases  cited. 

57.  Rosenthal  v.  Walker,  111  U.  S.  185,  4 
>.  Ct.  382,  28  L.  ed.  395  (1884),  receipt  of  an 
incriminating  letter  presumed. 


oeipts.  Westheimer  v.  Howard.  93  N.  Y. 
Supp.  518,  47  Misc.  Rep.  145  (1905).  The 
presumption  that  a  letter  mailed  was  received 
only  arises  on  evidence  that  it  was  properly 
addressed.  Merely  stating  that  "  demand  was 
made  by'  mail  "  is  insufficient  as  it  does  not 
appear  how  the  letter  was  addressed.  Sil- 
berg  Co.  v.  McNeil,  18  N.  M.  44,  133  Pac.  975. 
49  L.  R.  A.  (N.  S.)  458  (1913),  citing  text. 
61.  Goodwin  v.  Provident  Sav.  L.  Assur. 
Assoc.,  97  Iowa  226,  66  N.  W.  156,  59  Am. 


271  MAIL  SERVICE.  §  -t2G 

post-office  -where  he  customarily  receives  his  mail.  In  case  of  a  large  place, 
this  requirement  includes  in  addition,  the  correct  street  and  number.02  A  per- 
son who  customarily  receives  his  mail  at  both  of  two  post-offices  may  properly 
be  addressed  at  either."'1 

(b)  Postage  Must  Be  Prepaid. —  Xo  presumption  or  inference  of  receipt 
arises  from  the  fact  of  mailing  unless  it  is  affirmatively  shown  that  stamps 
have  been  affixed  sufficient,  under  the  postal  regulations,  to  carry  it  to  its  destina- 
tion.64    The  fact  of  prepayment  may  be  inferred  from  the  custom  of  an  in- 
dividual ''""'  or  the  practice  of  a  business  establishment  in  this  particular. 

(c)  Deposit  in  the  Mail. —  It  is  a   necessary  condition  of  any  inference 
of  receipt  of  mail  matter  from   its  posting  that  the  fact  of  deposit   in  the 
mail   should   be   affirmatively   shown.66     The   fact   may   be   shown   either   by 
direct  evidence  so  called,  or  by  inferences  drawn  from  proof  of  probative  facts, 
including  the  regular  course  of  business  in  a  particular  mercantile  office,67 
the  custom  of  a  given  individual  in  this  matter68  together  with  evidence  that 
the  special   parcel   of  mail  matter  in   question   had  been   placed   within   the 
operation  of  the  system  or  custom  of  the  office.69     Even  where  the  facts  are  so 
inconclusive   as  not   to  justify  a   ruling  that  the  inference  of  mailing  is   a 
probable  one,  it  may  still  be  held  to  be  a  reasonable  one,  and  a  verdict  rendered 
thereon  may  be  sustained.7" 

Postmarks. —  A  postmark  raises  an  inference  that  the  article  so  stamped 
has  been  mailed.71     It   affords,   however,   no  inference   that   the   article   was 

St.   Hep    411,  32   L.   K.  A.  473    (1896):   Hen-  pie  v.   Crane,    125   N.  Y.   535,   26   X.   E.   736 

derson  v.  Carbondale   Coal,   etc.,  Co.,   supra;  (1891). 

Russell  v.  Buckley,  4  K.  I    -V25   (1857).  65.  Brooks  v.  Day,  11  Iowa  46  (1860). 

62.  Fleming,  etc.,  Co.  v.  Evans,  9  Kan.  App.  66.  Bankers'  Mut.  Casualty  Co.  v.  People's 
858.   61    Pac.  503    (1900):    Chicago,  etc.,  Ry.  riank   of   Talbotton,   supra:   Best   v.   German 
Co.  v   Chicka-sha  Nat.  Bank   (Okl.  1909),  174  Ins.  Co.,  68  Mo.  App.  598   (1897)  ;  2  Chamb., 
Fed.  923;  Phelan  v.  Northwestern  Mut.  L.  Ins.  Ev..  §  1060,  n.  1,  and  cases  cited 

Co..  supra:  2  Chamh .,   Ev..  §   1058,  n.  5.  and  67.  Lawrence  Bank  v.  Raney,  etc.,  Iron  Co., 

cases    cited.     If    the    person    addressed    has  supra:  William  Gardam  &   Son  v.  Batterson, 

changed  his  address  and  left  the  new  address  198  X.  Y.  175.  91   X.  E.  371,  aff'g  judg.   113 

with  the  proper  post  office  officials,  it  will  be  N.  Y.  Supp.  1150,  129  App.  Div.  906   (1908)  ; 

assumed    that   the    letter    has   been    properly  2  Chamb..  Ev.,  §  1060,  n.  2.  and  cases  cited, 
forwarded.     Marston  v.  Bigelow.  150  Mass.  45.  68.  Miller  v.  Hackley.  5  Johns.  (X.  Y.)  375, 

22  X.  E.  71,  5  L.  R.  A.  43   (1889).  4  Am    Dec.  372    (1810)  :    Backdahl  v.  Grand 

63.  Shelburne    Falls   Xat.   Bank   v.   Towns-  Lodge   A.  O    T.   W..  46  Minn.  61.   48   X.  W. 
lev,    102    Mass     177.    3    Am.    St.    Rep.    445  454    (1891) 

(1S69).  69.  Dana  v.  Kemhle.  19  Pick     iMass.)    112 

64.  Bless    v    Jenkins.    129   Mo.    647.    31    S.  (1837):  Whitney  Wat'on  Works  v.  Moore.  61 
W.    938     (1895):    Mishkiiid-Fpinl-erff    Realty  Vt    230.  17  Atl.  1007   i  1880)  :  2  Chamb..  Ev.. 
Co    v    Sidorsky.  189  X    Y    402.  «2  X.  E    448  §  1060.  n.  4.  and  cases  cited. 

1 1907,.  aff'ir   iud«r.  98  X.  Y.  Supp.   496.   Ill  70.  Hastings  v.  Brooklyn  I..  Ins.  Co..  supra. 

App.  Div.  578   ,in06>  :  2  Chamb.  Ev.,  §  1059,  71.  Xew    Haven   County  Bank   v.   Mitchell, 

n.    1.   and    ^a«es   cited.      4    certificate   that   a  15  Conn.   206    (1842):    U.   f>.  v.   Williams,   3 

letter  was  "  dull/"  mailed  will  be  construed  Fed.  484   (1880)  :  2  Chamb.,  Ev..  §  1060,  n.  7, 

to  mean  that  the  postage  was  prepaid      Peo-  and  cases  cited. 


§  426  PRESUMPTIONS;  INFERENCES  OF  FACT.  272 

mailed  on  the  day  of  the  date  indicated  on  the  postmark.72  though  it  is  a  cir- 
cumstance which  the  jury  are  entitled  to  consider,  as  bearing  on  the  question 
of  date  of  mailing.7'5 

Date. —  Experience  indicates  no  such  uniform  connection  between  the  date 
of  a  letter  and  the  time  of  its  mailing  as  to  raise  an  inference  that  a  letter 
was  posted  on  the  day  of  its  date.'4 

\Vhen  Mailiny  is  Complete. —  A  letter,  or  other  postal  matter  delivered  to 
a  railway  postal  agent  while  on  duty  7u  or  to  a  mail  carrier  while  engaged  in 
official  business  7ti  is  duly  mailed.  Deposit  in  a  post-office  or  in  a  letter  box 
provided  by  government  for  the  purpose  and  as  part  of  the  work  of  collecting 
letters  ' '  has  the  same  effect.  In  either  case  the  mailing  is  complete. 

"  Due  Course  of  Mail."--  -  To  raise  an  inference  or  presumption  of  the  re- 
ceipt of  mail  matter  at  any  particular  time,  it  must  be  shown  not  only  that  it 
was  properly  mailed  78  but  also  as  to  what  is  the  usual  course  of  mail  between 
the  place  of  mailing  and  the  place  of  receipt.79  The  inference  is  that  the  mail 
matter  was  delivered  in  due  course  of  post.80  In  many  cases,  the  subject  is  not 
one  which  the  court  and  jury  will  treat  as  oiie  covered  by  the  common  knowl- 
edge of  the  community.81  The  tribunal  cannot  know,  as  matters  of  notoriety, 
the  running  time  of  trains  between  places,82  the  number  of  mail  trains  within 
a  given  time  S3  or  other  facts  involved  in  such  an  inquiry. 

Receiciny  Postmark: —  The  date  of  delivery  cannot  be  inferred  from  the 
postmark  of  the  receiving  office.84 

72.  Xew   Haven   County   Bank  v.   Mitchell,  81.  Bishop   v.   Covenant  Mut.   L.   Ins.   Co., 
supra.                                                                                5  Mo.   App.   302    (1900);    2   Chamb.,   Ev.,   § 

73.  Shelburne  Falls.   Xat.   Bank  v.  Towns-       1001,  n.  4,  and  cases  cited. 

ley,  102  Mass.  177,  3  Am.  Rep   445   (1809).  82.  Early  v.   Preston,   1   Patt.  &  H.    (Va.) 

74.  Phelan    v.    Northwestern   Mut.   L.    Ins.       228    (1855);   Wiggins  v.   Burkham,   10   Wall. 
Co.,  supra;  Uhleman  v.  Arnholdt,  etc.,  Brew-       (U.  S.)    129,  19  L.  ed.  884  (1869). 

ing  Co.,  53  Fed. "485   (1893).  83.  Wiggins  v.  Burkham,  supra. 

75.  Watson  v.  Richardson.  110  Iowa  673,  80  84.  Early  v.  Preston,  supra. 

N.  W.  407    (1899).  Practical     Suggestions. —  In     proving     the 

76.  Pearce  v.  Langfit,  101  Pa.  507,  47  Am.  mailing  in  a  large  office  it  may  be  necessary 
Kep.  737   (1882).  to  put  on  the  clerk  who  wrote  and  addressed 

77.  (a  sco  Xat.  Bank  v.  Shaw,  79  Me.  376,  the   letter  and   in   addition   the  office  boy   or 
10  All.  (57,  1   Am.  St.  Rep.  282    (1887)  ;   Me-  other  clerk  who  actually  put  it  in  the  mail. 
Coy    v.    Xew    York,    46    Hun     (X.    Y  )     268  Counsel  should  not  forget  to  ask  whether  the 
(1887).  envelope  had  printed  on  it  the  name  and  ad- 

78.  Phelan    v.    Xorthwestern   Mut.    L.    Ins.  dress  of  the  addresser  and  a  direction  to  tin- 
Co.,  supra :  Vhlman  v.  Arnholdt,  etc.,  Brew-  postmaster    to    return    it    if    not    called    for 
ing  Co..  supra.  within   a   certain  period  and  whether  it  ever 

79.  Boon   v     State  Ins.   Co.,   37   Minn.   426.  was  returned.     The  clerks  need  not  remember 
34  X.  W.  902   (1887).  whether  this  particular  was  actually  written 

80.  Sherwin  v.  National  Cash  Register  Co.,  and  mailed,  but  it  will  be  sufficient  for  them 
5   Colo.  App.   102.  38  Pac.   392    (1894);   Iro-  to  testify  from  their  notes  that  the  letter  was 
quois  Furnace  Co.  v.  Wilkin  Mfg.  Co  ,  181  111.  given  them  to  write  and  mail  and  that  they 
582,  54  X.  E.  987   (1899)  :  Augusta  v.  Vienna,  know   that    all    letters    so   given    them    were 
21   Ale    298    (1842);   Bachman  v.  Brown,  56  written  and  mailed.     See  supra,  §  425. 

Mo.  App    396   (1894)  ;  2  Chamb.,  Ev.,  §  1061, 
n.  3,  and  cases  cited. 


273  MAIL  SERVICE.  §  427 

§  427.  [Inferences  of  Regularity] ;  Rebuttal  of  Inference  of  Receipt  from 
Mailing.^-1  -  Evidence  rebutting  the  inference  of  receipt  from  mailing  may  be 
of  several  kinds.  The  person  to  whom  the  mail  matter  is  addressed  may  testify 
that  he  did  not.  in  point  of  fact,  receive  it  at  all  so  or  if  he  did  receive  it.  that 
it  was  delivered  to  him  later  than  it  should  have  been.87  He  may  also,  as  a 
matter  of  course,  corroborate  his  denial  by  other  evidence,  as  that,  by  the 
custom  of  the  receiving  office,  the  mail  was  delivered  to  another  person. sf  The 
need  of  corroborating  arises  from  the  fact  that  a  bald  denial  of  receipt  is 
not  convincing  in  itself  but  should  be  reinforced,  if  possible,  by  some  adequate 
explanation. Mt  e.g.,  some  uncertainty  in  the  proof  of  mailing  and  regularity 
in  transmission  at  a  particular  time.90  His  simple  inability  to  recollect  whether 
the  letter  or  other  matter  was  or  was  not  received  !U  a  vague  impression  that 
it  was  not,1'2  do  not  produce  a  strong  probative  effect  in  rebuttal  of  the  inference. 
The  statement  that  no  such  letter  appears  on  his  office  files  93  or  among  the 
papers  of  a  deceased  person  to  whom  it  was  addressed,94  stand  in  the  same 
position. 

Xdine :  Probative  Force  of  Inference  of  Receipt  from  Mailing;  Request  for 
Return. —  The  force  of  the  inference  of  receipt  from  mailing  is  greatly  in- 
creased by  failure  of  the  sender  to  receive  some  notice  of  the  non-delivery  of 
the  article  in  question  in  response  to  a  printed  request  on  the  envelope  for  its 
return,  in  such  an  event,  to  his  address  which  is  given,  in  this  way,  to  the 
postal  authorities.1'1"'  In  case  of  a  failure  to  receive  back  a  letter  bearing  such. 

85.  -1   •Chamberlayne,     Evidence,    §§     1062-  94.  Sabre  v.  Smith,  62  X.  H.  663    (1883). 
1067.       .                                                                            But    see    Hastings    v.    Brooklyn    L.    Ins.    Co., 

86.  Fleming  v    Evans,  i)  Kan.  App.  858,  61       supra. 

Pac.    5U3     (1900);     National    Masonic    Ace.  Inlerence  of  Regularity  of  Constant  As- 

Assoc.   v.  Burr,  57   Xeb.  437,  77   X    \V.   1098  sistance. —  The    presumption    of    the    receipt 

(1899);    Howard   v    Daly.  01    X.   V.   362,   19  from  mailing  being  one  of  fact,  it  results  that 

Am.  Rep.  285   (1875)  ;  2  Chamb.,  Ev..  §  1062,  whatever   evidence   is   submitted   in   rebuttal, 

n.   1,  and  cases  cited  the  original  inference  still  maintains  its  in- 

87.  Hachman    v.    Brown,   56   Mo.    App.   396  trinsic  probative  effect.     Marston  v    Bigelow, 
(1894);     Xational    Masonic    Ace.     Assoc.    v.  150   Mass.   45,   22    X.    E     71.   5   L.   R.    A.   43 
Burr,  supra  (1889);    Sutton  v.  Corning,  69  X.   Y.   Supp. 

88.  Schutz  v    Jordan.   141   U.  S    213,  11   S  670.    59    App     Div.    589    (1901).     It    follows 
Ct.  906.  35  L    i>d    7o.~)    i  1S91  I.  that  while  it  is  certainly  incumbent  upon  the 

89.  (i.  S.   l!oth  Clothing  Co.  v.  Main   S.   S.  party  having  the  burden  of  evidence   i  §S  402 
Co.,  88  X.  V.  -Snpp.  987.  44  MibC.  237   (1904)  ;  ct  se<t. :  2  Chamb..  Ev..  5j§  967  et  seq.:  Hunt- 
Fleming    v.     Evan.-,    aupra ;    2    Chamb ,    Ev.,  ley  v.    Whittier.    105   Mass    391.   7    Am.   Rep. 
§   1U02.  n    4.  it!id  case.-  cited.  536    (18701)    to  prove  the  fact  of  actual  de- 

90.  lloli.-on  v   <>ucen  Ins   Co..  2  Ohio  S  &  C  livery  of  the  letter  to  the  person  addressed, 
PI    Dec    475.  2  Ohio  X    P.  296    (  1S93).  this  contention  is  at  all  times  aided  by  the  in- 

91.  Pioneer  Sav..  etc..  Co   v.  Thompson.  115  ference  that  a  particular  letter  was  probably 
Ala    552.  22  So.  ."ill    i  1S97  i  :  Ashley  Wire  Co.  delivered      because     letters     so     transmitted 
v    Illinois   Steel    Co..   supra:    Ausvin   v.   Hoi-  usually   are      Marston   v    Bigelow,   supra;   2 
land,  supra:  2  Chamb..  Ev  .  §  1062.  n.  7.  and  Chamb.  Ev..  §  1003. 

cases  cited.  95.  Sherwin  v.  Xational  Cash  Register  Co.. 

92.  Id  5  Colo.  App    162.  38  Pac.  392   (1894):   Baker 

93.  (iaar  v.  Stark    (Tenn.  Ch    App.  1895),      v.  Temple,  160  Mich.  318,  16  Detroit  Leg.  N. 
36  S.  W.  149. 


PRESUMPTIONS;  INFERENCES  or  FACT. 


a  request  the  inference  of  its  receipt  by  the  sendee  is  said  to  become  "  well- 
nigh  conclusive."  9C 

Corroboration. —  Finding  the  letter  in  possession  of  the  addressee,07  his 
agent  or  principal  !>s  naturally  corroborates  the  inference  that  it  was  duly 
transmitted.  His  refusal  to  admit  or  deny  receipt  0!)  or  other  relevant  con- 
duct on  his  part  l  may  strengthen  the  presumption  against  the  addressee  of  the 
letter  almost  to  a  moral  certainty.2 

Presumption  of  Law. —  In  certain  branches  of  the  substantive  law,  for 
example,  that  relating  to  the  protest  of  negotiable  paper,  or  in  other  con- 
nections where  constructive  notice  is  required,  or  deemed  sufficient,  this  in- 
ference of  fact  of  receipt  from  mailing  has  been  given  the  prima  facie  force 
of  a  presumption  of  law.:i  Unless,  therefore,  there  is  affirmative  evidence  of 
non-delivery,"1  or  circumstances  likely  to  cause  unusual  delay  or  other  reasonable 
matter  is  shown,  not  to  follow  this  inference  is  against  the  evidence  and  ground 
is  furnished  for  a  new  trial.5  Whether,  in  cases  where  actual  notice  is  required 
as  in  case  of  creditors  of  a  firm  at  the  time  of  dissolution,  such  notice  will  be 
prima  facie  inferred  from  mailing,  other  conditions  being  fulfilled,  will  be 
regarded  as  a  presumption  of  law,  is  in  doubt.(i 

Presumption  of  Law  Denied. —  It  has  been  explicitly  denied  that  there  is 

Williams     v.     Cilver, 


1092,  125  N".  VV.  63  (1910)  ;  Matter  of  Wiltse, 
25  N  Y.  Supp  733.  5  Misc.  10.1  (1893)  ;  Hed- 
den  v.  Roberts,  134  Mass  38,  45  Am.  Hep.  276 
(1883)  ;  2  Chamb.,  b'v.,  §  1064,  n  1,  and  cases 
cited. 

96.  Jensen  v.   McCorkell,'  154   Pa    32.3,  26 
Atl.  366,  35  Am.  St.  Rep.  843   (1893). 

97.  Possession  of  one  enclosure  leads  to  the 
conclusion  that  all  the  enclosures  have  been 
received.     Melvin  v.  Purdy,  17   N.  J.  L.   162 
(1839). 

98.  Blodgett    v.    Webster,    24    N.    H.    91 
(1851). 

99.  Woodman  v.  Jones,  8  Js    H.  344  (1836). 

1.  Bell  v.  Hardy,  9  La.  Ann.  547    (1854): 
Lawrence  Bank  v.  Raney,  etc..  Iron  Co  ,  supra. 

2.  Pitts   v.   Hartford    L .,   etc.,    Ins.   Co  .   6fi 
Conn    376,   34   Atl    95.   50   Am.   St.    Rep    96 
(1895)  ;  2  Chamb..  Ev.,  §  1065.  n.  5,  and  cases 
cited. 

Statutory  Recognition. —  The  inference  has 
been  recogni/ed  by  statute  as  valid  in  several 
jurisdictions.  Stockton  Combined  Harvester, 
etc  ,  Works  v.  Houser.  109  Cal  9.  41  Pac.  809 
(1895):  Williams  v.  Cilver.  39  Or  337.  64 
Pac.  763  (1901).  While  the  two  statutes  of 
California  and  Oregon  are  practically  identi- 
cal in  terms,  in  the  former  state  the  inference 
is  one  of  fact  Grade  v  Mariposa  County. 
132  Cal.  75.  64  Pac.  117  (1901).  Tn  Oregon, 
the  legislature  is  held  to  have  laid  down  a 


presumption     of     law. 
supra 

3.  §§   444   et  seq.;  2  Chamb.   Ev.,   §§    1082 
et  seq.     Iroqtiois  Furnace  Co    v.  Wilkin  Mfg. 
Co.,  181  111.  582,  54  N.  E.  987   (1899.)  ;  Hunt- 
ley  v.   Whittier,   105   Mass.   391,  7   Am.   Rep 
536   (1870;)  2  Chamb.,  Ev.,  §  1066,  n.  1,  and 
eases'cited 

4.  Pitts  v.  Hartford  L.,  etc..  Ins.  Co.,  supra; 
New   York   Home   Ins.   Co    v.   Marple,   1    Ind. 
App.  411.  27  N.  E.  633   (1890)  :   McDowell  v. 
/Etna  Ins.   Co..   164  Mass    444.  41    X.   E    665 
(1895)  :  Ackley  v.  Welch.  85  Hun   178.  32  N. 
Y.  Supp    577    (1895):   Small  v.  Prentice.  102 
Wis.   256.  78   X.   W    415    (1899):   2  Chamb., 
Ev.,  §  1066.  n.  2.  and  cases  cited 

5.  Russell  v.   Buckley.  4  R.  I.  525    (1857); 
Oaks   v.    Weller,    16   Vt.   63    (1844)       Should 
alFirmative  evidence  of  non-delivery  be  offered 
the  addressee  is  entitled  to  have  it  considered. 
Kingsland    Land   Co     v.    Newman,    36    N.    Y. 
Supp.  960,  1   App.  Div    1    (1896).     The  post- 
mark of  a  letter  containing  a  notice  of  pro- 
test of  a  promissory  note  "  is  evidence  that 
the  letter  was  mailed  and  sent,  rather  than 
that   it   was   merely  put    into  the  post-office. 
New  Haven  County  Bank  v.  Mitchell.  15  Conn. 
206   i!842). 

6.  ^oung  v   Clapp.  147  111.  176.  190  (1892). 
That  it  is  not  so  to  be  regarded,  see  Kenney 
v.  Altvater,  77  Pa.  34  (1874).     See  also  Eck- 


275 


MALL  SEKVICE. 


any  presumption  of  law  to  the  effect  that  mailing  under  proper  conditions  is 
prima  facie  evidence  of  receipt.7  In  other  words,  it  has  been  held  that  the 
jury  may  rationally  tind  in  many  cases  that  the  inference  has  a  prima  facie 
value.  The  law  does  not,  however,  it  is  said,  require  the  judge  to  rule  that 
the  inference  has,  until  s  actual  evidence  of  receipt  is  produced,  a  prima  facie 
force  on  which  the  j  ury  are  justified  in  acting. y 

§  428.  [Inferences  of  Regularity];  Inference  Rebuttable.10 — That  the  pre- 
sumption is  rebuttable  11  is  implied  in  the  very  fact  that  it  is  a  presumption.  As 
against  the  positive  evidence  of  the  addressee  that  the  mail  was  never  received, 
the  inference  that  a  letter  addressed  to  one  on  a  given  street  in  a  populous  city, 
without  addition  of  a  street  number,  must  have  reached  him  cannot  prevail.12 
Indeed,  as  against  positive  evidence  of  non-receipt,  the  inference  may  at  times 
appear  devoid  of  probative  weight,  i.e.,  seem  to  be  reduced  to  the  weight  of  an 
administrative  assumption.13 

§  429.  [Inferences  of  Regularity];  Telegrams;  Statutes.1* — Experience  has 
shown  the  existence  of  such  uniformity  in  conducting  the  business  of  telegraphic 
communications  as  to  give  rise  to  a  probable  though,  of  course,  rebuttable,15 
inference  of  the  fact  that  a  properly  addressed  telegraphic  message  16  delivered 
to  the  company  for  transmission  17  reached  its  destination  18  without  unneces- 


erly  v  Alcorn,  62  Miss  228  (1S84);  Van 
Doren  v.  Lielmian,  11  N.  V.  Supp.  769  (1890)  ; 
Austin  v.  Holland,  supra;  2  Chamb.,  Ev., 
§  1066,  n  5.  and  cases  cited.  The  probative 
force  of  a  presumption  of  law  has  been  at 
times  accorded  to  this  inference  of  fact  in 
proof  of  actual  receipt.  Merchants'  Exch. 
Co.  v.  Sanders,  74  Ark.  16,  84  S.  \V.  7H6 
;  1  S)05  I . 

7.  Continental    Ins.    Co.    of    New    York    v. 
Hargrove,  131  Ky.  837,  116  S.  \V.  256  ;  1909)  ; 
Campbell  v.  Gowans,  35  Utah  268,   100  Pac. 
397  (1909). 

8.  De   Jarnette   v.    McDaniel,   93    Ala.    215 
(1800):    German    Xat.    Bank    v.    Burns,    12 
Colo.  539   (1889). 

9.  Hastings   v.    Brooklyn   L.    Ins.   Co.,    138 
X.     Y.    473     (1893):     Huntley    v.    Whittier, 
supra:  Austin  v.   Holland,  supra  :  2  Chamb., 
Ev.,  §  1067,  n.  4.     See  also.  Eckerly  v.  Alcorn, 
02  Miss.  228   H884)  -.   National  Bank.  etc.  v. 
AlcManigle,  69  Pa.   156,  160    (1871). 

10.  2  Chamberlayne,  Evidence.  §  1068. 

11.  Hamilton   v.   Stewart.   108   Ga.  472,   34 
S.   E.   123    (1899);   Meyer  v    Krohn,   114   111. 
574,  2  N7.  E.  495    (1885);   Huntlev  v.   Whit- 
tier,  supra  :  Eckerly  v.  Aleorn.  supra  :  Hurley 
v.  OU'ott,  198  X.  Y    132,  91  N    E.  270  (1010). 
:"f'g  .juder.  119  N.  Y.  Supp.  430,  Ibi  App  Div. 


631    (1909);    Jensen  v.   McCorkell,  supra;   2 
Chamb.,  Ev.,  §  1068.  n.  1,  and  oases  cited. 

12.  Cagliostro  v.  Indelli,   102  N.  Y.   Supp. 
918,  53  Misc.  44   (1907). 

13.  Beeman   v.    Supreme   Lodge,   Shield    of 
Honor,  215  Pa.  627,  64  Atl.  792   (1906).     It 
is   not  necessary   that  non-receipt  should   be 
proved   by   a  preponderance   of  the   evidence. 
Judge  v.  Masonic  Mut.  Ben.  Assoc.,  30  Ohio 
Cir    Ct.  R.  133   (1907) 

14.  2  Chamberlayne.  Evidence,  §  1069. 

15.  Eppinger  v   Scott,  112  Cal.  369,  42  Pac. 
301,  53  Am    St.  Rep.  220    (1896).     Whether 
the  inference  in  any  given  case  has  been  re- 
butted  is   for   the   jury.     Long   Bell   Lumber 
Co.  v   Xyman.  145  Mich.  477.  13  Detroit  Leg. 
.\.  557.  108  X.  W.  1019   (1906). 

Proof  of  delivery  of  an  altered  telegram 
establishes  prima  facie  the  negligence  of  the 
company  and  puts  on  it  the  burden  of  prov- 
ing that  it  wa*  not  nesrlijrent.  Baily  v.  West- 
ern Union  Tele<rraph  Co.,  227  Pa.  522.  76  Atl. 
736,  43  L.  R  A  (X.  S.I  502  (1910). 

16.  Eppinarer    v.    Scott,    supra.     See    also, 
Flint  v.  Kennedy.  33   Fed.   820    (1888)     . 

17.  Some  evidence  has   been   required  that 
the     message     reached     the     receivine     office. 
State  v.  Gritzner.   134  Mo.  512.  36  S.  W.  39 
«'  1 896 ) . 

18.  Breed  v.  Central  City  First  Nat.  Bank, 


PBESUMPTIONS;  INFERENCES  OF  .FACT. 

sary  delay.  The  inference  becomes  greatly  strengthened  by  failure  on  the 
part  of  the  addressee  to  improve  an  obvious  opportunity  10  of  denying  the 
receipt  of  the  message. 

80  it  will  be  presumed  that  statutes  are  regularly  passed  2"  and  are  con- 
stitutional.21 

§  430.  [Omnia  Contra  Spoliatorem.-- —  The  inferences  from  experience, 
grouped  under  the  general  maxim  Omnia  praesutnaniar  contra  s[joliatorein  ~" 
are  dealt  with  by  the  administrative  procedure  of  the  courts  upon  a  double 
basis.  In  other  words  the  same  transaction  is  regarded  from  two  distinct  points 
of  view.  Spoliation  may  be  treated,  (1)  logically,  as  a  deliberative  fact;  ("2) 
from  the  administrative  standpoint,  as  an  insult  to  the  court.  The  presump- 
tion from  spoliation  except  in  continental  Europe,24  is  not  conclusive.20 

Secret  Offenses. —  Where  the  perpetrator  of  a  civil  wrong  has  proceeded  by 
stealth  or  secrecy,  a  court  will  require  less  proof  from  the  complaining  party.-1' 

Hebuttable. —  Any  inference  from  spoliation  is  rebuttable.27  The  assign- 
ment of  a  false  reason,  however,  for  a  failure  to  testify  or  produce  other  wit- 
nesses or  evidence  may  in  itself  give  rise  to  an  inference  of  fabrication.28 

Value  and  Damages. —  All  presumptions  are  indulged  in  against  the  party 
who  having,  full  evidence  as  to  the  value  of  an  article,  fails  or  declines  t.» 
produce  it  to  the  court.  Where  the  actor,  for  example,  omits  to  prove  wlui. 
he  knows  to  be  the  value  of  an  article  the  lowest  possible  within  the  evidence 

6  Colo.  235   i  1882)  ;  Long  Bell  Lumber  Co.  v.  Livingstone  v.  Xewkirk,  3  Johns   Ch.   (X.  V.  > 

JMyman,    supra;    Perry    v.    German-American  312    ( 1818 1  ;    Harris   v.   Rosenberg,   4.3   Conn. 

Bank,  53  Xeb.  89,  73  X    W.  538,  68  Am.  St.  2_,    i  1.875 )  ;  2  Chamb.,  Ev  .  Jj  1070,  n.  1,  and 

Rep.   593    (1807);    Oregon   Steamship   Co.   v.  cases  cited. 

Otis,  100  X.  Y.  446,  3  X   E.  485,  53  Am.  Rep.  24.  2  Chamberlayne.  Evidence.  §  10781). 

221   (1885);  2  Chamb.,  Ev.,  §  1000,  n.  4.  and  25.  Thompson    v.    Thompson,    0    Jnd.    32:5 

cases  cited  (1857)       As   to   the   English    rule   in    equity. 

19.  Oregon  Steamship  Co.  v.  Otis,  supra.  see   2   Chamh.,   Ev.,   §    1070,   n.   3,   and   cases 

20.  According  to  the  weight  of  authority  it  cited. 

will   be   presumed   that   all    the   requirements  26.  2  Chamb..  Ev  ,  §  1070,  n.  4. 

of  the  constitution  have  been  followed  in  pass-  27.  Lowe    v.    Massey.    02     MI.    47     (1871): 

ing  a  statute  unless  the  journal  affirmatively  Miami,  etc..  Turnpike  Co.  v    Baily.   37   Ohio 

shows  the  contrary      So  where  a  bill  is  passed  £>t.    104    fISS]);    The  Olinde   Rodrigues,   174 

and  the  .journal  does  not  show  that  it  has  had  U.    S.    510,    10    S.    Ct.    Sol.    43    L     ed.    10(T> 

three  readings  as  required  on  three  separate  (  1808)  ;  2  Chamh..  Ev..  §  1070.  n.  5,  and  case-; 

days  but  is  silent  on   the  matter,   the  court  cited. 

presumes  that  the  requirement  has  been  com-  28.  Thus,   for   example,   where   the   accused 

plied   with.     Ke  Drainage  District.  26   Idaho  has  relied  on  his  alleged  unsound  condition  of 

311.    143    Pac.    200,    L.    R.    A.    1015    A    1210  health,  and  not  his  constitutional  rights  as  a 

(  1014).  reason  for  failing  to  testify  in  his  own  behalf. 

21.  A  statute  fixing  rates  is  presumed  to  be  if  the  jury  found  that  his  condition  did  not 
constitutional    like    other    statutes.     State    v.  prevent  him  from  testifvinsr.  they  could  infe - 
Adams  Express  Co..  85   Xeb.  25.   122  X.   W.  that  he  could  not  truthfullv  denr  the  impor- 
601.  42  L.  R.  A    i  X.  S. )   306   (1000).  tant  facts  bearing  upon  the  question   of  his 

22.  -1    Chamberlayne,    Evidence.    §§     1070.  guilt.     State   v.    Skillman,   76   N.   J.   L.   464, 
1070a.  70  Atl.  83   (1908). 

23.  Bush  v.  Guion,  6  La.  Ann.  797  (1851)  ; 


277  SPOLIATION.  §   4:jl 

will  be  assumed  ("presumed")  to  have  been  involved.29  Where,  however, 
the  other  party  suppresses  or  conceals  the  decisive  evidence  as  to  value,  it  will 
be  assumed  that  the  article  was  of  the  highest  price  possible  under  the  facts 
shown.30 

Damages. — Probably  the  most  conspicuous  application  of  this  rule  is  to 
the  matter  of  damages.  In  general,  where  the  best  proof  of  actual  damage 
is  removed  by  the  act  of  the  offending  party,  he  will  be  mulcted  in  the 
hiirhest  prices,  or  other  elements  of  damage,  which  the  evidence,  as  given,  will 
fairly  warrant.31  In  the  same  way,  one  who  wrongfully  negotiates  a  note  is 
liable  for  its  full  face  value;  32  and  one  who,  when  a  draft  is  presented  to  him 
for  acceptance  destroys  it,  is  equally  liable  as  if  he  had  formally  accepted  it.83 
The  presumption,  however,  can  properly  be  applied  only  to  such  facts  as  are 
established  in  the  evidence.34 

Confusion. —  So,  in  case  of  a  deliberate  confusion  of  the  goods  of  one  who 
seeks  to  conceal  their  identity  by  mingling  them  with  those  of  another,  all  in- 
tendments  are  made,  by  way  of  damages  or  otherwise,  in  the  latter's  favor.35 
The  actual  facts  and  range  of  spoliation  should  be  clearly  established.30 

§  431.  [Omnia  Contra  Spoliatorem] ;  Spoliation  a  Deliberative  Fact.37 — It  will 
be  noticed  that  these  inferences  of  fact  drawn  from  the  fabrication  or  sup- 
pression of  evidence,  both  of  which  are  comprehended  under  the  term  spolia- 
tion, are  rather  of  a  deliberative  than  of  a  directly  probative  nature.  In  other 
words,  their  function  is  rather  to  test  the  weight  of  the  evidence  furnished 
than  to  furnish  it.  Its  result  is  not  directly  to  enhance  the  probative  value 
of  the  facts  offered  by  the  other  side.38  It  cannot  turn  assertion  39  or  con- 
jecture into  proof.4"  In  case  of  documentary  evidence  suppressed  or  de- 

29.  2  Chamb.,  Ev.,  §   1070a,  n.  1,  and  cases  38.  Duffy    v.    Jacobsen,    135    111     App.    472 
e, tod  (1907);    Meyer  v.  Minsky,   112  X.   Y.   Supp. 

30.  Bailey  v.  Shaw,  24   X    H.  .'500    (1851):  860.    128    App.    Div.    589     (1908);    Stout    v. 
Clarke  v.  Miller,  4  Wend.  ( X.  Y.)  628  ( 1830)  :  Sands,  56  W.  Va.  663,  49  S.  E.  428;  2  Chamb., 
2  Lhamb.  Ev.,  §   H>70a,  n.  2.  and  oases  cited.  Ev..  §   1070b.  n.  3,  and  cases  cited. 

31.  Downing  v.   Plate.  90  111.  268    (1878):  39.  Cooper  v.  Upton,  65  W.  Va.  401,  64  S. 
Preston  v.  Leiirhton.  0  Md   88  (1854)  ;  Barney  E.  523   (1909). 

v.  Sweeney,  38  Wis    381    (1875).  40.  Cartier   v.    Troy    Lumber   Co.,    138    111. 

32.  Decker    v.    Matthews,     12    X.    Y.    313       533,  28  N.  E.  932,   14  L.  R.  A.  470   (1891): 
(]<.-)."))  Life,  etc.,  Ins.  Co.  v.  Mechanics'  F.   Ins    Co., 

33.  Jenne  v    Ward.  2  Stark.  327   (1818).  7    Wend.    (X.    Y)    31     (18311:    Arbuckle    v. 
o4    Harris     v      Rosenberg,     43     Conn.     227       Temple,   65  Vt.  205,  25   Atl.    1005    (1892):    2 

i|s75i.  Chamh..   Ev..   §    1070h.   n.   5.   and   cases   cited. 

35.  Ryder  v.   Hathaway,  21    Pick.    (Mass.)  It  has  been  held,  for  example,  that  the  mere 
293   (1838)  ;  Hart  v.  Ten  Eyck,  2  Johns.  Ch  failure  to  question  one's  own  witness  as  to  a 
108   (1816).  certain   fact   will   not   relieve   the   other   side 

36.  McReynolds  v.  McCord,  6  Watts    (Pa.)  of  the  necessity  of  proving  the  fact  affirma 
288  (1837).     Effect  of  suppression  of  evidence  tively.  if  material  to  his  case      "To  so  hold 
of  indebtedness,  see  note.  Bender's  ed.,  47  N.   '  would  be  substituting  conjecture  for  proof." 
Y.  556.  Arbuckle  v.  Templeton.  supra.     See.  however. 

37.2    Chamberlayne,    Evidence,    §§    1070b,      Sutton  v.  Davenport.  27  L.  J.  C.  P.  54  ( 1857). 
I070d. 


§  431  PRESUMPTIONS;  INFERENCES  OF  FACT.  278 

stroyed,  no  inference  as  to  contents  can  arise  where  direct  and  positive  evi- 
dence other  than  the  document  itself  is  produced  of  its  actual  contents.41 

Subjective  Relevancy. —  The  relevancy  of  spoliation  is  not  objective,  of  the 
world  of  physical  nature.  It  is  rather  subjective  42  relating  to  the  domain 
of  morals.  It  operates,  in  most  instances,  by  way  of  reducing  the  probative 
force  of  the  evidence  actually  produced  by  the  spoliator;  4:5 — and  thereby,  in- 
directly, adding  both  to  the  relative  weight  and  also  to  the  absolute  force  of 
the  case  produced  by  his  opponent."4*  *'  It  is  certainly  a  maxim,  that  all  evi- 
dence is  to  be  weighed  according  to  the  proof  which  it  was  in  the  power  of 
one  side  to  have  produced,  and  in  the  power  of  the  other  to  have  contradicted."  4:> 
The  inference  is  warranted  that  facts  not  produced,  but  known  to  the  party 
himself,  are  of  such  a  nature  that  they  would,  if  produced  to  the  tribunal, 
have  disentitled  him  to  succeed  in  his  contention.46  This  is  an  inference 
to  be  taken  into  account  in  weighing  the  value  of  the  evidence  produced  4T  and 
the  courts  have  felt  justified  in  assuming  the  existence  of  all  facts  which  the 
offending  party  might  reasonably  be  assumed  to  have  known.48  If  the  spoliat- 
ing party  has  the  affirmative  of  the  issue,  the  diminution  of  his  case  by  the 
unfavorable  inference  may  alone  be  sufficient  to  reduce  it  below  the  probative 
force  of  a  prima  facie  case.49 

Criminal  Cases. —  In  criminal  proceedings  the  same  inference  arises ;  —  in 
many  cases,  accentuated  in  probative  force  by  the  very  obvious  interest  of  the 
accused  to  produce  any  evidence  which  is  calculated  to  help  him.50  Here 
also,  however,  the  force  of  the  inference  from  suppression  or  fabrication  is 
rather  of  deliberative  than  of  probative,  of  subjective  rather  than  of  objective, 
relevancy.51 

Modifying  Circumstances. —  If  all  the  constituent  facts  are  clearly  proved 

41.  Bott  v.   Wood,   56   Miss.    136    (1878);  112  111.  App.  471   (1904),  judg.  aff'd  210  111. 
Miltenberger  v.  Croyle,  27  Pa.  170  (1856).  213.  71  X.  E.  377. 

42.  §  36,  supra;  1  Chamb.,  Ev.,  §  56.  48.  Gray  v.  Haig,  20  Beav.  219,  226  (1854). 

43.  Boler  v.  Sorgenfrei,  86  N.  Y.  Supp.  180  49.  Where  a  party   produces  the  best  evi- 
(1904).  dence  in  his  power,  no  unfavorable  inference 

44.  Del  Campo  v.  Camarillo,   154  Cal.  647,  arises   because    more    probative    evidence    ac- 
98  Pac.  1049    (1908)  ;  Blackman  v    Andrews,  tually  exists.     Shields  v.  Georgia  Ry.  &  Elec- 
150   Mich.    322,    114   N.   W.   218,    14   Detroit  trie  Co.,  1  Ga.  App.  172,  57  S.  E.  980  (1907). 
Leg.  X.  709    (1907)  ;  Reehil  v.  Fraas,  114  N.  50.  "Where  probable  proof  is  brought  of  a 
Y.   Supp.    17,    129   App.   Div.   563    (1908):    2  state   of   facts   tending  to   criminate   the   ac- 
Chamb  ,  Ev.,  §  1070c,  n.  3,  and  cases  cited.  cused,  the  absence  of  evidence  tending  to  the 

45.  Blatch  v.  Archer,   1   Cowp.   63    (1774).  contrary    conclusion    is    to    be    considered  — 
And    see    Wallace    v.    Harris,    32    Mich.    380  though   not  alone   entitled   to  much  weight; 
(1875).  because  the  burden  of  proof  lies  on  the  ac- 

46.  Kirkpatrick  v.  Allemannia  Fire  Ins.  Co.,  cuser  to  make  out  the  whole  case  by  substan- 
184  X   Y.  546,  76  X.  E.  1098   (1906)  ;  Ferrari  tive    evidence."     Com.    v.    Webster,    5    Gush, 
v.   Interurban   St.   Ry.   Co.,   103  X.   Y.   Supp.  (Mass.)   316  (1850). 

134,  118  App.  Div.  155   (1907):  Standard  Oil.  51.  Thus,   the   nonproduction   of  a  witness 

Co.  v.  State.   117  Tenn.  618,   100   S.  W.  705,  presumptively    able    to    explain    the    circum- 

10  L.  R.  A.   'X.  S  )    1015   (1007).  stances  constituting  a  prima  facie  case  against 

47.  East  St.  Louis,  etc.,  Ry.  Co.  v.  Altgen,  a  defendant  may  be  considered  by  the  jury  in 


279  SPOLIATION.  §§  432,433 

by  the  uncontroverted  evidence  of  others  and  thereupon  establish  a  sufficient  case 
for  the  fraudulent  or  spoliating  party,  his  own  adverse  opinion  as  implied  in 
lying,  fabrication  or  suppression,  is  entitled  to  no  particular  weight.52 

§  432.   [Omnia  Contra  Spoliatorem] ;  Spoliation  as  an  Insult  to  the  Court It  is 

quite  possible  to  regard  spoliation  not  only  as  a  deliberative  fact  but  as  con- 
stituting a  serious  contempt  of  court.  The  sounder  view  of  judicial  admin- 
istration seems  to  be  to  the  effect  that  the  situation  as  developed  should  not 
be  extended  beyond  its  logical  bearings  and  that  a  litigant  ought  not  to  be 
deprived  of  his  legal  rights  by  refusing  to  receive  other  and  relevant  evidence, 
in  his  favor,''3  unless,  indeed,  the  jury  would  not,  as  a  matter  of  reason,  be 
justified,  after  the  disclosures,  in  acting  favorably  upon  it. 

§  433.  [Omnia  Contra  Spoliatorem  1 ;  Fabrication;  Witnesses.54 — A  mere  con- 
flict of  evidence  among  a  party's  witnesses  will  not  authorize  an  inference  of 
fabrication  or  attempt  to  mislead.03  Possibly  the  fabrication  of  oral  testimony 
lacks  an  element  of  deliberateness,  in  the  average  instance,  which  makes  the 
inference  a  trifle  less  strong  than  in  case  of  documentary  proof.  Still,  the 
presumption  possesses  great  probative  force 56  even  where  the  party  goes  no 
further  than  to  use  improper  influence  or  pressure  to  induce  a  witness  to 
testify  in  his  favor  beyond  the  truth  of  the  case.57  "  Evidence  of  the  fact  of 
an  attempted  subornation  is  admissible  as  an  admission  by  conduct  that  the 
party's  cause  is  an  unrighteous  one." 

Bribery. —  Bribery  of  witnesses  furnishes  a  common  instance  of  the  applica- 
tion of  this  rule.  Thus,  for  example,  a  charge  that  a  party  has  sought  to 
bribe  one  of  his  adversary's  witnesses  is  a  deliberative  fact  for  the  considera- 
tion of  the  jury/"'9  Bribing  a  witness  to  testify  on  one's  behalf  naturally 
gives  rise  to  the  same  inference ;  60  "  is  in  the  nature  of  an  admission  that 

weighing  the  effect  of  the  evidence  applicable  Rep.  849,  41  L.  R.  A.  845   (1898)  ;  2  Chamb., 

to  the  matter  in  dispute.     The  failure  to  pro-  Ev.,  §  1072,  n.  1,  and  cases  cited, 

duce  does  not.  however,  raise  any  presumption  False   Admissions. —  When    admissions   are 

of  guilt  or  innocence.     State  v.  Callahan,  76  offered  against  the  party  alleged  to  have  made 

N.  J.  L.  426.  60  Atl.  957   (1908).  them,  and   prove  to  be  fabricated,  that  fac* 

52.  Rayssiguier   v.    Kourchy.    49    La.    Ann.  makes  the  evidence  weigh  against  the  party 
1627,  22  So    833   (1897)  :   Welty  v.  Lake  Su-  fabricating  them.     Christy  v    American  Tem- 
perior  Terminal,  etc  ,  Co.,   100   \\  is.    128.  75  perance  Life  Ins.  Ass'n,  123  X.  Y.  Supp.  740 
,N    W.  1022    (1898);   2  Chamb..  Ev.,  §   1070d.  (1910). 

53.  Stone  v    Sanborn,  104  Mass   319,  6  Am.  57.   People  v.  Marion.  29  Mich    31    (1874)  : 
Rep     238    (1870);    Harris    v.    Rosenberg.    43  Taylor   v.   Crowninshield.   5   X.   Y.   Leg.   Obs. 
Conn    227    (1875)  ;    Armory   v    Delamirie.    1  209   (1847)  :  2  Chamb..  Ev.,  §  1072,  n.  2.  and 
Str.  505   (1722)  ;  2  Chamb..  Ev.,  §  1070e.  cases  cited 

54.  2    Chamberlayne,    Evidence.    §§    1071-  58.  Com.   v    Min   Sing.   202   Mass.    121,   88 
1072a.  N    E.  918    (1909)  :  Fulkerson  v.  Murdock.  53 

55.  Brown   v.   State.    142   Ala.   287,   38   So.  Mo.  App.  151    (1892)  :  2  Chamb.  Ev..  §  1072. 
268   (  1904)  :  2  Chamh  .  Ev  .  §  1071.  n.  3.  and  cases  cited 

56.  Chicago  City   R.   Co.  v.   McMahon,   103  59.  Ferrari    v    Interurban    St.   R    Co..    103 
111.  485.  42  Am.  Rep.  29    (188-2):  McHugh  v.  X.  Y.  Supp.   134.   118  App.  Div.   155    (1907). 
McTIugh.  186  Pa   197,  40  Atl  410,  65  Am.  St.  60.  Carpenter  v.  Willey,  65  Vt.  168  (1892). 


§§  434,435  PRESUMPTIONS;  INFERENCES  OF  FACT.  280 

the  cause  of  the  party  resorting  to  the  bribery  of  witnesses  or  jurors  is  unjust, 
and  that  his  claim  is  dishonest  arid  unrighteous."  01  It  is  carefully  to  be 
observed,  however,  that  as  is  stated  above "2  the  inference  is  a  deliberative 
rather  than  a  directly  probative  one.1'""'  "  Evidence  tending  to  show  that  a 
party  to  an  action  tried  to  bribe  a  witness  to  give  false  testimony  in  his  favor, 
although  collateral  to  the  issues,  is  competent  as  an  admission  by  acts  and  « 
conduct  that  his  case  is  weak  and  his  evidence  dishonest.  *  *  Such  evi- 
dence is  for  the  consideration  of  the  jury,  ':  f  under  proper  instructions 
to  prevent  them  from  giving  undue  attention  to  the  collateral  matter  to  the 
detriment  of  the  main  issue."  °4  In  other  words,  such  an  attempt  is  not 
directly  probative,  i.e.,  it  affords  no  presumption  against  the  party's  evidence 
on  the  question  testified  to  by  the  witness  and  does  not  have  the  effect  of  gain- 
ing a  more  ready  admission  to  the  evidence  of  the  adverse  party  on  that 
question,  but  is  merely  to  be  considered  in  weighing  the  evidence.65 

§  434.  [Omnia  Contra  Spoliatorem] ;  Writings.66 —  An  inference  of  extreme 
evidentiary  cogency  arises  when  an  attempt  is  made  to  pervert  the  course  of 
justice  by  the  use  of  fabricated  written  evidence.67  The  force  of  this  is 
proportionate  to  the  strength  of  the  motive  which  must  have  prompted  the 
willingness  to  perform  such  morally  repellant  labor68  and  incur  the  legal 
risk  involved.69  In  an  admiralty  case  involving  liability  for  a  collision,  the 
court  held  that  the  production  of  a  fabricated  log  book  warranted  the  rejection 
of  the  testimony  which  it  was  brought  to  support.70 

Criminal  Cases. —  Should  a  party  in  a  criminal  case,  forge  a  document, 
whether  in  the  nature  of  a  record  book  of  account  or  other  important  or  con- 
stituent writing,  a  similar  adverse  inference  naturally  arises.71 

§  435.  [Omnia  Contra  Spoliatorem];  Suppression;  Witnesses;  Failure  to  Call.71 
-  To  smother  evidence  is  not  much  better,  morally  or  legally,  than  to  fabricate 

61.  Kidd  v.  Ward,  91   Iowa  371,  59  X.  W.  certificate   which,   if  genuine,   should  have  a 
279  (1894).  genuine  seal,  is  stamped  with  a  false  one.  it 

62.  §  431,  supra;  2  Chamb.,  Ev.,  §  1070b.  raises  a  very  strong  presumption  that  the  sig- 

63.  Moriarity  v    London,  etc.,  K.  Co.  I..  R.  nature  is  false"     People  v.  Marion,  29  Mich. 
2  Q.  B.  314   (1870)  :  2  Chamb.,  Ev..  §  1072a.  31    (1874). 

n.  5.  68.   T.  S.  v.  Randall,  27  Fed  Cas.  No.  16,118, 

64.  Xowack  v.  Met.  St.  Ry..  166  N.  Y.  433,       Deady  524   (1869). 

60  N.  E.  32.  54  L    R.  A   592,  82  Am.  St.  Rep  69.  Daniel     v.     De     Graffenreid,     14     Lea 

691    (1901):    Ferrari    v.  -  Interurban    St.    Ry.  (Tenn  )    385    (1884).. 

Co..  supra;  2  Chamb..  Ev..  §  1072a.  70.  The  Tillie,  7  Ben.    (U.  S.)    382    (1874). 

65.  Brown  v   State,  supra:  Ferrari  v.  Inter-  71.  McMeen  v.  Com.,  supra;  U.  S.  v.  Ran- 
urban  St.  Ry   Co..  supra.  dall.  supra;  2  Chamb.,  Ev.,  §  1074. 

66.  2     Chamberlayne,     Evidence,    §§     1073,  71a.  2  Chamberlayne,    Evidence.    §§    1075- 
1074.  1075e.     Presumptions      against     party     who 

67.  Winchell  v   Edwards,  57  111.  41    (1870)  :  suppresses  evidence,  see  note,  Bender  ed  ,  127 
McMeen    v.    Com..    114    Pa.    300,    9    Atl.    878  N.    Y.    46.     Presumptions   from — and    effect 

(1886):    2    Chamb.,   Ev.,    §    1073,    n.    1,   and       of  —  destruction   or   suppression   of   evidence, 
cases  cited  see  note,  Bender  ed.,  33  N.  Y.  501. 

False  Seal.—"  If  it  is  shown  that  a  sealed 


281  SPOLIATION.  §  435 

it.72  "  Where  a  party  has  evidence  in  his  power  and  within  his  reach,  by 
which  he  may  repel  a  claim  or  charge  against  him,  and  omits  to  produce  it, 
this  supplies  a  presumption  of  fact  that  the  charge  or  claim  is  well  founded. 
This  presumption  attaches  with  more  force  in  cases  where  a  party,  having 
more  certain  and  satisfactory  evidence  in  his  power,  relies  upon  that  which 
is  of  a  weaker  or  more  inferior  nature.''  73  Neither  one  accused  of  crime74 
nor  a  party  in  a  civil  case  should  be  affected,  beyond  his  personal  connection 
with  the  transaction,  by  the  conduct  of  ill-advised  friends  or  other  persons 
in  suppressing  the  evidence  of  witnesses.  Only  when  a  party  himself  is  shown 
to  have  procured  75  or  connived  at  the  absence  of  material  witnesses  will  he 
be  affected  by  the  inference  that  the  evidence  is  withheld  from  the  court 
because  if  it  were  produced  it  would  injure  bis  case.76  Where  a  party  is  in 
no  way  called  upon  to  produce  a  witness,  no  adverse  inference  arises  from  his 
failure  to  do  so.77  In  proportion  as  it  is  to  the  interest  of  the  party  to  submit 
the  evidence  of  an  available  witness,  the  jury  are  entitled  to  infer  from  his 
neglecting  to  do  so  that  his  evidence,  if  produced,  would  not  be  favorable  to 
the  party.78  On  the  contrary,  a  party  whose  opponent  has  failed  to  establish 
his  own  contention  to  the  extent  required  by  law,  has  no  need  of  further  evi- 
dence on  his  own  behalf.  His  failure,  therefore,  to  produce  witnesses  or  docu- 
ments which  are  within  his  power  or  control  gives  rise  to  no  deliberative  in- 
ference against  him.79 

Effect  of  Knowledge. —  In  the  first  place,  that  the  inference  should  arise 

72.  Bryant  v.  Stillwell,  24  Pa.  314  (1855).  App.  297    (1902).     The  admissibility  of  the 

73.  Savannah,  etc  ,  Ry.  Co.  v    Gray,  77  Ga.  testimony  is,  however,   largely  a  question  of 
440,  3  S.  E    158   (1886).  administration.     Wood  v.   Los  Angeles  Trao- 

74.  State  v.   Huff,   161    Mo.   459,   61   S.   W.  tion  Co.,  1  Cal   App   474,  82  Pac.  547   (1905) 
900,  1104   (1900);  Deneaner  v.  State,  58  Tex.  77.  Southern    Ry.    Co.   v.    Hobbs,    151    Ala. 
Crim.  024,  127  S.  W.  201   (1910).  335,  43  So.  844  (1907)  ;  Tauger  v.  New  York 

75.  Minihan    v.    Boston    Elevated    Ry.    Co.,  City  Ry.  Co,  104  N.  Y.  Supp    681    (1907). 
205  Mass    402,  91   X.   E    414    (1910):   Moore  78.   Ferrari  v.   Interurban  St.  Ry.  Co.,   103 
v    State,  45  Tex.  Crim.  234,  75  S    \V    497.  N.   Y.  Supp.   134,   118  App.  Div    155    (1907). 

76.  HoflTer  v.  Gladden,  75  Ga.  532    (1885):  This    is    true   of   a    witness   who    could    only 
Hausler  v   Com.  Electric  Co.,  144  111   App.  643  corroborate  evidence  already  produced.     Rich- 
(1908),    judg     nffd    88    X.    E.    561     (1909):  ter  v.  Solomon.  104  X    Y.  Snpp.  405    (1907): 
Hodgins  v.   Bay  City,   156  Mich    6*7.   16  De-  Green    v.    Brooks.   215    Pa     492.   64    Atl.   672 
troit    l.eg    X     -222.    121    X.    \V.   274    (1909):  (1006) 

Reitt-r  v   Zieirler,  121  X   Y   Supp   324  (1910):  In   a   criminal   case   it  has  been   held   that 

Moore   v.    Adams.    26   Okl.    48.    10^    Pac.    392  the  reasons  given   by  defendant's  counsel  for 

(1910)  :  Green  v.  Brooks.  215  Pa    492.  64  Atl.  the  failure  of  the  accused  to  call  his  wife  and 

672   (1906)  ;  2  Chamb  .  Ev..  §  1075.  n.  5.  and  daughter  as  witnesses  on  his  behalf  cannot  be 

ca>os  cited  controverted  by  the  prosecution.     Rex.  v.  Hill, 

A  Deliberative  Inference.— Such  an  infer-  36  Nora  Scotia  R.  253   (1903).  fifing  Com.  v. 

ence.  however,  is  deliberative  rather  than  di-  Scott.  123  Mass    241    ilS77>. 
rcctly  probative  as  to  a  res  fjestrr  fact      Kim-  79.  Southern   Express  Co    v.  B    R    Electric 

ball  v.  O'Dell  &   Eddy   Co.   122  X    Y.   Supp.  Co..  126  Ga    472.  55  S   E   254   (1006)  :  Cooper 

755   (1910)       \Yhere  a  party  has  failed  to  use  v   Upton.  65  \Y.  Va    401.  64  S   E.  523  i  1909)  : 

a  deposition  available  to  him  the  same  infer-  2  Chamb..  Ev.,  §  1075,  n   8,  and  cases  cited, 
ence  arises      Thompson   v.   Chappell.  91   Mo. 


§  435 


PRESUMPTIONS;  INFERENCES  OF  FACT. 


282 


it  must  be  shown  that  the  party  to  be  affected  by  the  inference  knows  that  he 
has  better  and  more  convincing  evidence  which  he  fails  to  produce  80  and  is 
aware  that  such  fact  is  material  to  the  issue  between  the  parties.81  It  is 
equally  necessary  that  the  party  alleged  to  have  suppressed  the  evidence  of  a 
witness  knows  or  could  ascertain  where  the  latter  is.  Even  if  a  witness  would 
be  valuable  if  secured,  it  must  appear  that  the  party  to  be  affected  by  the 
inference  could  have  procured  the  attendance  of  the  witness  by  the  use  of 
reasonable  diligence.82  In  an  exceptional  degree,  an  omission  by  a  party  to 
produce  important  testimony  relating  to  a  fact  of  which  he  has  knowledge 
and  which  is  peculiarly  within  his  own  reach  and  control,  as  a  general  rule, 
raises  the  presumption,  open,  of  course,  to  explanation,83  that  the  testimony,  if 
produced,  would  be  unfavorable  to  him  84  or  that  a  particular  fact  which  he 
could  show  if  it  existed  and  which,  if  he  could  prove  it,  would  be  very  much 
to  his  advantage,  is  not  established  because  it  does  not  exist.85 

Equal  Availability. —  It  is  said  that  no  inference  arises  against  a  partv  from 
failure  to  call  a  material  witness  when  the  latter  is  equally  available  to  his 
opponent.86  It  is  not  sufficient,  however,  in  the  way  of  good  faith  to  the 
court,  for  a  litigant  to  produce  his  own  natural  witnesses,87  his  relatives,88 
employees R9  and  persons  similarly  situated,  in  court  and  permit  and  even 
invite  the  other  side  to  undertake  the  dangerous  task  of  calling  them  himself. 

supra:  Johnston  v.  St.  Louie  &   S.  F.  R.  Co., 
150  Mo.  App.  304,  130  S.  W.  413  (1910). 

85.  Aragon   Coffee   Co.   v.   Rogers,    105   Va. 
51,  52  S.  E.  843    (1906)  ;  Despard  v.  Pearcy, 
65  W.  Va.  140,  63  S.  E,  871    (1909).     Where 
a  friendly  witness  knows  exculpatory  facts  if 
any  one  does,  a  failure  to  call  him  suggests  an 
inference  that   such  facts  do  not  exist.     An- 
derson v.  Cumberland  Telephone  &  Telegraph 
Co.,  86  Miss.  341,  38  So.  786   (1905). 

86.  Scovill     v.     Baldwin,     27     Conn.     316 
(1858):     Princeville    v.    Hitchcock,    101     111. 
App.  5S8    (1901):    Farmers'  Bank  v.  Worth- 
ington,    145   Mo.    91,   46    S.    W.    745    (1898); 
In    re    Darrow's    Estate,    118    N.    Y.    Supp. 
1082,  64  Misc.  224   (1909)  :  Daggett  v.  Cham- 
plain    Mfg.    Co..    72    Vt.    332.    47    Atl.    1081 
(1900);    2   Chamh.,   Ev.,   §    1075b,   n.    1,   and 
cases  cited 

87.  \Yestern,  etc..   R.  Co.  v.   Morrison,   102 
Ga.  319,  29  S.   E.   104.  66  Am.  St.  Rep.   173. 
40  L.  R.  A.  84  (1897)  :  Kenyon  v.  Kenyon,  88 
Hun  211,  34  N.  Y.  Supp.  720    (1895). 

88.  Carpenter   v.   Pennsyh-ania    R.   Co.,   43 
JV   Y.    Supp.   203,    13   App.  Div    328    (1897); 
People  v.  Hovey.  92  X.  Y.  554   (1SS3). 

89.  Western,     etc.,     R      Co.     v.     Morrison, 
supra:    .\iichigan   Cent    R.   Co.   v.   Butler,  23 
Ohio  Cir.  Ct.  459   (1902). 


80.  Davis  v.  State,  4  Ga.  App.  441,  61  S.  E. 
843    (1908). 

81.  Rochester    German    Ins.    Co.    v.    Monu- 
mental Sav.  Ass'n,   107  Va.  701,  60  S.  E.  93 
(1908). 

82.  Xaughton  Co.  v.  American  Horse  Exch., 
97  N.  Y.  Supp.  387,  49  Misc.  227   (1906).     It 
naturally  follows  that  where  the  party  against 
whom  the  inference  is  invoked  has  no  knowl- 
edge or  means  of  acquiring  it,  as  to  the  resi- 
dence of  the  witness  or  the  whereabouts  of  the 
document  in  question,  no  infirmative  adverse 
inference  arises  from  his  failure  to  produce. 
Mutual   Industrial   Indemnity  Co.  v.   Perkins 
(Ark.  1906)   98  S.  W.  709;  Texas  &  N.  0.  R. 
Co.  v.   Harrington    (Tex.  Civ.  App.   1906),  98 
S.  W.  653. 

83.  §  431,  supra:  2  Chamh..  Ev  ,  §   1070c. 

84.  Bone   v.   Hayes,    154  Cal.   759,   99   Pac. 
172    (1908);    Missouri    Pac.   Ry    Co.  v.   Ken- 
nett.  79  Kan.  232,  99  Pac.  269   (1909)  -.  Howe 
v.  Howe,  199  Mass   598,  85  X.  E.  945   (1908)  : 
Mullen  v.  J   J.  Quinlan  &  Co.,  195  X    Y.  109, 
87  X.  E.   1078    H909),  affg.  judg.  108  N.  Y. 
Supp.    1141.    124    App.    Div.    916     (1908):    2 
(  hamb..   Ev.,   §   1075a,  n    7   and  cases   cited 
Corporations. —  The  same  rule  applies  to  cor- 
porations.    Missouri  Pac.  Ry.  Co.  v.  Kennett, 


283  SPOLIATION.  £    4-05 

Still  less  can  any  adverse  inference  arise  where  a  party  subsequently  produces 
a  present  witness  whose  testimony  he  is  said  to  have  attempted  to  suppress.9" 
It  is  for  the  jury,  within  the  bounds  of  reason,  to  say  what  inferences,  if  any. 
are  to  be  drawn,  under  all  the  circumstances,  from  the  failure  of  the  parties 
respectively  to  call  the  particular  person  as  a  witness  in  any  given  case.91 

Explanation  Permitted. —  The  inference  against  spoliation,  like  every  real 
presumption  or  assumption  of  procedure,  is  rebuttable.  Either  party  is  at 
liberty,  so  far  as  the  inference  affects  him,  to  explain  why  an  available  and 
material  witness,  apparently  helpful  to  a  bona  fide  contention,  was  not  called."2 
A  party  is  always  at  liberty  to  show  that  the  absence  of  missing  witnesses  is 
not  caused  by  his  fault  and  that  he  has  made  every  reasonable  effort  to  pro- 
cure their  attendance.91*  No  adverse  inference  can  properly  be  drawn  where 
the  facts  covered  by  the  testimony  of  the  witness  in  question  have  already  been 
fully  given  by  other  witnesses  and  the  person  not  called  could,  therefore,  have 
furnished  only  corroborative 94  or  cumulative 95  evidence  to  an  unnecessary 
degree.96  Where  a  given  class  of  evidence  is  made  privileged  by  statute,  a 
sufficient  explanation  is  deemed  to  have  been  offerd  and  no  adverse  inference 
is  said  to  arise  from  any  non-production  of  the  privileged  witness.97  So  no 
adverse  inference  can  be  drawn  where  a  party  is  prevented  by  the  operation 
of  some  other  rule  of  law  9lS  from  calling  the  particular  "  witness  whose  knowl- 
edge would  be  most  conclusive  on  the  matter. 

90.  Fleck  v   Cohn,  115  X.  Y   Supp.  652,  131  94.  United  Rys.  &  Electric  Co.  of  Baltimore 
App.  Div.  248  (1909).  City   v.   Cloman,    107    Md.    681,    69   Atl.    379 

91.  Gallagher    v.    Hastings,    21    App     Cas.  (  1908)  ;  Sugarman  v.  Brengel,  74  N.  Y.  Supp. 
D.  C.  88    (1903);   Harriman  v.  Reading,  etc.  167,  68   App.   Div.   377    (1902). 

St.    R.    Co,     173    Mass.    28,    53    X.    E.     156  95.  Haynes  v.  McRae,  101  Ala.  318,  13  So. 

(1899):    Reehil   v.    Fraas,    114    X.    Y.    Supp.  270   (1893):   Mooney  v.  Holcomh,  15  Or    639, 

17,  12!)  App.  Div   563   (1908)  ;  2  Chamb.,  Ev.,  Iti  Pac.  716   (1888)  ;  2  Chamb..  Ev.,  §  H>7">c. 

§   1075b,  n    6,  and  cases  cited.  n.  4.  and  cases  cited. 

92.  People  v.  Clark,  106  Cal    32,  39  Pac   53  96.  Ellis  v!  Sanford,  106  Iowa  743.  75  X.  W. 
(1895);   Tuthill  v.   Belt   Ry    Co    of  Chicago.  660    (1898):    Higman    v.    Stewart.   38    Mich. 
145   111.   App.  50    (1908)  ;   State  v.  Brannum,  513   (1878)  ;  Meagley  v.  Hoyt,  125  X.  Y.  771, 
95   Mo.    19,   8   S.    VV.   218    (1888)  :    2  Chamb.,  2(5  X.  E    719   (1S01)  :  2  Chamb..  Ev.,  §  1075c, 
Ev.,  §   1075c,  n.   1,  and  cases  cited.  n.   5,  and  cases  cited. 

93.  State  v.   Hotran,  67  Conn.  581.  35   Atl.  97.   Arnold    v.   City   of   Maryville,    110   Mo. 
508   (1S96):  Reehil  v.  Fraas,  supra ;  State  v.  App    254,   85   S.    W     107    I  1905  i.     See   also. 
Ogden.   39   Or.    195.   65    Pac.   449    (1901);    2  Baldwin   v.   Brooklyn   Heights  R    Co,  91   X. 
Chamb,   Ev..   §    1075c,    n     2   and   cases   cited  V.  Supp    59.  00   App.   Div    496    M004).     But 
It  has  even  been  held  that  on  a  second  trial  while    no    inference,    strictly    speaking,    may 
of  a  cause,   it   is  proper  to  admit  testimony  arise  in  such  cases  it  will  be  difficult  to  pre- 
accounting   for   the   failure   of   a    witness    to  vent  the  jury  so  far  as  the  party  could  have 
testify  at  first  trial.     McDonald  v   City  Elec-  called  a  witness,  from  drawing  such  delibera- 
tric  Ry    Co,   144  Mich.  379,   13  Detroit   Leg.  tive  deductions  from  his  course  as  they  deem 
X.  252,   108   X.  W    85    (1906)       On  the  con-  warranted.     Kirkpatrick   v.   Allemannia  Fire 
trary,  it  has  been  held  that  a  party  was  not  Ins    Co..  92  X    Y    Supp.  466,  102  App.  Div. 
at   liberty   to   introduce    evidence   accounting  327    (1905). 

for  the  absence  of  a  particular  witness.     Gil-          98.  Cartier    v.    Troy   Lumber    Co..    138    Til. 
him  v.  Xew  York,  etc.,  Co.    (Tex.  Civ.   App        533,  28  X    E.  932.  14  L.  R    A.  470   (1891). 
1903),  76  S.  W.  232  99.  Adams  v.   Main,   3    Ind    App.  232,  29 


PRESUMPTIONS  ;  INFERENCES  OF  FACT. 


284 


Equity  Causes. —  The  inference  against  spoliation  from  failure  to  call  a 
material  witness  operates  in  equity  as  at  law.1  Admiralty  Xuits  may  exemplify 
the  operation  of  the  same  deliberative  inference.2 

Criminal  Cases. —  In  criminal  cases  the  same  principles  of  reasoning  ap- 
ply. Failure  by  the  defendant  to  call  a  material  witness  who  has  important 
knowledge  gives  rise  to  an  adverse  inference  of  fact  •'  which  is  strong  in  pro- 
portion to  the  extent  to  which  it  would  be  reasonable  to  expect  that  he  would 
produce  the  witness,  if  favorable  to  him,  rather  than  leave  it  for  the  prosecution 
to  do  so.4  The  force  of  the  inference  is  much  affected  where  the  witness  in 
question  is  one  naturally  connected  with  the  prosecution  5  e.g.,  is  the  president 
of  a  prosecuting  corporation.0  The  same  inference  operates  against  the  prose- 
cution, under  similar  circumstances.7  Suppression  of  Evidence  in  general  is, 
in  criminal,  as  in  civil  cases,  usually  cogent  circumstanctial  evidence  of  guilt.8 

§  436.  [Onmia  Contra  SpoliatoremJ ;  Failure  to  Testify.9 —  Where  a  partv  de- 
clines to  submit  to  an  order  U(  or  request  lx  for  a  physical  examination,12  to 
appear  in  court  on  the  trial  of  his  cause,13  or  to  testify  as.  a  witness,14  on  his 

N.  E.  7(J2,  ;>0  Am.  St.  Rep.  206  (1801); 
Carter  v.  Beale,  44  X.  H.  408  (1862).  A 
party'  may  forestall  the  inference  from  sup- 
pression by  .  explaining,  as  part  of  his  own 
case,  why  an  important  piece  of  evidence, 
eg.,  the  testimony  of  an  eye  witness,  was 
not  produced.  Macon  Ry.  &  Light  Co.  v. 
Mason,  123  Oa.  773,  51  S.  E.  569  (11)05) 

1.  Eckel  v.  Eckel,  49  X.  J.  Eq..  587   (1892)  ; 
Hall   v.   Vanderpool.   156   Pa.    1.V2    (1893):    '2 
Chamb.,  Ev.,  §  1075d,  n.  I,  and  cases  cited. 

2.  The    Ville    de    Havre,    7    Ben.     (U.    S.) 
328  (1874). 

3.  State  v.  Cousins,  58  Iowa  250,  12  X.  W. 
281    (1882)  ;   People  v.  Hendrickson,  53  Mich. 
525,  19  X.  W    169    (1884);  People  v.  Hovey, 
92  N.  Y.  554   (1883)  :  Com.  v.  McMahon.  14.', 
Pa.  413,  22  Atl.  971    (1891)  :   2  Chamb.  Ev., 
§  1075e,  n.  1  and  rases  cited. 

4.  Com.  v.   Webster,  5  Cush.    (Mass.)    295. 

52  Am.  Dec    711    (1850);  Ormsby  v.  People. 

53  X.  Y.  472  (1873). 

5.  See,   however,   Clifton   v.   State,   46  Tex. 
Crim.  18,  79  S.  W.  824  (1904). 

6.  People  v.  McGovern.  94  X.  Y.  Supp.  662. 
105  App.  Div.  296    (1905),  it  is  error,  under 
sujch    circumstances,    to    instruct    the    jury 
that    they    may    draw    any    presumption    in 
favor    of    the    prosecution    from    defendant's 
failure  to  call  the  president  as  a  witness. 

7.  State  v.  Buckman,   74   Vt.   309,   52   Atl. 
427    (1901):   State  v.  Smith,  71  Vt.  331,  f 
Atl    219    (1899). 

8.  For  example,  that  a  defendant,  on  his 


arrest,  made  away  with  the  note  alleged  to 
have  been  forged  [State  v.  Chamberlain,  89 
Mo.  129  (1886)],  or  offered  to  destroy  cer- 
tain articles  furnishing  incriminating  evi- 
dence of  barratry  (Phoenix  Ins  Co  v.  Moog, 
78  Ala.  284,  307  (1884)  do  not  differ,  in 
any  essential  particular,  from  other  facts  cir- 
cumstantially tending  to  establish  guilt. 

9.  2  Chamberlayne,     Evidence,     §§      1076- 
10761) 

10.  Austin,   etc.,  R.   Co.   v.   Chick.   97   Tex. 
172,  "7   S    \V.  403    (1903),  revg     (Civ.   App. 
1903),  73  S    W.  569. 

11.  Gulf.  etc..   Ry.  Co    v.  Booth    (Tex.  Civ. 
App.  1906).  97  S    W.  128.     See  Pennsylvania 
K.   Co.   v    Durkee,   147   Fed    99.   78  C.   C.  A. 
107    (1906) 

12.  See     EVIDENCE     BY     PERCEPTION, 
infra,   §    1131    et   seq.   Austin,   etc.,    R.   Co    v. 
Cluck,  supra     .The  same  rule  applies  to  Ihe 
examination  of  a  minor  child.     Houston  Elec- 
tric Co    v.  Lawson    (Tex.  Civ    App.  1904),  85 
S.  W.  450. 

13.  Cole    v.    Lake    Shore,    etc..    K,.    Co.,    9.T 
Mich.  77,  54  X.  \Y.  638    (1893)  :   Johnston  v 
.McKenna,    76    X.    J.    Eq.    217,    74    Atl.    284 
(1909)  :   Brown  v.  Shock.  77  Pa.  471    (18751 

14.  Central    Stock,    etc.,    Exch.    v.    Chicaf" 
Bd     of   Trade,    196    111     396,    63    X.    E.    74<> 
(1902)  ;  Kelley  v.  City  of  Boston,  201   Mass 
86,  87  XT.  E   494  (1909)  :  Cole  v.  Lake  Shore. 
etc..    R.    Co.,    95    Mich.    77,    54    N.    W     63^' 

(1893);     Connecticut    Mut.    L.    Tns.    Co     v. 
Smith.  117  Mo.  201.  22  S.  W.  628.  38  Am    St. 


285  SPOLIATION.  £  437 

own  behalf  iu  a  suit  as  to  which  he  himself  is  possessed  of  material  knowledge,15 
an  adverse  inference  of  suppression  naturally  arises.16 

Effect  of  Inference. —  As  has  been  said,17  the  iufirmative  inferences  against 
the  defendant  from  his  failure  to  testify  do  not  create  independent  facts  in 
favor  of  the  contention  of  the  opposing  party  18  but  when  that  side  definitely 
asserts  the  existence  of  a  fact  which  the  suppressing  party  could  readily  dis- 
prove, if  it  were  false,  such  evidence  as  can  be  produced  in  favor  of  the  con- 
tention made  will  be  judged  in  connection  with  the  circumstance  of  the  sup- 
pression.10 

(.'riminal  Cases.—  While  it  is  frequently  provided  by  statute  that  no  in- 
ference shall  be  drawn  against  one  accused  of  crime  because  he  does  not  take 
the  stand  as  a  witness  in  his  own  behalf,20  and  although  courts  have  charged 
juries  to  the  same  etf'ect,21  the  precept  is  one  with  which  it  is  practically  im- 
possible for  the  jury  to  comply.  If  the  situation  under  which  a  defendant  fails 
to  take  the  stand  is  such  that  a  logical  conclusion  arises  of  conscious  inability 
to  gain  by  so  doing,  an  infirmative  inference  must  be  drawn  against  him  by 
any  tribunal  using  reason  as  its  means  for  ascertaining  truth.22 

§  437.  [Omnia  Contra  Spoliatorem] ;  Removal  or  Concealment. —  A  party  may 
suppress  the  evidence  of  witnesses  in  other  ways.  He  may,  for  example,  ar- 
range that  the  witness  shall  not  be  within  the  reach  of  a  subpoena  or  other 
compulsory  process,  when  his  attendance  is  desired,  by  concealing  him  or  by 
forcing  or  inducing  23  him  to  leave  the  neighborhood,  county,  state  or  country. 

Kep.  656    i  1893);   Anker  v    Smith,  87  X.  Y.  17.  §  431,  supra;  2  Chamb,  Ev.,  §   1070b. 

Supp    479   (l!)04i;  2  Chamb.,  Ev.,  §  1076,  n.  18.  Diel   v.   Missouri   Pac.    R.   Co.,   37   Mo. 

5,  and  cases  cited.  App.  454  (1889). 

15.  Bastrop   State    I'.ank    v     Levy.    106   La.  19.   I'nioii  Pac.   H.   Co.  v.   Hepner,   3   Colo. 
580,  31  So    164    (1902);   Jackson  v    Blanton,  App    313,  33  Pac    72    (1893);   Heath  v.  Wa- 
2   Baxt.    iTenn  t    ('»:>    il>72»:    topperthite  v.  ters,  40  Mich.  457    (1879);  Bum-ley  v   Jones, 
London  n    Nat     Bank,    111    Va.    70.    68   S.    E.  79  Miss.  1,  29  So   1000  ( 1901 );  2  Chamb.,  Ev., 
3!I2   i  1910)  ;  2  Chamb.,  Ev.,  §  1076,  n.  6,  and  §   1076a,  n.  3  and  cases  cited      A  failure  to 
cases  cited  testify  is,  therefore,  in  the  nature  of  an  ad- 

16.  Western  Union  Tel    Co.  v.  McClelland,  mission  by  conduct  (§§  559  et  seq. :  2  Chamb., 
38  hid.  App   578,  78  A.  E   672   (1906)  ;  Perk-  Ev.,  §§  1392  et  seq.)  as  well  as  a  deliberative 
ins  v    Hitchcock,  49  Me.  468  (I860)  ;  Nuttings  fact    of    subjective    relevancy.      <§§    34,    36. 
v.   Kings  County   El.   K    Co.,  47   X    V.   Supp.  supra:  1  Chamb.,  Ev..  §§  52,  56.) 

327.  21   App.  Div.  72    (1897)  -.   Kirby  v    Tall-  20.  Com.  v   Hanley,  140  Mass.  457,  5  X.  E. 

madge,  160  T    S    379,  16  S   '."t.  349.  40  L   ed.  468    (1886) 

463   (1S!>6)  ;  2  Chamb,  Ev..  §  1076.  n    7    and  21.   I".  S   v   Pendergast,  32  Fed.  198  (1887) 

cases    cited      Trstifii    for    Adversary. —  Prac-  See   also.    People   v.    Bills.    114    X.    Y.    Supp 

tically     the    same    adverse     inference    arises  587,    129    App.    Div.    798    (1909);    2   Chamb, 

when-' a  party  refuses  to  testify  as  a  witness  Ev..  §   1076b,  n.  2.  and  cases  cited 

foi    liis   iuhcrsary   either   orally,    in   response  22.  People    v.    Smith,     144    111     App.    129 

to    interrogations     (Locust    v.    Handle     (Tex.  (1908),    judg.    aff'd    87    X     E     885     (1900) 

Civ    App.   1907),  102  S.  W.  946^    or  by  depo-  See   also.   People   v    Smith.    100   X*.   Y.   Supp 

sition    iBelknap   Hardware   Co.    v.    Sleeth.   77  250.    114    App    Div.    513    H906). 

Kan      16L    «'3    Pac     .'.sO     , lOO^i.    at    the    re  23.    Onikshank    v.   (iorden.   118  X*.   V.    178, 

quest,  of  the   latter.     Locust   v    Randle    (Tex.  23  X    E     (1890):   2  Chamb.,  Ev.,  §  1077  and 

Civ.  App.  1907)   102  S    W   946.  cases  cited. 


§  438  PRESUMPTIONS;  INFERENCES  OF  FACT.  286 

The  infirmative  inference,  from  spoliation  under  such  circumstances,   is  al- 
most a  necessary  and  intuitive  one.24 

Other  Modes  of  Suppression. —  Other  methods  of  suppressing  the  testimony 
of  a  witness  are  open  to  a  litigant.  For,  example,  he  may  dissuade  a  witness 
from  appearing, 2r>  or  he  may  call  him  as  a  witness  but  refrain  from  eliciting 
from  him  any  evidence  on  a  particular  point.26 

§  438.  [Omnia  Contra  Spoliatorem] ;  Probative  Force  of  Inference. —  It  mav  be 
said  that,  in  any  particular  instance,  the  probative  force  of  the  inference  from 
spoliation  will  be  found  to  be  proportionate  to  the  degree  of  moral  obliquity  in- 
volved in  the  course  pursued,27  according  as  the  testimony  of.  the  witness  is 
essential  to  the  case  2S  or  whether  the  evidence  suppressed  would  have  been 
available  to  the  suppressing  litigant  as  part  of  his  original  case  29  or  in  rebuttal 
of  that  made  out  by  his  adversary.30 

Statutory  Regulation. —  It  is  sometimes  provided  by  statute  or  in  some  other 
way,  that  no  inference  shall  be  drawn  from  the  parties  claiming  a  privilege 
accorded  by  the  rules  of  the  trial,  e.g.,  declining  to  allow  one's  attorney  :u  or 
physician  32  to  take  the  stand  as  a  witness.  Such  a  statute  may,  and  frequently 
does  enact  that  no  adverse  suggestion  shall  arise  from  the  fact  that  husband  and 
wife  claims  a  right  not  to  testify  against  the  other.33  So  far  as  the  mind  is  con- 
cerned, such  a  rule  is  nugatory.  Its  operations  cannot  be  thus  controlled.34 
The  only  result  which  can  be  effected  is  that  the  trier  should  not  be  allowed  to 
follow  his  reason ;  —  rendering  a  verdict  which,  pro  tanto,  he  may  know  to  be 
false. 

Strength  of  Inducement  to  Speak. —  The  probative  effect  of  the  inference 

24.  For  when   a  party  sseeKs  to  prevent  a  Chamb.,  Ev.,  §   lOTTa,  n.   2.  and  cases  cited, 
full  investigation  into  the  truth  of  a  matter  29.  Bent  v.  Lewis,  88  Mo.  462  (1885)  :  Mer- 
by   removing  a  witness  beyond  the  reach   of  rill  v.  Grinnell,  30  N.  Y.  594   ( 1864 )  :  Wimer 
process    [Carpenter    v.    Willey,    65    Vt.     168,  v.  Smith,  22  Or.  469,  30  Pac.  416   (1S91):   2 
26   Atl.    488    (1892)],   he   inevitably    exposes  Chamb.,   Ev.,  §   1077a,  n.   3,  and  cases  cited 
himself  to  the  adverse  presumption   that  he  30.  Schwier  v.  New  York  Cent.,  etc.,  R.  Co., 
is    aware    that   the    evidence   of    the   witness  90  N.  Y.  558  (1882). 

will    be    hostile    to    him;    and    that    he    also  31.  Gardner   v     Benedict.   75    Hun   204.    27 

feels  that  he  has  no  evidence  which  will  legiii-  N.    V.    Supp.    3     (1894):    2    Chamb.,    Ev.,    § 

mately  control  his  testimony  1077b,  n.  1,  and  cases  cited      See  Privilege  of 

25.  Houser  v.  Austin,  2  Ida.  204.  10  Pac.  37  Witnesses. 

(1886)  :  Chicago  City  K.  Co  v.  McMahon.  103  32.  Brackney    v     Fo.ule.    156    Ind.    535.    60 

Til.   4S5,  42   Am.    Rep.  29    (1882):    2  Chamb.,  X.  E   303  (1901);  Lane  v.  Spokane  Falls,  etc  . 

Ev.    §    1077.   n.    3.   and   cases   cited.  R.  Co.,  21  Wash    11!).  57  Pac    367.  75  Am    St 

26.  Bornhofen  v.  (Jreenehaum.  68   111.   App.  Rep.  891.  40  L.  R.  A.  15:5   (1899)       See  Privi 
.645    (1896):    Arbuckle   v    Templeton     65   Vt.  lepe  of  Witnesses. 

205,25  Atl    1095   (1S93).  33.  Xational     German-American     Bank     v 

27.  2  Chamb..  Ev..  §§  ]077a.  1077b.  Lawrence.   77   Minn.  282.  79   N     W.    101(5.   so 

28.  East   Tennessee,   etc..   R     Co.    v     Doujr-  X    W.  363  (1899)  :  Johnson  v   State.  63  Miss 
lass.  94  Ga.  547.  19  S.  E    885   i  1877)  :  Versrin  313     (1885)       See    Husband    and    Wife. 

v.  Sapinaw.  125  Mich    499.  84  X    W     <  1901  >  .  34.   McCooe    v.    Dighton.    etc.,    St.    H.    Co. 

Minch   v.   Xew   York.   etc..    R.   Co..   80   X.    Y        173  Mass.  117,  53  1ST.  E.  133   (1899). 
Supp.    712,    80    App.    Div.    324     (1903);     2 


i)sT  SPOLIATION.  §  430 

from  silence  is,  plainly,  gauged  by  the  inducement  to  speak  —  could  speech 
avail.  Thus,  where  the  charge  to  be  rebutted  is  one  of  fraud,35  or  illegality  >i6 
or  where,  for  some  other  reason,  an  adverse  case  has  been  made  out  which  calls 
urgently  for  a  reply,  the  infirmative  inference  from  suppression  gains  in  pro- 
bative force. 

§  439.  [Omnia  Contra  Spoliatorem] ;  Writings;  Destruction A  similar  in- 

lirmative  inference  arises  from  the  suppression  of  material  documents  within 
the  defendant's  control  which  must  necessarily  help  him  if  his  present  story  or 
contention  be  true.'17  The  distrust  of  the  spoliating  party  in  the  true  merits  of 
his  contention  become  glaringly  obvious,  in  case  of  intentional  and  calculated 
destruction  by  him  of  such  writings38  for  the  purpose  of  preventing  their  use 
as  evidence.  The  logical  reaction  against  the  party  who  has  been  guilty  of 
such  a  course  becomes  still  further  intensified  where  the  document  destroyed  is 
the  absolutely  determining  factor  in  the  case.39 

Administrative  Punishment  and  Indulgence. —  Tt  is  clear  that  none  but  those 
conniving  at  the  act  of  spoliation  will  be  affected  by  any  inference  from  it.40 
The  significant  circumstance  to  which  administration  is  forced  to  direct  its  atten- 
tion is  the  relation  existing  between  the  document  destroyed  and  the  interest  of 
the  destroyer,  it  is  very  reasonably  inferred  that  material,  highly  probative  or 
even  constituent  writings  could  have  been  destroyed  by  a  party  litigant  in  a 
controversy  to  which  the  writing  bore  this  relation  only  because  the  spoliator 
knew  that  their  contents  if  produced  to  the  court  would  injure  his  chances  of 
success.41  In  any  case  of  destruction  the  inference  invalidates  the  evidence  of 
the  spoliator  42  or,  if  the  form  of  expression  be  preferred,  it  increases  the  pro- 
bative weight  of  his  opponent's  case  by  the  facts  which  the  spoliator  may  rea- 
sonablv  be  assumed  to  have  known  and  used  as  constituting  the  motive  for  his 

35.  \\here    the    party    himself   declines    to  (  1898)  :  2  Chamb.,  Ev.,  §  1078,  n.  2.  and  cases 
testify     the     presumption     is     exceptionally  cited.     The  inference  cumulates  in  seriousness 
strono-.     Stephenson    v.    Kilpatrick,    106    Mo.  where  the  accused  destroys  books  and  papers 
262,  65  S.  W.  773    (1901)  ;    Brown  v.  Shock.  after  arrester  seeks  to  conceal  them.     Rober- 
77   Pa.  471    (1*751  ;   2  Chamb.,  Ev.,  §   1077c,  son  v.  State,  40  Fla.  509,  24  So.  474   (1898)  ; 
n     i  State  v.  Baldwin.  70  Iowa  180.  30  X.  W.  476 

36.  Cheney     v.     Gleason,     125     Mass.     106  (1886). 

(1878);    Knight   v.    Capito,   23   W.   Va     630  39.  Lucas    v.    Brooks,    23    La.    Ann.     117 

(1884).  (1871);   Betts  v.  Jackson,  6  Wend.    ( X.  Y.) 

37.  State  v.   Rosier.  55  Iowa  517.  S  X.  W.  173:    Phoenix  Ins.  Co.  v.  Moo?,  78  Ala.  284, 
345  (1881)  :  Morrow  v   Missouri  Pac.  Ry   Co.  :i.i7   (1884)  :  2  Chamb..  Ev..  §  1078.  n.  3.  and 
140  Mo.  App.  200    (I910i:   2  Chamb..   Ev  .   §  cases  cited. 

KITS.  n.    1.  and  oases  cited.  40.  Clark   v    Ellsworth.   104   Towa   442.   73 

38.  -Johnson  v.  White.  40  Cal    328   MR7.*n  :       X.  W.  1023   n8<Ni  :   Blake  v.  Blake.  56  Wis. 
Tanton    v.    Keller.    167     111.    120.    47    N*.    E        302.  14  N.  W.  173  »  1«82K 

376    i  1897)  ;    Sullivan  v    Sullivan.   188  Mass.  41.  Stone  v.  Sanborn.  104  Mass.  310,  6  Am. 

380.    74    X.    E     608    (10O5)  :    Ames.    v.    Man-  Rep.  238    (1870)  :  2  Chamb..  Ev..  §   1078a.  n. 

hattan  L.  fns    Co..  52  N    Y.  Supp   50.  31   Apn  2.  oml   case<-  cited. 

Div.     180     (189^):     The     Olinde     Rodriguez  42.  Downing  v.   Plate.  90  Til.  268    (1878); 

174  U.  S.  510,  19  Sup.  Ct  851,  43  L.  Ed.  1065  Pomeroy  v.  Benton.  77  Mo.  64   (1882). 


£  440  PRESUMPTIONS  ;  INFERENCES  OF  FACT.  288 

act  of  suppression.43  The  presumption  is  applicable  only  where  the  element  of 
intentional  fraud  or  wrongful  conduct  is  involved,  and  the  presumption  is  one  of 
fact  which  may  be  overcome  by  explanation  of  the  circumstances.44  The  act  of 
spoliation  calls  not  only  for  punishment  against  the  offender  but  for  concession 
to  his  opponent.  Further,  marked  administrative  indulgence  will  be  accorded 
the  party  against  whom  a  spoliation  is  directed.  The  court  will  consider  the 
means  left  to  him  for  proving  his  case  and  be  more  readily  satisfied  than  would 
be  customary  that  a  prim  a  facie  case  has  been  made  out.45 

Admiralty. — "  It  is  certain/'  said  Sir  William  Scott,4*5  "  that  by  the  law  of 
every  maritime  court  of  Furope,  spoliation  of  papers  not  only  exclude?  further 
proof,  but  does,  per  se,  infer  condemnation,  founding  a  presumption  juris  et  de 
jure,  that  it  was  done  for  the  purpose  of  fraudulently  suppressing  evidence 
which,  if  produced,  would  lead  to  the  same  result;  and  this,  surely,  not  with- 
out reason,  although  the  leniency  of  our  code  has  not  adopted  the  rule  in  its 
full  vigor,  but  has  modified  it  to  this  extent  that,  if  all  other  circumstances  are 
clear,  this  circumstance  alone  shjfll  not  bo  damnitorv,  particularly  if  the  act 
were  done  by  a  person  who  has  interests  of  his  own  that  might  be  benefited  by 
the  commission  of  the  injurious  act.  But  though  it  does  not  found  an  absolute 
presumption  juris  et  de  jure,  it  only  stops  short  of  that,  for  it  certainly  gen- 
erates a  most  unfavorable  presumption."  The  English  rule,  as  stated  above, 
prevails  also  in  the  United  States.47 

Explanation  Permitted. —  The  party  to  be  affected  by  the  inference  may 
as  a  matter  of  course,  explain,  if  he  can,  the  course  which  he  has  adopted.48 
What  shall  be  deemed  to  constitute  "  Spoliation  ''  within  the  meaning  of  the 
phrase  as  employed  in  admiralty  cases,  has  been  luminously  commented  upon  by 
Dr.  Lushington.40  Tie  says  "In  the  Rising  Sun  (2  Rob.  104)  Lord  Stowejl 
lays  down  the  doctrine,  that  spoliation  does  not  enure  to  condemnation  ;  with 
other  suspicious  circumstances,  it  shuts  the  door  against  further  proof.  To 
that  doctrine  I  entirely  assent.''  3" 

5$  440.  [Omnia  Contra  Spoliatorem] ;  Failure  or  Refusal  to  Produce. —  A  party's 
failure  to  produce  a  document,  if  it  be  within  his  power  to  submit  it  to  the 
court  almost  inevitably  leads  to  an  inference  that  he  did  not  produce  the 
paper  because  he  knew  that  its  contents  were  adverse  to  his  contention ; l>1  or, 

43.  Case  v    Parmelee.  87   Til.  320    (1877):  4-9.  The     Johanna     Emelie,     18     .Tur.     703 

Murray   v.   Lepper.   90   Midi.   135.   57   N.   W.  (1855). 

1007    (1804).  50.  The  Hunter,  supra. 

**..   Mastiri  v.  Noble   (Kan.  1007),  157  Fed.  51.   Wilson    v.    Griswold.    79    Conn.    18.    63 

506.  Atl.   650    (1006):    Battersbee  v.  Calkins.   128 

45.  Anon.,  Lord  Raymond  T?ep.  731    <1702).  Mich.  560.  87   N.  W.  700    ilOOl):   Barber  v. 

46.  The  Hunter,  1  Dods.Adm.4SO  (1815):  Lyon.   22   Barb.    (X.   Y.)    62    (1856):    Heller 
2  Chamb.,  Ev  .  §  10/Sb.  n.  1  v.  Beal.  23  Ohio  Cir.  Ct.  540    (1002)  :  Lee  v. 

47.  The   Pizarro,   2    Wheat.    (U.    S.)    242n       Lee.    9    Pa.    160    (1848);    2    Chamb..    Ev.,    § 
(1817).  1070,   n.    1.   and    cases   cited.     The   same    in- 

48.  The  Pizarro,  supra.  ference    applies    in    case    of    a    corporation. 


289  SPOLIATION.  §  440 

possibly,  that  it  does  not  exist.52  If  the  matter  is  one  as  to  which  a  certain 
record  would  be  decisive,53  or  which  may  be  proved  or  disproved  by  the  pro- 
duction of  a  book^of  account,54  and  the  party  of  whose  case  these  documents,  if 
favorable,  would  naturally  be  part,  has  them  in  his  possession  but  fails  to 
produce  them  or  explain  satisfactorily  their  nonproduction,  contenting  himself 
with  offering  plausible  secondary  55  and  inconclusive  evidence,56  the  mind  finds 
no  difficulty  in  reaching  the  conclusion  that  so  peculiar  a  course  is  not  con- 
sistent with  good  faith  to  the  court.  A  tribunal  would  be  well  justified,  as 
a  matter  of  reason,  in  feeling  that  the  party  knows  that  the  fact  is  otherwise, 
than  he  claims  it  to  be  "'  and  that,  upon  a  full  disclosure  of  all  the  circum- 
stances affecting  the  case  he  would  not  deserve  to  succeed. 

Use  of  Secondary  Evidence;  (1)  Spoliating  Party. —  Under  the  general 
canon  of  administration  requiring  that,  in  furtherance  of  justice,  primary  evi- 
dence must  be  produced,58  the  party  having  the  original  document  must,  if  he 
desire  to  prove  its  contents,  produce  the  writing  itself.  It  follows  that  one 
who  deliberately  destroys  a  document  in  his  possession  with  a  view  to  gain 
fraudulent  advantage  will  not  be  permitted  to  introduce  secondary  evidence 
•  of  its  contents.59  Explanation,  however,  is  at  all  times  receivable.  Where 
the  destruction  was  done  iu  good  faith,  for  example,  under  well-intentioned 
though  injudicious  advice,  the  secondary  evidence  is  receivable.60 

Use  of  Secondary  Evidence;  ('2)  Non-spoliatiny  Party. —  As  will  be  more 
fully  seen  hereafter,'51  when  the  original  writing  is  in  possession  of  a  third 
person  who  cannot  be  forced  to  submit  it  to  the  tribunal  after  reasonable  notice 
to  produce,'52  where  it  has  been  destroyed  without  fault  of  the  proponent,  it  can- 
not be  found  after  reasonable  search,  or  is  held  by  the  opposite  party  who, 
having  been  requested,  refuses  to  produce  the  primary  evidence,  secondary 

\  arnado  v.  Banner  Cotton  Oil  Co.,   126.  La.  56.  Thompson  v.  Chappell,  91  Mo.  App.  297 

51)0.  52  So.  777    (1910).  (1901)  ;  Wimer  v.  Smith, -22  Or.  469.  30  Pac. 

52.  Safe  Deposit  &  Trust  Co.  v.  Turner,  98       416   (1892). 

Md.  22,  55  Atl  1023  (1903).  No  presumption  57.  McGuiness  v.  LeSueur  County  School- 
arises  where  the  evidence  points  rather  to  Dist.  No.  10,  39  Minn.  499.  41  X  W.  103 
the  conclusion  that  the  document  has  been  (1888);  Rockwell  v.  Merwin.  45  X~  Y.  166 
lost.  Clark  v.  Hornbeck.  17  X.  J.  Eq.  430  (1871):  Sumrell  v.  Atlantic  Coast  Line  R. 
,1865).  Co.,  152  N.  C.  269,  67  S.  E  080  (1910):  2 

53.  Towne  v.   Milner,   31   Kan.  207.   1   Pac.  Chamb.,  Ev..  §  1079,  n.  8.  and  cases  cited. 
013    .'18841:    State  v     AtKinson.  51   X.  C.   65  58.  Kiipra.   §§   22T   et  seq.:    1    Chamb.,   Ev., 

l*.->si:    -2    Chamb  ,    Ev  .    §    1079    and    case?  §§  464  et  scq 

cjted.  59.  Rajrley    v.    McMickle.    9    Cal.    430.    446 

54.  Cartier   v    Troy   Lumber   Co..    138   Til.  (1858)  :  Blade  v.  Xoland.  12  Wend   X*.  V.  173 
533.  28    X     K.  03-2.    14  L    R.    A.   470    (1891):  (1834). 

Cross  v.   Hell.  34   X.   H.  82    (185fi):   Schenck  60.  Tobin    v.    Shaw,    45    Me.    331     (1858); 

v    Wilson.  2  Hilt,   i  X.  V)   02    I 1«5S)  :   Atty.-  Risr<rs  v  Tayloe.  9  Wheat.  (U.S.I  4S7   (1824 K 

C.en.  v.  Kallidav.  26  U.  C.  Q    B.  317   'I*fi7^  :  61.  See  DOCUMENTARY  EVIDENCE.   »>v- 

2  Chamb..  Rv..  §  1079.  n    5.  and  ca=es  cited.  frn  §   1099. 

55.  Merwin  v.  Ward.  15  Conn    377   (1843)  :  62.  Hilbert  v.  Ross.  7  M.  &  W.  121    <  1840)  ; 
supra.  §S   150  et  *eq.:  \  Chamb..  Ev..  §§  339  2    Chamb.,    Ev..    §    1079b,    n.    2,    and    cases 
et  seq.  cited. 


§  441  PRESUMPTIONS;  INFERENCES  OF  FACT.  290 

evidence  of  contents  will  be  received.68  Under  the  inference  of  spoliation,  in 
odium  spoliatoris,  as  is  said,  where  the  proponent  has  been  tortiousJy  deprived, 
by  act  of  the  opponent,  of  an  original  document  to  the  possession  of  which  he 
is  entitled,  he  may  as  a  matter  of  course,  and  without  notice,  offer  secondary 
evidence  of  its  contents.04  .1  fortiori  the  voluntary  destruction  of  such  a 
document  by  the  opponent  confers  the  right  to  use  secondary  evidence  of  its 
contents."5 

§  441.  [Omnia  Contra  Spoliatorem] ;  Refusal  to  Produce  on  Demand. —  Where 
a  party's  attention  has  been  pointedly  called  to  the  matter  by  a  notice  to 
produce,0*5  his  failure  to  comply  with  the  notice  is  more  significant  than  a 
bare  neglect  which  may  have  been  due  to  oversight  or  accident.  While  sucli 
a  refusal  does  not,  in  itself,  constitute  evidence  of  any  probative  or  constituent 
fact  involved  in  the  inquiry  ,ti7  it  is  an  important  deliberative  one  68  which  in- 
creases, for  the  reasons  stated,159  the  probative  effect  of  the  parol  evidence  given 
by  the  party  asking  production  of  the  document  which  is,  by  this  refusal,  made 
the  best  evidence  within  his  power  to  offer. 

Summons,  Order  of  Court,  etc. —  When  a  summons70  or  other  direct  order 
of  court  71  is  made  requiring  the  production  of  a  particular  document  a  refusal 
to  comply  with  it  gives  rise  to  correspondingly  greater  certainty  that  the 
writing  which  is  being  held  is  adverse  to  the  contention  of  its  possessor.  Where 
a  litigant  has  testified  to  the  contents  of  documents  in  his  possession  and  the 
court  has  declined  to  order  production  of  the  writings,  it  is  said  that,  no  infer- 
ence of  suppression  arises.72 

Social  Consequences  of  Suppression. —  Where  production  is  sought  by  the 
other  side  and  a  party  is  notified  to  produce  books  of  account  or  the  like, 
it  has  been  held  that  the  only  effect  of  a  failure  to  produce  these  documents  on 
notice  is  that  secondary  evidence  may  now  be  given  by  the  proponent  of  their 
contents.7"  So  considered,  a  trial  at  law  resembles,  as  it  were,  the  playing  of  a 

63.  Livingston    v.    Rogers.    2    Johns,    fas.       42   C.   C.   A.    188    (1900);    2   Ohamb.,   Ev.,   § 
(X.  Y.)    488    (180-2).  1080,  n.  2,  and  oases  cited. 

64.  Crimes    v.    Kimball,    3    Allen     (Mass  )  68.  §34:   1  Chamb.,  Ev.,  §  52. 

518     (1862);    Hed»e    v.    McQuaid,    11    Tush.  69.  §§   430,    431:    2    Chamb.,   Ev.,    §§    1070. 

(Mass.)    352    (1853)  1070b. 

65.  Blake    v.    Fash.    44    111.    304     (1867)  :  70.  Darby  v.  Roberts,  3  Tex.  Civ.  App.  427 
Broadvell   v.   Stiles,   8  N.   J.   L.   58    (1824):  (1803). 

Parker  v    Kane,  4  Wis.  1    (1855)  :  2  Chamb.,  71.  Mills    v.     FelloAvs,     30    La.     Ann.    824 

Kv..  §  107!tb,  n.  5.  and  cases  cited.  (1878)  :  Devlan  v.  Wells.  65  X.  J.  L.  213,  47 

66.  Life,  etc..  Ins.  Co.  v.  Mechanics'  F.  Tns.       Atl.  467    (1000). 

Co.,  7  Wend.    (X.  Y.)    31    (1831  i.     See  also,  72,  Roberts  v.  Francis,  123  Wis.  78.  100  N. 

•2  Chamb.,  Ev..  §    1080,  n.   1.  and  cases  cited.  W.   107f>    (1004). 

67.  Union    Pac.   R.    Co.   v.   Hepner.   3   Colo.  73.  (artier    v.    Troy    Lumber    Co..    supra. 
App.  313.  33  Pac.  72   (1802)  :  Cartier  v.  Troy  This  is  an  entirely  logical  development  of  the 
Lumber   Co..   supra :   Lock-wood   v.   "Rose.    125  theory  that   litigation  is  a  matter  primarily 
Ind.  588.  25  X.  E.  710   (1800)  :  Wvlrle  v.  Vow  or  even  e-clusively  of  the  parties.     §  132:    1 
Jersey  Xorthern  R.  Co.,  53  XT.  Y.  156   (1873)  :  Chamb..   Ev.,  §   303. 

Missouri,  etc.,  R.  Co.  v.  Elliott,  102  Fed.  96, 


291  SPOLIATION.  §§  442, 443 

*>  y 

game  in  which  no  inference  should  be  drawn  against  a  player  merely  be- 
cause he  claims  the  benefit  of  a  rule  established  in  it.  Xo  one,  it  is  thought, 
can  be  required  to  aid  his  opponent.74  In  a  very  just  sense,  however,  an  In- 
ference of  suppression,  deliberative  it  is  true  75  but  a  fair  presumption  from 
spoliation,  necessarily  arises  against  the  withholding  party  in  such  cases.76  To 
be  sure,  the  presiding  judge  frequently  rules  otherwise.  But  the  court  is  im- 
potent to  control  the  reasoning  faculty  of  a  coordinate  branch  of  the  tribunal. 
His  power  is  limited  to  nullifying  the  results  by  ordering  a  new  trial. 

§  442.  [Omnia  Contra  Spoliatorem] ;  Mutilation,  Alteration,  etc. —  The  same 
logical  deduction  from  spoliation  with  suitable  modifications,  arises  in  case  of 
the  mutilation,77  alteration,  concealment  or  removal 78  of  documents  known  to 
be  valuable  for  evidentiary  purposes,  or  any  material  portion  of  such  a  docu- 
ment.70 

§  443.  [Omnia  Contra  Spoliatorem] ;  Real  Evidence. —  Much  the  same  delib- 
erative inference  from  spoliation  arises  where  a  critical  piece  of  real  s<) 
evidence  is  withheld  from  the  tribunal  by  a  party  whose  interest  to  produce 
it,  were  the  inferences  arising  from  it  favorable  to  himself,  is  obvious.81  Thus, 
where  the  evidence  was  conflicting  as  to  whether  a  rope  the  parting  of  which 
caused  the  death  of  a  seaman  was  defective,  the  doubt  should  be  solved  against 
the  vessel  because  of  her  failure  to  produce  the  rope  which  was  in  her  posses- 
sion.82 In  much  the  same  way,  where  the  issue  relates  to  the  condition  of  a 

74.  Hector    v.    Rector,    8    111.    120    (1846);  altered  or  erased  the  burden  is  upon  one  who 
Spring  Garden  Mut.  Ins.  Co.  v    Evans,  9  Md.  would  attack  it  to  show  that  the  alteration 
1     (18.")6)      See   also,    Life   &    Fire    Ins.    Co.  was    made    after    execution.     The    court    re- 
Mechanirs'  F.  Ins.  Co.,  supra;  2  Chamb .,  Ev.,  marks   that   the   authorities   are   in    hopeless 
§  lOHOa.  n.  4,  and  cases  cited  conflict  on  the  question  but  that  most  of  the 

75.  §§   430,   431;    2   Chamb,   Ev.,   §§    1070,  deeds    in    the    state    are   written    by    laymen 
10701).  and  that  the  great  majority  of  the  alterations 

76.  Even   objecting  to  evidence  may  stand  are   made   by    them    in    ignorance   and   inno- 
in  the  same  position.     Sutton  v.   Davenport,  cently  and  it  would  be  a  great  hardship  and 
27  L.  J    C.  P.  54   (1857).     For  an  illustrative  would   upset  titles  to  adopt  any  other  rule, 
instance   in   an    English   case,   see   2   Chamb,  Wicker  v.  Jones,  159  X    C    102.  74  S.  E.  801, 
Ev,  §   1080a,  notes  8  and  9  and  cases  cited  40  L.  R    A.    (X.  S.)   69    (1912). 

77.  Shells    v.    West.    17    Cal     324    (1861):  80.  §§  21  et  seq. :  1   Chamb.,  Ev..  §§  27  et 
Murray  v.  Lepper,  supra ;  Dimond  v.  Hender-  seq. 

son,   47    Wis     172,    2    X.    W.    73     (1879):    2  81.   Federal     Lumber    Co     v      Reece     (Ky 

Chamb.  Ev.  §   1081,  n.   1.  and  cases  cited  1909).  116  S.  W.  783:  2  Chamb..  Ev..  §  lOSla. 

78.  Brickor  v   Lightner.  40  Pa.  199   (1861).       So  where  a  party  in   whose  possession  a  d»-- 

79.  The    Sam    Sloan.    65    Fed.    125    (1894)         ci«ive  map  is  to  be  found  declines  to  produce 
Alterations    of    Deeds. —  There    is    no    pre-       it,   an   inference   arises   that    it   supports   the 

.sumption   that   an   alteration   on   a   deed   was  contention    of   his    adversary      Isabella    Gold 

made  after  delivery  but  it  must  be  made  to  Min    Co.  v    Glenn.  37  Colo    165.  86  Pac.  349 

appear    that    an    alteration    was    made    after  (1906):     Bryant    v.     Stillwell.    24    Pa.    314 

delivery  before  any  presumption  of  fraud  can  (1S55K 

arise.     Tharn  v.   Jamison.   154   Iowa   77.   134  82.  The  Luckenhach.   144  Fed    980    (1906 K 

X    W.  583.  39  L    R    A.    (X.  S.I    100   (1912).  Tn  like  manner,  where,  in  an  action  against  a 

Where    a    deed    appears    on    its    face   to    be  railroad  for  injuries  to  a  passenger  in  con- 


§  443  PRESUMPTIONS;    INFERENCES  OF  FACT.  292 

•* 

building  83  or  other  piece  of  real  or  personal  property,  the  act  of  one  of  the 
parties  in  refusing  to  permit  the  other  to  examine  the  same  under  reasonable 
conditions  gives  rise  to  an  inference  that  such  an  inspection  would  disclose 
facts  detrimental  to  his  cause. 

Mutilation. —  In  case  of  the  mutilation  of  an  important  piece  of  real  evi- 
dence, a  party  is  to  be  affected  by  a  deliberative  inference,  if  at  all,  only  to 
the  extent  that  he  appears  to  have  been  connected  with  it.S4 

sequence  of  the  breaking  of  a  defective  coup-  road,  but  would  liave  injured  it.     Galveston, 

ling,   the  company   removed   it  and    failed  to  etc.,  J!y    l  o.  v.  Young  (Tex.  Civ.  App.  1007), 

produce   the   same    in   court,    though    notified  100  S.  \V.  00:). 

so  to  do  by  plaintiff,  failing  to  give  any  ex-  83.   Byrant   v.  Stilhvell.  supra. 

planation  for  the  non-production,  a  presump-  84.   Bank  of  Irwin  v.  American  Express  Co., 

tion  arose  that  the  appearance  of  the  broken  127  Iowa  1,  102  N.  W.   107    (1905). 

apparatus  would  not  have  benefited  the  rail- 


CHAPTER  XIV. 

PRESUMPTION  OF  LAW. 

Assumptions  of  procedure,  444. 
Presumptions  of  law,  445. 

presumption  of  legitimacy  —  marriages,  446. 
proof  of  access,  447. 
Rebuttal  of  presumption,  448. 
limitation  upon  scope  of  evidence,  449. 
inferences  of  fact,  450. 

esumption  of  death;  continuance  of  life,  451. 
an  inference  of  varying  probative  force,  452. 
adoption  of  rule  in  America,  453. 
statutory  modifications,  454. 
proof  of  death  by  inferences  of  fact,  455. 
failure  to  hear,  456. 
subjective  facts,  457. 
unavailing  search.  458. 
computation  of  the  seven  year  period,  459. 

time  of  actual  death  :  no  presumption  of  life  during  seven  years,  460. 
'presumption  rebuttable,  461. 
criminal  cases,  462. 

capacity  for  crime,  463. 

presumption  of  larceny  from  recent  unexplained  possession  of  stolen 

floods,  464. 
explanation,  465. 
.place  and  cause  of  finding,  466. 
proof  of  possession,  467. 
presumption  of  malice  in  homicide,  468. 

§  444.  Assumptions  of  Procedure.1 —  The  presumption  of  law  assumes  the 
prima  facie  truth  of  particular  inferences  of  fact  relating  to  the  substantive 
law,  and  maintains  this  assumption  until  the  prima  facie  quality  of  the  case 
so  established  is  met  by  evidence  creating  an  equilibrium,  if  the  case  be  a 
civil  one,  or  a  reasonable  doubt  should  it  be  criminal.  This  is  the  presump- 
tion of  law  properly  so-called.2 

1.  2  Chaniberlayne.    Evidence.   §    10R2.  pie  v.  Wong  Sang  Lung,  3  Cal.  App.  221,  84 

2.  Other  ilcfinitinns  of  presumption  —  Cali-       Pac.  843    (1906). 
fornia.—  Cal.   Code   Civ.   Proc  ,   §    1050;    Peo- 

293 


§  445 


PRESUMPTION  OF  LAW. 


294 


§  445.  Presumptions  of  Law.3 —  Somewhat  to  amplify  the  definition  given 
above,4  it  may  be  said  that  the  presumption  of  law  is  a  legal  rule  r>  established 
in  that  branch  of  the  substantive  law  to  which  the  presumption  relates,  and 
provisionally  assuming,  until  evidence  has  been  introduced  011  the  subject,0 
that  a  given  inference  of  fact  from  certain  circumstances,7  previously  shown 
to  exist  has  a  prima  facie  value.  As  rule  of  law  it  is  not  within  the  option 
or  discretion  of  the  trial  judge  to  employ  it  or  not,  as  would  be  the  case  were 
the  matter  one  involving  a  mere  assumption  of  administration.8  He  cannot 
refuse  to  rule  as  to  its  existence,  for  a  party  is  as  much  entitled  to  the  benefit 
of  a  presumption  of  law  as  he  would  be  to  have  any  other  appropriate  legal 
rule  applied  to  the  facts  of  his  case.9  "  Presumptions  serve  a  most  useful 


Colorado. —  Doane  v.  Glenn,  1  Colo.  495,  504 
(1872). 

Florida.— Newton  v.  State,  21  Fla.  53,  98 
(1884). 

Georgia. —  Bryan  v.  Walton,  20  Ga.  480, 
508  (1856). 

Indiana. —  City  of  Indianapolis  v.  Keeley, 
167  Ind.  516,  79  X.  E.  499,  rev'g  (App.  1905) 
76  X.  E.  1117. 

Louisiana. —  Cronan  v.  City  of  New  Orleans, 
16  La.  Ann.  374  (1861)  :  Civ.  Code  La.  1900, 
art.  2284. 

Ma  inc.—  State  v.  Tibhetts,  35  Me.  81 
(1852). 

Missouri. —  Lane  v.  Missouri  Pac.  Ry.  Co.,. 
132  Mo.  4,  21,  33  S.  W  645-650  (1895). 

A'eir  Jersey. —  Bower  v.  Bower,  78  X.  J.  L. 
387,  74  Atl.  522  (1909).  rev'g.  judg.  (Ch. 
1908)  69  Atl.  1077. 

\ew  York — Jackson  v.  Warford  (X.  Y. 
1831),  7  Wend.  62,  66. 

\orth  Carolina. —  Lee  v.  Pearce,  68  X.  C. 
76,  85  (1873). 

Oklahoma. Johnson    v.    Territory,    5   Okl. 

695,  50  Pac.  90   (1897). 

I'ennsylranla. —  In  re  Brown's  Estate,  8 
Philadelphia  197  (1871). 

Konlh  Carolina.—  Pell  v  Ball's  Ex'rs  (S.  C. 
1S40),  Cheves.  Eq.  99.  123. 

\Vent  \'irffinia. —  State  v.  Heaton.  2.3  W  Va 
773,  782  (1883). 

Wisconsin. —  Welch  v  Saekett.  12  Wis  243. 
25 7  (I860) 

rnited  tHnfes  —  U.  S.  v.  Sykes.  58  Fed. 
1000.  1004  (1893) 

See  also,  other  cases  in  different  jurisdic- 
tions cited  in  2  Chamh .  Ev..  n.  3:  As  to 
the  distinction  between  inference  and  pre- 
sumption and  colloquial  uses  of  the  term 
presumption.  Id. 


V\  here  the  assumption  is  made  under  a  rule 
of  law  it  may  propeny  be  regarded  as  one  of 
procedure  and  is  properly  styled  a  "  pre- 
sumption of  law."  W'here,  on  the  other  hand, 
there  is  no  rule  of  law.  procedural  or  sub- 
stantive, in  the  matter,  the  assumption  is 
one  of  administration  (§§  372  et  seq. ;  1 
Chamb.,  Ev  ,  §§  174  et  seq.)  or.  at  most,  in 
point  of  fixity,  one  of  practice,  i  §  71;  1 
Chamb.,  Ev.,  §  173.)  See  also,  as  to  Pre- 
sumptions of  Law  and  Assumptions  of  Ad- 
ministration and  Logic  v.  Law,  2  Chamb., 
Ev.,  §§  1083,  1084,  and  notes. 

3.  2  Chamberlayne,  Evidence,  §   1083-1089. 

4.  §  444;  2  Chamb.,  Ev.,  §  1082. 

5.  "A   presumption    (of   law)     (unless   de- 
clared by  law  to  be  conclusive)    may  be  con- 
troverted   by    other    evidence,    direct    or    in- 
direct,  but   unless   so   controverted,   the   jury 
are  bound  to  find  according  to  the  presump- 
tion."    In    re    Bauer's    Estate,    79    Cal.    304. 
307,  21  Pac.  759   (1889). 

6.  Or,  as  has  been  said,  until  it  is  disproved. 
First  Xat.   Bank  v    Adams,  82  Xeb.  805,   118 
i\.  W.   1055    (1908). 

7.  People  v.  Wong  Sang  Lung,  supra. 

8.  §§  4S6  ct  seq.:  2  Chamb  ?  Ev..  §§   1184 
et  seq.     The  constituent    facts  grounding  the 
inference  must   themselves  be  proved   to  the 
satisfaction     of    the    jury,    unless    admitted. 
Keclamation  Dist.  Xo.  70  v   Sherman.  11  Cal. 
App    399.    10.-)    Pac.   277    (1909). 

9.  "  Presumptions,    or.    as   they    are    some- 
times  called.   '  intendments   of   the   law.'   are 
inferences    or    positions    established    for    the 
most   part    by   the   common   and   occasionally 
by  the  statute  law.  and  are  obligatory  alike 
on    judges    and    jury  ''     Doane    v     Glenn.     1 
Colo.   495.   504    (1872)       For   example,   from 
a  lawfnl  marriage  and  the  birth  of  offspring 


295 


LEGITIMACY. 


§  446 


and  indispensible  part  in  the  correct  decision  of  many  questions,  but  they  are 
out  of  place,  when  the  facts  are  known,  or  are  admitted."10 

A  Limited  Number. —  Unlike  inferences  of  fact,  }1  or  administrative  as- 
sumptions of  procedure,12  presumptions  of  substantive  law  are  limited  in  num- 
ber, and  are  properly  considered  in  connection  with  the  several  branches  of 
law  to  which  they  relate  and  will  not,  therefore,  beyond  a  reasonable  number 
of  illustrative  instances,  be  deemed  to  fall  within  the  scope  of  the  present 
treatise.  The  creation  of  future  presumptions  of  law  lies  mainly  with  the 
legislature.  The  work  of  the  courts,  in  this  respect,  will  more  properly  deal 
with  the  announcement  of  assumptions  of  administration,  which  do  not  deal 
with  specific  branches  of  the  substantive  law.13 

Civil  Cases. —  Very  many  of  the  civil  branches  of  substantive  law  have  rules 
of  presumption  announcing  that  a  prima  facie  probative  force  will,  until  evi- 
dence to  the  contrary  is  introduced,  be  provisionally  attached  to  a  given  state 
of  facts.14  That  is,  a  certain  inference  will  be  drawn  from  it,  unless  and  un- 
til countervailing  evidence  is  introduced. 

§  446.  [Presumptions  of  Law];  Presumption  of  Legitimacy  —  Marriage.15 — 
The  presumption  of  legitimacy,  under  which  a  child  born  during  the  cohabita- 
tion of  a  married  couple  will  be  taken,  prima  fa^ie,  to  be  legitimate,  provided 
the  husband  could  have  had  access,  is  properly  spoken  of  as  a  presumption  of 


during  cohabitation  the  presumption  of  law 
is  that  the  children  are  legitimate.  When 
conflicting  evidence  is  introduced  upon  the 
point  covered  by  the  presumption  of  law,  the 
presumption  itself,  the  rule  of  law,  is  functus 
ofticio.  It  has  done  its  work.  People  v. 
Wong  Hang  Lung,  supra;  Schaub  v.  Kansas 
City  Southern  Ry.  Co.,  133  Mo.  App.  444,  113 
S.  W.  1163  (1908).  The  entire  inquiry  is 
now  one  of  logic,  as  to  inferences  of  fact. 
Turner  v.  Williams,  202  Mass.  500,  89  N.  E. 
110  (1909);  Lynch  v.  Metropolitan  St.  Ry. 
Co.,  112  Mo.  420,  433,  20  S.  W.  642  (1892). 

Burden  of  Proof  and  Burden  of  Evidence. 
—  The  effect  of  the  establishment  by  a  party, 
in  his  own  favor,  of  a  presumption  of  law,  or, 
more  properly  of  the  facts  regarding  one.  is 
not  to  shift  the  burden  of  proof.  Citizens' 
ins.  Co.  v.  Helbig,  138  111.  App.  115  (1907), 
judg.  aff'd  Helbig  v.  Citizens'  Ins.  Co.,  234 
111.  251,  84  X.  E.  897  (1908).  The  burden 
of  evidence,  however,  being  discharged  by 
the  person  so  establishing  a  presumption  of 
law  may  properly  be  said  to  have  shifted. 
Id. 

10.  Erhart  v.  Dietrich,  118  Mo.  41 «.  427, 
24  S.  W.  188  (1893).  "The  office  of  pre- 
sumptions is  not  to  overthrow  admitted  facts 


but  rather  to  supply  the  absence  of  facts; 
there  can  be  no  presumption  against  ascer- 
tained and  established  facts."  Con  way  v. 
Supreme  Council  Catholic  Knights  of  Amer- 
ica, 137  Cal.  384,  389,  70' Pac.  223  (1902). 
Any  inference  of  fact  previously  assumed  as 
prima  facie  correct  by  the  presumption  of  law 
continues  to  exert  its  full  logical  effect.  As 
to  the  Evolution  of  Substantive  Law:  Rulings 
as  to  Prima  Facie  Case,  see  2  Chamb.,  Ev., 
§§  1086,  1087. 

11.  §§  414  et  seq.;  2  Chamb.,  Ev.,  §§  1026  et 
seq. 

12.  §§  486  et  seq.;  2  Chamb.,  Ev.,  §§  1184 
et   seq. 

13.  Presumptions     of     law     are     usually 
grounded   upon   public   policy,   social   conven- 
ience, or  safety,  and  are  either  such  as  the 
statutes  expressly  declare,  or  such  inferences 
as    the    courts    generally    in    their    legal    ex- 
perience have  recognized  and  sanctioned  in  the 
administration  of  justice.     Modern  Woodmen 
of  America  v.  Craiger.  17-">  Ind.  30.  02  X.  E. 
113.  rev'i  iudg.   (App.  1909)  90  X   E.  84.     See 
also,  2  Oi«mb.,  Fv..  §  1088. 

14.  Sheldon  v.  Wrisrht.  SO  Vt.  29S.  67  Atl. 
807    M907):   2  Chamb..  Ev..  §   1089. 

15.  2  Chamberlayne,  Evidence,  §  1089a. 


§  446  PRESUMPTIOK  OF  LAW.  296 

law.  It  is  a  recognized  part  of  the  substantive  law  of  the  family  that  a  child 
born  during  the  coverture  of  a  married  couple  "  within  the  espousals,"  as  the 
early  phrase  went,  "  deinz  les  espousailts,"  will- be  presumed  to  be  the  legitimate 
child  of  persons  so  cohabiting.10 

"Inter  quatuor  maria." — If  the  husband,  pater  quern  ituptiae  dvmonstrant, 
was  within  the  four  seas,  inter  quatuor  maria,  of  England  during  the  time 
when  the  child  might  have  been  begotten,  the  latter  was  legitimate.17  This 
continued  to  be  the  rule  as  announced  by  the  common  law,  which  in  this  par- 
ticular, was  in  sharp  contrast  with  that  of  Holy  Church,18  from  the  time  of 
Bracton  through  the  seventeenth  century.  Even  the  clearest  proof  of  the 
wife's  adultery  did  not  suffice  to  bastardize  the  spurious  offspring.  If  he  were 
not  impotent,  or  under  a  decree  of  divorce  from  his  wife.19  the  husband,  if 
within  the  four  seas  of  England,  was  conclusively  presumed  2"  (the  expression 
may  be  noted)  to  be  the  father  of  his  wife's  children.  After  the  seventeenth 
century,  the  rule  of  the  inter  quatuor  maria  may  be  regarded  as  abandoned.21 

Proof  under  the  Modern  Use  of  Reason. —  Modern  methods,  those  of  reason, 
venture  boldly  to  enter  upon  the  inquiry  as  to  whether  the  husband  was 
under  the  circumstances  disclosed  in  the  evidence,  actually  the  father  of  a 
child  begotten  in  coverture.  In  attempting  this  task,  the  law  avails  itself 
of  nil  probative  facts  with  a  single  exception,  a  reservation  of  doubtful  ex- 
pediency, to  be  mentioned  hereafter.22  If  it  may  be  reasonably  found  by 
the  tribunal  of  fact  that  the  husband  could,  in  the  nature  of  things,  have  been 
the  father  of  the  child,  the  presumption  of  substantive  law  assuming  legitimacy 
will  be  allowed  to  stand. 2:!  In  few  connections,  is  the  intimate  relation  between 
the  substantive  law  and  the  so-called  presumption  of  law  more  clearly  shown 
than  in  the  present.24 

16.  2  Chamb.,   Ev.,   §    1089a.  424,  61  X.  E.  631   (1901)  :  Bowman  v.  Little, 

17.  36  Hen.  VI,  pi.   14,  p.  22    (1457).  101   Md.   273,   61   Atl.    1084    (1905);    Rabeke 

18.  The  Canon  or  Ecclesiastical  Law,  which  v.  Baer,  115  Mich.  328,  73  X.  W.  -242   (1897)  •. 
was  usually  called  by  early  English  lawyers  Matthews'  Estate,    153   X'.   Y.   443,  47   X*.   E. 
'  the  law  of  the  Holy  Church,'  thou»h  founded  901   ( 1897)  ;  Locust  v.  Caruthers.  23  Okl.  373. 
upon   the   Civil   Law,   was   at   variance   both  100   Pac.   520    (1899):    Bunel   v.   O'Day.    125 
with   the   Civil   and   Common    Law    with    re-  Fed.  303    (1903):   2  Chamb..  Ev.,  §  1089b,  n. 
spect   to   Adulterine   Bastardy,   for   it   looked  3,  and  cases  cited. 

only    to    the    actual    paternity.     Xicolas    on  24.  Birth   of  issue  shortly  after  marriage 

Adulterine  Bastardy,   p.  2:    Bracton,   Lib.   1,  is  an  exception  to  the  rule  and  stands  upon 

c.  9,  f.  fib:  Lit.  II  c.  29.  pp.  63.  70.  its    own    facts.     R.    v.    Luffe.    8    East.     193 

19.  18  Hen.   VI,   Hil.   T.   pi.   3,   pp.   32.   34  (1807 K     This  law  seems  well  settled.     Grant 
(1440):   "Rolle's   Abr.  358,  Tit.   Bastards,  let-  v.     Stimnson.     79     Conn.     617.     6(1     Atl.     166 
ter  B.  (1907):    Dennison    v.    Pa<re.   29    Pa.    420,    72 

20.  §§  470  et  seq.:  2  Chamb.,  Ev.,  §§  1160  Am.   Dec.   6-14    (1857):    Wallace    v.    Wallace, 
et'seq.  137    Iowa    37.    114    X*.    W.    527.     The    courts 

21.  2  Chamb.,  Ev..  §  1089a,  n.  8.  and  cases  will  not  indulge  the  presumption  that  a  mar- 
cited,  rin^e   was  entered   into   merely  to   avoid   the 

22.  §  449;  2  Chamb..  Ev..  §  1089e.  possible  consequence*  of  a    pending  bastardy 

23.  Mills'    Estate,    137    Cal.    298.    70    Pac.  proceeding,    but    will    assume    that,    had    the 
91    (1902);    Robinson   v.   Ruprecht,    101    111.  alleged  father  doubted  his  paternity,  he  would 


297 


LEGITIMACY. 


i§ 


Marriage1. —  There  is  also  a  presumption  of  a  legal  marriage  from  proof 
of  a  marriage  ceremony  in  due  form  25  or  even  from  cohabitation  as  man 
and  wife.1'" 

«i  447.  [Presumptions  of  Legitimacy] ;  Proof  of  Access. —  If  personal  access  on 
the  part  of  the  husband  is  shown  at  a  time  when  the  child  might  have  been 
begotten,  it  will  be  assumed  that  sexual  intercourse  took  place,  unless  such  an 
occurrence  is  clearly  negatived  by  the  attendant  circumstances.27  "  Access  like 
any  other  important  fact,  must  be  satisfactorily  established,  but  access  is  not 
to  be  presumed  because  the  parties  were  within  such  distance  that  access  was 
possible."  2- 

§  448.  [Presumption  of  Legitimacy] ;  Rebuttal  of  Presumption.29 —  That  the 

oiid  marriage  is  legal  as  the  presumption 
of  the  continuance  of  the  first  marriage  is 
outweighed  by  the  presumption  of  innocence 
as  the  second  marriage  was  entered  into  in 
good  faith  and  all  parties  have  acted  upon 
an  assumption  of  its  validity.  Shepard  v. 
Carter,.  86  Kan.  125,  119  Pac.  533,  38  L.  R. 
A.  (X.  S.)  568  (1911).  "o  show  that  a 
second  marriage  is  bigamous  the  burden  is 
upon  the  state  to  show  that  the  first  wife  is 
still  alive  and  this  burden  is  not  met  by 
evidence  that  the  first  wife  was  alive  four 
and  a  half  years  before.  The  presumption 
of  continuance  of  life  must  give  way  to  that 
of  innocence.  Dunlap  v.  State,  126  Tenn.  415, 
1-50  S.  W.  86,  41  L.  R.  A.  (X.  S.  I  1061 
(1912).  The  mere  fact  that  a  man  having 
a  living  wife  in  Tennessee  had  married  an- 
other woman  in  Alabama  does  not  raise  an 
absolute  presumption  that  he  had  obtained  in 
Alabama,  or  at  some  place  other  than  Ten- 
nessee, a  divorce  on  some"  ground  recogni/ed 
in  the  forum.  Xeely  v.  Tennessee,  etc.,  R. 
Co.,  145  Ga.  363,  89  S.  E.  325.  L.  R.  A.  1916 
F  819  H916). 

26.  The  presumption  of  marriage  from  co- 
habitation and  reputation  is  rebutted  by  evi- 
dence that  the  man  married  another  woman 
without    protest   from   the   reputed   wife   and 
where  there  is  an  absence  of  other  evidence 
of  marriage  which  could  easily  have  been  pro- 
duced if  in  existence.     Farley  v.  Frost-John- 
son  Lumber    Co..    133   La.   497,    63    So.    122, 
L.   R    A.    191.i    A    200    M913K 

27.  2  Chambprlayne.  Evidence.  §   1089c.  n. 

1.  and  cases  oitod. 

28.  2  Chamberlayne,  Evidence,  §   1089c,  n. 

2.  and  cases  cited. 

29.  2  Chamberlayne,  Evidence,  §  1089d. 


have  resisted  the  prosecution  and  refused  to 
marry.  Hall  v.  Gabbert,  213  111.  208,  72 
X.  E.  806  (1904). 

25.  Evidence  of  a  marriage  ceremony  in 
due  form  puts  on  the  other  side  the  burden 
of  proving  that  the  marriage  was  illegal. 
Goset  v.  Goset,  112  Ark.  47.  164  S.  W.  759, 
L.  R.  A.  1916  C  707  (1914). 

Effect  of  Second  Marriage. —  The  burden 
is  on  one  who  seeks  to  show  the  illegality  of 
a  marriage  to  prove  such  illegality  which 
presumption  is  not  overcome  by  mere  proof 
of  a  second  marriage  and  the  parties  attack- 
ing such  second  marriage  have  the  burden 
of  proof  to  show  that  neither  party  to  the 
first  marriage  had  obtained  a  divorce.  Jones 
v.  Jones.  Okla  (1917).  164  Pac  463,  L. 
R.  A.  1917  E  921.  The  tendency  of  the 
courts  is  to  hold  a  second  marriage  valid, 
and  if  it  has  not  been  questioned  for  many 
years  its  validity  will  not  be  overcome  by 
mere  proof  of  a  prior  marriage.  Tn  such 
case  the  presumption  in  favor  of  innocence 
and  morality  will  prevail  over  the  presump- 
tion of  the  continuance  of  the  former  mar- 
riage and  it  will  be  presumed  that  the  first 
marriage  was  not  binding  at  the  time  of  the 
second.  Proof  of  subsequent  marriage  alone 
makes  out  a  prima  facie  case  of  its  validity. 
To  overcome  this  prima  facie  case,  proof  of 
a  former  marriage  is  required  and  also  evi- 
dence from  which  it  may  be  concluded  that 
it  has  not  been  dissolved  by  death  or  divorce. 
ShaetTer  v.  Richardson.  125  Md.  88.  93  All. 
391.  L.  R.  A.  1015  E  186  (1915).  Where 
a  man  leaves  the  state  saying  that  he  will 
get  a  divorce  and  returns  after  two  years 
-avinsr  that  he  has  one  and  later  marries 
niain  and  lives  with  the  second  wife  four- 
teen years  the  presumption  is  that  the  sec- 


§  449 


PBESUMPTIOX  OF  LAW, 


inference  of  fact  that  children  born  during  the  coverture  of  a  married  woman 
were  begotten  by  her  husband  may  be  rebutted  is  unquestionable/"1  Among 
facts  showing  that  children  born  during  coverture  could  not  have  been  the 
children  of  the  husband  are  a  second  marriage  by  the  mother  supposing  a 
former  husband  to  be  dead/'1  or  a  continuous  absence  by  the  husband,"2  espe- 
cially at  sea  or  in  foreign  parts,  during  the  period  when  he  might,  in  course 
of  nature,  have  been  the  father  of  the  child.  A  difference  in  race  between  the 
parents  and  the  child  as  where  the  married  pair  are  white  and  the  child  is  a 
mulatto  ::;!  has  been  held  to  rebut  the  presumption  of  legitimacy.  The  question 
in  each  case  is,  of  course,  as  to  actual  access  on  the  part  of  the  husband.  That 
fact,  being  proved,  or  disproved,84  the  judicial  inquiry,  as  a  rule,  ceases/''5 

§  449.  [Presumption  of  Legitimacy] ;  Limitation  upon  Scope  of  Evidence.30 — 
.X either  of  the  married  couple  is  permitted  to  testify  to  the  fact  of  actual 
non-access  ,to  the  wife  on  the  part  of  her  husband.  The  modern  rule  dates 
from  the  time  of  Lord  ALanstield  who  announced,  in  1777 :37  "  It  is  a  rule 
founded  in  decency,  morality,  and  policy,  that  they  (husband  and  wife)  shall 
not  be  permitted  to  say  after  marriage  that  they  have  had  no  connection,  and 
therefore  that  the  offspring  is  spurious/'  This  rule  was  later  adopted  in 
affiliation  proceedings  :!s  and  obtained  much  vogue  and  popularity/™  Indeed, 
it  may  be  regarded  as  settled  law.4"  As  to  the  fact  of  non-access  alone,  hovv- 


30.  Bunel  v.  O'Day,  125  Fed.  303    (1903); 
McXeely   v.   McXeely,   47   La.   Ann.    1321,    17 
So.   928    (189.1),    in    Louisiana    after   an    in- 
terval  of    300   days   after   separation    of   the 
married  couple  the  presumption  of  legitimacy 
becomes    rebuttable    for    after-born    children 
of  the  wife. 

31.  St.   Andrews  v.  St.  Brides,   1   Stra.  51 
(1760). 

32.  Mebane  v.  Capehart,   127  X.  C.  44,  37 
S.   E.   84    (1900);   In  re  Divver's  Estate,  22 
Pa.  Super.  Ct.  436    (1903). 

Where  the  husband  and  wife  are  living 
apart  there  is  no  presumption  of  law  that 
any  child  born  to  the  wife  is  legitimate  as 
was  formerly  the  rule.  Probable  evidence 
that  the  husband  had  no  chance  of  access 
to  the  wife  is  now  admissible,  following  the 
English  rule  in  the  English  House  of  Lords 
in  Morris  v.  Davies,  5  Clark  &  F.  163.  State 
v  Shaw,  89  Vt.  121,  94  Atl.  434.  L.  E.  A. 
1915  F  1087  (1915) 

.  Impotency.  moreover,  on  the  part  of  the 
husband  still  rebuts  the  presumption  of  legiti- 
macy. Impossibility  of  procreation  must, 
however,  be  established,  in  order  to  justify 
the  affirmative  action  of  the  court.  Even  a 
high  degree  of  improbability  is  not  sufficient 


for  the  purpose  of  bastardizing  the  offspring. 
2  Chamb,  Ev.,  §   1089d. 

33.  Bullock   v.   Knox,   96   Ala.    195,   11   So. 
339   (1892). 

34.  Wallace  v.   Wallace,  73  X.  J.  Eq.  403, 
67  Atl.  612    (1907). 

35.  The  presumption   of   legitimacy  cannot 
be   rebutted    by    showing   that   the   wife   was 
guilty  of  adultery  during  the  period  of  gesta 
tion.     Town   of   Canaan   v.   Avery,   72   X.   H. 
591,  59  Atl.  509   (1904). 

36.  2  Chamberlayne,  Evidence.  §   1089e. 

37.  Goodright  v.  Moss,  Cowp.  591    (1777). 

38.  R.  V.  Kea.  11  East   132   (1809). 

39.  Legge  v.  Edmonds,  25  L.  J.  Ch.  125,  135     ' 
(18561  ;   R.  v.  Sourton,  5  A.  &  E.  180,  K.  B. 
(1836). 

40.  Mills'  Estate,  supra;  Abington  v.  Dux- 
bury,  105  Mass.  287   (1870)  :  Raheke  v.  Baer, 
supra;  Chamberlain  v.  People,  23  X.  Y.  85,  88 
(1861);     Boykin    v.    Boykin,    70    X.    C.    262 
(1874)  ;  Bell  v.  Terr.,  8  Okl.  75,  56  Pac.  853 
(1899);    Tioga    v.   South    Creek,   75    Pa.   433 
(1874):    Shuman    v.    Shuman,    83    Wis.    250. 
53  X.  W.  455   (1892)  :  Mulligan  v.  Thompson. 
23   Ont.    (Can.)    54    (1892):    2   Chamb.,   Ev.. 
§  1089e.  n.  5,  and  cases  cited. 


LEGITIMACY.  §§  450,451 

ever,  is  silence  imposed  by  tlie  law  upon  the  married  pair.4  Thus  an  illegal 
marriage  ceremony  42  or  the  non-existence  of  any  marriage  ceremony  what- 
ever,4-'5 may  be  stated  by  either  one  of  the  married  couple  although  the  neces- 
sary effect  of  the  testimony,  if  believed,  would  be  to  bastardize  the  offspring. 
Either  parent  is  quite  as  competent  to  testify  that  a  particular  child  born 
during  the  coverture  is,  in  fact,  illegitimate  44  as  to  testify  that  he  or  she  is 
legitimate.45 

§  450.  [Presumption  of  Legitimacy] ;  Inferences  of  Fact.46 —  Inferences  of  fact 
are  to  be  distinguished  from  this  presumption  of  law.  As  an  inference  of 
fact,  for  example,  legitimacy  may  be  presumed  from  recognition  of  the  child 
by  its  supposed  parents.47  Husband  or  wife,  may,  as  witnesses,  depose  to 
the  existence  of  facts  from  which  the  inference  of  illegitimacy  may  properly 
be  drawn,  or  which  tend  to  exclude  the  conclusion  that  the  child  is  legitimate.48 
With  this,  however,  the  presumption  of  law  is  not  concerned.  So  also,  there 
is  said  to  be  no  presumption  that  certain  alleged  heirs  are  the  legitimate 
descendants  of  the  ancestor.49 

§  451.  Presumptions  of  Law;  Presumption  of  Death;  Continuance  of  Life.50 

Prominent  among  presumptions  of  law,  properly  so-called,  under  the  rules 
regulating  the  rights  of  persons,  is  the  so-called  presumption  of  death  from 
seven  years  absence  from  home  with  no  tidings  received  by  those  who  naturally 
would  have  heard  had  the  person  in  question  been  alive.  It  is  not  disputed  that 
it  is  a  fair  inference  of  fact,  i.e.,  a  presumption  of  fact,51  that  a  person  mav, 
with  greater  or  less  probative  force  according  to  varying  circumstances,  be 
taken  as  being  alive  shortly  after  he  is  proved  to  have  been  so.  Xor  would 
it  be  doubted  that  with  the  same  variations,  the  inference  of  fact  though  with 
constantly  diminishing  force,  would  operate  in  favor  of  life  for  a  considerable 
time/'2  The  presumption  of  the  inference  of  life  applies  equally  to  the  young; 53 

41.  Chatham  v.  Mills,  137  Cal.  298  (1902)  ;       v.  Caruthers,  supra;  2  Chamh.,  Ev.,  §  1089f. 
1     bort   v.  Greenwalt.  44   Mich.  245.  6  X.  W.       n.  1,  and  cases  cited. 

u.">4  (1880);  Chamberlain  v  People,  supra;  48.  Poulett  Peerage,  L.  R.  (1903)  App.  Cas. 
I  io«ra  v.  South  Creek,  supra.  395  (abandonment  of  wife  upon  her  confes- 

42.  Darcy's   Infants,    1 1    Ir.   C.   L.    R.   298       sion   of  pregnancy   by   another ) 

(I860).  49.  Osborne    v.    McDonald.    159    Fed.    791 

43.  Xiles    v.    Sprapnie,    13    Iowa    198,    207        (1908). 

(  1862)  ;  Allen  v.  Hall,  2  Xott  &  McC.   (S.  C.)  50.  2  Chamberlayne     Evidence,     §§      1090, 

114    (1819).  1091. 

44.  Murray  v    Milner,  L.  R.  12  Ch    D.  845  51.  §  415:   2  Chamh  .  Ev  .  §  1027. 
MS79).     See,   however.    In   re   Mills'   Estate,  52.  §§   417.   420:    2   Chamb..   Ev  .   §§    1034, 
137  Cal.  298  1042:  Hartley  v.  Boston  &  X.  St.  Ry.  Co..  198 

45.  Cooley  v.  Cooley.  58  S.  C.  168,  36  S.  E.  Mass.    163.   83   X".    E.    1093    (1908)  :    Hall   v 
563    (1900),   rehearing  denied.  58   S    C.   582,  Hall.  122  X.  Y.  Supp.  401   (19'n)  :  2  Chamb, 
37  S    E.  226.  Ev..  §  1090.  n.  4.  and  cases  cited. 

46.  2  Chamberlayne.  Evidence.  §  1089f.  53.  Lewis    v.     People.     87     111.     App.     588 

47.  Zachmann    v.    Zachmann.   201    Til.   388,  (1899);    Mauley   v.    Pattison.    73   Miss.   417, 
66  X.  E.  256    (1903):   Dennison  v.   Page.  29  19  So.  236,  55  Am.  St.  Rep.  481    (1895). 
Pa.   420,    72   Am    Dec    644    (1857);    Locust 


§§  452,453  PRESUMPTION  OF  LAW.  300 

and  the  old,54  the  sick 55  and  the  well,  the  absent  and  those  near  at  hand. 
Inference  of  Continuance  of  Life  Rebutiable. —  So  far  as  it  is  an  inference 
of  fact,  the  presumption  of  the  continuance  of  life  is  controlled,  modified  or 
overbalanced  by  facts  from  which  a  contrary  inference  may  logically  arise.50 
The  probative  force  of  the  presumption  of  eontininnce  of  life  is,  therefore,  in 
a  state  of  constant  change.'"'7 

§  452.  [Presumption  of  Death] ;  An  Inference  of  Varying  Probative  Force.58 — 
Every  loss  in  probative  force  of  the  presumption  or  inference  of  continuance 
adds  to  that  of  the  inference  of  death  and  vice  versa.  It  necessarily  follows 
that  a  point  of  time  is  certain  to  arrive  at  which  the  evidentiary  power  of  the 
presumption  of  death  will  overcome  that  of  the  continuance  of  life.59  Later 
on,  a  second  point  of  time  is,  as  a  matter  of  logic,  certain  to  be  reached  at 
which  the  presumption  or  inference  of  death  has  become  prima  facie  valid.  As 
a  matter  of  experience  alone,  however,  no  precise  point  of  time  could  well  be 
agreed  upon  by  the  courts  as  that  at  which  a  presumption  of  law  should  begin 
to  operate.'10  The  prima  facie  point  in  the  proof  might  well  arise  in  different 
cases,  at  very  divergent  points  of  time.01  The  courts,  therefore,  instead  of 
announcing  a  rule  of  presumption,  i.e.,  a  presumption  of  law,  adopted  the 
time  limit,  seven  years,*'2  of  a  statute  passed  for  another  purpose  6:$  and  ap- 
plied it,  generally,  to  all  cases  of  unexplained  absence,  where  one  is  presumed 
to  be  dead. 

§  453.  [Presumption  of  Death] ;  Adoption  of  Rule  in  America.'14 —  The  pre- 
sumption of  law  that  one  absent  for  seven  years  without  tidings  by  his  family 
and  friends  will  be  assumed  to  be  dead  is  universally  adopted  in  the  L'nited 
States,'15  and  Canada/16  Even  where  the  legislature  has  not  intervened  a 

54.  \Vatson  v.  Tindal,  24  Ga.  404,  71  Am  63.  This   was   done  by   the   English   court> 
Dec.  742   (1858).                                                             (in  re  Benjamin,  1  Ch.  723.  71  L.  J.  Ch.  319, 

55.  Hall's    Deposition,    11    Fed.    Cas.    No.       80   L.   T.   Hep     (N.  S.)    387    (1902);    Wilson 
•  5,924,  1  Wall.  Jr.   (U    S)   85   (1S43).  v.    Hodges,    2    East    312,    G    Rev.    Rep.    427 

56.  Hyde    Park    v.   Canton.    130   Mass.    505  (1802))    taking  as  a  basis  the  Statute  of   1 
(1881)  ;    Davie   v.    Briggs.   07    U.    S.   028,   24  James   1,  c    XI,  relating  to  prosecutions  for 
L.  ed    1086    (1878)  :   2  Chamb.,  Ev..   §   1001,  adultery  and  practically  extended  by  19  Car. 
n.  1.  and  cases  cited.  2,  c.   6  to  cases  of  absent  life  tenants.     Doe 

57.  Hyde  Park  v    Canton,  supra;  2  Chamb..  d.    Banning   v.   Griffin,    15    East    203    (1812K 
Ev.,   §    1091,   n.   2,   and   cases   cited.  See   an   interesting   statement    of   the   Origin 

58.  2  Chamberlayne     Evidence,     §§      1002.  of   the   Rule   as   to   Seven    Years'   Absence,   2 
1003.  Chamb.,  Ev.,  §  100.3  and  notes. 

59.  Smith    v.    Knowlton,  11     X.    H.    191           64.  2  Chamberlayne.     Evidence.     §§     1094- 
(1840)  1096. 

60.  Cxech  v.  Bean.  72  N  Y.  Supp.  402,  35           65.   Hansen  v   Owens.  132  C,a.  648.  64  S.  E. 
Misc.  729   (1901)  800    (1009);   I?eedy  v.  Milli/en,   155   111.  636, 

61.  Merritt  v.   Thompson.   1    Hilt.    (N.   Y.)        40  X    E.    1028    (1895);    "Ryan   v.   Tudor.   31 
550    (1858)  :  2  Chamh  .  Ev  .  §  1002.  n.  3.  and       Kan     366.    2    Pac.    797    (1884):    Stock-bridge, 
cases  cited.  Petitioner,    145    Mass.    517.    14    X     E.    928 

62.  Doe  d.  Lloyd  v.  Deakin.  4  B.  &  A.  433        ('lSS7)  :    Gilroy   v.   Brady,    105   Mo.    20.",,    03 
(1821):  Doe  d    George  v.  Jesson,  6  East  84       S    W    270    '1006):    Barson  v.  Mulligan,   101 
(1905),  per  Ld.  Ellenborough.  C.  J.  N.   Y.   306,  84   N.   E.   75    (1908).   revg.    105 


301 


DEATH. 


§  454 


ruling  by  the  judge  to  this  effect  seems  a  reasonable  exercise  of  judicial  ad- 
ministration in  giving  certainty  to  substantive  law.'57  In  any  case,  tlu\  burden 
of  evidence  to  show  absence  and  other  facts  grounding  the  presumption  of 
death  rots  upon  him  who  alleges  it.';s 

§  454.  [Presumption  of  Death] ;  Statutory  Modifications.'1'' —  The  legislature 
has  introduced  certain  variations  upon  this  general  rule  of  presumption.7" 
Occasionally  a  less  time  than  seven  years  is  declared  to  be  sufficient  to  ground 
the  presumption  of  law.'1  Other  statutes  have  been  limited  in  operation  to 
residents  of  the  forum.  In  this  case,  application  to  other  persons  is  excluded.72 

Absence  from  Jurisdiction. —  It  has  been  frequently  required,  in  certain 
statutes,  .that  the  absence  of  the  person  in  question  must  be  shown  to  have 
been  in  another  state  or  country.73  But  to  require  affirmative  proof  that  the 
person  in  question  is  beyond  the  sea,  or  out  of  the  state  or  hiding  in  it, 
is  to  demand  the  impossible.  Evidence  showing  that  the  person  is  doiny 
anything  establishes  that  he  is  alive,  and  it  is  precisely  this  fact  which  the 
absence  of  all  tidings  tends  to  negative.74  Proof  of  other  facts  grounding  an 

N.  V  Supp  1106.  120  App.  Div.  879  (1007): 
/»  re  freeman's  Estate,  227  Pa.  154,  75 
All.  10«i3  (I'.UOl:  Davie  v.  briggs,  supra; 
2  Chamb.,  Kv  .  §  1094,  n.  1,  and  cases  cited  in 
24  other  states 

66.  C.iles    v.     Morrow,     1     Out.     Rep.    527 
(1882i. 

67.  ^  305   ct  seq  ;   1   Chamb  ,  Ev  ,  §§  556 
et  serf. 

68.  Smith  v    Combs,  49  N.  .1    Eq.   420,  24 
All.   9    (1S92).     That   there   is   no   probative 
force  in  the  presumption  itself,  see  2  C.'hamb., 
Ev.,    §    1095 :    State    v.    Henke.    58    Iowa    457 
(1882).     \o  Jterrrne   Presumption — The  ex- 
piration of  seven  years  without  tidings  gives 
rise    to    no    presumption    of    law    that    the 
person  at  home  is  dead.     "  If  a   man  leaves 
his   home  and   »oes   into  parts  unknown,  and 
remains  unheard  from  for  the  space  ot  seven 
years,  the   law  authori/es.   to   those  that   re- 
main, the  presumption  of  fact  that  he  is  dead : 
but    it    does    not    authori/e    him    to    presume 
therefore  that  any  one  of  those  remaining  in 
the  place  which  he  left  has  died.     Hyde  Park 
v.  Canton,  supra ;  2  Chamb  .  Fv..  §  lOflfi      The 
same  rule  applies  in   case  of  absence   longer 
ilian   seven  years.     Garwood  v.   Hastings.   38 
(  al.  216    (1899    (17  years) 

69.  2  Chamberlayne,     Evidence.     §§     1097, 
1098: 

70.  Matter  of  Board  of  Education.   173  X 
Y   321,  66  X.  E.  11   ( 1903),  dismissing  appeal 
77  X.  Y.  Supp.  1121   (1902) 

71.  Mo.  Rev.  St.,  1899,  §  3144:  Winter  v. 


Supreme  Lodge  K.  of  P.,  96  Mo.  App.   1,  69 

S    W.  662  ( 1902  i . 

72.  Irontou   Fire   Brick   Co    v.   Tucker,   26 
Ky    L.  Rep    532,  82  S.  W.  241    (1904*.     Even 
where     the     statutory     provision     is     broad 
enough  to  cover  a  voluntary  and  open  change 
of  domicile  and  residence  outside  of  the  state, 
the   intent   of  the  legislature  may   \>e  so  far 
followed   as   to   limit   the   application   of   the 
presumption  to  cases  where  the  absentee  has 
abandoned    his   home  which    still    remains   in 
the    jurisdiction    of   the    forum.     Latham    v 
Tombs   (Tex.  Civ.  App    1903).  73  S.  \V.  1060. 
In   such   a   case   it   is   necessary   to   establish 
conclusively  that  the  decadent  left  the  state. 
Bradley  v.  Modern  \\oodmen  of  America,  146 
Mo.  App.  428.  124  S.  \V.  69  ( 1910)  :  2  Chamb., 
Ev.,   §    1097.   n.   5,   and  cases  cited. 

73.  Louisville  Bank  v.   Public  School  Trus- 
tees.   83    Ky.    219     (1885);    Winter    v.    Sup. 
Lodge  K    of  P..  96  Mo.  App    1,  69  S.  W.  6fi2 
(1902)  :  Mo.  Rev.  St.    (1899)   §  3144:  Turner 
v    Sea  lock.  21    Tex.  Civ    App    594.  54   S    W. 
358    (1890).   Tex    Rev.  St.  art    3372    (1841): 
i    Chamh..  Ev  ,  ij   1098.  n     1.  and  cases  cited 

74.  "  All  the  proof  that  can  be  required  or 
expected    is.   that   the   party   has   been   absent 
from  the  state,  or  from  his  familv  or  home, 
and  has  not  been  heard  frnm  within  the  pe- 
riod prescribed  by  the  statute      The  effect  of 
the   statute   was   simply  to   define   the   limits 
and  direct  the  application  of  an  ancient  rule 
of  the  common  law.  which  had  been  adopted 
and    applied    by    existing    English    statutes 


§  455  PRESUMPTION  OF  LAW.  302 

inference  of  death  is  not  excluded  by  the  existence  of  such  statutes,75  unless 
there  be  affirmative  proof  that  the  person  has  left  the  state  or  country. 

§  455.  [Presumption  of  Death] ;  Proof  of  Death  by  Inferences  of  Fact.™— 
While  mere  length  of  time  during  which  the  presumption  of  continuance  of 
life  is  required  to  operate,  gradually  deprives  it  of  probative  weight,  mere 
lapse  of  time,  within  the  limits  of  possible  longevity,  will  not  establish  a  prima 
facie  case  in  favor  of  death.77  The  inertia  of  the  court  will  not  be  overcome, 
except  by  facts  from  which  an  inference  of  death  may  logically  be  drawn.78 
Occurrence  of  shipwrecks,79  the  outbreak  of  serious  epidemics  80  and  the  like  sl 
may  so  reinforce  the  inference  arising  from  lapse  of  time  as  with  it,  to  con- 
stitute a  case  in  favor  of  death  upon  which  a  jury  might  reasonably  act. 
The  force  of  all  such  inferences  is  greatly  enhanced  where  unavailing  efforts 
to  acquire  knowledge  as  to  the  whereabouts  or  existence  of  the  party  have 
been  made.*52  The  truth,  however,  of  this  proposition  is  not  affected  by  the 
circumstance  that  in  connection  with  other  facts,  length  of  unexplained  ab- 
sence, unheard  from,  will  lead  to  an  inference  of  death  even  before  the  expira- 
tion of  seven  years.83 

Proof  Must  Be  Competent. —  Any  fact  upon  which  an  inference  of  death  is 
to  be  based  must  be  proved,  as  a  matter  of  course,  by  legal  testimony.  For 
example,  hearsay  will  not  be  received.  Death  cannot  be  proved  by  showing 
that  a  witness  has  "  heard  "  that  the  person  in  question  was  drowned.84  That 

to  certain  specified  cases.     [Thome  v.  Rolff,  1  191    (1840):    Davie  v.  Briggs,  97    U.   S.  628 

Dyer   185a;   S.   C.  Bendloe  8G    (1894)].     The  (1878). 

statute  may,  perhaps,  have  been  further  de-  Sickness,    Bad    Bodily    Condition,    etc. — 

signed  to  convert  a  mere  presumption  of  fact  Leach   v.   Hall,  95   Iowa  611,   64   X.    W.   790 

into  a  presumption  of  law;   for  it  seems  to  (1885):    Chapman   v     Kimball,   83    Me.   38!), 

have  been  doubted  whether  at  common  law  the  22  Atl   254  ( 1891 )  :  Cambreleng  v.  Purton.  12 

presumption    of    death    arising    from    seven  X.  Y    Supp    741    (1890):  aff'd  125  X.  Y.  610, 

years'  absence  was  obligatory  on  juries.     But  26  N.  E.  907   (1891)  ;  2  Chamb.,  Ev.,  §  109!), 

in   this   respect,   the   rule  at   common   law   is  n.   5,   and   cases  cited. 

now     held     to     be     obligatory."     Osborn     v.  82.  Modern  Woodmen  of  America  v  Graber, 

Allen,  26  N.  ,T.  L.  388    (1857).  128  111.  App   585   (1906);  Renard  v   Bennett, 

75.  Louisville  Bank  v.  Public  School  Trus-  76   Kan.   848,  93   Pac    261    (1!)()8):    Bailey  v. 
tees,  supra.  Bailey,  36  Mich    181   (1877)  :  Dunn  v.  Travis, 

76.  2  Chamberlayne,  Evidence,  §  1099.  67  X.  Y.  Supp.  743.  56  App.  Div.  317   (1900)  : 

77.  §  420;  2  Chamb,  Ev.,  §  1042,  n.  9.  2  Chamb,  Ev  ,  §   1099,  n    6  and  cases  cited. 

78.  Magness  v.  Modern  Woodmen  of  Amer-  83.  Johnston   v.   Garvey,    124   X.   Y.    Supp. 
ica.    146    Iowa    1,    123    X.    W.    169     (1909):  278      (1910):     Puckett     v.     State,     1     Sneed 
Jacobs  v.  Fowler,  119  X.  Y.  Supp.  647   (1909).  (Tenn  )    355    (1853):    Washington  Safe,  etc., 

79.  Merritt  v.  Thompson,   1   Hilt.    (X.  Y.)  Co    v    Lietzow,  59  Wash.  281,   109  Pac.   1021 
550    (1858)  ;   Holmes  v.  Johnson,  42  Pa.  159  (1910)  :  2  Chamb,  Ev.,  §  1099,  n   6,  and  cases 
(1862);  Gibbes  v.  Vincent,  11   Rich.    (S.  C.)  cited. 

323   (1858);  2  Chamb.,  Ev.,  §  1099,  n.  3,  and  84.   Iberia   Cypress    Co.    v.    Thorgeson,    116 

cases  cited.  La    218,  40  So.  682    (1906):   Harris  v.  State 

80.  Chapman  v.  Kullman,  191  Mo.  237,  89  Bank,    97    X.    Y.    Supp     1044.    49    Misc.    458 
S.  W.  924   (1905)  (1906).     So  also,  acts  of  conduct  by  persons 

81.  Eagle  v.  Emmet,  4  Bradf.  Sur.   (X.  Y.)  within   or  without   the  family   of  which  the 
117    (1856);    Smith  v.   Knowlton,   11   N.  H.  person  whose  death  is  in  question  was  a  mem- 


303  DEATH. 

the  absentee  was  treated  in  legal  proceedings  as  a  nonresident  85  is  inadmissible. 
That  the  testator  on  whose  disposition  of  property  the  inquiry  arises  apparently 
supposed  that  the  alleged  deceased  person  was  living  within  seven  years,  is 
for  like  reasons,  in  itself,  a  matter  of  no  consequence.86 

Admissions. —  The  law  of  admissions  may  operate  to  estop  a  party  from 
claiming  that  a  given  person  is  dead.87 

Documents. —  The  same  rule  applies  to  documents.  A  certificate  of  death, 
to  be  valid,  must  be  properly  authenticated.88 

Relevancy. —  It  is  essential  to  admissibility,  also,  that  the  fact  offered  in 
evidence  should  be  relevant.89 

^  456.  [Presumption  of  Death] ;  Failure  to  Hear.90 —  So  instinctive  and  cus- 
tomary is  it-  that  one  away  from  home,  even  if  he  have  acquired  a  new  domicile 
elsewhere,  should  desire  to  communicate  with  family  and  friends,  that  when 
it  is  made  to  appear  in  evidence  that  such  persons  have,  without  assignable 
cause,  failed  to  hear  from  or  of  an  absent  member  of  the  family  for  a  con- 
siderable time  91  an  inference  of  fact  arises  that  he  is  dead.  The  bare  fact 
of  absence  for  seven  years  92  is  not,  as  has  been  seen,93  sufficient,  as  an  in- 
ference of  fact,  standing  alone,  to  make  a  prim  a  facie  case  overcoming  the  as- 
sumption or  presumption  of  the  continuance  of  life. 

Absence  of  Tidings  is  Important  Only  When  it  Exists  at  Absentee's  Home. — 
The  presumption  of  law  that  a  person  not  heard  from  for  seven  years  is  dead, 
arises  only  when  the  absence  of  the  person  in  question  is  from  his  home.94 
N\)  similar  inference*  of  fact  arises  where  the  person  has  changed  his  domicile, 
or  otherwise  transferred  home  ties  95  or  where  he  has  removed  to  a  different 
state  or  to  a  foreign  country."0  Only  ignorance  by  the  home  relatives  is  sig- 

ber,  concerning  his  absence  which  amount  to  (1869)  :  Batigh  v.  Boles,  66  Tnd.  376   (1879)  ; 

the  statement  of  an   inference  or  conclusion  Bowditch  v.  Jordan,   131    Mass.  321    (1881); 

on  their  part  that  he  is  or  is  not  dead,  are  Sheldon    v.     Ferris,    45    Harb.     (X.    Y.)     124 

to  be  rejected  as,  in  effect,  hearsay.     §§  857,  (1865);     Holmes    v.    Johnson.    42    Pa.    159 

et  seq.;  4  Chamb.,   Ev.,  §  2698  et  seq.     Ru-  (1862):    2   Chamb.,    Ev..   §    1100,    n.    1,   and 

mor  will  not  be  received.     Kennedy  v.  Mod-  cases  cited. 

ern    Woodmen    of   America,   243   111.    560,   90  92.  Brown  v.  Jewett,  18  N.  H.  230   (1846). 

N.  E.  1084    (1910);   2  Chamb.,  Ev.,  §  1099a.  93.  §  452:   2  Chamb..  Ev.,  §  1092. 

85.  Ferrell    v.    Grigsby     (Tenn.    Ch.    App.  94.  Stinchfield    v.    Emerson,    52    Me.    465, 
1899).  51  S.  W.  114.  83  Am.  Dec.  524    (1864). 

86.  Whiteside's  Appeal,  23  Pa.  114   (1854).  95.  Hansen  v.  Owens,  132  Ga.  648,  64  S.  E. 

87.  A   party  who  admits  that  a  person   is  800  (1909)  :  Wentworth  v.  Wentworth,  71  Me. 
alive   by    a    judicial    admission    will    not    be  72    (1880) 

permitted  to  deny   that   fact  however  strong  96.  McCartee  v.  Camel.  1  Barb.  Ch.  (X.  Y.J 

the  inference  of  death.     Doane  v.  McKenny.  2  455    (1846)  ;  Francis  v.  Francis,  180  Pa.  644, 

Xova  Scotia  328   (1854).  37  Atl    120.  57   Am.  St.  Rep.  66S    (1897);   2 

88.  Lucas  v.  Current  Eiver  Land  &  Cattle  Chamb..  Ev.,   1101.  n.   3.  and  cases  cited. 
Co.,  186  Mo    448,  85  S.  W.  359   ( 1905 ) .  Presumption  alone. —  To  raise  the  presump- 

89.  2  Chamb..  Ev.,   1099a.  tion  of  death  from  seven  years'  absence  the  in- 

90.  2  Chamberlayne,     Evidence,     §§     1100-  quiry  made  must  be  at  the  last  known  resi- 
1105.  dence   of   the   party   am]    where   one   becomes 

91.  Garwood     v.     Hastings.     38     Cal.     216  estranged  from  his  family  and  goes  to  another 


§  450 


PKESUMPTION  OF  LAW. 


304 


nificant  in  this  connection.07  .4.  fortiori  where  an  entire  family  remove  from 
the  old  home  the  .failure  of  the  relatives  remaining  there  even  after  a  long- 
time !)S  to  hear  from  the  head  of  the  family  does  not  raise  a  presumption  tkat 
they  are  all  dead.  Intimate  friends  may  properly,  however,  constitute  a  class 
whose  failure  to  hear  from  or  about  an  absentee  may  be  highly  significant/'9 

Actual  Receipt  of  Tidings. —  The  fact  of  tidings  of  an  absentee  or  other 
evidence  that  he  is  still  alive  at  a  certain  time,  may  be  proved  by  any  oiie.1 
Such  knowledge  destroys  the  inference  of  death  regardless  of  the  relation  to 
the  home  of  the  persons  possessed  of  it.2 

Informative  Considerations. —  Alany  considerations,  both  objective  and  sub- 
jective, tend  to  impair  the  probative  force  of  the  inference  of  fact  that  a  per- 
son is  dead  because  he  has  not  been  heard  from  by  his  family  and  friends  at 
the  place  of  his  former  residence  for  an  extended  time.  u  Considering  the 
great  length  and  breadth  of  this  country,  and  the  migratory  character  of  the 
people,  the  presumption  has  less  force  here  than  in  the  country  where  the 
law  on  this  subject  originated."  3 

Probability  of  Information. —  The  inference  that  a  party  is  dead  because 
he  has  not  been  heard  from  naturally  gains  in  probative  force  in  proportion  to 
the  probability  that  if  he  had  been  alive  he  would  himself  have  communicated 
with  his  friends  or  been  mentioned  in  some  message  by  others.4 


state  inquiry  at  the  residence  of  his  family- 
is  insufficient.  Marquet  v.  Aetna  Life  Ins. 
Co.,  128  Tenn.  213,  159  S.  W.  733,  L.  R.  A. 
1915  B  749  (19131. 

97.  Wentworth  v.  Wentworth,  supra:  Man- 
ley  v.  Pattison,  73  Miss.  417,   19  So.  236.  55 
Am.  St.  Rep   543  (1895)  ;  Thomas  v.  Thomas. 
1C   Neb.    553,   20   X     W.   846    (1884):    In   re 
Miller,  9  N.  Y.  Supp.  G39   (1888)  -.  2  Chamb., 
Ev.,  §  1101,  n.  4  and  cases  cited.     In  the  same 
way  where  relatives  living  elsewhere  than  at 
home  fail  to  hear  from  the  person   in  ques- 
tion  [Hit/  v.   Algreen.   170  111.  00.  48  N.  E. 
10(58     (1897)].    the    circumstance    is    not    re- 
garded as  significant.     Even  where  a  husband 
or  wife  move  away  from  the  former  home  of 
the  absentee,  their  failure  to  hear  from  him 
is     not     necessarily     probative.     Thomas     v. 
Thomas,   supra;   Gorham   v.    Settegast    (Tex. 
Civ,  App.  1906),  98  S.  W.  665. 

98.  Campbell   v.   Reed,   24  Pa.   498    (1855) 
(30  years)  ;  Manley  v.  Pattison,  supra.     The 
failure  of  strangers,  whether  at  or  near  the 
home   or   not,   is   devoid   of   probative   effect. 
State  v.  Teulon,  41  Tex.  249    (1874). 

99.  Wentworth       v.       Wentworth.      supra. 
Should  it  happen  that  the  absentee  leaves  no 
family   with    whom   he    is   on    friendly   terms, 
and  no  intimate  associates  with  whom  he  has 


been  in  the  habit  of  corresponding,  silence 
as  to  news  from  him  at  his  former  home  can 
scarcely  be  regarded  as  of  probative  impor- 
tance. In  re  Bd.  of  Education,  173  N.  Y.  321, 
66  V  E.  11  (1903):  Renard  v.  Bennett,  70 
Kan.  848,  93  Pac.  261  (1908).  The  fact  that 
e  postal  authorities  or  the  makers  of  direc- 
tories at  the  place  of  an  absentee's  former 
residence  do  not  know  him  is  but  slight  evi- 
dence that  he  is  dead.  Hall's  Deposition,  1 
Wall.  Jr.  .'I*.  S.)  85,  104  (1843). 

1.  Matthews   \.    Simmons,   49   Ark.    468,    5 
S.  W.  797    (1886). 

2.  "  There  is  no  rule  of  law  which  confines 
such   intelligence   to   any   particular   class  of 
persons.     It   is   not   a   question   of   pedigree." 
Flynn  v.  Coffee,  12  Allen  (Mass.)   133  (ISfifii. 
Where  a  person  has  been  heard  from  at  a  par- 
ticular time,  the  evidence  will  not  be  rejected 
as  hearsay.     Dowd  v.  Watson,  105  X.  C.  470 
(1890). 

3.  Smith  v.  Smith,  49  Ala.   156    (1873);   2 
Chamb.,  Ev.,  §  1103. 

4.  Robinson  v.  Robinson,  51    111.   App.  317 
•1893)  :   Sterrett  v.   Samuel,   108  La.  346,  32 
So.  428    (1902):  Lancaster  v.  Washington  L. 
ln>.  Co.,  62  Mo.  121    (1877)  :  Straub  v.  Grand 
Lodge,  etc.,  37  N    Y.  Supp.  750.  2  App.  Div. 
138  (1896),  aff'd  158  X.  Y.  729,  53  N.  E.  1132 


305 


DEATH. 


!§  457,458 


Shorter  Periods. —  The  prima  facie  inference  of  death  from  absence,  unless 
accompanied  by  information  among  family  and  friends,  may  arise  at  an  earlier 
time  than  seven  years  when  appropriate  facts  are  shown."'  Where  the  lapsed 
interval  is  less  than  seven  years  more  affirmative  evidence  of  death  is  needed.0 

§  457.  [Presumption  of  Death];  Subjective  Facts.-— The  habits,  tempera- 
ment, objects  in  life,  plans,  ideals,  and,  indeed,  anything  out  of  which  a  motive 
or  shade  of  motive  may  arise  in  case  of  a  person's  failure  to  communicate  with 
home  and  friends  may  be  received  by  the  court  so  far  as  it  tends  to  ascertain  the 
reason  for  the  conduct  in  question.8  Thus,  where  a  person  is  of  a  cheerful 
disposition,  attached  to  his  family  and  friends,9  a  shorter  period  of  absence 
will  ground  a  prima  facie  inference  of  death,  than  would  be  the  case  in  respect 
to  one  afflicted  with  domestic  troubles,  or  naturally  vicious  in  character  10  or  of 
a  gloomy  and  morose  disposition. 

Peculiar  Inducements  to  Communicate. —  In  general,  any  circumstance  which 
should  have  hastened  the  person  affected  in  communicating  with  family  and 
friends  may  be  shown  to  have  been  known  to  the  absentee.11 

§  458.  [Presumption  of  Death] ;  Unavailing  Search.12 —  The  probability  that 


(1899)  ;  Travelers'  Ins.  Co.  v.  Rosch,  23  Ohio 
Cir.  Ct.  491  (1902);  2  Chamb.,  Ev .,  §  1104, 
n.  1,  and  cases  cited.  In  proportion  as  the 
field  over  which  inquiries  are  to  be  made 
and  from  which  alone  information  can  be 
received  becomes  limited,  does  the  inference 
of  death  from  failure  to  hear  grow  stronger 
in  probative  force.  Id. 

5.  Tisdale  v.  Conn.   Mut.  Life  Ins.  Co.,  26 
Iowa  170,  96  Am.  Dec.  136  i  1868)  -.  Carpenter 
v.    Supreme    Council    L.    of   H.,   etc.,    79   Mo. 
App.  597    (1899)  ;   Cox  v.  Ellsworth,  18  Neb. 
664,  26  X.  W.  460,  53  Am.  Rep.  827    (1886)  ; 
Stouvenel  v.   Stephens.   2   Daly    (X    Y.)    319 
(1868)  ;  2  Chamb.,  Ev.,  §  1105,  n    1,  and  cases 
cited. 

6.  Garden  v    Garden.  2  Houst.    (Del  )    574 
(1871).     The  death  of  a  person  may  be  pre- 
sumed in  less  than  seven  years  from  circum- 
stances   showing    the    strong    probability    of 
his   death   as   where   a   man   with   no   known 
reason    for    disappearing    is   lost    and    track? 
leading  to  the  river  and  other  circumstances 
create  a  strong  presumption  that  he  ha=  been 
drowned.     Coe  v.   Xational   Council.   Pfi   Xeb 
HO.    145    X.    W.    112.    L.    R.    A.    101/5    V    744 
i  I!H4). 

7.  2  Chamberlayne.  Evidence.  §   1106. 

8.  Reedy  v.  Mil'lizen.  15.3  111    636.  40  X.  E. 
1028    (1895);    Tisdale  v.   Conn.   Mut.   L    Ins. 
Co.,  supra;  Behlmer  v   Grand  Lodge  A.  O.  I". 
W.,    etc.,    109    Minn.    305,    123    X.    W.    1071 


( 1909)  ;  2  Chamb.,  Ev.,  §  1106,  n.  1,  and  cases 
cited. 

9.  In    re    Koss'    Estate.    140    Cal.    282,    73 
Pac.  976    (1903):   Spahr  v.  Mut.  L.  Ins.  Co., 
98  Minn.  471,   108  X.   YV.  4    (1906);   Cox  v. 
Ellsworth,    supra:    Dunn    v.    Travis,    supra; 
Chapman  v.  Kullman,  191  Mo.  237,  89  X.  W. 
924   (  1905)  ;  2  Chamb.,  Ev.,  §  1106,  n.  3  and 
cases  cited. 

10.  In  re  Miller,  9  X.  Y.  Supp.  639  (1890), 
affd  147  X.  Y.  713   (1895).     So  also,  in  case 
of  a  man  devoted  to  business,  of  good  habits 
who  has  a  permanent  residence,  than  would 
be  the  case  were  the  person  in  question  one  of 
shiftless  and   roving  habits.     Springmeyer  v. 
Sovereign  Camp.  Woodmen  of  the  World  (Mo 
App.   1910).   120   s.   W.  273. 

11.  In  re  Miller,  supra.     For  example,  the 
effect    of    mere    failure    to    hear    is    greatly 
strengthened  where  a  person  who  knows  that 
he  has  rights  in  bank  deposits  or  other  prop- 
erty, fails  for  a  long  period  to  advance  any 
claim    to    them.     Louisville    Bank    v.    Public 
School    Trustees.    S3    Ky.    219    (1885).     This 
inference  is  still   further  strengthened  where 
the    absentee    had    previously    demanded    his 
rights    with    regularity    and    the    money    i* 
necessary  to  his  support  were  he  alive.     Mat- 
ter of  Ackerman,  2  Redf.  Sur.    (X.  Y.)    521 

(1877). 

12.  2  Chamberlayne,    Evidence,    §§     1107- 
1109. 


458 


PlZESUMPTIOX    OF    LAW. 


306 


information  would  have  been  received  from  a  person  had  he  been  alive  is 
greatly  increased  where  diligent  search  has  been  made  for  him.13  This  re- 
enforcement  of  the  probative  force  of  the  inference  of  death  is  strong  in  pro- 
portion to  the  thoroughness  and  intelligence  with  which  search  has  been  made 
and  the  length  of  time  over  which  it  has  been  maintained.14  On  the  contrary, 
where  no  efforts  have  been  made  to  obtain  information,  extended  absences 
without  knowledge  even  on  the  part  of  the  family,1"  do  not  raise  the  prinia  facie 
inference  of  fact  or  the  presumption  of  law.  While  affirmative  evidence  of 
suitable  search  will,  as  a  rule,  be  insisted  upon  by  the  court,  the  require- 
ment will  be  dispensed  with  where  it  is  obviously  the  most  pressing  moral  duty 
of  the  absentee  to  communicate  with  the  person  who  has  failed  to  hear.1'5 

\\'kat  Constitutes. —  The  presiding  judge  may  well  be  justified  in  requiring 
the  affirmative  evidence  of  search,  in  addition  to  the  inferences  arising  from 
failure  to  hear,  in  appropriate  quarters.1'  "All  those  persons  who  in  the 


13.  Hansen  v.  Owens,  132  Ga    64S,  64  S.  E. 
800    (  1909)  ;    Kennedy    v.    Modern    Woodmen 
of    America.    24;}     111     560,    90    X.     E.    1084 
(1910)  ;   VVentworth  v.  Wentworth,  supra;  In 

re  Barnes'  Estate,  91  X.  Y  Supp  706,  100 
App.  Div.  479  (1905)  ;  2  Chamb..  Ev.,  §  1107, 
n.  1,  and  cases  cited. 

14.  McCartee  v.  Camel,  1  Barb   Ch.  (X.  Y.) 
455   i  1846)  :  State  University  v.  Harrison,  90 
N.    C.    385    (1884);    Xehring    v.    McMurrain 
(Tex.    Civ.    App.    1898),    45    S.    W     1032;    2 
Chamb.,  Ev.,  §  1107,  n.  2,  and  cases  cited.     A 
further    enhancement     of    evidentiary     value 
arises  where  the  unavailing  search  has  been 
diligently  prosecuted  over  a  limited  area,  e.g.. 
a  ship  at  sea.     Traevlers'   Ins.  Co.  v.   Kosch, 
supra.     Where  advertisements   have  been   in- 
serted for  a  considerable  time  in  papers  likely 
to   come   to   the   attention    of   the   person    in 
question   if  alive  or  a  searching   inquiry   has 
been    made   at   the   place   where  he   was    last 
known  to  have  been  living,  a  presumption  or 
inference  of  death  naturally  arises,  where  such 
efforts   are    unattended    with    success      In   re 
Robertson,  P   D.,  p   8    05  E.  C.  L.  16   (1896). 
J  he  probative  force  of  failure  to  hear  from 
advertisements  may  be  affected  by  the  illiter- 
ate  condition    of   the   person   intended    to   be 
reached.     In  re  Miller,  supra. 

15.  In  re  Bd    of  Education.  173  N.  Y.  321. 
66  X'.  E.  11    (1903).  dismissing  appeal.  77  X' 
Y.    Supp.    1121.    74    App.    Div.    632     (1902): 
Ulrich's  Estate.   14  Phila     (Pa  )    243    (1880). 

16.  Thus,  where  a  wife  has  remained  at  the 
home   of   herself   and   her   husband    for    seven 
years,  her  failure  to  hear  for  that  time  will 
raise  a  presumption  of  death  even  in  the  ab- 


sence of  any  evidence  of  search  on  her  part. 
In  re  Harrington's  Estate.  140  Cal.  244,  7:? 
Pac.  1000  (1903),  rehearing  denied,  140  Cal. 
294,  74  Pac  136;  Behlmer  v.  Grand  Lodge, 
A.  0.  U.  W.,  109  Minn.  ,>05,  123  X.  W.  1071; 
Miller  v.  Sovereign  Camp,  Woodmen,  etc.,  140 
Wis.  505,  122  X.  W.  1126  (1909).  The  same 
rule  has  been  applied  to  other  cases.  See  2 
Chamb.,  Ev.,  §  1107,  n.  7,  and  cases  cited. 

17.  Henard  v.  Bennett,  76  Kan  848,  93  Pac. 
261  (1908)  ;  Modern  Woodmen  of  America  v. 
Gerdom,  72  Kan.  391,  82  Pac  1100  (1905)  ; 
2  Chamb.,  Ev.,  §  1108,  n.  1.  and  cases  cited 

Presumptive  absence. —  The  presumption  of 
death  from  seven  years'  absence  depends  on 
inquiry  made  of  the  persons  and  at  the  places 
where  news  of  him  if  living  would  most 
probably  be  had.  Modern  Woodmen  v. 
Ghromley.  41  Okla  532.  139  Pac  306,  L.  R 
A.  1915  B728  (1914).  Death  will  be  pre- 
sumed by  the  unexplained  absence  of  a  person 
for  seven  years  without  having  been  heard 
from,  although  diligent  inquiry  had  been 
made  for  him.  and  a  rule  of  a  fraternal  insur- 
ance company  that  unexplained  absence 
should  never  be  evidence  of  death  is  void  as 
unreasonable.  Hannon  v.  Grand  Lodge.  9'.t 
Kan.  734.  163  Pac.  169,  L.  R.  A.  1917  C 
1029  (1917). 

Where  one  leaves  his  orphan  brother  in 
an  orphans'  home  and  goes  to  another  state 
where  he  stays  lor  a  number  of  years  and  re- 
turns and  spends  three  days  trying  to  find  his 
brother,  this  is  not  sufficient  evidence  of  death, 
although  it  also  appears  that  an  epidemic 
visited  the  asylum  the  year  before  the  search, 
where  it  did  not  appear  that  the  brothers 


307  DEATH.  §§  459,460 

ordinary  course  of  events  would  likely  receive  tidings  if  the  party  were  alive, 
whether  members  of  his  family  or  not,  should  be  interrogated,  and  the  result 
of  the  inquiry  should  be  given  in  evidence,  or  the  testimony  of  the  parties 
themselves  should  be  produced  at  the  trial;"  ls  "  and  until  reasonable  effort 
has  been  expended  to  exhaust  all  patent  sources  of  information,  and  all  others 
which  the  circumstances  of  the  case  may  suggest,  it  cannot  be  truthfully  asserted 
that  diligent  inquiry  has  been  made."  ly 

Administnidre  delails. —  Under  the  rules  of  judicial  administration,  the 
burden  of  proof  is  usually  upon  the  party  alleging  death  at  a  particular  time 
to  establish  that  fact,2"  by  the  most  probative  and  conclusive  evidence.21 

§  459.  [Presumption  of  Death] ;  Computation  of  the  Seven  Year  Period —  The 
period  of  seven  years  at  the  end  of  which  a  presumption  of  death  arises  is 
taken  to  begin  at  the  time  when  the  last  tidings  of  or  from  the  person  in  ques- 
tion were  received.22 

§  460.  [Presumption  of  Death] ;  Time  of  Actual  Death;  No  Presumption  of  Life 
During  Seven  Years.23 —  The  time  at  which  the  presumption  in  question  estab- 
lishes the  prima,  facie  inference  of  death  is  at  the  end  of  seven  years  from  the 
time  when  information  was  last  received. 

Life  During  Entire  Period. —  The  courts  have  left  to  the  actor  the  duty 
or  burden  of  producing  evidence  establishing  death  at  any  particular  time 
during  the  seven  years.  On  this  point,  of  the  time  of  actual  death,  the  sub- 
stantive law  of  persons  acting  through  judicial  procedure  is  absolutely  silent.24 
Xo  presumption  of  law  exists  to  the  effect  that  the  person  in  question  will  be 
taken  to  have  been  alive  during  the  entire  period  of  seven  years,25  although 

were  in  the  habit  of  corresponding  or  that  the  .Supp.   961,  35  Misc.   348    (1901);   2  Chamb., 

lost    brother    was    in    the    asylum    when    the  Ev.,  §  1110. 

search     was     made.     Modern     Woodmen     v.  23.  2    Chamberlayne,    Evidence,    §§    1111- 

Ghromley,  41  Okla.  532,   139  Pac.  306,  L.  R.  1114. 

A.  1915  B728   (1914).  24.  Schaub  v.  Griffin,  84  Md.  557,  36  Atl. 

18.  Ilitz  v.  Ahlgren,   170  111.  60,  48  X.  E.  443   (1897). 

1068   (1897).     See  also,  13  Cyc.  301.  25.  State  v.  Henke,  59  Iowa  457,  12  X.  W. 

19.  Modern   Woodmen   of   America   v.   Ger-  477  (1882);  Smith  v.  Combs,  supra;  Supreme 
dom,  72  Kan.  391,  S2  Pac.  1100   (1905).  Commandery,  etc..  v.  Everding,  20  Ohio  Cir. 

20.  Modern    Woodmen   of   Am.   v.    Gerdom,  Ct.    6^9,    11    Ohio   Cir.    Dec.    419    (1900);    2 
supra;  2  Chamb.,  Ev.,  §  1109.  Chamb.,  Ev.,  §  1111,  n.  2,  and  cases  cited.     In 

21.  For  example,  where  the  evidence  as  to  case  of  absence  of  seven  years  there  is  no  pre- 
a  certain  person's  death  is  furnished  by  let-  sumption  that  death  occurred  at  any  particu- 
ters,  the  judge  may   insist  that  the  writings  lar  time,  but  at  the  end  of  seven  years'  ab- 
themselves  should  be  produced.     Martinez  v.  sence  the  law  presumes  him  to  be  dead.     Apitz 
Vives.    32    La,    Ann.    305     ilSSO).     Proof    of  v.  Knights  and  Ladies  of  Honor,  274  Til    196, 
death  cannot  be  made  by  production  of  a  news-  113  X.  E.  63,  L.  R.   A    1917  A.   183    (1916). 
paper,  if  more  conclusive  evidence  be  reason-  A  presumption  of  death  may  arise  from  seven 
ably  procurable.     Fosgate  v    Tlerkimer  Mfg..  years'     unexplained     absence.     So     where     a 
etc..  Co.,  9  Rarb.   (X.  Y.I   2S7   (1S50).  young    unmarried     man     vas     in    the    habit 

22.  Smith  v    Combs.  40  X    .T    Eq.  420.  24  of   writing   regularly   to   his   parents   and   is 
Atl.  0  (1S92)  ;  Morrow  v  McMahon,  71  X.  Y.  last  heard   from  as   going  to  the  mines   in 


PRESUMPTION  OF  LAW. 


308 


some  suggestion  has  been  made  that  such  is  the  effect  of  the  assumption  of  the 
continuance  of  life  when  imported  into  the  consideration  of  the  matter. 'M 

Death  at  Beginning  of  Period. —  It  has  been  judicially  asserted  that  the 
absentee  will  be  assumed  to  have  died  at  the  beginning  of  the  period  of  seven 
years.27 

Death  at  End  of  a  Considerable  Period. —  A  middle  ground  has,  however, 
been  suggested ;  —  to  the  effect  that  death  will  be  presumed  to  have  taken  place 
after  the  lapse  of  some  considerable  time  from  the  disappearance.-* 

Death  at  the  End  of  Seven  Years. —  In  reality,  the  only  assumption 
which  the  law  makes  is  that  the  absentee  is  dead  at  the  end  of  the  statutory 
period.29 

Xo  Assumption  of  Time  of  Death  During  the  Seven  Years. —  There  is  110 
presumption  of  law  that  death  took  place  at  any  particular  time  within  the 
period  of  seven  years/5" 

Burden  of  Evidence. —  The  party  to  whose  case  the  fact  of  death  at  a  par- 
ticular time  within  the  statutory  period  is  essential  has  the  burden  of  evidence 
to  establish  it.;!1 


Peru  his  death  may  be  presumed  after  seven 
years.  Hut  there  is  no  presumption  of  his 
death  at  any  particular  time  in  that  period 
McLaughlin  v.  Sovereign  Camp,  etc..  97  Neb. 
71,  140  X.  W.  112,  L.  R.  A.  1015  B  756 


26.  Eagle  v.  Emmet,  4  Bardf.  Sur.   (X.  Y.) 
117     (1856);     Shown    v.    McMackin,    9    Lea 
(Tenn.)    601    (1882);    Whiteley  v.   Equitable 
Life,  etc.,  Co..  72  Wis    170   (  188M  :  2  C  'hamb.. 
Ev.,  §   1111,  n.   3,  and  cases  cited.     "While, 
therefore,    it    is   true    that   there    is   no    pre- 
sumption that  death  occurred  at  any  particu- 
lar  time   within   the   seven   years,   it   is   also 
true  that,  in  the  absence  of  contravening  facts 
or  controlling  presumptions,   it   will   be   pre- 
sumed that   life  continued  during  the  entire 
period."     Reedy    v.    Milli/en.    15    111.    6:50.    40 
X.  E.  1028   (18<t5i,  quoted  in  1:5  Cyc..  p.  304. 
There  is  no  presumption   of  the  continuance 
of  life  after  the  lapse  of  the  statutory  period. 
Gibson  v.  Hall.  74   L.  J.  Ch.  548,  2  Ch.   181. 
02  L.  T.  820   (1005).     For  Effect  of  the  Pre- 
sumption of  the  Continuance  of  Life,  see  dis- 
cu*sion  in  2  ('hamb..  Ev..  §   1112. 

27.  Godfrey  v.  Schmidt.  Cheves  Eq.   (S.  C.I 
57    <1840i  -.  2  Cliamb.,  Ev..  §  1113,  n.   1,  and 
cases  cited. 

28.  Xepean  v.  Doe.  7  L.  J.  Exch.  335.  2  M. 
&    W.    894.   Thayer,    Ev..    109    (1837).     Thus. 
where   a    vessel    on    which    the   absentee   took 
passage   was   not    a«rain    heard   from,    it    has 
been  held  that  death  will   be  taken  to  have 


occurred  at  the  end  of  the  time  covered  by 
the  longest  known  voyage  between  the  port 
of  sailing  and  that  of  destination.  Gerry  v. 
Post,  13  How.  Pr.  (X.  Y.)  (1S55):  Oppen 
heirn  v.  Wolf.  3  Sandf.  Ch.  fX  Y.)  571 
(1846).  The  time  of  actual  death,  however, 
whether  before  or  after  the  expiration  of  the 
statutory  period,  is  purely  a  question  of  evi- 
dence, for  the  determination  of  the  .jury.  But- 
ler v.  Supreme  Court  I.  O.  F.,  53  Wash.  118, 
101  Pac.  481  (1000). 

29.  Reedy    v.    Millizen,    supra;    Bailey    v. 
Mailey.     3ii     M;ch.     181      (1877);     Smith     v. 
Knowlton,   11    X.  H.   101    (1840):   Burkhardt 
v.    Burkhardt,  63   X.  J.   Eq.  470,  52  Atl.  296 
H902)  :  In  re  Davenport,  75  X.  Y.  Supp.  934, 
37  Misc.  455    (1902):   Rhodes'   Kstate.   10  Pa. 
Co.   Ct.   386    i  1890 1;    2  Chamb..   Ev.,  §   1113, 
n.  5,  and  cases  cited.     As  to  Logic  and   Pro- 
cedure, see  2  Chamb.,  Ev.,  §   1113,  and  notes 
6-8. 

30.  Scbaub  v.  Griflin.  supra:  Spahr  v.  Mut. 
L.  Ins.  Co..  08  Minn.  471.  108  X.  W.  4  (  1906)  : 
McCartee  v.  Camel.   1   Barb.  Ch.    (X.  Y.)   455 
(18461  :   Whiteley  v.  Equitable  L.  Assur.  Co.. 
supra  :  2  Chamb.,  Ev.,  §  1114.  n.  2,  and  cases 
cited. 

31.  Whitintr  v.  Xicholl.  46  111.  230.  92  Am. 
Dec.    248    (1867);    Johnson    v.    MeritheAV,    80 
Me.    Ill     (1888);    Schaub   v.    Griffin,    supra: 
Bradley  v.  Modern  Woodmen  of  Am..  146  Mo. 
App.   428.    124   S.   W.   69    (1910):    2   Chamb., 
Ev.,  §  1114,  n.  3.  and  cases  cited. 


300  DEATH.  S  -Mil 

§  461.  [Presumption  of  Death] ;  Presumption  Rebuttal.32 —  The  presumption 
of  death  from  seven  years'  absence  without  tidings  received  by  those  who 
are  likely  to  hear,  is,  like  all  true  presumptions  of  law,  clearly  rebuttable.33 
The  burden  of  evidence  to  produce  rebutting  inferences  is  on  the  party  against 
whom  the  presumption  operates  •°'4  and,  until  such  rebutting  evidence  is 
produced,  the  presumption  establishes  a  prima  facie  case,  i.e.,  sustains  the 
burden  of  evidence.35 

Affirmative  Evidence  of  Life. —  In  rebuttal  it  may  be  affirmatively  shown 
even  by  persons  not  members  of  the  family,36  that  the  absentee  was  alive  within  a 
period  of  seven  years.  The  testimony  of  a  single  witness  3T  accompanied  by 
corroborative  evidence  of  some  independent  fact,  as  the  receipt  of  a  letter  from 
the  alleged  deceased  within  seven  years,38  will  prevent  the  operation  of  the  pre- 
sumption. The  presumption  of  death  is  equally  overcome  by  evidence  of 
witnesses  that  the  absentee  returned  to  his  home  39  or  is  in  some  other  way 
shown  to  be  alive  40  within  seven  years. 

Hiding. —  It  may  be  shown  by  the  opponent,  in  rebuttal,  that  the  absentee 
had  a  motive  for  his  silence,  as  that  he  was  a  fugitive  from  justice,41  had 
absconded  from  his  creditors,42  had  run  away  from  an  orphan  asylum,43  prison, 
jail  or  other  place  of  involuntary  detention,  or  has  some  other  reason  for  con- 
cealing his  identity.44 

Motive  Xot  to  Return  or  Communicate. —  Even  where  the  absentee  is  not 
under  a  strong  motive  to  conceal  his  whereabouts,  he  may  be  lacking  in  desire 

32.  2    Chamberlayne,    Evidence,    §§    1115-  2  Chamb.,  Ev.,  §  1116,  n.  2,  and  cases  cited. 
HIS.  38.  Smith  v.  Smith,  49  Ala.  156   (1873). 

33.  In   re   Stockbridge.    145    Mass.   517.    14  39.  Thomas  v.  Thomas,   19  Neb.  81.  27   X. 
X.  E.  9-28    (1887)  ;   Biegler  v.  Supreme  Coun-  W   84  (1887). 

cil.  etc.,  57  Mo.  App.  419  (1894)  ;  In  re  Liter,  40.  Spiltoir   v.    Spiltoir.   72   X.   J.    Eq.   50, 

19  Mont.  474,  48  Pac.  753   (1897)  ;  2  Chamb.,  64   Atl.   96    (1906).     Most   conclusive  of  all, 

Ev.,  §  1115,  n.  1.  and  cases  cited.  of  course,  is  the  reappearance  of  the  person 

34.  Magness  v.  Modern  Woodmen  of  Amer..  in  question.     Mayhutrh  v.  Rosenthal,   1    Cine. 
146  Iowa   1,  123  X    \V.   169    (1909):   Hoyt  v.  Super.  Ct.    (Ohio)   492   (1871  i. 

XTewbond,  45   X.  J.  L.  219,  46  Am.  Rep.  757  Question  for  Jury. —  Where  rebutting  evi- 

( 1883) .  dence  makes  it  reasonable  for  the  jury  to  find 

35.  Magness  v.  Modern  Woodmen  of  Amer..  either  way,  the  question  will  be  submitted  to 
supra;  Willcox  v.   Trenton  Potteries  Co.,  64  them.     Mutual  Ben.  L.  Ins.  Co.  v.  Martin.  103 
X.  J.  Eq.  173,  53  Atl.  474   (1902).     The  same  Ky.   11,  55   S.   W.  694.  21    Ky.  L.  Rep.   1465 
idea  has  been  put  into  the  rather  misleading  (1900).     CONTRA.   Minneapolis   M.   Co.   v.   R. 
form  of  saying  that  until  rebutting  evidence  is  Co.,  51  Minn.  304,  53  X*.  W.  639   (1892). 
introduced,  the  presumption  of  law  is  conclu-  41.  Ashbury  v    Sanders,  8  Cal.  62.  68  Am. 
sive.     Willcox  v.  Trenton  Potteries  Co..  supra.  Dec.   300    (1857):   O'Kelly  v.   Eelker.  71   Ga. 
Strictly   speaking,   the  presumption   of  death  775  (1883):  Winter  v  Sup.  Lodge  K.  of  P..  96 
from  absence  is  in  no  proper  sense  conclusive  Mo.  App.  1.  69  S.  W.  662   (1902)  :   2  Chamb., 
Madness  v.  Modern  Woodmen  of  Amer..  supra.  Ev.,  §  1117.  n.  1.  and  cases  cited. 

36.  Flynn  v.  Coffee.   12   Allen    (Mass.)    133  42.  Sensenderfer  v.   Pac.  Mut.   L.  Tns.  Co.. 
(1866).  19  Fed.  68  (1882). 

37.  Springmeyer  v.  Sovereign  Camp.  Wood-  43.  In  re  Miller.  9  X.  Y.  Supp.  639  (1890). 
men  of  the  WorM    (Mo    App.   1910).   129   S.  aff'd  147  X   Y.  713.  42  X.  E.  726   (1S95K 

W.    273:    Kennedv    v.    Modern    Woodmen    of  44.  Donovan  v.  Twist.  93  X.  Y.  Supp    990, 

Amer.,   243   111.   560,  DO  X.   E     1084    (1910);       105  App.  Div.  171   (1905). 


§§  462,463  PRESUMPTION  OF  LAW.  olO 

to  reveal  them.  He  may  be  flighty  and  visionary,  in  his  mental  methods.45 
The  case  may  be  one  where  the  motive  to  return  could  not  effectively  operate 
upon  the  volition  of  the  person  in  question,  as  in  case  of  children  of  tender 
years  4t5  and  others  not  sui  juris,  where  there  is,  properly  speaking,  no  inde- 
pendent volition  to  affect.  The  same  inference  arises  where  the  person  is 
under  the  restraint  of  others,  is  in  prison  or  the  like.47 

§  462.  Presumptions  of  Law;  Criminal  Cases.48 — The  jurisprudence  of  both 
England  and  America  has  seen  lit  to  establish  in  connection  with  the  sub- 
stantive law  of  crimes  various  presumptions  of  law  attaching  a  prima  facie 
quality  to  the  inferences  of  fact  arising  out  of  certain  definite  circumstances. 
Many  of  these  presumptions  of  law  are  statutory  at  the  present  day.49  'No 
constitutional  right  of  a  defendant  to  confrontation,50  a  speedy  and  public  trial 
by  an  impartial  jury,  to  compulsory  process,  or  to  a  presumption  of  innocence 
in  his  favor,  is  infringed  by  the  passage  of  such  a  statute  erecting  possession  of 
certain  articles  into  a  prima  facie  case  of  guilt  of  a  given  offense.51 

Presumption  of  Coercion. —  A  familiar  rule,  in  the  relations  of  husband 
and  wife  in  connection  with  crimes  done  by  the  wife  in  the  presence  of  the 
husband  may  be  put  into  the  form  of  saying  that  there  is  a  presumption  of 
coercion  of  a  wife  by  her  husband  to  commit  a  crime,  from  his  presence  at 
the  time  of  the  commission,  but  the  presumption  is  not  conclusive,  and  may  be 
rebutted.52 

§  463.  [Criminal  Cases] ;  Capacity  for  Crime.53 —  In  the  absence  of  evidence 
of  his  age,  an  accused  person  is  said  to  be  presumed  (assumed)  capable  of 
committing  a  crime.1"'4  Still,  proof  of  age  may,  under  the  substantive  law, 
customarily  disguised  under  the  terms  of  presumption,  i.e.,  of  evidence,  at- 
tach to  the  fact  of  age  certain  definite  effects  as  to  capacity  to  commit  particular 
crime.55 

Under  Seven. —  Below  a  certain  fixed  age,  established  by  the  common  law  at 

45.  Sensenderfer  v.  Pac.  Mut.  L.  Ins.  Co.,  such    illegal    purpose    and    useless    for    any 
supra.  other,   instances   of   a  very   large   number   of 

46.  Manley   v.   Pattison,   73   Miss.   417,    19  similar  presumptions  of  law  in  criminal  cases 
So.    236,    55    Am     St.    Rep.    543     (1895);    '2  are  furnished.     2  Chamb.,  Ev.,  §  1119. 
Chamb.,  Ev.,  §  1118.  50.  §§   224   et  seq.;    1    Chamb.,   Ev.,   §   458 

47.  Schwarzhoff  v.  Necker,   1   Tex.  Unrep.  et  seq. 

Cas   325  (1880).  51.  State  v.  Sheehan,  28  R.  I.  160,  66  Atl. 

48.  2   Chamberlayne,   Evidence,   §    1119.  66   (1007). 

49.  Robertson     v.     People,     20     Colo.     279  52.  Com.  v.  Adams,   186  Mass.   101,  71   N". 
(1894)  ;  Colev.  Porteous,  19  Ont.  App.  (Can.)  E.  78  (1904). 

Ill     (1892):    ftulson:    Philosophy    of    Proof,  53.2    Chamberlayne,    Evidence,    §§     1120- 

434,  §  498.     Wherever,  for  example,  the  pos-  1120g. 

session  of  fish  or  game  out  of  season  is  made  54.  Rroadnax  v.  State,  100  Ga.  62,  25  S.  E. 

prima  facie  evidence  of  a  taking  in  close  sea-  844   ( 1 896 ) . 

son   contrary   to   law,   or   a   counterfeiter   or  55.  State  v.  Howard,  88  N.  C.  650   (1883)  ; 

burglar  is  prima  facie  guilty  of  counterfeit-  Jones  v.  State,  31  Tex.  Cr.  252,  20  S.  W.  578 

ing  or  burglary  if  unable  to  satisfactorily  ex-  (1892)  ;  2  Chamb.,  Ev.,  §  1120. 

plain  his  possession  of  tools  well  adapted  to 


311 


CAPACITY  FOR  CKIME. 


7,  but  which  has  been  variously  extended  by  statute  to  9, 5e  10 57  or  even 
12,°8  a  child  is  said  to  be  "  conclusively  presumed  "  incapable  of  committing 
crime.59 

Seven  to  Fourteen. —  Between  the  ages  of  7  and  14  60  there  is,  it  is  said,  a 
presumption  of  law  that  an  infant  is  incapable  of  committing  a  criminal 
offense."1  The  ground  for  this  rule  is  that  he  is  not  of  sufficient  judgment 
and  understanding  to  be  aware  of  the  nature  of  his  act.02  This  assumption 
may  be  rebutted  by  evidence  showing  that  this  ability  to  realize  the  nature  anS 
quality  of  a  criminal  act,  in  reality,  existed  at  the  time  of  the  offence.63  Where 
this  knowledge  is  shown  to  have  been  present  he  may  be  punished  for  what 
he  has  done.04  The  burden  of  evidence  is  upon  the  prosecution  to  prove  the 
actual  capacity  for  crime.63 

Rape. — At  common  law,  a  male  infant  under  the  age  of  14  was  conclusively 
presumed  °6  to  be  incapable  of  committing  the  crime  of  rape.  This  rule 


56.  Gardiner  v.  Mate,  33  Tex.  692    (1870). 

57.  Canton   Cotton    Mills   v.   Edwards,    120 
Ga.    447,    47    S.    E.    937     (1904);    Angelo    v. 
People,  96  111    209,  36  Am.  Rep.'  132   (1880). 

58.  Dove  v.  State,  37  Ark.  261    (1881). 

59.  Ford  v.  State,  100  Ga.  63,  25  S.  E   8-' 
(1896);    State  v    Aaron,  4   X.   J.   L.   231.    ' 

Am.  Dev.  592  (1818)  :  People  v.  Townsend,  3 
Hill  (X.  Y.)  479  (1842)  :  State  v.  Davis,  104 
Tenn.  501,  58  S  W.  122  (1900):  2  Chamb. 
Ev.,  §  1120a.  n.  4,  and  cases  cited.  Trans 
lated  into  the  language  of  substantive  law. 
where  the  conclusive  presumption  properly  IK- 
longs  (§§  470  et  seq. ;  2  Chamb.,  Ev  ,  §§  11<! 
ft  sen  )>  this  means  that  a  child  under  t\n> 
age  is  not  criminally  liable  for  the  conse 
quences  of  his  acts. 

60.  In  various  states  where  the  legislature 
has   seen    fit   to   increase   the   first   period   oi 
legal  immunity,  the  second  is  correspondingly 
shortened.     Thus,  in  Arkansas,  the  second  pe 
riod  extends  from   12  to  14.     Dove  v    State. 
supra.     In   Georgia  and   Illinois,   from   10  to 
14.     Ford  v.  State,  supra:  Angelo  v.  People. 
supra,     in    New    Yorlv,    the    legislature    ha^ 
diminished    the    age    limit    within    which    an 
infant  is  prima  facie  incapable  of  crime,  fix- 
ing the  years  of  the  second  period  as  from  7 
to  12.     People  v.  Squazza,  81  X.  Y   Supp.  254. 
40    Miac.   71     (1903).     Texas   combines   these 
two  methods  of  treatment  by  establishing  the 
period    of   presumable   immunity   as   between 
the  years  9  and  13.     Allen  v   State  (Tex.  Cr. 
App.  1906),  37  S.  W.  757. 

61.  Harrison  v    State.   72   Ark.    117.   78   P. 
W.  763   (1003)  :  State  v    Milholland.  SO  Iowa 
5,  56  X.  W.  403    (1883):   Com.  v    Mead,   10 


Allen  (Mass.)  398  (1882);  State  v.  Adams, 
76  Mo.  355  (1882)  ;  People  v.  Domenico,  92 
N.  Y.  Supp.  390,  45  Misc.  309  (1904)  ;  State 
v.  Toney,  15  S.  C.  409  (1880);  and  caaes 
cited  in  last  preceding  note.  See  also,  2 
Chamb.,  Ev.,  §  1120b,  n.  2,  and  cases  cited. 

62.  §  463:  2  Chamb.,  Ev.,  §  1120f. 

63.  McCormack  v.  State.   102  Ala.   156,  15 
So.   438    (1894);    People   v.   Squazza,  supra: 
State  v.  Hicks,   125   X.  C    636,  34  S.  E.  247 
(1*99)  ;  State  v.  Davis,  supra;  Allen  v.  U.  S., 
150  U.  S.  551,  14  S.  Ct.  196,  37  L.  ed.  1179 
( 1 893 )  :  and  cases  cited  in  last  two  preceding 

notes.  See  also,  2  Chamb.,  Ev.,  §  1120b,  n.  4, 
and  cases  cited. 

64.  State  v.  Fowler,  2  Ky.  Law  Rep.   150 
(1880)  ;  State  v.  Guild,  10  X.  J.  L.  163,  18 
Am.    Dec.    404    (1828)-;    People   v.    Teller,    1 
Wheel     Cr.     (X.    Y.)    231     (1823);    Com.    v. 
McKeagy.    1    Ashm.     ('Pa.)     248     (1831);    2 
Chamb.,  Ev.,  §  1120b,  «.  5,  and  cases  cited. 

65.  Harrison  v.  State,  »upra ;  Ford  v.  State, 
supra;    State    v.    Adams,    supra;    2    Chamb., 
Ev.,  §  1120b,  n.  7.  and  cases  cited. 

Inference  of  Fact. —  There  is  a  general  in- 
ference of  fact  that  a  child  under  14  fails  to 
possess  the  requisite  knowledge,  mental  and 
physical  powers  required  for  the  commission 
of  a  criminal  act.  This  inference  or  pre- 
sumption is  very  strong  while  he  is  near  the 
age  of  7  but  becomes  weaker  as  he  progresses 
toward  the  age  of  14.  McCormack  v.  State, 
supra;  State  v  Aaron.  4  X.  J.  L.  231.  7  Am 
Der.  592  (1818)  :  2  Chamb..  Ev.,  §  1120c,  n. 
2.  and  cases  cited. 

66.  It  is  not  an  inference  at  all,  but  a  rule 


^   4G3  •    PKKSUMPTIOX  OF  LA\V.  312 

relates  to  bis  assumed  physical  capacity  to  commit  the  crime.67  The  substantive 
law,  therefore,  freed  the  infant  from  the  consequents  «>f  a  crime  of  this  na- 
ture, as  principal  in  the  first  degree."*  The  offense  of  being  an  accessory,  if 
absent  from  the  scene  of  the  crime tl!*  or  principal  in  the  second  degree,  if 
present,7"  might  still  be  committed  by  the  infant  though  under  fourteen.  The 
early  rule  continues  to  be  followed  in  certain  American  jurisdictions.'1  In 
others,  however,  the  assumed  physical  incapacity  of  the  accused  has  been  placed 
upon  the  same  legal  footing  as  the  presumed  mental  incapacity'-  of  persons 
of  the  same  age  to  commit  this  and  other  crimes. 

Fourteen  to  Twenty-one. —  In  the  absence  of  special  circumstances  or  rules 
of  substantive  or  procedural  law,  the  fact  of  minority,  i.e.,  that  one  accused 
of  crime  is  under  the  age  of  IS,  where  that  is  the  date  of  majority,  or  under 
21,  the  more  usual  limit,  does  not  exempt  an  accused  person  from  criminal 
liability  for  the  consequences  of  his  acts.'3  In  the  absence  of  evidence,  capacity 
for  crime  will  be  assumed  and  this  assumption,  it  is  said,  will  not  be  affected 
by  the  simple  statement  of  the  accused  that  he  did  not  know  that  it  was  wrong 
to  do  as  he  had  done.74  This  assumption  may  be  rebutted  by  appropriate  evi- 
dence tending  to  show  actual  incapacity.'5 

Proof  of  Mental  Stale  or  Condition. —  The  defendant  must  be  affirmatively 
shown  to  have  had  sufficient  maturity  and  discretion  of  mental  power  to  ap- 
preciate the  nature  and  consequences  of  his  act.76  The  evidence  need  not  be 

of  substantive  law.     State  v.  Sam,  60  X    (  .  72.  2  Chamb ,  Ev..  §  1120f. 

293   (1864).                                            .  73.  Hill  v.  State,  63  Ga.  578,  36  Am.  Rep. 

67.  Gordon  v.  State,  93  Ga.  531,  21   S.   K  120  (1879)  ;  Angelo  v.  People,  96  111.  200.  lie 
54,  44  Am.   St.   Rep.    189    (1893):    Payne  v  Am.  Rep.  132  (1880);  State  v.  Kluseman,  53 
Com.,   33  Ky.   L.    Rep.   229,    110   S.    \Y.    311  Minn.  541,  55  N.  AY.  741    (1893):   People  v 
(1908);   People  v.  Randolph,  2  Park  Cr.    (X.  Kendall,  25  Wend.   (X.  Y.)   399.  37  Am.  Dec. 
\.)    174   (1855):  State  v.  Fisk.  15  X.  D.  oS«V  240    (1841):    2   Chamb,.   Ev..   §    1120e.    n. 
108    X.     \Y.     485   -(1906):     2    Chamb..    Ev..  and    eases    cited.     Thus,    where    one    obtains 
§  1120d.  n.  2,  and  cases  cited.     "  Xo  convic-  property  securing  payment  of  the  price  of  it 
tion  for  rape  can  be  had  against  one  who  was  by  a  mortgage   upon   certain   chattels,   repre- 
under  the  age  of  14  years,  at  the  time  of  the  senting   that   he    is   of    full   age,   and    is   the 
alleged    act,    unless    his    physical    ability    to  owner  of  the  mortgaged  property,   while  the 
accomplish  penetration  is  proved  as  an  ind*>  mortgage  may  be  voidable  by  reason  of  non 
pendent    fact,    beyond    a    reasonable    doubt'  age.  the  minor  will  be  held  criminally  li: 

X.  Y.   Penal  Code.  §  279.  for   swindling   by   false   pretences.     Lively   v. 

68.  Reg.  v.   \Yilliams    (1S93>.   1   Q.  R.  32i>.  State    (Tex.   Cr.    App.    1903),   74   S.   W.   321 
62  L.  J.  M.  C.   69.  5  Reports   186.  41   Wkly.  So,  also,  a  boy  over  14  will  be  presumed  ca- 
Rep.  332:  and  other  cases  cited  in  2  Chamb.  pable  of   committing  rape.     State   v.    Handy, 
.tv..  §  1120d.  n.  3.  4  Harr     (Del.)    566    (1845);    Payne  v.  Com., 

69.  State  v.  Mclntire.  66  Iowa   339.  23  X  supra:  Com.  v    Hunimel,  21   Pa.  Co    Ct.  44: 
W.  735    (1885)  .  1899). 

70.  Law  v.  Com..  75  Ya.  885.  40  Am.  Rep.  74.  State    v.    Kluseman.    supra :    §   475 :    2 
750  (1881).  Chamb,  Ev.,  §  1166.     The  burden  of  evidence 

71.  Chism  v.  State.  42  Fla.  232.  28  So.  30*        is  upon  him  to  show  incapacity.     State  v.  Di 
ilOOO);   Com    v.  Green.  2  Pick     (Mass.)    3SO       Guglielmo   (Del.  1903).  55  Atl.  350. 

(1824)  :  State  v.  KnigMen.  39  Or   63.  64  Pa.  75.  State  v.  Learnard.  41   Vt.  585    (1869). 

866.  87  Am    St.  Rep.  647    (1900);  2  Chamb..  76.  Dove    v.    State,    37    Ark.    261     (1881); 

Ev.,  §  1120d,  n.  6,  and  cases  cited.  Ford  v.  State,  100  Ga.  63   (1896)  ;  People  v. 


313  LABCEHY.  §  464 

direct,  although  the  conclusion  of  a  skilled  witness,  expert,  so-called,™  will  be 
received  on  this  point.78  Probative  facts  of  a  circumstantial  nature  may  be 
received,'9  whether  extrinsic  to  the  offense  or  connected  with  the  doing  of  the 
criminal  act  itself.80  When  evidence  is  introduced  upon  the  issue  of  mental 
capacity,  the  question  becomes  one  of  fact  for  the  jury"1  Capacity  to  entertain 
a  criminal  intent  must  be  clearly  and  strongly  proved ; 82  the  jury  must  be 
satisfied  upon  the  point  beyond  a  reasonable  doubt,83 

Procedural  Assumptions. —  For  reasons  elsewhere  suggested  84  proof  of  the 
phychological  fact  necessary  to  constitute  mental  capacity  for  crime,  the  state 
of  doli  capix,  is  necessarily  attended  with  difficulty.  Therefore,  in  the  ab- 
sence of  all  proof  of  age,  the  inference  or  presumption  of  sanity  so-called,85 
leads  the  court  to  take  it  for  granted,  i.e.,  to  assume,  that  one  accused  of 
crime  is  capable  of  possessing  the  mental  state  requisite  for  its  commission.86 
Where  the  accused  is  shown  to  be  within  the  limit  of  the  first  age  period,  above 
mentioned,87  the  rule  of  substantive  law  is  frequently  put  into  the  form  of 
saying  that  one  under  the  age  of  7  is  conclusively  i/resumed  to  be  incapable 
of  forming  the  mental  state  essential  to  the  commission  of  the  crime ;  88  and 
where  the  accused  is  shown  to  be  over  7  and  under  14,  that  there  is  a  pre- 
sumption of  law  that  one  under  that  age  does  not  possess  the  requisite  knowl- 
edge.80 intent  or  other  mental  state  essential  to  the  commission  of  a  crime. 

?  464.  [Criminal  Cases] ;  Presumption  of  Larceny  from  Recent,  "Unexplained 
Possession  of  Stolen  Goods.90 —  The  inference  of  fact,  the  teaching  of  experience, 
to  the  effect  that  one  found  in  the  exclusive  possession  of  recently  stolen  goods 
who  cannot  satisfactorily  account  for  them  is  the  person  who  stole  them,  is  un- 
doubtedly a  strong  one.  It  may  fairly  be  said  that  the  mind  recognizes  a  pro- 
bative relation  between  the  mere  possession  of  recently  stolen  property  and 

Domenieo,  92  X.  \.  Supp.  390,  45  Misc.  309  84.  §  847;  4  Chamb.,  Ev.,  §  2639. 

(1904);    2  Chamb.,   Ev.,  §   1120f,  n.    1,  and  85.  §  424;  2  Chamb.,  Ev.,  §  1052. 

cases  cited.  86.  State  v.  Miller,  7  Ohio  X.  P.  458,  5  Ohio 

77.  §§  713  et  seq.;  3  Chamb..  Ev.,  §§  1949  S.  4  C.  P.  Dec.  703  (1895). 

et  seq.  87.  §  463:  2  Chamb..  Ev .,  §  1120a 

78.  State  v.    N'ickleson,  45  La.   Ann.   1172,  88.  Even  a  plea  of  guilty  does  not  remove 
14  So.  134  (1893).  the  presumption  of  criminal  incapacity.     Peo- 

79.  State- v.  Toney,  15  S.  C.  409  (1880).  pie  v.  Domenieo,  supra. 

80.  Stage's  Case,  5  City  Hall  Rec.   '  N.  Y.)  89.  Capacity  being  shown,  knowledge  of  the 
177    (1820);    Wusnig  v.  State,   33  Tex.  651  illegality  of  an  act  may  be  assumed.     Com. 
(1870).     See  also,   State   v.   Pugh.   52   N.   C  v.   Mead.    10   Allen    (Mass.)    398    (1865).     A 

€1  (1859).     The  personal  opinion  of  the  judge  sense  of  moral  guiltiness  alone   i?   not   suffi- 

gained  from  inspection  of  the  accused  i*  not  cient:   guilty  knowledge  of  the  nature  of  the 

sufficient.     People  v.  Domenieo.  supra  crime  must  be  proved,  if  disputed.     Willet  v 

81.  McCormark    v.    State,    supra :    Dove     v.  Com..    13   Bu>h    iKr.l    230    (1S77>;    State   v 
State,  supra :  State  v.  Learnard.  supra.  Yeargan.    117    N*.   C.    706.   23   S     E.    153.    36 

82.  Angelo  v.  People,  supra.  L.  R.  A    196  (1895)  :  Allen  v.  State  (Tex   Cr. 

83.  Martin  v.  State.  Of)  Ala.  fiO_>.  S  So.  858.  App.  1896).  37  S.  W.  757 

24   Am.   St.   Rep.   844    (1800):    Law  v.  Com.  90.  2    Chamberlayne.    Evidence,    §§    1121- 

75    Va.    885,.    40    Am.    Rep.    750     (1  8*1  .  :  1129. 

Chamb..  Ev..  §  1120f.  n.  9,  and  cases  cited 


PRESUMPTION  OF  LAW. 


31-i 


guilty  taking  or  receiving.01  For  reasons  analogous  to  those  which  constitute 
the  basis  of  the  inference  against  a  despoiler  "2  this  inference  of  fact  be- 
comes greatly  enhanced  in  probative  value  when  the  possessor,  being  given  a 
suitable  opportunity  of  doing  so,  fails  to  explain,  in  any  reasonable  way,  how 
he  came  by  the  property.93 

Inference  Xot  Conclusive. —  Ko  authority  exists  for  holding  that,  in  and 
of  itself,  the  inference  is  conclusive  in  the  premises;94  notwithstanding  that 
the  fact  that  there  is  a  presumption  of  law  to  that  effect  has  been  put  into  the 
rather  misleading  form  of  saying  that  in  the  absence  of  all  explanation  or 
any  evidence  of  good  character,  the  inference  of  guilt  is  conclusive."5 

A  Presumption  of  Law. —  It  is  announced  by  the  court,  in  charging  juries 
on  indictments,  or  similar  proceedings,  for  larceny,  that  the  unexplained  ex- 
clusive possession  of  stolen  goods  shortly  after  the  commission  of  the  offense 
shall  be  deemed  prima  facie  evidence  that  the  possessor  committed  the  larceny.96 
Where  no  suitable  opportunity  for  offering  an  explanation  is  presented,  the 
presumption  of  law  does  not  arise.97  The  rule  applies  whether  the  larceny 
was  simple  or  aggravated  in  its  nature,  was  from  the  person,98  committed  in  a 
building,"9  or  a  part  of  a  burglary  or  other  serious  offense.1 


91.  People  v.  Luchetti,  119  Cal.  501,  51  Pac. 
707    (1897);   Stafford  v.   State,   121   Ga.   169, 
4*  S.  E.  903    (1904)  ;   Johnson  v.  State,   148 
Ind.  522,  47  X.  E.  926  (1897)  ;  State  v    Hoff- 
man, 53  Kan.  700,  37  Pac.  138  (1894)  ;  State 
v  Toohey,  203  Mo.  674,  102  S.  VV.  530  ( 1907)  ; 
Knickerbocker  v.  People,  43  X.  Y.  177  ( 1870)  ; 
2  Chamb.,  Ev.,  §  1121,  n.  1,  and  cases  cited. 

92.  §§  430  et  seq.;  2  Chamb.,  Ev.,  §§  1070 
et  seq. 

93.  .State  v.   Sanford,   8   Ida.    187.   67    Pac. 
492    (1901);    Robb  v.  State,  35  Xeb.  285,  53 
X.   W.   134    (1892);   Uouthitt  v.  Territory,  7 
Okl    55,  54  Pac.  312    (1898);  Cook  v.  State, 
16  Lea   (Tenn.)    461,   1   S.  W.  254    (1886):   2 
Chamb  ,   Ev.,   §    1121,  'n    3.   and   cases   cited. 
See   discussion   as   to   Procedural    Conflict.    2 
Chamb.,   Ev.,   §    1121.     Presumption   of   guilt 
from  possession  of  stolen  property,  see  note, 
Bender   ed.,   43   X.    Y.    184.     Presumption    of 
guilt  from  possession  of  stolen  property,  see 
note,  Bender  ed.,  151  X.  Y.  412. 

94.  Bellamy   v.   State    35   Fla.   242.   17   So. 
560    (1895)  ;  Oablick  v.  People,  40  Mich.  292 
(1879)  ;  State  v.  Hoshaw,  89  Minn.  307.  94  X. 
W.  873   (1903)  :  People  v.  Sheahan,  1   Wheel 
Cr.    (X     Y.)    188    (1823):   State  v.   Snell.  40 
Wis.    524,    1    X.    \V.   225    (1879):    2    Chamb.. 
Ev..  §  1122.  n.  1,  and  cases  cited 

The  mere  possession   of  the   stolen   goods 
does  not  of  itself  raise  a  presumption  of  lar- 


ceny and  will  not  alone  support  a  conviction. 
Mullins  v.  State,  Ala.  (1918),  77  So.  963; 
State  v.  Ford,  X.  C.  (1918),  95  S.  E.  154. 

95.  State  v.  Vinton,  220  Mo.  90,  119  S.  W. 
370    (1909).     See,   however,    Moore   v.    State 
(Tex.  Cr.  App.  1896),  33  S.  VV.  980. 

96.  State     v.     Raymond,     46     Conn.     345 
(1878);   Keating  v.  People,  160  111.  480,  43 
X.   E.  724    (1896):   Johnson  v.  State,  supra: 
State  v.  Wilson,  95  Iowa  341,  64  X.   VV.  266 
(1895);     Com.    v.    Deegan,     138    Mass.     182 
(1884):    People   v.    Wood,   99   Mich.    620,   5H 
X.    VV.    638    i!894);    People   v.   Weldon.    Ill 
X.   \.  569,   19  X.  E.  279    (1888):   2  Chamb. 
Ev,  §  1123,  n.  1,  and  cases  cited. 

97.  Alexander     v.     State.     60     Miss.     953 
M8S3)  ;  Ball's  Case.  4  City  Hall  Rec.   (X   Y  , 
113   (1819)  :  2  Chamb.,  Ev.    §  1123,  n.  2,  and 
cases  cited. 

98.  Roberts   v.    State,    33    Tex.    Cr.    83.    24 
S.  W.  89.1   (1804). 

99.  State  v    King.   122   Towa   1.   96   X.   W. 
712  (1903). 

1.  Magee  v.  People.  139  111  138,  28  X.  E 
(1891):  State  v.  Conway.  56  Kan.  6S2.  44 
Pac.  627  (1896):  Knickerbocker  v.  People, 
43  X.  Y.  177  (1870).  C,ood  riinraHer.—  Th* 
presumption  of  law  operates  only  until  evi- 
dence is  introduced  on  the  subject.  Even  a 
deliberative  fact,  like  proof  of  good  char- 
acter, may  have  this  effect.  State  v.  Hes- 


315  LARCENY.  §  464 

Limited  to  Use  of  Circumstantial  Evidence.- —  The  use  of  such  a  presump- 
tion is  obviously  limited  to  cases  where  the  evidence  is  circumstantial.  Should 
direct  evidence  be  furnished  either  as  to  the  actual  res  gestae  of  the  larceny 
or  regarding  the  circumstances  under  which  the  possession  came  to  be  in  the 
accused,  the  inference  in  question  is  irrelevant.2 

Statutory  Modifications. —  As  a  rule,  legislative  enactments  are  merely 
declaratory  of  the  common  law.  Occasionally,  however,  certain  modifications 
upon  the  established  rule  have  been  introduced,  for  example,  the  burden  of 
evidence  to  disprove  the  identity  claimed  by  the  owner  of  the  stolen  property 
may  be  cast  upon  the  person  in  whose  alleged  possession  it  is  found.3 

Administrative  Details. —  The  mere  fact,  however,  of  such  unexplained 
possession  does  not,  in  the  absence  of  evidence  of  a  corpus  delicti  by  way  of 
larceny,  simple  or  aggravated,  present  any  evidentiary  value  in  connection 
with  the  present  presumption.4  Xor  does  probative  force  distinctly  attach 
to  the  inference  of  guilt,  even  in  case  the  corpus  delicti  be  established,  until 
the  goods  stolen  and  those  found  in  possession  are  clearly  and  closely  identi- 
fied.7' 

Presumption  of  Law  Denied. —  Certain  courts  have  denied  the  procedural 
force  of  a  presumption  of  law  to  the  inference  of  guilt  which  arises  from 
recent,  exclusive,  and  unexplained  possession  of  stolen  goods.6  Whatever  may 
be  the  proper  weight  in  evidence  of  the  inference  of  guilt  from  such  possession, 
where  it  is  found  unqualified  by  other  evidence,  it  will  seldom  occur  that  it 

sians,    50    Iowa    135    (1878);    State   v.    Sas-  ated.     White  v.  State,  21  Tex.  App.  339,  17 

seen,    75    Mo.    App.    197    (1898);    People   v.  S.  W.  727    (1886);   2  Chamb.,  Ev.,  §  1123b, 

Preston,   1   Wheel.   Cr.    i  X.   Y.)    141    (1823).  n.  4,  and  cases  cited. 

When  the  case  is  otherwit-e  doubtful,  and  the  4.  Sanders   v.    State,    167    Ala.   85,   52    So. 

good  character  of  the  accused  is  shown,  pos-  417    ( 1910)  ;    State  v.  Sasseen,  75  Mo.   App. 

session    of    stolen   property    is   not    sufficient  197   (1898);  Smith  v.  State,  17  Xeb.  358,  22 

proof  to  convict.     People  v.  Turrell,  1  Wheel.  X.  W.  780   (1885)  ;  People  v.  Caniff,  2  Park. 

Cr    (X.  Y.)  34  (1822).  Cr.     i  X.    Y.)     586     (1855):    2    Chamb.,    Ev., 

2.  State  v.   Spencer,  4  Oen.    (Del.)    92,  53  §  1123c,  n.  1,  and  cases  cited. 

Atl.  337  (1902):  Heed  v.  State.  25  Wis.  421  5.  2  Chamb..  Ev.,  §  1131;  State  v.  Lack- 

(1S70).  It  is  rejected  as  secondary  evidence.  land,  136  Mo.  26,  37  S.  W.  812  (1896): 

(§  228:  1  Chamb.,  Ev.,  §  466.)  2  Chamb.,  U.  S.  v.  Candler,  65  Fed.  308  (1894).  Dis- 

Ev.    S   1123a.  covery  of  part  of  the  stolen  goods  grounds  an 

3.  Thus,  in  states  where  the  theft  of  cattle  inference  that  the  possessor  removed  all  the 
is   a   serious  and  customary  offense  and  the  missing  property.     People  v.   Fagan.  66  Cal. 
property    involved    difficult    of    identification.  534.    6    Pac.    394    (1885):    State   v.    Wilson, 
Flores   v.   State,    13   Tex.    App.    665    (1883):  supra :  State  v.  Henry.  24  Kan.  457  (18SO). 
State  v.  Eubank.  33  Wash.  203.  74  Pac.  37*  The  possession  of  stolen  goods  thougrh  not 

(1003).     No  retroactive  effect  i>  given  to  the  identified  as  those  the  subject  of  the  larceny 

statute.     Espy  v.  State.  32  Tex.  375    H893).  claimed  may.  however,  be  competent.     Comm. 

The  presumption  may  be  corroborated  by  di-  v.  Coyne.  Mass.   (1918).  117  X.  E.  337 

rect  proof      State  v   Mclntyre.  53  Wash.  17«.  6.  Clark   v.    State.   50   Fla.   15.   52   So.   518 

101  Pac.  710  (1900).     The  statute  merely  reg-  (1910):    Ingalls   v.   State.   48   Wis.   647,   656 

ulates    the    burden    of    evidence    (?             :    2  n«~0).     It  has  been  even  said  to  be  impos- 

Chamb..  Ev..  §   095)  -.   the  jury  determine  at  sihle.     State    v.    Hodge.    50    X.    H.   510.    517 

what  point  a  reasonable  doubt  ha?  been  ere-  (1869)  :  §  445.  supra ;  2  Chamb.,  Ev..  §  1085. 


§  464  PKESUMPTION  OF  LAW.  316 

will  be  unaccompanied  by  qualifying  facts,  rendering  it  no  longer  practically 
possible  for  the  court  to  assign  any  prima  facie  value  to  the  inference  as  one 
of  fact,  and  the  question  becomes  one  for  the  jury.7 

"A  Question  of  Fact  for  the  Jury. "--It  has  proved  easy  for  courts  to 
feel  that  for  them  to  create  such  a  presumption  of  law  was  to  invade  the 
province  of  the  jury,8  as  exclusive  judges  of  the  weight  of  evidence/'  In  courts 
which  forbid  the  judge  to  comment  upon  the  weight  of  evidence  10  it  is  not 
permissible  to  instruct  the  jury  even  that  the  possession  of  stolen  goods  furnishes 
a  strong  inference  of  the  fact  of  guilt.11  The  defendant  is  equally  unable  to 
obtain  instructions  in  his  own  favor,  for  example,  he  is  not  entitled  to  a  ruling 
that  the  mere  possession  of  the  stolen  goods  will  not  warrant  a  conviction  for 
larceny.12 

A  Prima  Facie  Inference  of  Fact. —  Courts  which  have  hesitated  to  declare 
that  juries  must,  in  the  absence  of  evidence,  follow  the  inference,  have  ruled 
that  they  may,  as  a  matter  of  reason,  do  so  if  they  sec  fit.13  All  this  is 
changed  should  the  accused  introduce  at  the  trial,  as  he  may  properly  do,14 
evidence  by  way  of  explanation  or  rebuttal,  on  which,  if  believed,  the  jury 
might  reasonably  act.  The  question  of  weight  now  becomes  one  entirely  for 
them.15 

Jury  May  Act  in  Accordance  tvith  the  Inference. —  Many  courts  have  not 
hesitated  to  announce  that  the  inference  itself  may  well  be  of  prima  facie 
value,  i.e.,  that  the  jury  would  be  reasonably  justified  in  acting  in  accordance 
with  it.16  There  is,  however,  authority  to  the  contrary.17 

Prima  Facie  Value  Denied. —  Certain  courts  have  declined  to  award  the 
inference  of  guil-t  from  recent  unexplained  possession  a  prima  facie  value.18 

7.  Bryant  v.   (State,    116   Ala.   445,   23   So        (1867).     See  also,  Gablick  v.  People,  40  Mich. 
40    (1896);    Harper    v.    State,    71    Miss    202,       292   (1879). 

13   So.   882    (1893);    State  v.   Kelly,   73  Mo.  13.  Douglass    v.    State,    91    Ark.    492,    121 

608    (1881)  ;   Stover  v.  People,  56  X.   Y    315  S.  W.  923   (1909)  ;  Brooke  v.  People,  23  Colo. 

(1874)  ;  State  v    Pomeroy,  30  Or.  16,  46  Pac.  375,  48  Pac.  502    (1897)  ;  Jones  v.  State,  49 

797    (1896);  2  Chamb.,  Ev.,  §  1124,  n.  3,  and  Tnd.  549    (1874)  ;    State  v.  Winter,  83   S.   C. 

cases  cited.  153,   65   S.    E.   209    (1909);    2   Chamb.,   Ev., 

8.  §§  125   et   seq.;    1    Chamb.,   Ev.,   §§   281  §  1126,  n.  1,  and  cases  cited. 

et  seq.  14.  §  465,  infra;  2  Chamb.,  Ev..  §  1130a. 

9.  People  v.   Mate/.uski,   11   Cal.   App.   465,  15.  §  464,  supra;  2  Chamb.,  Ev.,  §  1125. 
105   Pac.  425    (1909);   Williams  v.   State,  60  16.   Bergdahl    v.    People,    27    Colo.    302,   61 
Xeb.  526,  83  X.  W.  601    (1900)  :  Lockhart  v.  Pac.   228    (1900):    Stafford  v.   State,   121   fJa. 
State.  29  Tex.  App.  35,  13  S.  W.  1012  (1890)  ;  169,  48  S.   E.  903    (1904)  ;   Miller  v.  People, 
2  Chamb.,  Ev.,  §  1125,  n.  2,  and  cases  citP'V  229  111.   376,  82  X.  E.  391    (1907)  ;   State  v. 

10.  §§  125  et  seq.;   1   Chamb.,  Ev.,  §§  281  Xoble,  96  Mo.  App.  524,  70  S.  W.  504  (1902)  ; 
et  Kffj.  Mills   v.   Erie   R.    Co.,    113   X.    Y.    Supp.    641 

11.  Van   Straaten   v.   People.  26  Colo.   184,  (1908);    2    Chamb.,    Ev.,    §    1127,   n.    1,   and 
56  Pac.  905   (1899)  :  State  v.  Bliss,  27  W7ash.  cases  cited. 

463.  68  Pac.  87   (1901 )  ;  Roberts  v.  State,  11  17.  People  v.  Cline.  83  Cal.  374,  23  Pac.  391 

Wyo.  66.  70  Pac.  803    (1902).  (1890):    State   v.   Kimble,   34   La.   Ann.    392 

12.  Underwood     v.     State,     72     Ala.     220        (1882). 

(1882);     State    v.    Hogard,     12    Minn.    293          18.  State  v.  Kimble,  supra ;  State  v.  Tros- 


317 


LARGEST:. 


465 


In  these  jurisdictions,  it  has  been  held  to  be  error  to  charge  the  jury  that 
there  is  a  presumption  of  law  of  guilt,  that  the  law  presumed  guilt  from  such 
possession,10  or  to  any  similar  effect,20  or  even  that  the  circumstance  is  an 
incriminating  one.21 

Corroboration  Required. —  As  has  just  been  said,  in  certain  jurisdictions  the 
inference  of  fact  as  to  guilt  from  recent  unexplained  possession  has  not  been  ac- 
corded a  prima  facie  effect.22  The  inference  may,  however,  in  connection  with 
proof  of  other  suspicious  circumstances,  constitute  a  prima  facie  case,  i.e.,  war- 
rant a  conviction.23  Among  circumstances  of  corroboration  are  selling  the 
stolen  property  at  less  than  fair  value,2-4  possession  of  other  property  stolen 
at  the  same  time,25  failure  to  furnish  an  explanation  when  the  circumstances 
shown  in  evidence  call  for  one.26 

§  465.  [Criminal  Cases] ;  Explanation.27 —  As  has  been  said,  the  presumption 
of  law  iu.  question  operates  only  where  no  explanation  has  been  furnished.28 
Where  explanation  is  offered,  the  entire  question  becomes  strictly  one  of 
fact.2'1'  The  matter  is  one  entirely  for  the  jury  and  should  they  experience 
a  reasonable  doubt  of  the  guilt  of  the  accused  he  is  entitled  to  an  acquittal.30 

Opportunity  at  Trial. —  The  fact  that  the  defendant  on  the  discovery  of 
the  goods  in  his  possession  offered  no  explanation  constitutes  no  ground  why 
he  should  not  seek  to  establish  one  at  the  trial.31  A  fortiori,  a  prisoner  is 


per,    41    Mont.    442,    109    Pac.    858     (1910) 
Askew  v.  U.  S.,  2  Okl.  Cr.  155,  101  Pac.  121 
(1909). 

19.  Campbell  v.   State,   150  Ind.   74,  49   N. 
E.  905    (1897)  ;   State  v.  Kelly,  57  Iowa  644. 
11   X.  \V.  635    (1882). 

20.  Grifiin  v.   State,  86  Ga.  257,   12   S.   E 
409    (1890):    State   v.    Hodge,   50   X.   H    510 
(1869):    State  v.   McRae,   120  X    C.  608,  27 
S>.    E.    78,   58   Am.    St.    Rep.    808    (1897);    2 
Chamb.,  Ev.,  §   1128,  n.  5,  and  cases  cited. 

21.  State  v.  Walters,  7  Wash.  246,  34  Pac. 
938.  1098  (1893). 

22.  People  v.  Vidal.   121  Cal.  221,  53  Pac. 
558    (1898);   Williams  v.  State,  60  Xeb.  526, 
83  X.  W.  681    (1900)  :   State  v.  Reece.  27  W. 
Va.  375   (1885)  ;  2  Chamb.,  Ev.,  §  1129,  n    1, 
and  cases  cited. 

23.  Dean  v.  State,  6  Ga.  App.  250.  64  S.  E. 
671    (1909):    Com.    v.   King.   202   Mass    379, 
88   X.   E.   454    (1909);    State  v.   Johnson.   33 
Minn.   34,   21    X.    W.    S43    (1884):    People   v 
Zuckerman,    118   X.   V.   Supp.    127,   133   App. 
Div    615    (1909);    State  v.   Wong  Quong.  27 
Wash.  93.  07  Pao    355   (1901)  ;  2  Chamb..  Ev.. 
§  1129,  n.  2.  and  cases  cited. 

24.  State  v.  Hamilton,  77  S.  C.  383,  57  S. 
E.  1098   (1907). 


25.  Territory  v.  Livingston,  13  X.  Mex.  318, 
84  Pac.  1021    (1906). 

26.  Pool  v.  State  (Tex.  Cr.  App.  1907),  103 
S.  W.  892. 

27.  2    Chamherlayne,    Evidence,    §§     1130- 
1131. 

28.  State  v.  McKinney,  76  Kan.  419,  91  Pac. 
1068   (1907). 

29.  State  v.   Wolf,   6  Pen.    (Del.)    323,  66 
Atl.   739    (1907);    State  v.   Crooke,    129   Mo. 
App.  490,  107  S.  W.  1104  (1908)  :  §§  ; 
2  Chamb.,  Ev.,  §§   1124,   1125.     For  illustra- 
tive instances  showing  what  explanations  have 
been    held    sufficient,    see:     People   v.    Fagan, 
98  Cal.  230,  33  Pac.  60   (1893)  -.  McMahon  v. 
People,   120   111.   581.   11    X.   E.   883    (1887); 
State  v.  Miller,  10  Minn.  313   (1865)  ;   Hars- 
dorf  v.  State   (Tex.  App.  1892).  IS  S.  W.  415. 

30.  State  v.  Collett,  9  Ida.  608,  75  Pac.  271 
H903):    Watts    v.    People.   204    111.    233,    68 
X.   E    563    (1903);    State  v.   Deyoe,  97   Iowa 
744,  66  X.  WT    733   (1896)  :  State  v    Sally.  41 
Ur.  366.  70  Pac.  396   (1902)  :   2  Chamb..  Ev., 
§   1130,  n.  4.  and  cases  cited.     The  explana- 
tion may  be  found   in  the  attending  circum- 
stances.    State   v.   Winter,   83   S.   C.    153,   65 
S.  E    209    (1909). 

31.  Echols  v.   State,   147   Ala.   700,  41   So. 


§  465 


PRESUMPTION  OF  LAW. 


318 


clearly  entitled  to  reiterate,  amplify  :i2  and  establish  by  evidence,  at  the  trial, 
the  explanation  asserted  on  the  discovery  of  the  stolen  goods,  its  reasonable- 
ness is,  as  a  rule,  a  question  of  fact  for  the  jury.33 

Reasonable  Doubt  Alone  Required. —  The  accused  has  no  burden  of  proof, 
no  duty  of  establishing  the  truth  of  his  explanation  on  his  peril.  It  is  suffi- 
cient for  him  to  raise  a  reasonable  doubt  as  to  some  material  element  of  his 
liability.*4  It  cannot  truly  be  said  that  the  defendant  is  required  "  satis- 
factorily "  to  explain  his  possession  of  the  property  in  question.1*5 

Spoliation. —  In  so  doing,  the  inference  of  fact  arising  from  attempting  a 
false  explanation  3G  may  seriously  impair  the  prospects  of  success.37  When 
the  falsity  of  his  explanation  has  been  attacked  by  the  prosecution,  the  accused 
may  seek  to  corroborate  its  truth'38  but  not,  it  is  said,  where  no  such  attack 
has  been  made.3" 

Spontaneity.4" — For  reasons,  more  fully  stated  in  another  place,  the  declara- 
tion of  one  in  possession  of  stolen  goods  in  explanation  of  his  holding,  made 
immediately  upon  the  propriety  thereof  being  questioned,  by  arrest  or  other- 
wise, may  be  received  as  statements  of  part  of  the  res  yestae,  i.e.,  as  affirmative 
evidence  of  the  facts  asserted.41  So  long  as  the  spontaneity  persists,  the  state- 
ment may  be  received  in  its  assertive  capacity,  even  after  the  declarant  has 
parted  with  his  possession.42  A  mere  narrative,  however,  will  be  rejected.43 

37.  Wiley  v.  State,  92  Ark.  586,  124  S.  W. 
249    (1909);    Allen   v.   State    (Tex.   Cr.   App 
1893),  24  S.  W.  30:   2  Chamh..  Ev.,  §   1130c, 
n.  2,  and  cases  cited. 

38.  Xelson  v.  People,  22  Colo.  330.  44  Pac. 
594    (1896)  :   Andrews  v.  State,  25  Tex.  App. 
339,  8  S.  W.  328   (1888). 

39.  May  v.  State   (Tex.  Cr.  App.  1899),  51 
S.  W.  242. 

40.  §§  949    et   seq.,   infra;   4   Chamb.,   Ev., 
§§  2982  et  seq. 

41.  Bryant  v.  State,  supra  ;  People  v.  Cline, 


298  (1906);  Peeples  v.  States,  5  Ga.  App. 
706,  63  S.  E.  719  (1909)  ;  -Tones  v.  State,  49 
Ind.  549  (1875)  ;  2  Chamb.,  Ev.,  §  1130a,  n. 
1,  and  cases  cited. 

32.  Brittain  v.  State   (Tex.  Cr.  App.  1907), 
105  S.  W.  817. 

33.  State  v.   King,   122  Iowa    1,   96   X.   \V. 
712    (1903);   State  v.  Mandich,  24  Xev.  336, 
54  Pac.  516   (1898)  ;  2  Chamb.,  Ev.,  §  1130a, 
n.  3,  and  cases  cited. 

34.  Van   Straaten   v.   People,  26   Colo.   184. 
56   Pac.   905    (1899);    People  v.   Walters,   76 


Mich.   195,  42  N.  W.   1105    (1885);   State  v.     jsupra;  Bennett  v.  People,  96  111.  602   (1880)  : 


Lax.  71    X.  ,T.  L.  386,  59   Atl.   18    (1904)  :    2 
Chamb.,  Ev.,  §  1130b,  n.  1,  and  cases  cited. 

35.  Van  Straaten  v.  People,  supra  :  Hoge  v. 
People,    117    111.    35.    6    X.    E.    796     (1886). 
"  Where   a   party   is    found    in   possession    of 
goods  recently  stolen  directly  gives  a  reason- 
able and  credible  account  of  how  he  came  into 
such   possession,  or  such   an  account  as  will 
raise  a  reasonable  doubt  in  the  minds  of  the 
jury,  then  it  becomes  the  duty  of  the  state  to 
prove  that  siich  account  is  untrue,  otherwise 
he  should  be  acquitted."     Mr-Donald  v.  State 
56  Fla.  74.  47  So.  485  (1908). 

36.  §§  432  et  seq.;  2  Chamb..  Ev..  §?   1071 
et   seq.;   Cleveland   v.    State    (Tex.    Cr.    App. 
1909),  123  S.  W.  142. 


State  v.  dillespie.  62  i\an.  469.  63  Pac.  742 
(1900):  2  Chamb.,  Ev.,  §  1130d,  n.  2,  and 
cases  cited. 

42.  Taylor    v.    State.     15    Tex;.    App.    356 
(1882).  ' 

43.  §  963.   infra ;   4   Chamb.,   Ev.,   §    3021  ; 
Dixon  v.  State.  2  Tex.  App.  530   (1877). 

Admissions. —  If  the  explanation  of  the 
accused  be  adverse  to  his  interests,  the  dec- 
laration may  be  utilised  by  the  prosecution 
as  constituting  an  admission,  or  as  being  in- 
dependently relevant  Douslass  v.  State 
supra :  State  v.  TCodman.  62  Iowa  456.  1" 
X.  W.  06-*?  (1883);  §  534.  infra:  2  Chamb, 
Ev..  §  1313:  §§  837  et  seq.;  4  Chamb.,  Ev., 
§§  2574  et  seq. 


319  LARCENY.  §§  466,467 

Rebuttal. —  The  government,  upon  proof  of  the  explanation  offered  by  the 
accused  may  feel  that  it  is  so  improbable  as  not  to  impair  the  prima  facie 
quality  of  its  own  affirmative  case,  i.e.,  that  it  raises  no  reasonable  doubt  as  to 
guilty  conduct  or  knowledge.  If  so,  no  rebuttal  on  the  point  is  necessary.44 
Should  the  prosecution  conclude,  however,  that  the  explanation  of  the  ac- 
cused is  so  far  plausible  that  the  jury  may  feel  a  reasonable  doubt  as  to 
the  prisoner's  guilt,  it  may  introduce  evidence  in  rebuttal,  e.g.,  by  showing  the 
falsity  of  the  explanation.45 

§  466.  [Criminal  Cases] ;  Place  and  Cause  of  Finding.46 —  The  place  of  finding 
the  stolen  goods  is  not  material  in  connection  with  the  presumption  of  guilt 
from  recent  possession.  It  need  not  be  in  the  same  state  or  county  as  that  in 
which  the  larceny  was  committed.4'  The  cause  of  finding  may,  however,  have 
important  logical  bearing  upon  the  strength  of  the  inference  itself.48 

Identification  of  Goods. —  To  identify  the  discovered  goods  with  those 
which  have  been  stolen  is  a  clear  necessity  for  founding  any  presumption 
of  law  or,  indeed,  inference  of  fact.  Pieces  of  money  or  bank-notes  cus- 
tomarily in  circulation,  having  no  ear  mark,50  are  identified  with  difficulty. 
On  the  other  hand,  money  of  unusual  amount,  ancient  or  otherwise  rare  51 
coinage,  or  distinguished  by  special  marks,52  may  be  traced  with  comparative 
ease.  The  inference  of  identity  is  especially  easy  to  draw  when  reinforced 
by  other  logical  deductions.33  A  similarity  in  general  description  may  suffice, 
under  certain  circumstances,  for  purposes  of  identificaton.54 

§  467.  [Criminal  Cases] ;  Proof  of  Possession.55 —  Where  the  goods  are  found 
on  the  person  of  the  accused  the  issue  seems  settled  but  where  they  are  found 
in  a  place  over  which  it  is  claimed  the  defendant  had  control  it  must  appear 
that  the  control  was  exclusive  and  that  no  one  else  could  have  had  access  to 
them.56  The  possession  should  also  be  personal  in  the  sense  that  he  was 
exercising  acts  of  dominion57  and  also  the  possession  should  appear  to  be 
recent.08  What  is  a  recent  possession  may  depend  on  the  nature  of  the  article.59 

44.  Hudson  v.  State,  121  Ga.  147,  48  S    E.  51.  People  v.  Getty,  49  Cal.  581    (1875). 
903    (1904);    State  v.    Kimble,  supra:  Jones  52.  State  v.  Pigg,  80  Kan.  481,  103  Pac.  121 
v.    State.    30    -Miss.    653,    64    Am.    Dee.    175       (1909) 

(1856)  ;  2  Chamb  ,  Ev.,    1130e,  n    1.  and  cases  53.  Collier  v.  State  (Fla.  1908),  45  So.  752. 

cited.     For  illustrative  instances  of  explana-  54.  People  v.  Xunley,  142  Cal.  441.  70  Pac. 

tion  held  insu.Ticient.     Id.  45    (1904). 

45.  State   v.   Carr,   4   Pen.    (Del.)    52,3.   .">7  55.  2    Chamberlayne.    Evidence,    §§     1133- 
Atl    370   (1904)  ;  Leslie  v.  State.  35  Fla.  171,  1136b. 

17   So.  555    (1895)  :   -  Chamb..  Ev..  §   1130e,  56.  State  v.  Griffin,  71  Iowa  372.  32  X.  W. 

n.  2.  and  cases  cited.  447    (1887). 

46.  2  Chamberlayne.  Evidence.  §  1132.  57.  Watts  v.  People.  204  Til.  233.  68  X    K 

47.  Graves  v.  State.  12  Wis    591    (I860)  563   (1903). 

48.  Hudson  v    State.  9  Yerar     (Tenn  )    408  58.  Bryant   v.    State.    4   Ga.   App     Sol.    62 
(1836).  S    E    540   .1908) 

50.  Thompson  v.  State    (Fla.   1909),  50  So.  59.  State  v    M.-TJae.  120  X.  C   608,  27  S.  E. 

507  78,  58  Am.  St.  Rep.  808    (1897). 


§  468  PRESUMPTION  OF  LAW.  320 

§  468.  [Criminal  Cases] ;  Presumption  of  Malice  in  Homicide.60 —  A  most  un- 
usual  presumption  of  law  is  that  which  as  part  of  the  substantive  law  of 
homicide  has  been  understood  to  assert  that  where  a  deliberate  killing  of  a 
human  being  with  a  deadly  weapon  is  shown,  and  no  other  evidence  is  pro- 
duced it  will  be  presumed,  as  a  matter  of  law,  that  the  killing  was  done  with 
malice.01  it  has  been  held  by  certain  courts  that  where,  nothing  appears  be- 
yond the  fact  of  killing,  this  will  be  presumed,  as  a  matter  of  law,  to  have 
been  malicious.''2 

A  Discredited  Rule. —  It  will  readily  be  noticed  that  the  drift  of  modern 
judicial  opinion  is  distinctly  away  from  maintaining  the  presumption  of 
malice.  In  many  jurisdictions  the  conclusive  quality  of  the  presumption, 
originally  attached  to  it,  has  been  dropped.  The  presumption  is  treated  as  an 
ordinary  rebuttable  presumption  of  law,  valid  unless  and  until  evidence  is  in- 
troduced, by  one  side  or  the  other,  showing  justification  or  excuse.0''5  When 
such  evidence  is  introduced,  the  presumption  of  law,  as  such,  is,  like  any 
other  assumption  of  procedure  as  distinguished  from  an  inference  of  fact, 
functus  officio.  Even  "in  jurisdictions  which  still  continue  to  announce  the 
so-called,  conclusive  "  presumption  of  malice  "  its  potency  for  injustice  has 
been  greatly  lessened  under  later  decisions  which  have  introduced  such  qualifica- 
tions and  modifications  on  its  original  statement  as  suffice  to  reduce  it  within 
very  narrow  limits. 

When  evidence  is  introduced  bearing  on  the  question  of  malice  the  pre- 
sumption of  law  disappears  64  and  it  may  be  said  in  general  that  the  presump- 
tion of  malice  is  used  only  where  direct  proof  of  the  actual  res  gestae  is 
lacking.65  The  rule  that  malice  is  presumed  in  homicide  cases  is  anomalous 
and  is  apparently  an  outgrowth  of  the  early  canon  of  construction  of  special 
verdicts  that  where  the  jury  found  that  the  defendant  had  killed  the  deceased 
this  would  be  presumed  to  mean  a  felonious  kill  ing. 

The  true  rule  is  that  malice  may  be  established  by  inferences  of  fact  as 
from  premeditation,60  cruelty  in  killing,67  the  use  of  a  deadly  weapon,68  and 
the  absence  of  justification.60 

These  inferences  of  malice  may  be  rebutted  by  evidence  explaining  them  T(> 

60.  2    Chamherlayne.  Evidence,    §§    1137-      X.  W.  385    (1883):   State  v.  Rochester,  72  S. 
1158.  C.  104.  51  S.  E.  685   <1!I05). 

61.  Com.  v.  Webster.  5  Cush.  295.  52  Am.           65.   Kennison  v.  State   (Xeb.  1908),  115  N. 
Dec.  711    (1850).  W    289. 

62.  Hawthorne     v.     State,     58     Miss.     77«  66.  Spies   v.    People.    122    111.    1.    12    X.    E. 
(1881).  S65,  17  X.  E.  898,  3  Am.  St.  Rep.  320  (1887). 

63.  Stokes   v.    People,   53    X.   Y.    164.    182.  67.  State   v.   Jones,   86   S.   C     17.   67   S    E. 
183    (1873).     See  also.  People  v.  Down*,   12.°,  160   (1910). 

N.    Y.    67    (1890).     Coolman    v.    State    (Ind  68.  Brown    v.    State.   62    X.   J.    L    666.   42 

1904),  72  X.  E.  568.  Atl    811    (1898). 

64.  Jordan    v.    State,    79    Ala.    9     (1885):  69.  Peri  v.  People.  65  111    17    (1872) 
State   v.   Earnest,   56   Kan.   31,   42    Par    359  70.  State  v.   Rainslierger,   71    Iowa  746,  31 
(1895);    People   v.   Curtis,   52   Mich.   616.    18  X.  \V.  865    (1887). 


321  MALICE.  § 

as  that  use  was  made  of  a  deadly  weapon  for  the  purpose  of  self-defence.71 
Where  the  inference  of  malice  may  be  fairly  drawn  from  the  evidence  of  the 
prosecution  die  burden  of  evidence  is  upon  the  defence  to  rebut  the  presump- 
tion "2  but  the  burden  of  proof  to  establish  malice  beyond  a  reasonable  doubt 
is  upon  the  prosecution  throughout.73 

71.  The   fact   that   the  alleged   self-defence  72.  Com.  v.  York,  9  Mete.  93,  43  Am.  Dec. 

was  effected  by  the  use  of  a  greatly  superior  373    (1845). 

weapon  is  by  no  means  conclusive  of  malice.  73.  Daniel  v.  State,  126  Ga.  541,  55  S.  ^. 

People  v.  Barry,  31  Cal.  357  (1866).  472   (1906). 


CHAPTER  XV. 

PSEUDO-  PRESUMFIIONS. 

Pseudo-presumptions,  469. 

conclusive  presumptions,  470. 

scope  of  presumptions  of  this  class-fictions,  471. 
lost  grant,  472. 

presumption  of  malice  in  libel,  473. 

death  of  attesting  witness  in  case  of  ancient  writings,  474. 
consequences  of  conduct,  475. 
good  character,  476. 
knowledge  of  law,  477. 
presumption  of  innocence,  478. 
an  overstated  rule,  479. 
meaning  of  phrase,  480. 
valuless  as  affirmative  proof,  481. 

treatment  of  prisoners  in  judicial  administration,  482. 
weighing  the  presumption  of  innocence,  483. 
other  views,  484. 
presumption  of  survivorship,  485. 

§  469.  Pseudo-presumptions.1 —  Especially  fertile  in  confusion  among  various 
applications  of  the  term  presumption  are  those  where  no  inference  of  fact  2  or 
assumption  of  administration 3  is  involved.  It  has  seemed  convenient  to 
speak  of  these  as  pseudo  or  false  presumptions.  General  maxims  of  juris- 
prudence, paraphrases  of  well  settled  rules  of  substantive  law  or  procedure  more 
frequently  stated  in  some  other  form,  metaphysical  transpositions  of  familiar 
canons  of  administration,  such  are  the  pseudo  presumptions.  Usually,  they 
are  spoken  of  as  presumptions  of  law.4 

Of  this  class  are  the  presumptions  against  carriers,,5  or  the  presumption  of 

1.  2  Chamberlayne,  Evidence,  §  1150.  X.  Y.  35.     Presumption  from  recitals  in  judg- 

2.  Supra.   §§   414   et   seq.;   2   fhamh.,   Ev.,  merit  as  to  service  of  process,  see  note,  Bender 
§§  1026  et  xeq.  ed.,  147  X.  Y.  363. 

3.  Infra,    §§    486   et   seq.;    2   Ohamfo.,    Ev.,  5.   A   presumption   of  negligence  against   a 
§§  1184  et.  seq.  sleeping  car  company  arises  from  the  theft  of 

4.  Supra.    §§    444    et   seq.:   2    fhamb.,   Ev.,  articles  in  a  sleeping  car  at  night.     Robinson 
§§  1082  et  seq.     Com.  v.  Frew,  3   Pa.  Co.  Ct.  v.  Southern  R.  Co.,  40  App.  D.  C.  549,  L.  R. 
R.  402   (1886).     2  Chamlt..  Ev..  §  11.10.     Pre-  A.   lOlf)  B  621    M013).      In  a  suit  against  a 
sumption   as  to  time  deed  was  delivered,  see  carrier   where   the   defence   is   an    act  of  God 
note,  Bender  ed.,  41  X.  Y.  412.     Presumption  consisting  of  a  snow-slide  the  burden  of  proof 
that  one  presenting  note  indorsed  in  blank  is  remains  on  the  plaintiff  to  prove  negligence, 
bona   fide   holder,    see   note,    Bender   ed.,    128  The  mere  fact  that  the  avalanche  caused  the 


323 


CONCLUSIVE. 


§  470 


payment  from  lapse  of  time,6  or  the  presumption  from  prima  facie  proof  of  a 
will,7  or  that  an  agent  was  acting  in  the  scope  of  his  employment,8  or  of  owner- 
ship 9  in  certain  cases ;  or  that  an  employment  is  at  will  when  on  a  weekly  or 
monthly  salary.10 

§  470.  [Pseudo-Presumptions];  Conclusive  Presumptions.11 — Among  pseudo- 
presumptions  of  law  may  properly  be  classed  the  so-called  k*  conclusive  "  pre- 
sumptions.12 Many  of  the  rules  of  substantive  law  may  be  paraphrased  into 
the  language  of  evidence  by  the  simple  expedient  of  saying  that  the  result 
which  the  substantive  law  decrees  shall  follow  the  existence  of  a  particular  fact 
is  "  conclusively  presumed  "  to  result  from  proof  of  it.  Thus  the  rule  that 
stockholders  are  required  by  law  to  know  the  articles  of  incorporation  of  their 
company  may  be  put  into  the  form  of  saying  that  they  are  conclusively  pre- 
sumed to  do  so.13  Occasionally,  the  language  of  an  ordinary  presumption  of 
law  is  invoked  for  the  same  purpose.  Thus  the  substantive  law  relating  to 


accident  does  not  raise  any  presumption  of 
negligence  on  the  part  of  the  defendant.  Top- 
ping v.  Great  Northern  R.  Co.,  81  Wash.  166, 
142  Pac  425,  L.  R.  A.  1915  F  1174  (1914). 
The  carrier  by  proving  the  damage  was  due 
entirely  to  an  act  of  God  overcomes  the  prima 
facie  case  of  the  shipper  and  the  burden 
shifts  to  the  shipper  to  show  that  negligence 
on  the  part  of  the  carrier  co-operated  with  the 
act  of  God  in  bringing  about  the  damage  to 
the  shipment.  St.  Louis  &  San  Francisco  R. 
Co.  v.  Dreyfus.  42  Okla.  401,  141  Pac.  773, 
L.  R.  A.  1915  D  547  (  1914).  There  is  much 
difference  of  opinion  as  to  the  burden  of 
proof  where  a  carrier  takes  goods  under  a 
limited  liability  contract  that  it  is  liable  only 
for  negligence.  Many  modern  cases  hold  that 
siu-h  a  contract  puts  on  the  shipper  the  bur- 
den of  showing  that  the  carrier  was  negli- 
gent, but  there  is  a  strong  minority  which 
holds  that  the  carrier  still  has  the  burden 
of  proof.  McGrath  v.  Northern  Pac.  R..  121 
Minn.  258,  141  N.  \\ .  164.  L.  R.  A.  1915  D 
644  (1913).  Presumption  of  carrier's  negli- 
gence from  action,  see  note,  Bender  ed..  95 
N  Y.  563. 

6.  The  presumption  of  payment  from  lapse 
of  time  applies  even  to  a  claim  by  the  govern 
ment.  which  can  of  course  rebut  the  presump- 
tion   by    affirmative   evidence      Chesapeake   & 
n    Canal   Co    v    C'nited   States.    139  C.  C.   A. 
4(Ki.  223  Fed.  926.  L    R.  A.  1916  R  734  (1915). 
Presumption  of  payment  from  lapse  of  time, 
see  note.  Bender  ed..  94  X.  Y.  387. 

7.  The    presumption    or    prima    facie    case 
made  out   by  an   er  parte  probate  of  a  will 


when  contested  becomes  of  no  avail  as  soon 
as  evidence  is  introduced  in  opposition  thereto. 
Kilgore  v.  Gannon,  185  Ind.  682.  114  N.  E. 
446,  L.  R.  A.  1917  E  530  (1916). 

8.  The   court   may   presume   from   evidence 
that   an  automobile  involved   in   an  accident 
was  owned  by  the  defendant  and  driven  by 
his  chauffeur  that  he  was  acting  in  the  scope 
of  his  employment  but  mere  evidence  that  he 
was  the  servant  of  the  defendant  is  not  enough 
as  this  is  no  evidence  that  he  was  acting  in 
the  scope  of  his  employment.     White  Oak  Coal 
Co.    v.    Rivoux,    88   Ohio    St.    18,    102    N.    E. 
302,  46  L.  R.  A.   (  N.  6.)    1091    (1913). 

9.  Evidence  that  a  wagon  that  ran  over  the 
plaintiff  was  plainly  marked  with  the  name  of 
the  defendant  is  prima  facie  evidence  that  it 
belonged  to  him.     Dennery  v.  Great  Atlantic 
&   Pacific  Tea  Co.,  82   N.  J.  L.  517,  81    Atl. 
861,  39  L.  R.  A.   (N.  S.)  574   (1911). 

10.  The  authorities  generally  state  the  doc- 
trine that  an  employment  upon  a  weekly  or 
monthly  salary  is  presumed  to  be  a  hiring  at 
will  and  the  burden  of  proving  that  the  hiring 
was  for  a  year  or  other  definite  period  is  on 
the  party  who  claims  it.     Reasnor  v.  Watts 
Ritter  &   Co..   73   W    Ya.   342.   80   S.   E.   839, 
51   L.  R    A.   (X.  S.)   629    H913). 

11.  2     Chamberlayne.     Evidence.     §§     1160, 
1161. 

12.  See  Lvon  v.  Guild.  52  Tenn.   (5  Heiak.) 
175    (1871):   State  v.  Pilling,  53  Wash.  464, 
102   Pac.    230    (1909):    U.    S.    v.    Searcy.    26 
Fed.  435    (1885).     2  Chamb..   Ev..   §   1160. 

13.  Schickler  v.  Wash.  Brewery  Co..  33 
D.  C.  35 


^  471,472  PsEuno-PijEsu.MPTioNS.  324 

judgments  may  be  stated  in  the  language  of  presumption.14  So  also  the  legal 
incapacity  of  a  child  under  seven  years  of  age  to  appreciate  and  avoid  danger 
may  he  said  To  be  conclusively  presumed.1"'  On  the  other  hand,  these  con- 
clusive presumptions  have  been  spoken  of  as  if  they  were  the  true  and  typical 
presumptipn  of  law.1'5 

§  471.  [Conclusive  Presumptions];  Scope  of  Presumptions  of  this  Class;  Fic- 
tions.17—  The  conclusive  presumption  may  also  cover  legal  fictions.  An  ex- 
ample is  furnished  in  the  rule  pertaining  to  the  jurisdiction  of  the  federal 
courts  in  actions  based  on  the  diversity  of  citizenship  in  which  corporations  are 
concerned  as  parties.  It  was  early  held  that  a  corporation  was  not  a  "  citi- 
zen "  within  the  language  of  the  constitution  of  the  United  States.1*  lu  this 
case  it  will,  it  is  said,  be  conclusively  presumed  that  all  stockholders  of  the 
corporation  are  citizens  of  the  state  under  the  laws  of  which  the  corporation 
came  into  existence,1'*  even  in  cases  where  the  corporation  is  organized  under 
the  laws  of  the  United  States.20 

§  472.  [Conclusive  Presumptions] ;  Lost  Grant.21- —  In  the  law  of  real  property., 
adverse  use  of  an  easement  or  other  incorporeal  hereditament  for  a  period  of 
twenty  years,  raises  a  presumption  that  a  grant  of  the  same  has  been  made  in 
accordance  with  the  user  and  that  the  instrument  has  been  subsequently  lost.22 
This  presumption  of  a  grant  *'  can  never  fairly  arise  where  all  the  circum- 
stances are  perfectly  consistent  with  the  non-existence  of  a  grant.23  A  fortiori, 
they  cannot  arise  where  the  claim  is  of  such  a  nature  as  is  at  variance  with  the 
supposition  of  a  grant."  24 

\\'ken  Conclusive. —  The  presumption  which,  as  thus  stated,  may  properly 
be  regarded  as  a  true  presumption  of  law,  has  frequently  been  spoken  of  as  a 
conclusive  presumption.25  This  is  the  prevailing  rule  in  America  by 

14.  The    law    presumes    that    a    judgment,  704,  87  !S.  W.  921    (1905)  ;  Carter  v.  Tinicum 
until  reversed,  is  a  correct  judicial  deterniina-  Fishing  Co.,  77   Pa.  310    (1875)  ;   Fletcher  v. 
tion  of  the  rights  of  the  parties.     -Tenner  v.  Fuller,  120  I".  S.  534,  7  S.  Ct.  (i(i7,  30  L.  ed., 
Murphy,  6  Cal.  App.  434,  92  Pac.  405   (1907).  757     (1887);    2    Chamb.,    Ev.,.§    1163,   n.    1, 

15.  Sullen berger    v.    Chester    Traction    Co.,  and  cases  cited. 

33  Pa.   Super.  Ct.   12    (1907).  A  grant  from  the  State  to  a  party  may  be 

16.  Bow  v.  Allenstown,  34  X.  H.  351,  365,  presumed   from   uninterrupted   possession   for 
69  .Am.  Dec.  489   (1857)  :  Territory  v.  Lucero,  twenty  years.     Caruth  v.  (iillespie,  109  Miss. 
8   X.  M.  543,  40  Pac.    18    (1806).     2  Chamb.,  07!).  OS  So.  927    (1915). 

Ev.,  §  1161.  23.  Lee   Conservancy   Board   v.    Button.    12 

17.  2  Chamberlayne,  Evidence,  §  1162.  Ch.   D.   383,  406,   409.   C.   A.   6   Ap.   C'a.   685, 

18.  Muller  v.  Dows,  94  U.   8.  444    (1876).  D.  P.    (1878). 

19.  Manufacturers,  etc.,  Bank  v.  Baack,  2  24.  Hicard  v.  Williams,  7  Wheat.    (U.  S. ) 
Abb.    1 1".    S.i    23-2    (18/1);    Muller   v.   Dows,  59,    109     (1822):    Gardner    v.    ITodgsons,    &c., 
supra;  2  Chamb.,  Ev.,  §  1162,  n.  2,  and  cases  Brewery  Co.,  A.  C.  229,  240  (1903). 

cited.  ,         25.  Kripp  v.  Curtis,  71  Cal.  62,  11  Pac.  879 

20.  Jd.  (1886)  :  Chicago  v.  Chicago,  etc..  K.  Co..  152 
21.2    Chamberlayne,    Evidence,    §§    1163-       Til     561.    38    X.    E.    768    (1894):    O'Brien    v. 

1163b.       '  Goodrich,  177  Mass.  32.  58  X.  E.  151    (1900)  ; 

22.  Anthony  v.  Kennard  Bldg.  Co.,  188  Mo.       Chase  v.  Middleton,  123  Mich.  047.  82  X".  W. 


325 


M  ALICE. 


analogy  to  the  statutes  of  prescription  relating  to  corporeal  hereditaments. 
The  enjoyment  of  an  incorporeal  hereditament  exclusive  and  uninterrupted 
for  a  time  sufficient  to  acquire  title  to  the  soil  by  adverse  possession,  affords  a 
conclusive  presumption  of  a  grant  to  be  applied  as  a  presumptio  jiifis  et  de 
jure.29 

Inference  of  Fact. —  Certain  American  courts  do  not  agree  to  the  conclu- 
siveness  or  even  as  to  the  prima  facie  quality  of  the  presumption  to  the  effect 
that  the  user  shown  to  have  existed  was  under  a  lost  grant.  They  regard  it 
as  simply  an  inference  of  fact  of  greater  or  less  probative  weight  according  to 
the  circumstances  of  the  particular  case.27 

§  473.  [Conclusive  Presumptions] ;  Presumption  of  Malice  in  Libel.28 —  An 
illustration  of  the  frequent  process  by  which  a  rule  of  substantive  law  is 
placed  in  the  convenient  phraeology  of  evidence,  is  found  in  the  law  of  libel. 
Thus,  it  is  said  that  "  the  deliberate  publication  of  calumny,  which  the  pub- 
lisher knows  to  be  false,  or  has  no  reason  to  believe  to  be  true,  raises  a  conclu- 
sive presumption  of  malice/'  29  A  precisely  equivalent  expression  would  prob- 
ably have  been  that  in  case  of  the  deliberate  intentional  publication  of  de- 
famatory matter  the  existence  of  actual  malice  is  immaterial.30  Or,  more 
shortly,  that  one  who  intentionally  and  deliberately  publishes  defamatory  mat- 
ter regarding  a  given  individual  is,  under  the  law  of  libel,  responsible  to  him 


612  (1900)  ;  Lewis  v.  New  York,  etc.,  R.  Co., 
162  X.  Y.  202,  56  X.  E.  540  (  1000)  :  Bates  v. 
Sherwood,  24  Ohio  Cir.  Ct.  146  i  1903)  :  Car- 
ter v.  Tinicum  Fishing  Co.,  supra  ;  2  Chamb., 
Ev..  §  1163a,  n.  1,  and  cases  cited  from  33 
American  jurisdictions. 

26.  The   grounds   of   policy   for  the  attain- 
ment of  which   this   rule  of   substantive   law 
has  been  evolved  are  cautiously  stated  by  Sir 
William   Grant:      "Presumptions   do  not   al- 
ways proceed  on  a  belief  that  the  thing  pre- 
sumed lias  actually  taken  place.     Grants  are 
frequently  presumed,  as  Lord  Mansfield  says 
[Eldridge    v.    Knott.    1    Cowp.    214     (1774)]. 
merely  for  the  purpose,  and  from  a  principle, 
of  quieting  the  possession.     There  is  as  much 
occasion   for  presuming  conveyances  of   legal 
estates-,   as  otherwise  titles  must   forever  re- 
main imperfect,  and  in  many  respects  unavail- 
able, when  from  length  of  time  it  1ms  become 
i 7ii possible    to    discover    in    whom    the    legal 
estate    if    outstanding    is    actually    vested." 
Hillary    v.    Waller.    12    Vesey.    Jr.    230.    2.") 2 
(1S06).     This  statement   of  the  law  is  cited 
with  approval  in  Fletcher  v.  Fuller.  120  U.  S. 
534    (1886). 

27.  For   example,   user   of   a    fishery   for   a 
long  period  was  held  to  raise  merely  an  in- 
ference  of  fact,   the   weight   of   which   should 


have  been  submitted  to  the  jury.  Carter  v. 
Tinicum  Fishing  Co.,  supra.  Where  the  ori- 
gin of  the  easement  is  known  a  lost  grant  is 
not  to  be  presumed.  C'lafin  v.  Boston,  etc., 
R.  Co.,  157  Mass.  489,  32  X.  E.  659,  20  L.  R. 
A.  638  (1892).  "  Such  a  question  is  a  mixed 
question  of  fact  and  law,  to  this  extent,  that 
the  facts  being  found,  it  is  for  the  court  to 
advise  the  jury,  whether  in  their  nature  and 
quality  they  are  sufficient  to  raise  the  pre- 
sumption proposed  the  weight  of  the  evidence 
being  for  the  jury."  Valentine  v.  Piper.  22 
Pick.  (Mass.)  85,  94  (1839).  2  Chamb.,  Ev., 
§  1163b. 

28.  2  Chamberlayne,  Evidence.  §  1164. 

29.  1   Greenl..  Ev.,  §   18;   Rocky  Mountain 
Xews  Printing  Co.  v.  Fridborn,  46  Colo.  440, 
104  Pac.  956    (1909)  :  Cox.  v.  Strickland,  101 
Ga.   482,    28    S.    E.    655     ( 1897 )  :    Sheibley    v. 
Xelson.  84  Xeb.  393,  Izl   X.  W.  458    (1909): 
Fry  v.  Bennett.  5  Sandf.    ( X.  V.  >   54    (1851): 
2  Chamb..  Ev.,  §  1164,  n.  1.  and  cases  cited. 

30.  Smurthwaite    v.    Xews    Pub.    Co..    124 
Mich.  377.  83  X.  W.   110    (U»<)0):    Paxton  v. 
Woodward,   31    Mont.    195.   78   Pac.   215.    107 
Am.  St.  Rep.  416    (1904)  :   Cady  v.  Brooklyn 
Union  Pub.  Co..  51  X.  Y.  Supp.  19S,  23  Misc. 
409   i  1898)  :  2  Chamb.,  Ev.,  §  1164,  n.  2,  and 
cases  cited. 


§  474  PSEUDO-PRESUMPTIONS.  326 

in  damages.  No  actual  malice  is  essential  to  the  recovery  of  compensatory 
damages.31  The  only  apparent  necessity  for  using  the  phraseology  of  presump- 
tion is  that  it  effectively  conceals  the  administrative  process  by  which  a  rule 
in  the  law  of  libel  requiring  actual  malice  as  a  constituent  element  of  liability 
has  been  quietly  judicially  legislated  into  one  which  does  uot.:!2 

Express  Malice. —  Where  a  privilege  is  claimed  and  established,  the  same 
use  of  the  terminology  of  evidence  is  employed  in  stating  that  the  presumption 
of  malice  from  deliberate  publication  no  longer  obtains.  "  Where  the  words 
spoken  or  written  are  shown  to  be  within  a  confidential  or  privileged  communi- 
cation, the  presumption  of  malice  no  longer  exists;  but  the  plaintiff  in  such  a 
case  must  show  express  malice,  and  cannot  rely  on  the  presumption  of  malice 
which  the  law  attaches  in  all  other  cases  to  the  utterance  or  publication  of  the 
words  spoken  or  written."  33 

§  474.  [Conclusive  Presumptions  1 ;  Death  of  Attesting  Witnesses  in  case  of 
Ancient  Writings. a4 —  The  so-called  conclusive  presumption  of  law  may  form 
an  alternative  statement  to  a  rule  of  procedure  or  practice.  As  a  rule  of  pro- 
cedure, the  court  does  not  require  the  production  of  the  attesting  witnesses  in 
proving  the  execution  of  a  document  thirty  years  old.35  The  rule  of  procedure 
or  practice  is  a  common  and  satisfactory  one.30  This  very  sensible  rule  of  con- 
venience may  be  put  into  the  form  of  saying  that  the  subscribing  witnesses  to 
writings  thirty  years  old  are  conclusively  presumed  to  be  dead ;  —  so  that  exe- 
cution of  such  a  deed,37  will  38  or  other  document  39  need  not  be  proved.  The 
question  is  one  of  procedure  not  of  logic,  and  the  phraseology  of  "  presump- 
tion "  is,  therefore,  misleading.40 

31.  C'hilders  v.  San  Jose  Mercury  Printing,  of  a  railroad,  State  v.  Hesaenkamp,  17  Iowa 
etc.,  Co.,   105  Cal.  284,  38  Pac.  903,  45  Am.  45    (1864);   Com.  v.  Bokeman,   105  Mass.  53 
St.   Rep.   40    (1894);    Holmes  v.   Clisby,    121  (1870);   or  in  cases  charging  malicious  mis- 
Ga.  241,  48  S.  E.  934,  104  Am.  St.  Rep.  103  chief,     Com.     v.     Williams,     110    Mass.     401 
(1904)  ;    Prewitt   v.    Wilson,    128    Iowa    198,  (1872)  ;  express  malice  must  be  proved. 

103  N.  W.  365  (1905);  Faxon  v.  Jones,  176  Burden  on  plaintiff. —  In  an  action  of 
Mass.  206,  57  N.  E.  359  (1900)  :  O'Brien  v.  slander  if  the  occasion  is  privileged  the  bur- 
Bennett,  76  N.  Y.  Supp.  498,  72  App.  Div.  den  is  on  the  plaintiff  to  prove  malice.  Doane 
367  (1902)  ;  2  Chamb.,  Ev.,  §  1164,  n.  3,  and  v.  Grew,  220  Mass.  171,  107  N.  E.  620,  L.  R. 
numerous  cases  cited.  A.  1915  C  774  (1915). 

32.  2  Chamb.,  Ev.,  §  1164.  34.  2  Chamberlayne,  Evidence,  §  1165. 

33.  Dillard  v.  Collins.  25  Gratt.    (Va.)   343  35.  See  Attesting   witnesses,  infra,  §   1100. 
(1874).     To   the    same    effect,   see    Myers    v.       Sec  also  infra,  §§  1103-1107. 

Hodges,  53  Fla.  197,  44  So.  :',57    (1907).     Sec  36.   Henthorne  v.  Doe,  1  Blackf.    (Ind.)    157 

also,  2  Chamb.,  Ev.,  §    ll<>4a.  and  cases  cited.  (1822)  ;  Clark  v.  Owens.  IS  N.  Y.  43-1   (1858)  ; 

Malice    in    other   Connections. —  The   tech  McReynolds   v.    Longenberger.   51    Pa.    13,   31 

nical  nature  of  the   so-called  conclusive  pre-  (1868):    2    Chamb.,    Ev.,    §    1165,   n.    2,   and 

sumption  of  malice  as  a  statement  of  a  propo-  cases  cited. 

sition   of   substantive   law,   is   made  clear  by  37.  Green  v.  Chelsea,  24  Pick.    (Mass.)    71 

the  fact  that  in  all  cases  where  the  existence  (1831  ). 

of  malice  is  a  constituent  or  material  fact,  it  38.  Jackson  v.  Blanshnn.  3  Johns   (M".  Y.) 

must  l>e  proved  as  any  other  psychological  fact  292,  3  Am.  Dec.  485    (1808). 

would  be.     For  example,  in  an  indictment  for  39.  McReynolds  v.  Longenberger.  supra. 

maliciously  placing  obstructions  on  the  tracks  40.  Settle  v.  Alison,  8  Ga.  201    (1850). 


327 


CONSEQUENCES  OF  CONDUCT. 


§  -175 


Need  of  C  orroboration. —  It  has  been  required  by  certain  courts  that  some 
evidence  of  the  genuine  character  of  a  document  be  furnished  to  the  tribunal 
as  a  preliminary  to  the  application  of  the  presumption  under  consideration."11 

Effect  of  Circumstances  of  Suspicion. —  Where  circumstances  of  suspicion 
surround  the  genuine  character  of  a  document  thirty  years  old,  should  the 
evidence  in  the  case  explain  and  account  for  these  circumstances  to  the  satisfac- 
tion of  the  presiding  judge,  he  may  admit  the  writing  to  the  benefit  of  the  rule 
of  procedure.42 

§  475.  [Pseudo-Presumptions] ;  Consequences  of  Conduct.43 —  It  is  said  that 
each  person  is  presumed  to  intend  the  natural  consequences  of  his  acts,44 
though  not  necessarily  all  the  results  which  actually  do  follow  from  them, 
though  they  might  reasonably  have  been  foreseen.  In  like  manner,  it  has 
been  announced,  with  regard  to  acts  embodied  in  documents,45  that  it  will  be 
presumed  that  he  who  executes  an  instrument,  whether  by  signing  it  himself 
in  the  usual  way,40  or  by  means  of  his  mark,47  or  through  some  one  who  is 
directed  to  do  so  48  understands  the  nature,  force  and  effect,  of  the  writing. 
An  obvious  peculiarity  of  this  so-called  "  presumption  "  is  that  it  rs  in  no 
sense  an  inference  of  fact.49  It  is  apparently  a  paraphrase  for  the  statement 
of  a  very  ordinary  rule  of  substantive  law  to  the  effect  that  one  who  does  an 


41.  Fairly  v.  Fairly,  38  Miss.  280    (1S59). 
"  If  possession  has  accompanied  the  deed,  for 
that  length  of  time,  that  is  enough.     If  not, 
other  circumstances  may  be  resorted  to  for  the 
purpose  of  raising  the  necessary  presumption 
in   favor  of  the  deed."     Clark   v.   Owens,    IS 
N.  Y.  434  (1858).     Possession  under  the  deed 
in  question  by  a  predecessor  in  title  has  been 
deemed  sufficient.     Burgin   v.   Chenault,  9  B. 
Mon.    (Ky  )    285    (1S4S). 

42.  Walton  v.  Coulson.   1 -McLean    (U.   S.) 
120   (1831) 

43.  2    Chamberlayne,    Evidence.     §§     1166, 
1167. 

44.  Lane     v.     People.     142     111.     App.    571 
(1908);    Ampersand  Hotel   Co.  v.  Home  Ins. 
Co.,  115  N.  Y.  Supp.  480,  131  App.  Div.  361 
(1909)  :  Timm  v.  Bear.  29  \Yis.  254   (1871)  : 
2  Chamb  ,  Ev..  §   1166.  n.   1.  and  cases  cited. 

Intent  to  Defraud. —  An  insolvenf  buyer 
who  knows  at  the  time  of  his  purchase  that 
his  financial  condition  is  such  that  it  is  and 
*vill  be  impossible  for  him  to  pay  for  his 
purchases  is  conclusively  presumed  to  have 
bought  them  with  an  intention  not  to  pay  for 
them:  and  a  persuasive  legal  presumption  to 
mat  effect  arises  from  the  fact  that  such  a 
purchaser's  affairs  were  in  such  a  condition  at 
the  time  of  the  purchase  of  the  property  that 
he  could  then  have  had  no  reasonable  expec- 


tation of  paying  for  it.  Gillespie  v.  Piles  & 
Co.,  173  Fed.  886,  102  C.  C.  A.  120,  44  L.  R.  A. 
(X.  S.)  1  (1910). 

45.  Perrin  v.   U.  S.  Express  Co.,  78  N.  J. 
L.   515,   74   Atl.   462    (1909).     The   inference 
may    be   rebutted.     McKittrick    v.    Greenville 
Traction    Co.,    84    S.    C.    275,    66    S.    E.    289 
(1909). 

46.  Green  v.  Maloney.  7  Houst.    (Del.)   22, 
30  Atl.   672    (18841:    Mattocks  v.   Young.   66 
Me.  459   (1876)  ;  Androscoggin  Bank.  v.  Kim- 
ball,  10  Cush.  (Mass.)  373  (1852)  :  2  Chamb., 
Ev.,  §  1166,  n.  3,  and  cases  cited 

47.  Lipphard    v.    Humphrey.   28    App.   Cas. 
(D.    C.)    355    (1906):    Doran    v.   Mullen.   78 
111.  342   (1875). 

48.  Harris  v    Story,  2  E.  D.  Smith   (X.  Y.) 
363    (1854). 

49.  Board  of  \Yater  Com'rs  of  City  of  Xew 
London   v.   Robbins   &   Potter,   82   Conn.   623, 
74   Atl.   938    (1910):    Clem   v.   State.  31    Ind. 
480    MS69)  :  Thomas  v.  People.  67  X.  Y.  218 
(1876)  :  2  Chamb..  Ev..  §  1166,  n.  6.  and  cases 
cited.     The  happening  of  an   event   does   not 
in   the   least    indicate   that   such    was  the   re- 
sult intended.     State  v.  Hersom.  90  Me.  273, 
38  Atl    160   (1807)  •.  l~.  S.  v.  Breese.  173  Fed. 
402    (1900)  :   Xicol  v.  Crittenden,  55  Ga.  497 
(1S75). 


§  476  PSEUDO-PRESUMPTIONS.  328 

act  prohibited  by  law  takes  the  risk  of  all  the  natural  consequences  of  his  act, 
and  cannot,  except  where  intent  is  an  element  of  the  liability  charged,50  escape 
responsibility  for  the  consequences  of  his  conduct  by  saying  that  they  were 
not  embraced  within  the  scope  of  his  intention.  So  understood,  the  maxim  is 
undoubtedly  correct. 

Presumption  of  Law  Repudiated. —  Not  unnaturally  certain  courts  have  dis- 
tinctly repudiated  the  existence  of  any  presumption  of  law  so  fantastic  as  this. 
It  has  been  treated,  so  far  as  probative  at  all,  as  a  mere  inference  of  fact.51 

§  476.  [Pseudo-Presumptions] ;  Good  Character.52 —  It  is  a  familiar  rule  of 
procedure,  elsewhere  considered,03  that  unless  and  until  the  accused  in  a 
criminal  case  shall  open  the  issue  of  character,  no  inference  shall  be  drawn 
that  he  did  the  act  in  question  because  he  had  traits  of  character  which  would 
permit  or  predispose  him  to  do  it.  By  a  /wewdo-presumption,  this  procedural 
rule  has  been  paraphrased  into  language  appropriate  to  the  law  of  presump- 
tions, as  if,  in  short,  instead  of  a  rule  of  law  it  were  a  teaching  of  experience. 
It  is  said,  that  until  the  defendant  introduces  evidence  of  good  character  the 
law  requires  that  the  jury  should  not  presume  it  to  be  bad.54  A  similar  but 
somewhat  more  accurate  statement  is  to  the  effect  that  in  the  absence  of  evi- 
dence on  the  subject  of  character,  there  is  no  presumption  of  law  50  as  to  whether 
it  shall  be  assumed  to  be  good  or  bad  5r>  and  that,  consequently,  the  whole  matter 
is  one  of  fact  to  be  determined  simply  by  the  inferences  to  be  logically  drawn 
from  the  evidence.57  In  point  of  fact,  moreover,  there  is  no  presumption 
that  it  is  either  good  or  bad.58 

50.  The  rule  that  in  certain  criminal  cases      Y.)  609  (1850)  :  2  Chamb.,  Ev..  §  1168,  n.  2, 
the  psychological  fact  of  intent   must  be  es-       and  cases  cited 

tablished  by  the  prosecution  beyond  a  reason-  55.  §§   1037  et  seq.;  4  Chamb.,  Ev.,  §§  3310 

able  doubt  has  been  put  into  the  rather  con-  et  seq. 

fusing  form  of  saying  that  the  presumption  56.  Griffin  v.  State,  165  Ala.  29,  50  So   962 

of  law  that  a  person  intends  the  natural  and  (1909)  ;    Addison   v.   People,   193    111.  40f>,  62 

usual    consequences   of   his   acts   will    prevail  N    E.  235    (1901) 

unless  the  jury  entertain  a  reasonable  doubt  57.  Danner   v.   State,  54   Ala     127.  25   Am. 

whether     such     intention     actually     existed.  Pep.   602    (1875^-.   Addison  v.   People,  supra. 

Wells  v.  Territory.   14  Okl.  436,  78   Pac.   124  l.icens-  to  practic  •  as  an  attorney  does  not 

(1904)  give    rise   to   a   nece-sarv    infe  eiice   of   good 

51.  2  Cham!).,  Ev  .  §  1167:  Madden  v.  State.  character.     Haynes     v.     State.     17     (•*.     4ii."» 
1  Kan.  340.  :!.-)()  <  1803 )  :  Stoke-  v  People.  r>3  X  ( 1855) . 

Y.   104,   179   I  1873)  :   State  v    Sway/e.  3d  1  ;t  58.  Cater  v.  State.  141   Ala.  10.  37  So    692 

Ann.  pt.  2,  1323    (1878).     Courts  which  have  (1904).     Tt  is  probable  that  much  of  this  pre 

repudiated  a  presumption  of  malice  from  kill-  sumption    as   to   character   is.   in    reality,   an 

in<r  by  the  deliberate  use  of  a  deadly  weapon  offshoot  of  the  more  general  "  presumption  of 

have    shared    this    view.     Xj/pra.    §    468;     2  innocence.'     §§  478  et  srrj..   infra:  2  Chamb.. 

Chamb..  Ev.,  §§  1138  et  seq  Ev    §§   1172  ft  seq.;  U.  S.  v    Outhrie    (Ohio 

52.  2  Chamberlayne;  Evidence,  §  llfiS.  1909),   171    Eed    528. 

53.  §§  1029  pt  net/.:  4  Chamb.,  Ev.,  §§  3275  There    is   no    presumption    of    good    char- 
ft  spq.  acter  in  favor  of  an  accused  which  as  would 

54.  State     v.     Dockstader.     42     Towa     436  a    fact   stands    as   witness   for    him.   but    the 
(1870)  ;  State  v.  Smith.  50  Kan.  09.  31   Pac.  presumption  of  a  good  character  may  not  be 
784    (1892);    Ackley  v.   People,  9   Barb.    (N.  a  basis  of  inference  for  the  purpose  of  add- 


329 


KNOWLEDGE    OF    LAW. 


§  477.  [Pseudo-Presumptions] ;  Knowledge  of  Law.59 — "  Every  one,"  it  is 
said,  "  is  presumed  to  know  the  law."  60  It  has  been  said  in  a  criminal  case 
that  the  accused  is  thus  ''presumed  to  know  the  law."61  It  has  even  been 
authoritatively  announced  that  a  person  is  "  conclusively  presumed  "  to  know 
the  law  of  the  forum."2 

Instances  of  Application. —  Governmental  regulations  of  a  particular  de- 
partment, as  that  of  the  post  office,63  will  be  "  presumed,"  it  is  said,  to  be 
known  to  the  persons  employed  therein  so  far  as  they  are  thereby  affected. 
A  member  of  the  general  public  is  "  presumed  "  to  be  acquainted  only  with  the 
public  laws  of  the  state  64  or  country  in  which  he  resides  or  carries  on  busi- 
ness.65 One  dealing  with  a  city  and  living  therein  is  presumed  to  have 
knowledge  of  the  ordinances  enacted  by  and  in  force  in  that  municipality.06 
Any  person  is  "  presumed  "  to  have  an  accurate  knowledge  of  the  meaning  of 
the  language  which  he  employs  orally  or  in  writing,  when  entering  upon  a 
definite  legal  relation.07  On  the  contrary,  no  one  is  ''  presumed "  to  know 
the  by-laws  of  an  academy,08  what  a  foreign  law  is  °9  or  how  a  domestic  court 
will  construe  a  law  of  the  forum.70  Xegligence  will  not  be  imputed  even  to  a 
counsellor  at  law  who,  in  giving  advice,  has  adopted  an  erroneous  but  widely 

ing  weight  to  the  presumption  of  innocence  (1876);  New  York  Cent.  Ins  Co.  v.  Kelsey, 
or  its  logical  resultant.  One  presumption 
may  not  supplement  or  augment  another 
where  one  is  but  a  part  of  the  other.  Dur- 
ham v.  State,  128  Tenn.  636,  163  S.  W.  447, 
51  L.  R.  A.  (X.  S.)  180  (1913). 

Chastity.—  In  an  indictment  for  carnal 
knowledge  of  a  woman  of  previously  chaste 
character  under  a  statute  the  state  must 
prove  the  previous  chastity  of  the  woman 
and  it  is  not  enough  to  rely  on  a  presump- 
tion of  chastity.  Although  there  is  a  pre- 
sumption of  chastity  in  most  cases  this 
gives  way  in  a  criminal  case  to  the  pre- 
sumption of  innocence.  State  v.  Kelly,  245 
Mo.  480,  150  S.  \V.  1057,  43  L.  R.  A.  (X.  S.) 


476   (1012).  \ 

Presumption. —  So  in  a  trial  for  seduction 
under  a  statute  making  it  a  crime  to  seduce 
a  woman  of  moral  character  the  court  can- 
not presume  that  the  complainant  is  of 
moral  character  but  this  must  be  proved  like 
any  other  fact  in  issue,  as  the  proceeding 
is  purely  statutory.  State  v.  Holter,  32  S.  D. 
43.  142  X.  W.  657,  46  L.  R.  A.  (X.  S.)  376 
(1913). 

59.  2  Chamberlayne,     Evidence,     §§     1169- 
1171 

60.  Saxton  v.  Perry,  47  Colo.  263,  107  Pac. 
281    (1910):   Hayes  v.  Martz.f    173  Ind.  279, 
89  X.  E.  303,  90  N.  E.  309   (1910)  ;  Detroit  v. 
Martin,    34    Mich.    170,    22    Am.    Rep.    512 


13  How.  Pr.    (X.  Y.)   535   (1856);  2  Chamb., 
Ev.,  §  1109,  n.  1,  and  cases  cited. 

61.  Brunaugh  v.  State,  173  Ind.  483,  90  X. 
E.   1109    (1910). 

62.  State  v.  Corning  State  Sav.  Bank,  136 
Iowa  79,    113  X.    W.   500    (1907);    U.   S.   v. 
Smith,  27    Fed.   854-857    (1886). 

63.  East  Tennessee,  etc.,  R.  Co.  v.  White.  15 
Lea   (Tenn.)   340  (1885). 

64.  Wadsworth  v.   Board  of  Sup'rs  of  Liv- 
ingston County,  115  X.  Y.  Supp.  8   (1909). 

65.  Keystone  Driller  Co.   v.  San   Francisco 
Super.  Ct,,  138  Cal.  738,  72  Pac    398   (1903)  ; 
Hill  v.  Spear,  50  X.  H    253,  9  Am.  Rep.  205 
(1870).     But  see  Stedman  v.  Davis,  93  X.  Y. 
32    (1883). 

66.  Hope   v.   City   of   Alton,    116    111.   App. 
116,  aff'd  214  111.  102.  73  X    E.  406    (1905)  ; 
Galbreath   v.   Moberly,   80   Mo.   484    (1883); 
City  of  Plattsmouth  v.  Murphy,  74  Xeb.  749, 
105  X.  \V.  293    (1905). 

67.  Long    v.    Xewman,    10    Cal.    App.    430, 
102   Pac.    534    (1909):    Xewman   v.    Flowers' 
Guardian.  134  Ky.  557.  121  S.  W.  652   (1909)  ; 
People's    Bank   v.    Hansbrough,   89   Mo.   App. 
252    H901). 

68.  Boyers  v.  Pratt,  1  Humphr.   (Tenn.)   90 
(1839). 

69.  King  v.   Doolittle,   1   Head    (Tenn.)    77 
(1858). 

70.  Brent   v.   State,   43   Ala.   297    (1869); 


§  477  PSEUDO-PRESUMPTIONS.  330 

accepted  construction  of  a  provision  of  law.71  The  more  intricate  and  doubt- 
ful the  provision  of  law  may  be,  the  less  will  the  court  feel  inclined  to  enforce 
the  rnaxim  of  jurisprudence  made  to  do  duty  as  a  part  of  the  law  of  evidence.72 

No  Inference  of  Fact. —  Confessedly,  the  proposition  that  every  one  is  pre- 
sumed to  know  the  law  resto  upon  no  basis  of  fact.73  For  the  most  learned 
jurist  or  industrious  judge  to  advance  a  serious  claim  to  a  knowledge  of  all 
the  law  would  appear  farcical.74  That  which  cannot  be  truly  predicated  of 
the  wisest  and  most  skilled  of  mankind  can  scarcely  be  true,  in  any  just  sense 
connected  with  the  reality  of  things,  in  case  of  the  most  ignorant  or  debased. 
"  There  is  no  presumption  in  this  country,"  says  Mr.  Justice  Maule,75  "'  that 
every  person  knows  the  law ;  it  would  be  contrary  to  common  sense  and  reason 
if  it  were  so." 

Absence  of  Probative  Force  Demonstrated. —  In  general,  where  it  is  neces- 
sary to  establish  the  fact  of  actual  knowledge  affirmative  proof  to  that  effect 
must  be  introduced.76  No  assistance  in  so  doing  can  be  derived  from  the 
pseudo-presumption  itself. 7T 

Real  Nature  of  Presumption. —  The  real  nature  of  this  so-called  "  conclusive 
presumption  *'  is  further  shown  by  the  limitations  which  have  judicially  been 
placed  upon  its  scope  and  effect.'8  It  becomes  obvious  that  it  is  merely  a 
semi-rhetorical  paraphrase  for  the  statement  that  actual  knowledge  of  the  exist- 
ence of  a  law  is,  by  the  rules  of  the  substantive  law,  immaterial,  when  the 
question  arises  as  to  the  consequences  of  its  violation,  however  important  the 
state  of  his  actual  knowledge  may  be  in  connection  with  the  moral  aspect  of 
his  act.  If  one  has  seen  fit  to  submit  himself  by  residence  or  through  doing 
business  therein  to  the  laws  of  a  jurisdiction,  he  will  not  be  excused  from 
liability,  in  case  he  shall  violate  such  law,  by  the  mere  fact  of  ignorance  as  to 
what  it  is.79  It  is  equally  clear  that  he  who  joins  a  business  or  *municipal 

Miller  v.    Proctor,   20  Ohio   St.   442    (1870);  the  law  was  so  certain  that  everybody  knew 

New  York,  etc.,  Gas  Coal  Co.  v.  Graham,  226  it;  the  misfortune  is  that  it  is  so  uncertain, 

Pa.  348,  75  Atl.  657    (1910).  that   it  costs  much  money  to   know  what  it 

71.  Marsh  v.  Whitmore,  21   Wall.    (U.  S.)  is,  even  in  the  last  resort." 

178  (1874);  Morrill  v.  Graham,  27  Tex.  646  76.  Vogel  v.  Brown.  201  Mass.  261.  87 
(1864).  N.  E.  686  (1909).  See  also  Law  v.  Smith,  34 

72.  Miller    v.    Proctor,    supra;    2    Chamb.,       Utah  394,  98  Pac.  300   (1908). 

Ev.,  §  1169a.  77.  Martindale    v.    Falkner,    supra;    Queen 

73.  Ryan   v.    State,    104   Ga.    78,    30   S.    E.  v.   Mayor   of  Tewksbury,   L.   R.   3   Q.   B.   629 
678  ( 1898)  ;  Lake  Shore,  etc..  R.  Co.  v.  Rosen-  ( 1868)  :  Black  v.  Ward,  27  Mich.  191   ( 1873)  ; 
zweig,    113    Pa.    519,    6    Atl.    64.1     (1886);  2  Chamb.,  Ev.,  §  1170. 

Marsh  v.  Whitmore,  supra;  2  Chamb.,  Ev.,  §  78.   See   Brent   v.    State,   supra;   Cutter   v. 

1170,  n.   1,  and  cases  cited.  State,  36  N".  J.  L.  125    (1873)  -.  King  v.  Doo- 

74.  Jones  v.  Randall.  1  Cowper  37    U774K  little,  supra. 

75.  Martindale    v.    Falkner.    2    C.    B.    706.  79.  Grumbine  v.  State,  60  Md.  355   (1883): 
719   (1846).     Lord  Mansfield  in  Jones  v.  Ran-  Com.  v.  Emmons,  98  Mass.  6    (1867)  ;   U.  S. 
dall,  supra,  said,  speaking  of  the  contention  v.    Anthony,    24    Fed.    Cas.    No.     14,459,    11 
that  all  the  judges  knew  the  laws,  "as  to  Blatchf.   (U.  S.)   200   (1873);  2  Chamb.,  Ev., 
the  certainty  of   the   law  mentioned  ...  it  §    1171,  n.  4,  and  cases  cited. 

would  be  very  hard  upon  the  profession,  if 


331  INNOCEXCE.  §  478 

corporation  cannot  relieve  himself  from  the  binding  effect  of  their  regulations, 
duly  adopted,  on  the  ground  that  he  did  not  understand  what  they  were.  That 
is  for  him  to  find  out  at  his  peril.80  In  other  words,  the  so-called  presumption 
of  knowledge  of  law  has  precisely  the  same  meaning  as  the  equally  familiar 
maxim,  Ignorantia  leyis  nemineni 


§  478.  [Pseudo-Presumptions]  ;  "  Presumption  of  Innocence."  82  —  Few  false 
presumptions  of  law  have  so  wide  a  vogue  or  have  created  so  intolerable  a 
confusion  in  the  law  of  evidence  as  the  so-called  *'  presumption  of  innocence." 
It  is  one  invoked  with  extreme  frequency,  in  civil  83  and  still  more  often  and 
with  more  important  effect  in  criminal,84  cases.  A  phraseology  commonly 
employed  in  stating  this  pseudo-presumption  of  law  is  to  the  effect  that  in 
criminal  cases,  a  person  accused  of  crime  is  presumed  to  be  innocent  until 
proved  to  be  guilty.85  In  like  manner,  it  may  be  said,  that  since  one  accused  of 
crime  has  the  right  to  stand  mute,  no  presumption  is  raised  against  him  if  he 
chooses  to  remain  silent.86 

General  Relations.  —  The  administrative  assumption  against  wrongdoing  or 
in  favor  of  legality  and  good  faith87  may  well  be  regarded  as  the  "  presump- 
tion of  innocence  "  in  civil  cases  ;  while  the  so-called  "  presumption  of  inno- 
cence "  fills  with  approximate  accuracy  the  place  of  an  administrative  assump- 
tion in  favor  of  legality  and  good  faith  in  criminal  cases.88  The  rule  of 
procedure  in  question  is,  however,  persistently  treated  by  certain  courts  as  a 
presumption  of  law.  From  this  class,  according  to  what  appears  to  be  the 
proper  definition  of  the  term  presumption  of  law,  it  is  excluded  by  the  all- 

80.  Balfour  v.  Ernest,  5  C.  B.  (N.  S.)  601,      trary.     Krogh    v.    Modern    Brotherhood,    153 
28  L.  J.  C.  P    170    (1859).  Wis.  397,  141  N.  W.  276,  45  L.  R.  A.   (N.  S.) 

81.  Topolewski  v.  Plankington  Packing  Co.,      404    (1913). 

143   Wis    52,   126  N.  W.   554    (1910);   Black  84.  People   v.   Arlington,    131   Cal.   231,   63 

v.   Ward,   supra.  Pac.   347    (1900);.  Fitch  v.   People,   45   Colo. 

82.  2  Chamberlayne,  Evidence.  §   1172.  298,  100  Pac.  1132    (1909);  Raysor  v.  State, 

83.  Russell  v.  Baptist  Theological  Union,  73  132  Ga.  237,  63  S.  E.  786    (1909);   State  v. 
111.  339   (1874)  ;  State  v.  Scheve,  65  Neb.  853,  Wilson,    130  Mo.   App.   151,   108   S.   W.    1086 
91  X    W    846,  93  X.  W.  169,  59  L.  R.  A.  927  (1908)  ;   People  v.  American  Ice  Co.,  120  X. 
(1902)  ;   Grant  v.  Riley,  44  X.  Y.  Supp.  238,  Y.  Supp.  443   (1909)  :  2  Chamb.,  Ev.,  §  1172, 
15  App    Div    190    (1897);   2   Chamb.,  Ev.,  §  n.  2,  and  cases  cited. 

1172,  n.  1,  and  cases  cited.     In  a  suit  by  the  85.  State  v.  Luff,  24  Del    152,  74  All.  1079 

wife  of  a  son  against  the  father  for  alienat-  (1910)  ;   State  v.  West,  152  X*.  C.  832,  68  S. 

ing  his  affections  the  burden  is  on  the  plain-  E.   14    (1910). 

tiff  to  show  that  in  advising  his  son  to  leave  86.  People  v.   Emmons,    13   Cal.   App.   487, 

the  plaintiff   the   father  was  acting  through  110  Pac.  151    (1910). 

malice  as   a   parent   has  the  presumption   of  87.  §§  495  et  seq.;  2  Chamb.,  Ev..  §§  1219 

good  faith  in  his  favor.     Gross  v.  Gross,  70  et  seq. 

W.  Va.  317,  73  S.  E   961,  39  L.  R.  A.   (  X".  S.)  88.  Thus   it   has   been    said    that   any   pre- 

261    (1912).     Where  death  occurs  vnder  such  sumption   to   be   brought    into    play    in    con- 

circumstances  that  it  may  or  may  not  have  struing  a  contract  in  a  criminal  case  will  be 

been   caused   by   suicide  it   will  be   presumed  taken    in    favor    of    the    accused.     Keller    v. 

to  have  been  unintentional   and  the  burden  State  (Tex.  Cr.  App.  1905),  87  S.  W.  669. 

rests  upon  the  other  side  to  show  the  con- 


§    479  PsEUDO-PliESOLI'TJOSS.  332 

important  fact  that  it  possesses  no  basis  of  logical  force,  i.e.,  or  probative 
relevancy;  and  by  the  further  characteristic  that  it  persists  in  operation  even 
after  a  reasonably  satisfactory  amount  of  evidence  has  been  introduced  against 
the  accused.*" 

§  479.  [Presumption  of  Innocence] ;  An  Overestimated  Rule.90 —  Much  stress  yi 
has  frequently  been  laid,  usually  in  a  rhetorical  way,  upon  this  statement  of  a 
legal  rule  as  to  the  criminal  burden  of  proof  as  if  some  logical  weight  were 
being  adduced  in  the  prisoner's  favor  by  reason  of  this  so-called  u  presump- 
tion." »2 

Constitutional  Right. —  It  has  even  been  suggested  that  it  indicates  a  con- 
stitutional right  of  one  accused  of  crime,  which  is  infringed  when  the  legis- 
lature sees  fit  to  establish  rules  that  certain  facts  shall  give  rise  to  a  prima  facie 
inference  as  to  the  existence  of  another,  and  so,  as  is  claimed,  impair  the  logical 
value  of  the  presumption  of  innocence,  by  casting  the  burden  of  proof  (burden 
of  evidence  often  being  intended)  93  upon  the  accused.  The  validity  of  this 
contention  has,  however,  been  steadily  denied  by  the  courts,94  with  rare  ex- 
ceptions.05 

Time  Covered  by  Presumption. —  This  presumption  of  innocence  is  stoutly 
alleged  to  accompany  the  accused  in  verdict,  not  ceasing  when  the  case  is  sub- 
mitted to  the  jury.96  It  has  been  claimed  to  continue  even  when  the  accused 
was  proved  to  have  been  in  the  company  of  one  who  committed  the  crime,97 
or  that  the  codefendants  of  the  accused  have  already  been  convicted  on  a  sep- 
arate trial.  All  this  is  said,  paraphrasing  a  rule  of  substantive  law  or  pro- 
cedure, not  to  displace  the  presumption  of  innocence.98 

An  Anomalous  Survival  from  an  Earlier  Age. —  The  form  of  this  pseudo- 
presumption  and  vigor  of  the  language  in  which  it  is  frequently  couched,  to 
say  nothing  of  that  by  which  it  is  maintained  in  the  zeal  of  advocacy,  are 
reminiscent  of  the  rigor  of  the  criminal  laws  and  procedure  of  early  England 
to  which  some  slight  reference  is  elsewhere  made.99 

89.  §§  395  et  seq.;  2  Chamb.,  Ev.,  §§  93!)  94.  Santo  v.  State,  2  Iowa  165.  63  Am.  Dec. 
et  seq.;   Hemingway   v.   State,   68   Miss.   371.  487    (1855);    Com.  v.   Smith.   166  Mass.  370, 
408    (1890)  ;   Hutto  v.  State,  7  Tex.   App.  44  44  X.  E.  503   (1896)  ;  State  v.  Kyle,  14  Wash. 
(1879).     See  Bowman  v.  Little,  101  Md.  27:'>.  550,  45   Pac.   147    (1896):    z  Chamh.,  Ev.,  § 
61  Atl.  1084   (1905)  :  2  f'hamh..  Ev.,  §  1172a,  1173,  n.  4,  and  cases  cited. 

n.  3,  and  cast  -,  cited.  95.  In   re   Wong    Hane.    108    Cal.    680,    41 

90.  2  Chamberlayne.  Evidence,  §   1173.  Pac.  693,  49  Am.  St.  Rep.  138   (1895). 

91.  Fra/ier  v.  Com.   (Ky.  1908),  114  S.  W.  96.   People  v.  O'Brien,  106  Cal.  104,  39  Pac. 
268;  Gow  v.  Bingham,  107  N.  Y.  Supp.  1011.  325    (1895). 

57  Misc.  66  (1907)  :  High  v.  State,  2  Okl.  Cr.  97.  State  v.  Farr,  33  Iowa  553   (1871). 

161    (1909)  :  2  Chamb.,  Ev.,  §  1173,  n.  1,  and  98.  Coxwell   v.   State,   66   Ga.   309    (1881). 

cases   cited.  99.  §    616,   infra;   2   Chamb.,   Ev..   §    1617. 

92.  "  This  is  a  common  topic  of  declama-  See  discussion  of  this  topic  in  2  Chamb.,  Ev., 
tion."     McKinley's    Case,    33    St.    Tr.    275  §1173.     See  also.  Bram  v.  U.  S.,  168  U.  S.  532 
<1817).  (1897)  ;  Crane  v.  U.  S.,  162  U.  S.  625,  646 

93.  §  393;  2  Chamb.,  Ev.,  §  936.  (1895). 


333  IXXOCENCE.  §  480 

£  480.  [Presumption  of  Innocence];  Meaning  of  Phrase.1 — All  that  is  prop- 
erly contained  in  the  expression  "  presumption  of  innocence  "  may  be  restated 
with  a  sufficient  approximation  to  exactness  in  saying-  that  in  a  criminal  case 
it  is  the  duty  of  the  government,  to  prove  every  material  allegation  set  forth 
in  the  indictment  against  the  prisoner  beyond  a  reasonable  doubt.2  The  "  pre- 
sumption "  is,  therefore,  as  has  been  said,  a  mere  assumption  of  procedure  re- 
stating the  burden  of  proof  in  criminal  cases.3  This  of  necessity  continues 
throughouut  the  entire  trial,4  without  shifting,5  upon  the  state  as  being  the 
party  which  has  the  affirmative  of  the  issue.6 

'^cotttsh  Law. —  It  may  be  observed  that  the  Scotch  law  follows  the  English 
in  construing  the  so-called  presumption  of  innocence  as  a  restatement  of  the 
burden  of  proof  in  criminal  cases,  and  lends  no  color  to  the  contention  of 
certain  American  Courts,  including  the  supreme  court  of  the  United  States, 
that  it  is  something  more  than  this.7 

A  Double  Aspect. —  Viewed  in  a  slightly  different  way,  the  presumption  of 
innocence  is  the  criminal  counterpart  of  the  presumption  against  fraud,  ille- 
gality, etc.,  in  civil  causes.  It  presents,  mutatis  mutandis,  the  double  aspect 
peculiar  to  the  presumption  against  illegality.8 

No  Inference  of  Innocence. —  There  is,  however,  obviously  in  all  this  noth- 
ing in  the  nature  of  an  inference  of  fact  that  the  accused  is,  in  reality,  an 
innocent  man  quoad  the  charge  against  him.  The  general  rule  is  all  to  which 
he  has  a  right.9  Clearly,  then,  there  is  ho  presumption  of  law  in  the  matter, 
that  term  being  used  as  above  defined,  i.e.,1"  as  denoting  the  procedural  assump- 
tion that  a  definite  inference  of  fact  in  the  substantive  law  has  a  prima  facie 
probative  force.- 

What  Inertia  Is  Reasonable. —  The  seriousness  of  the  consequences  to  the 
accused  adds  force  to  the  so-called  presumption  of  innocence.  The  affirmative 

1.  2  Chamberlayne,     Evidence,     §§     1174-  tablish  illegality,  fraud,  wrongdoing  and  the 
1175  like  is  on  him  who  affirms  its  existence.     In 

2.  State  v.   Lee    (Del.  Gen    Sess.   1900),  74  criminal    cases,    this    is    the    prosecution.     -2 
Atl.  4:  O'Donnell  v    Com..  108  Va    882.  62  S.  Chamb.,  Ev .,  §  1174. 

E.  373   (1908)  ;  Spick  v.  State,  140  Wis    104,  7.  See   discussion    of   McKinley's   Case,    33 

121    N.    W.    664    (19U9);    2    Chamb.,    Ev.,    §  St.  Tr.  275    '1817)    and  the  case  of  Coffin  v 

U74>  n.  i  United  States,   156  U.  S.  432,   15  S    Ct.  394 

3.  §  395:  2  Chamb.,  Ev..  §  939      "The  bur-  39  L.  ed.  481    (1895).  the  dissenting  opinion 
den  of   proof  is  on  the   prosecutor      All  the  in  the  former  of  which   is  apparently  relied 
presumptions  of  law  independent  of  evidence  upon   by   the   Supreme   Court   of   the   United 
are  in  favor  of  innocence;   and  every  person  States  as  endorsing  the  position   adopted  by 
is  presumed  to  be  innocent  until  he  is  proved  that   tribunal.     2   Chamb..   Ev..  §    I174a. 
guilty."     Com.   v.  Webster.  5  Cu«h.    'Mass.)  8.  2  Chamb..    Ev..    §    1174b.     See    §§    478: 
295,  320   (1850).     See  also.  2  <  hamb..  Ev ,  §  495:   2  Chamb  .  Ev..  §§   1172a:    1222. 

1174,  n.  2,  and  authorities  cited.  9.    Hawes  v    State,   78   Ala.   37.   7   So.   302 

4.  People  v.  O'Brien,  supra.  (1889)  :  State  v.  Loper.  148  Mo.  217.  49  S.  W. 

5.  §  395:  2  Chamb,  Ev  ,  §  039  1007    ilRflS)  :   2  Chamb.,  Ev..   1174c. 

6.  ft   is  a   ruling  as   to  pleading   in   crim-  10.  §§  444  et  seq.;  2  Chamb.,  Ev.,  §§  1082, 
inal  eases,   analogous  to  that   asserting  that      n.  3,  1085,  ns.  1  et  seq. 

in  civil   oases   the   burden  of  evidence  to  ea- 


§§  481,482  PSEUDO-PEESUMPTIONS.  334 

ease  will  be  scrutinized  more  carefully,  i.e.,  the  inertia  n  of  the  court  materially 
increases. 

No  Inference  of  Fact. —  This  so-called  "  presumption  of  innocence  "  is,  it 
would  thus  appear,  based  upon  no  inference  of  fact.12  Clearly  it  is  not  a 
proposition  of  experience  that  persons  accused  of  wrongdoing  in  either  civil 
or  criminal  proceedings  are,  in  point  of  fact,  generally  innocent  of  the  crimes 
charged.1" 

§  481.  [Presumption  of  Innocence] ;  Valueless  as  Affirmative  Proof.14 —  Treat- 
ing the  presumption  of  innocence  as  a  logical  inference,  it  would  be  natural 
and  useful  to  offer  it  as  affirmative  proof  of  some  fact,  e.g.,  chastity.15  When 
so  tested  the  %;  presumption  "  is  found  to  have  a  procedural  but  no  logical  value. 
It  has  no  probative  force  or  weight.  It  provides  a  shield,  but  no  sword,  to  the 
party  in  whose  favor  it  is  said  to  lie,  viz.,  the  defendant  in  a  particular  pro- 
ceeding.10 This  circumstance  will  be  seen  to  be  of  marked  importance  in 
connection  with  the  so-called  conflict  of  presumptions.17 

§  4P2.  [Presumption  of  Innocence] ;  Treatment  of  Prisoners  in  Judicial  Ad- 
ministration.18—  In  case  of  a  serious  criminal  charge,  it  is  customary,  follow- 
ing the  dictates  of  experience  and  common  sense,  to  proceed  upon  the  basis 
that  the  one  accused  of  a  crime  is  guilty.  For  example,  as  soon  as  an  indict- 
ment is  found,  the  question  of  bail  arises.  Xo  "  presumption  of  innocence  " 
appears  at  this  stage.  "  After  bill  found,  a  defendant  is  presumed  to  be 
guilty  to  most,  if  not  all  purposes,  except  that  of  a  fair  and  impartial  trial 
before  a  petit  jury.  This  presumption  is  so  strong  that,  in  the  case  of  a  capital 
felony,  the  party  cannot  be  let  to  bail."  19  There  can  be  no  reasonable  ques- 
tion but  that,  as  a  matter  of  experience,  this  logical  inference  of  guilt  from 
the  finding  of  an  indictment  is  amply  justified.20 

11.  §   409,   supra;    2    Chamb.,    Ev.,    §    993.  Fed.   149,  L.  R.  A.   1915  D   1070    (1914). 
See  2  Chamb.,  Ev.,  §  1174d.  14-  2  Chamberlayne,  Evidence,  §  1175a. 

12.  Harrison  v.  State,   144  Ala.  20,  40  So.  15.  People  v.  O'Brien,   130  Cal.   1,  62  Pac. 
568    (1906)  ;   State  v.  Linhoff,  121   Iowa  632,  297   (1900)  ;  Com.  v.  Whitaker,  131  Mass.  224 
97  N.  W.  77   (1903);  Hammond  v.  Hammond  (1881);    2   Chamb.,   Ev.,   §    1175a,   n.    1,   and 
(Tex.  Civ.  App.  1906),  94  S.  W.  1067.  (1881)  ;    State   v.    McDaniel,    84    N.    C.    863 

13.  Still   less,   does   a  connection   exist  be-  cases  cited. 

tween    innocence    and    an    indictment    for    a  16.  West  v.  State,  1  Wis.  209   (1853)  ;  Mc- 

criminal    offence.     Ex    parte    Alexander,    59  Arthur  v.   State,  59  Ark.  431,  27   S.   W.  628 

Mo.  598,  21  Am.  Rep.  393   (1875)  ;  2  Chamb.,  (1894). 

Ev.,  §   1175a,  n.  2.  17.  Infra,  §§  496  et  seq.;  2  Chamb.,  Ev.,  §§ 

Distinguished    from    Character. —  What    is  1224  et  seq. 

known  as  the  presumption  of  innocence  is  not  18.  Chamberlayne,   Evidence,   §    1175b. 

to  be  applied  to  a  presumption  of  good  char-  19.  State    v.    Mills,    2    Dev.     (X.    C. )     421 

acter  as  the  state  may  meet  the  presumption  (1830).     To    the    same    effect,    see    State  'v. 

of  innocence  but  may  not  meet  that  of  good  Madison  County  Court,  136  Mo.  323   (1896)  : 

character   for   until    the   defendant   has    first  Ex    parte    Ryan,    44    Cal.    555     (1872);     2 

introduced  evidence  on  the  subject  of  his  good  Cliamb.,   Ev..   §    1175b,  n.    1,  and  cases  cited, 

character  the  state  may  not  enter  the  field.  20.  2  Chamb.,    Ev.,    §    1175b.     "Law    pre- 

Price  v.  United  States,   132  C.  C.   A.   1,  218  sumes  that  the  prisoner  is  innocent  until  he 


335  INNOCENCE.  §§  483-485 

§  483.  [Presumption  of  Innocence] ;  Weighing  the  Presumption  of  Innocence. 

"  A  legal  presumption  is  a  rule  of  law  —  a  reasonable  principle,  or  an  arbi- 
trary dogma  —  declared  by  the  court.  ...  It  could  not  be  weighed  as  evi- 
dence." Presumption  of  innocence,  it  would  thus  appear,  is  incapable  of 
being  weighed  by  the  jury  in  any  scales  of  reason.  The  rule  of  substantive 
law  or  of  procedure  cannot  itself  be  weighed.  There  is  no  inference  of  fact, 
proposition  of  logic  or  experience,  back  of  it  which  can.  Where  an  assump- 
tion is  devoid  of  any  inference  of  fact  in  its  support,  to  weigh  it  against  evi- 
dence is  an  act  impossible  of  performance.22 

§  484.  [Presumption  of  Innocence] ;  Other  Views.2- —  While  the  great  weight 
of  authority  excludes  the  presumption  of  innocence  from  the  presumptions  of 
law,  the  courts  are  not  unanimous  in  so  holding.  It  cannot  be  questioned  that 
there  is  authority  from  tribunals  of  high  standing  to  the  effect  that  the  pre- 
sumption of  innocence  is  based  upon  an  inference  of  fact  to  the  benefit  of 
which  a  person  charged  with  crime  or  wrongdoing  is  entitled.24  In  other 
words,  there  is  an  inference  of  fact,  possessing  evidentiary  value  which,  in  a 
criminal  case,  remains  in  favor  of  the  accused  even  after  reasonably  sufficient 
evidence  has  been  introduced  as  to  his  guilt. 

§  485.  [Pseudo-Presumptions] ;  Presumption  of  Survivorship.25 —  Unique, 
among  pseudo-presumptions,  is  that  which  regulates  judicial  action  as  to  whom 
may  be  taken  to  have  survived  longest  among  those  who  have  perished  in  a 
common  accident  or  calamity  2e  where  there  is  no  evidence  on  the  point.  It  is 
said  that  where  several  persons  perish  in  a  common  disaster  and  no  evidence 
is  furnished  as  to  which  of  these  persons  survived  the  others  there  is  a  pre- 
sumption of  law  that  they  all  perished  at  the  same  time.27  This,  if  it  means 
anything,  must  be  understood  as  equivalent  to  saying  that  there  is,  in  reality, 
no  presumption  of  law  at  all,  under  such  circumstances,  as  to  the  survivorship 

is   found   guilty,   but    it   were   well   to   wager  that  the  Supreme  Court  of  the  United  States 

four  to  one  that  the  jury  will  be  satisfied  of  itself  does  not  seem,  in   later  cases,  to  have 

his  guilt,      fn  188,3  there  were  11,347  persons  considered    that    this    proposition    that    the 

found  guilty  against  2,723  found  not  guilty."  presumption  of  innocence  constitutes  a  piece 

21.  Lisbon   v.    Lyman,   49   N.    H.   553,   563  of  evidence  is  to  be  seriously  and  carefully 
(1870).  followed.     See  Allen  v.  U.  S..  164  U.  S.  492, 

22.  See  2  Chamb.,  Ev.,  §   1175c,  and  notes  500    (1896):    Coffin   v.   U.   S..   162   U.   S.   664 
for  a  discussion  of  this  question.  (1896);    Agnew  v.    U.   S.,    165   U.   S.   36,  51 

23.  2  Chainberlayne,  Evidence,  §  1176.  (1897). 

24.  State  v.  Clark,  .83  Vt.  305.  75  Atl.  534  25.  2  Chamberlayne,     Evidence,     §§     1177- 
(1910);    Childs    v.    Merrill,    66    Vt.    302,    29  1183. 

Atl.   532    (1894);    Coffin   v.   U.   S.    156  U.   S.  26.  Grand  Lodge  A.  O.  U.  W.  of  Washing- 

432   (1894)       See  also,  U.  S.  v.  Davis.  160  U.  ton    v.    Miller,    8    Cal.    App.   25.    96    Pac.   22 

S.  469    (1895):    Cochran  v.   U.  S..   157  U    S.  (1908). 

286    (1895):    North   Carolina   v.   Gosnell,   74  27.  Kansas   Pac.  R.   Co.   v.  Miller.  2   Colo. 

Fed.  734   (  1896)  :   1  Greenleaf,  Ev.,  §  34.     See  442    (1874)  :   Balder  v.  Middeke.  92  111.  App. 

discussion  of  Greenleaf.  McKinley's  Case,  the  227    (1900):    Walton   &   Co.   v.   Burchel.   121 

Coffin   Case  in   Chamb.,   Ev..  §§    1176.   1176a.  Tenn.  715,   121   S.  W.  391:   2  Chamb.,  Ev.,  § 

1176b,   1176c,    1176d,   wherein   it  is  observed  1177,  n.  2,  and  cases  cited. 


§  485  PSEUDO-PRESUMPTIONS.  336 

and  that  he  who  desires  to  show  that  a  particular  one  of  the  persons  involved 
outlived  any  of  the  others,  has  the  burden  of  evidence  to  prove  it  to  a  prima 
facie  extent.28 

Distribution  of  Funds,  etc. —  Certainly  until  survivorship  i^  shown  the 
action  of  the  court  in  dealing  with  a  fund  or  other  res  will  take  place  as  if  no 
survivorship  existed,  i.e.,  as  if  all  had  actually  perished  at  the  same  moment. 2U 

No  Presumption  of  Law. —  Xo  inference  of  fact  in  connection  with  the 
question  of  survivorship  is  sufficiently  cogent,  frequent  and  uniform  as  to  war- 
rant making  it  the  subject  of  a  procedural  rule  of  the  nature  of  a  presumption 
of  law.30  There  is  no  presumption  of  law,  properly  so  called  in  the  matter.31 
It  will  not  be  presumed  as  matter  of  law,  that  one  of  several  persons  survived 
the  others.32 

Probative  Facts. —  The  inferences  of  fact  which  may  properly  guide  the 
judgment  of  the  court  in  dealing  with  the  question  of  survivorship  are  either 
deliberative  or  directly  probative.  Treating  first  of  the  probative  facts,  for 
example,  A  may  have  been  seen  alive  at  a  time  when  B  may  safely  be  inferred 
to  have  been  dead.33  Thus  where  A  is  shown  to  have  shot  B  and  then  killed 
himself,  the  fact  that  this  second  injury  was  of  such  a  nature  as  to  cause  in- 
stant death,  while  B  was  still  warm  for  many  hours  afterwards,34  may  settle 
the  controversy  in  favor  of  the  heirs  of  B.  In  case  of  a  number  of  persons 
burned  to  death  in  a  building  it  will  be  inferred  that  an  old  man  in  whose 
room  a  fire  probably  originated  died  before  a  middle  aged  man  or  children  in 
whose  direction  the  flames  were  burning.35  As  a  matter  of  proof,  the  difficulty 
is  to  discover  sufficient  evidence  to  establish  a  prima  facie  case,  i.e.,  one  on  which 
a  court  or  jury  would  be  justified  as  a  matter  of  reason  in  acting.36 

28.  Johnson   v.   Merithew,   80   Me.    Ill,    13      supra;  Males  v.  Sovereign  Camp  (Tex.  1903), 
Atl.   132,  9  Am.  St.   Rep.   162    (1888)  ;    U.  S.       70  S.  W.  108   (1903)  ;  2  Chamb.,  Ev.,  §  1179, 
Casualty  Co.  v.  Kacer,  169  Mo.  301,  69  S.  W.       n.   3,  and  cases   cited. 

370,  92  Am.  St.   Rep.  641    (1902)  ;   St.  John  32.  Smith  v.  Croom,  7  Fla.  81   (1857)  ;  Sup. 

v.    Andrews    Institute    for   Girls,    102    N.    Y.  Council   R.   A.   v.  Kacer,  96  Mo.   App.  93,  69 

Supp.    808,    117    App.    Div.    698:    2    Chamb.,  b.  W.  671   ( 1902)  ;  and  cases  cited  in  last  two 

Ev.,  §  1177,  n.  3,  and  cases  cited.  notes;  2  Chamb.,  Ev.,  §  1179,  n.  4.  and  cases 

29.  Middeke  v.  Balder,  198  111.  590,  64  N.  E.  cited. 

1002,  59  L.  R.  A.    (N.   S.)    653    (1902),  aff'g  33.  In  re  Mclnnes,  104  X.  Y.  Supp.  147,  119 

judg.  98  111.  App.  525;  In  re  Lott.  121  N.  Y.  App.  Div.  440,  rev'g  100  N    Y    Supp.  440,  50 

Supp.     1102,    65    Misc.    422     (1909):     Young  Misc.  88    (1907);   St.  John  v.  Andrews  Insti- 

Women's  Christian  Home  v.  French,  187  U.  S.  tute  for  Girls,  supra;  2  Cliamb.,  Ev.,  §  1180. 

401,  23  S.  Ct.   184,  47  L.  ed.  233    (1901)  ;   2  n.  2,  and  cases  cited. 

Chamb.,  Ev.,  §  1178,  n.  1,  and  cases  cited.  34.   Broome  v.  Duncan   (Miss.  1901),  29  So 

30.  Cowman  v.  Rogers,  73  Md.  403.  21  Atl.  394. 

64,   10  L.   R.   A.   550    (1890):   Dunn  v.   New  35.   Ehle's   Estate,   73  Wis.   445.   41    N.   W. 

Amsterdam   Casualty   Co.,    121    N.    Y.    Supp.  627    (4889). 

686    (1910)  ;   Hilderbrandt  v.   Ames,  27  Tex.  36.   In  re  Ridgway,  4  Redf.  Surr.    (N.  Y) 

Civ.  App.  377,  66  S.  W.  128  ( 1901)  ;  and  cases  226    (1880):    Pell   v.   Ball,    1    Cheve    (S.   C.) 

generally  cited  in  last  note;  2  Chamb.,  Ev.,  §  Ch.    99    (1840)  ;    Schaub   v.    Griffin,    84   Md. 

1179,  n.'l.  557,  36  Atl.  443    (1897). 

31.  Dunn  v.  New  Amsterdam  Casualty  Co., 


337  SURVIVORSHIP.  §  485 

Deliberative  Fads. —  Certain  general  characteristics  of  the  persons  involved 
in  the  accident,  rather  of  a  deliberative  than  a  probative  nature  are  still  en- 
titled to  weight,  seldom  determinative,  in  judging  of  the  probative  facts  them- 
selves. A  person  of  adult  strength  and  matured  judgment  may,  as  a  matter 
of  probability,  fairly  be  regarded  as  more  -apt  to  resist  a  severe  and  long  con- 
tinued physical  strain  37  and  better  able  to  take  advantage  of  such  opportunities 
as  are  afforded  for  protecting  and  prolonging  life  than  a  child  of  tender  years 
or  an  aged  person  of  impaired  bodily  and  mental  faculties.  In  like  manner, 
a  man  is  likely  to  outlive  a  woman.38  If  death  is  by  drowning,  an  experi- 
enced swimmer  may  well  be  taken  to  have  survived  one  who  was  entirely  un- 
acquainted with  the  accomplishment.39 

Civil  Law. —  Much  of  the  confusion  attending  the  treatment  of  this  subject 
will  be  found  to  have  its  origin  in  an  attempt  to  transfer  to  the  common  law 
the  view  point  and  administrative  expedients  of  the  civil  law,  which  abounds 
in  a  multiude  of  so-called  presumptions,  to  which,  although  apparently  mere 
inferences  of  fact  of  indeterminate  value,  a  certain  definite  probative  weight  is 
attached,  such  as  the  inferences  of  fact  to  which  reference  is  above  made,  that 
strength  will  survive  weakness,  men  outlive  women,  resourceful  persons  have 
an  opportunity  of  survival  not  afforded  to  ill  trained  minds  and  the  like.40 
Certain  American  states,  notably  California  41  and  Louisiana,42  in  which  the 
doctrines  of  the  civil  law  have  a  strong  influence,  continue  in  their  statutory 
enactments,43  to  follow  the  rules  of  the  Roman  law  or  the  later  enactments  of 
the  continental  Codes. 

37.  Smith  v.  Croom,  supra;  Cove  v.  Leach.  ols,  75  N.  Y.  78,  31  Am.  Eep.  424   (1878)  ;  2 
8  Mete.  (Mass.)  371.  41  Am.  Dec.  518   <1844).  Chamb.,  Ev.,  §  1182,  n.  2,  and  cases  cited. 

38.  Moehring  v.  Mitchell,  1   Barb.  Ch.    (N  41.  Hollister   v.    Cordero,    76    Cal.   640,    18 
Y  )   264    (1846).  Pac.  855   (1888). 

39.  Fuller  v.  Linzee.  135  Mass.  468  (1883).  42.  Langles'  Succession,  105  La.  39,  29  So. 
still,  there  is  no  presumption  of   law  in  the  739   (1900). 

matter.  43.  Cal.  Code  Civ.  Proc.,  §  1963;  La.  Civ. 

40.  Smith  v.  Croom,  supra;  Newell  v.  Nich-      Code,  arts.  936-939. 


CHAPTER  XVI. 

ADMINISTRATIVE  ASSUMPTIONS. 

Administrative  assumptions,  486. 

presumptions  of  law  contrasted,  487. 
identity  of  person  from  similarity  of  name,  488. 
property  from  possession,  489. 
regularity,  490. 

order  of  events,  491. 

judicial  proceedings,  492. 

public  officers,  493. 

relation  between  foreign  and  domestic  law,  494. 
wrongdoing  not  assumed,  495. 
Conflict  of  presumptions;  civil  cases,  496. 
criminal  cases;  knowledge  of  law,  497. 

presumption  of  innocence.  498. 

§  486.  Administrative  Assumptions.1 —  The  administrative  assumption  as- 
sumes, for  procedural  purposes,  most  often  that  of  expediting  trials,2  that  a 
particular  fact  has  been  prima  facie  established  or  will  be  assumed  to  exist. 
It  is  taken  for  granted  that  facts  which  present  no  features  of  inherent  sus- 
picion have  come  into  existence  under  conditions  of  regularity,  the  assumption 
continuing  until  evidence  is  introduced  on  the  point  covered  by  it.3  It  is 
sound  administration,  even  where  the  ruling  is  not  with  regard  to  a  matter  of 
pleading,4  to  assume  that  things  apparently  regular  have  been  properly  done; 
in  other  words  that  the  party  alleging  irregularity,  fraud  or  illegality  has  the 
burden  of  evidence  to  show  it. 

§  487.  [Administrative  Assumptions] ;  Presumptions  of  Law  Contrasted.5— 
Each  of  the  two  forms  of  procedural  assumption,  the  assumption  of  adminis- 
tration and  the  presumption  of  law,  operates  only  until  affirmative  evidence  is 
introduced  on  the  subject.  They  present  also  the  common  features  of  shifting 
the  burden  of  evidence/'  a  circumstance  which  probably  accounts  for  the  per- 
sistent manner  in  which  they  are  confused.7  Chief  among  the  characteristic 

1.  2  Chamberlayne.  Evidence,  §  1184.  (  1893)  ;  2  Chamb..  Ev.,  §  1184,  n.  2,  and  cases 

2.  §§   304   et  seq.;    1   Chamb.,   Ev.,   §§   544       cited. 

et  seq.  4.  Infra,    §    487:    2    Chamb.,    Ev.,    §    1186. 

3.  Robertson    v.    Alameda    Free   Public   Li-  5.  2   Chamberlayne,      Evidence,      §§      1185 
brary,  etc.,  130  Cal.  403.  69  Pac.  88   (1902):       1186. 

Morrill  v.  Douglass.  14  Kan.  293   (1875)  ;  Be-  6.  Supra,  §  403;  2  Chamb.,  Ev.,  §  971. 

fay  v.  Wheeler,  84  Wis.  135,  53  N.  W.  1121          7.  The  idea  apparently  is,  that  as  a  pre- 
333 


339  SIMILARITY  OF  XAME.  §  488 

differences  between  assumptions  of  administration  and  the  presumption  of  law 
is  the  circumstance  that  while  the  presumption  of  law  is  a  rule  in  a  particular 
branch  of  the  substantive  law,  the  assumption  of  administration  is  merely  a 
general  rule  of  convenience  in  judicial  action  applicable  to  all  subjects  alike. 
The  second  li'ujhly  Important  distinction  lies  in  the  circumstance  that  while 
the  presumption  that  a  given  inference  of  fact  establishes  a  prima  facie  case, 
has  a  definite  probative  quality,  an  assumption  of  administration  may 
simply  take  for  granted  the  existence  of  a  fact,  there  being  no  necessary  logical 
inference  whatever  in  the  matter.  It  may  'be  added  that  the  presumption  of 
law,  as  is  elsewhere  noticed,8  is.  and  to  a  still  greater  degree  has  been,  in  fur- 
therance of  the  administrative  canon  of  giving  certainty  and  effectiveness  to 
substantive  law.9  The  assumption  of  administration,  on  the  contrary,  is  in- 
tended for  the  expediting  of  trials.10 

§  488.  [Administrative  Assumptions] ;  Identity  of  Person  from  Similarity  of 
Name.11 —  It  is  a  convenient  assumption  of  administration  that,  in  the  absence 
of  iimerent  improbability,  or  proof  to  a  contrary  effect,12  the  same  name  at  all 
times  designates  a  given  person  13  or  thing.14  This  assumption  is  particularly 
valuable  in  connection  with  the  proof  of  title,15  or  other  matters  in  which  use 
is  made  of  documentary  evidence.  A  party  having  the  burden  of  showing  an 
identity  in  persons  may  well  ask  the  presiding  judge  provisionally  to  assume 
identity  from  similarity  and,  a  fortiori  from  identity  of  name.16 

Assumption  Displaced. —  It  is  said  that  this  assumption  of  administration     , 
may  be  overcome  by  a  conflicting  presumption  of  law,  as  that  "of  innocence" 

sumption    of    law    shifts   the    burden    of   evi-  18  N.  Y.  86   (1858);  Cross  v.  Martin,  46.  Vt. 

dence,  every  ruling  of  the  court  which  shifts  14   (1873)  ;  2  (Jhamb.,  Ev.,  §  1187,  n.  2,  and 

this  burden  must  necessarily  be  a  presumption  oases  cited, 

of  law.  14.  Wilbur  v.   Clark,  22   Mo.   503    (1856); 

8.  8upra,  §  445;   2  Chamb.,   Ev.,  §   1086.  Barrow    v.    Philleo,     14    Tex.    345     (1855); 

9.  Supra,  §  305:    1   Chamb.,  Ev.,  §  556.  Stahl  v.  Ertel,  62  Fed.  920  (1893)  ;  2  Chamb., 

10.  .S'f/pro,  §§  304  et  seq.;  1  Chamb.,  Ev.,  §§      Ev.,  §  1187,  n.  3,  and  cases  cited. 

544  et  seq.     2  Chamb.,  Ev.,  §  1185.     See  dis-  15.  Graves  v.  Colwell,  90  111.  612    (1878)  ; 

cussion  of  Inferences  of  Fact  Compared  and  Oilman    v.    Sheets,    78    Iowa   499,   43    X.    W. 

Rulings  as  to  the  Burden  of  Proof,  2  Chamb.,  299    (1889)  ;    Geer  v.   Missouri  Lumber,  etc., 

Ev.,   §§   1185a.   1186.  Co.,   134  Mo.  85,  34  S.  W.   1099,  56   Am.  St. 

11.  2  Chamberlayne,     Evidence,     §§     1187-  Rep.  489   (1805):  People  v.  Snyder.  41  X.  Y. 
llOla.  397   (1869)  ;  2  Chamb.,  Ev.,  §  1187,  n.  4,  and 

12.  Garwood     v.     Garwood.     29     Cal.     514  cases  cited. 

(1866)  .  Clark  v  Pearson,  53  Ga.  496  (1874)  ;  IP.  No  necessary  inference  of  fact.— When 

Bayha  v.  Mumford,  58  Kan.  445,  49  Pac.  601  evidence  contrary  to  the  truth  of  the  assump- 

(1897);    I.iscomb  v.    Eldredpe.  20  R.   I     335,  tion    is    introduced,    there    is   said    to    be    no 

38  Atl.  1052    (1897)  :   2  Chamb.,  Ev.,  §  1187,  presumption  in  the  matter.     McMinn  v.  Whe- 

n.  1.  and  cases  cited.  Ian.  27  Cal.  300.  317    (1865)  :   Graves  v.  Col- 

13.  Hendricks  v.  State,  26  Tnd.  493  (1806):  well,  supra:  Jackson  v.  Goes.   13  Johns.    (X. 
Grindle    v.    Stone.    7«    Me     176.    3    Atl     183  Y.)    518.  7  Am.  Dec.  399    (1816):   2  Chamb., 
(1886);  'Morris   v     McClary.    43   Minn.    346.  Ev.,  §   1187,  n.  5,  and  cases  cited. 

46  X.  W7.  238    (1890)  ;   Hatcher  v.  Rocheleau, 


488 


ADMINISTBATIVE  ASSUMPTIONS. 


340 


so  called,17  or  by  inferences  arising  from  the  validity  of  a  contract.18  This 
displacement  of  the  assumption  is  a  necessary  one.10  The  assumption,  more- 
over, is  made  only  when  the  name  is  to  be  applied  to  a  particular  person  in- 
volved.2" 

Inferences  of  Fact. —  While,  as  has  been  said,21  the  administrative  as- 
sumption that  a  given  name  used  on  different  occasions  indicates  the  same 
person  does  not,  necessarily,  rest  upon  any  inference  of  fact,  it  may  well  do 
so.  C'ertaiu  affirmative  or  inh'rmative  considerations  may  even  be  intrinsic 
in  the  name  itself;  others  are  extrinsic  to  it.22 

Corroborative. —  Corroborative  inferences  of  fact  may  be  intrinsic  to  the 
name.23  Where  two  names  are  presented  to  the  consideration  of  the  court,  the 
inference  that  they  designate  the  same  individual  is  strong  in  proportion  as 
the  difference  between. the  two  are  slight.24  Conversely,  the  inference  of  iden- 
tity is  weak  as  the  points  of  difference  between  the  two  -names  are  numerous 
and  marked.25 

Extrinsic. —  Facts  extrinsic  to  the  name  may  found  corroborative  infer- 
ences of  fact.26  Facts  of  all  kinds  may  corroborate  the  inference.  Thus  the 
document  in  question  may  have  been  produced  from  such  appropriate  custody 
as  to  be  reinforced  in  probative  effect  by  that  circumstance.27  The  handwrit- 
ing of  two  persons  of  the  same  or  similar  name  may  be  so  nearly  alike  in  ap- 
pearance as  to  confirm  the  inference.28  That  the  person,  whose  name  a  given 


17.  Wedgwood's    Case,    8    Me.    75     (1831). 
See  also,  Com.  v.  Briggs,  5  Pick.   ( Mass. )   429 
(1827);    Bogue  v.   Bigelow,  29  Vt.    179,    183 
(1857)  ;  §§  —  et  seq.,  supra;  2  Chamb.,  Ev., 
§§  1172  et  seq. 

18.  Cooper  v.  Poston,  1  Duv.    (Ky.)    92,  85 
Am.  Dec.  610  (1803). 

19.  A   mere  ruling  for  administrative  con- 
venience naturally  gives  way  before  a  rule  of 
positive    law,   like   the   presumption   of   inno- 
cence or  even  when  opposed  by  an  inference  of 
fact.     See    next    section.     2    Chamb.,    Ev.,    § 
1188. 

20.  If  such  name  be  a  common  one  in  the 
vicinity  or  if  it  be  shown  that  there  is  more 
than  one  person  to  whom  the  name  may  prop- 
erly be  applied,  there  can  be  no  assumption 
as  to  the  person  to  whom  the  name  should  be 
applied  by   the  jury.     People  v.   Wong  Sang 
Lung,  3  Cal.  App.  221,  84  Pac.  843  (1906). 

21.  Supra,  n.  13;  2  Chamb..  Ev.,  §  1187,  n. 
5. 

22.  2  Chamb.,  Ev.,  §  1189. 

23.  A   name   leads  to  an   inference   that   it 
can  properly  be  applied  only  to  a  single  in- 
dividual,   i.e..    warrants    an    assumption    of 
identity,  in  proportion  as  it  is  unusual   ( Se- 


well  v.  Evans.  4  Q.  B.  626,  3  G.  &  D  604,  7 
Jur.  213,  12  L.  J.  Q.  B.  276,  45  E.  C.  L.  626 
(1843)  elaborate  or  otherwise  distinctive. 
But  see,  apparently  to  the  contrary  effect, 
Mooers  v.  Bunker,  29  X.  H.  420,  431  (1854). 

24.  Loveman   v.    Birmingham   Ry.   L.   &   P. 
Co.,     149     Ala.     515,     43     So.     411      (1907) 
C'Schuler"    for    '•  Sohulern  ")  ;    Einstein    v. 
Holladay-Klotz  Land  &  Lumber  Co.,  132  Mo. 
App.    82,    111    S.    W.    859     (1908)      (initials 
"  J.  W."  &  "  W.  J.")  :  2  Chamb.,  Ev.,  §  1190, 
n.  3,  and  cases  cited. 

25.  Spreyne  v.  Garfield  Lodge  Xo.   1  of  U. 
Slav.  Benev.  Soc.,   117   111.  App.  253    (1905); 
Creenberg  v.  Angerman,  84  X.   Y.  Supp.  244 
(1903). 

26.  Bennett     v.     Libhart,     27     Mich.     489 
(1873)  :  Hoffman  v.  Metropolitan  L.  Ins.  Co., 
119    X.    Y.    Supp.    978,    135    App.    Div.    739 
(1909);    2    Chamb.,    Ev.,    §    1190,    n.    5,    and 
cases  cited. 

27.  2  Chamb..  Ev.,  §   1190.  n.  6.  and  cases 
cited.     Bailie  v.  Western  Live  Stock  &  Land 
Co.   (Tex.  Civ.  App.),  119  S.  W.  325   (1909). 

28.  2  Chamb.,  Ev.,  §  1190,  n.  7,  and  cases 
cited. 


341  SIMILARITY  OF  NAME.  §  488 

designation  is  claimed  to  be,  promptly  answered  when  addressed  by  it  29  and 
other  facts  circumstantially  probative  may  furnish  evidence  in  the  same  direc- 
tion. 

Infirmative. —  On  the  other  hand,  the  probative  force  of  the  inference  of 
identity  from  similarity  of  names  is  greatly  diminished  by  introducing  facts 
inconsistent  with  the  truth  of  the  assumption.30 

Extrinsic. —  Extrinsic  facts,  as  well  as  those  intrinsic  in  the  name  itself, 
may  tend  to  destroy  the  truth  of  the  assumption,  removing  any  element  of 
probative  force  from  the  inference  of  fact  upon  which  it  may  have  been  based, 
and,  very  possibly,  establishing  that  the  persons  designated  were,  in  fact,  dif- 
ferent individuals.  For  example,  it  may  be  shown  that  while  the  two  per- 
sons have  been  assumed,  on  account  of  their  similarity  or  identity  of  name  to 
be  the  same  person,  they  were  actually  employed  at  the  time  in  different  occu- 
pations, or  filled  different  stations  in  life.31 

Initials. —  Where  the  surname  and  given  name  employed  on  the  two  occa- 
sions are  identical  a2  the  inference  of  identity  arises.  Where  the  same  initial 
takes  the  place  of  the  given  name,  the  inference  of  identity  is  normally  weaker.33 
The  identity  of  family  name  and  similarity  of  initials  is  not  sufficient  to 
create  a  prim  a  facie  inference.34  On  the  contrary,  where  the  same  family 
name  and  surname  are  used  on  two  occasions  insertion  in  both  of  the  same 
middle  initial  adds  force  to  the  inference  of  identity.35 

Dissimilarity. —  The  presence  of  two  middle  initials  consisting  of  a  different 
letter  tends,  very  strongly,  to  negative  the  inference  of  identity.36  The  same 
result  by  no  means  follows  where  one  name  has  a  middle  initial  and  the 
other  has  none.37 

29.  Garrett    v.    State,   76   Ala.    18    (1884);  33.  Pearce   v.   Albright,    12   N.   M.  202,   76 
2  Chamb.,  Ev,  §   1190,  n.  8,  and  cases  cited.  Pac.    286    (1904). 

30.  Stevenson  v.  Murray.  87  Ala.  442,  6  So.  34.   Bennett    v.    Libhart,    svpra ;    Kane    v. 
301    (1888);   Mode  v.  Beasley,   143   Ind.  306,  Sholars   (Tex.  Civ.  App.  1905),  90  S.  W    937. 
42  N.  E.  727   i '1895)  :  2  Chamb.,  Ev.,  §  1191,  n.  See  also.  \Vhite  v.  Bates,  234  III    276,  84  N. 
1,  and  cases  cited.  E.  906   (1908)  :  2  Chamb.,  Ev.,  §  1191a,  n.  3, 

31.  Richardson     v.     People,     85     111.     495  and  cases  cited. 

(1877):     Ellsworth    v.    Moore,    5    Iowa    486  35.  Paxton  v.  Ross,  89  Iowa  661,  57  N.  W. 

(  1857)  ;  2  Chamb.,  Ev.,  §  1191,  n.  3,  and  cases  428    (1894). 

cited.     It  may  appear,  in  the  same  way,  that  36.  Ambs  v   Chicago,  etc.,  R.  Co..  44  Minn 

the    use    of    the    similar    or    identical    name  260.    40    N.    W.    321     (1890)       On    the   other 

occurred   at    intervals   so   widely   separate   in  hand,  the  middle  initial  has  been  held  to  be 

point  of  time  as  to  render  it  highly  improb-  immaterial      Alabama    Steel    &    Wire    Co     v. 

able   that  the   same  person   could   have   been  Griffin     (Ala.    1907  K    42    So.    1034;     Illinois 

present   on    both    occasions.     Sitler    v.    Gehr.  Cent.  R    Co.  v.  Hasenwinkle,  232   111.  224.  83 

1(1.")    Pa    577.   51    Am     Rep.   207    (1884)       It  N.  E.   815    (1908)       See  also  2  Chamh.,  Ev.. 

has  been  said  that   slight   evidence  is  needed  §  1191a.  n.  5.  and  cases  cited 
to    overcome   the    assumption    of   identity   of  37.   Hunt   v.   Stewart.   7   Ala.   525    (1845); 

person  from   identity  or  similarity  of   name.  State  v.  Loser   (Iowa  1905).  104   NT.  W    337 

Morris  v    McClary.  43  Minn.  346.  46  N.  W.  See,  however,  Lucas  v.  Current  River  Land  & 

._>3S   (1890).  Cattle  Co.,  186  Mo.  448,  85  S.  W  359  (1905) 

32.  Sperry    v.    Tebbs.    10    Ohio    Dec.     (Re- 
print)  318/20  Cine   L.  Bui.  181   (1888). 


|§  489,490 


ADMINISTRATIVE    ASSUMPTIONS. 


342 


§  489.  [Administrative  Assumptions] ;  Property  from  Possession.35* — "  Men 
generally  own  the  property  they  possess/'  39  In  certain  connections,  there- 
fore, possession  of  cither  real  4"  or  personal  41  property,  will  be  assumed  to 
indicate  the  owner.  In  order  that  the  assumption  should  be  made  or  the  in- 
ference of  fact  arise,  it  is  essential  that  the  possession  should  be  consistent, 
however,  with  the  fact  of  ownership.42  The  presumption  or  inference  is,  ao 
a  matter  of  course,  rebuttable.43 

§  490.  [Administrative  Assumptions] ;  Regularity.44 —  Presumptions  of  regu- 
larity, so  called,  are  in  many  instances,  assumptions  of  administration;  —  al- 
though, as  has  been  seen,45  an  inference  of  fact  may  also  be  present.  A.^  is 
usual  in  such  cases,40  the  rule  has  been  put  into  the  alternative  forms  of  saying 
either  (a)  that  there  is  no  presumption  of  official  irregularity47  or,  (b)  that 
he  who  alleges  irregularity  has  the  burden  (of  evidence)  to  prove  it.48  Such 
an  inference  of  fact  may  be  corroborated  by  any  evidence,  as,  for  example, 
Jong  failure  to  complain  of  the  existence  of  any  irregularity.49 

No  Probative  Force. —  While  an  inference  of  fact  may  be  present,  in  gen- 
eral, what  is  presented  is  a  mere  assumption  entirely  devoid  of  probative 
force.50  This  conclusively  appears  when  the  attempt  is  made  to  draw  logical 


38.  2  Chamberlayne,  Evidence,  §  1192. 

39.  McEwen  v.  City  of  Portland,  1  Or.  300 
(I860). 

40.  Jackson  v    Waltermire,  5  Cow.   (N.  Y.) 
299    (1826);   Ward  v.  Mclntosh,  J2  Ohio  St. 
231    (1861);   Bradshaw  v.  Ashley,   180  U.  S. 
59,  21    S.   Ct.  297,  45   L.  ed    423    (1901);   2 
Chamb.,  Ev.,  §  1192,  n.  2,  and  cases  cited. 

41.  Amick  v.   Young,   69   111.  542    (1873); 
Miller   v.   Marks,   20   Mo.   App    360    (1886); 
Jennings  v.  Brooklyn  Heights   K.  Co.,  106  N. 
Y.    Supp.    279,    121    App     Div.    587     (1907); 
Wausau   Boom   Co.    v.    Plumer.   35   Wis.   274 
(1874)  :  2  Chamb..  Ev.,  §  1102,  n.  3,  and  cases 
cited      The   a? sumption   has   been    spoken    of 
as  merely  a  presumption  of  fact,  and  charac- 
terized a?   being  "  the  lowest  species  of  evi- 
dence.''    Rawley    v.    Brown,    71     N.     Y.    85 
(1877) 

42.  Where  the  property  is  apparently  that 
of  another  no  inference  arises   to  the  effect 
stated.     Gregg  v    Mallett.    Ill   N.   C    74.    15 
S.  E.  036    (1802).     Should  the  possession  of 
several   persons  be  concurrent   it  will   be  as- 
sumed that  he  whose  -exercise  of  acts  of  do- 
minion is  most  marked  is  the  actual  owner. 
Reid   v.    Butt,   25   Ga.  28    (1858):   Curran  v 
McGrath.   67    111.   App.   566    (ISOfi). 

43.  Amick   v.   Young,   supra     Trevorrow   v. 
Trevorrow,    65    Mich.    234.    31     \.    W.    OOS 
(1887)  ;  New  York  v.  Lent,  51  Barb.  (N.  Y.) 


19  (1868);  Philadelphia  Trust,  etc.,  Co.  v. 
Philadelphia,  etc.,  R.  Co.,  177  Pa.  38,  35  Atl. 
688  (1896)  :  2  Chamb.,  Ev.,  §  1192,  n.  9,  and 
cases  cited. 

44.  2  Chamberlayne,     Evidence,     §§     1193- 
1196. 

45.  Supra,  §§  422  et  seq.;  2  Chamb.,  Ev., 
§§  1049  et  seq. 

46.  Infra,  §§  495  et  seq.;  2  Chamb.,  Ev.,  § 
1219  et  seq. 

47.  Pottsville  Safe-Deposit  Bank  v.  Schuyl- 
kill  County.  190  Pa.  188,  42  Atl.  530   ( 1899)  ; 
Scottish  Commercial  Ins.  Co.  v.  Plummer,  70 
Me.  540  (1880). 

48.  Scott  v.  State,  43   Fla.  306,  31  So.  244 
(  1901  )  ;    A.   H.   Hugh   Printing  Co.    v.    Yeat- 
man,  22  Ohio  Cir.  Ct.  584,  12  Ohio  Cir    Dec. 
477   (1901)  ;  2  Chamb.,  Ev.,  §  1193,  n    4,  and 
cases  cited. 

49.  Belcher  v.  Belcher,  21  Ky.  L  Rep   1460, 
55  S.  W.  603    (1000):   McFate's  Appeal.   105 
Pa.  323   (1884)  :  Holmes  v.  Cleveland,  etc.,  R 
Co.,   03    Fed     100    (1861):    2   Chamb.,   Ev.,   § 
1103,  n.  5,  and  cases  cited 

50.  Board  of  W7ater  Com'rs,  etc..  v.  Robins 
&  Potter,  82  Conn    623,  74  Atl.  038    I  1010)  : 
Rogers  v.  Clark  Iron  Co.,  104  Minn    108.  215 
(1008)      Befay     v.     Wheeler.     84     Wis.     13.) 
(1803)-.     2    Chamh,    Ev..    §    1104      Contra: 
People  v.  Siemson,  153  Cal.  387,  95  Pac    863 
(1908). 


34.3 


ORDER  OF  EVENTS. 


§  491 


inference  from  the  "  presumption  "  as  to  the  existence  of  other  facts,51  as  the 
irregularity  of  the  official  in  question  on  another  occasion,52  the  improper  con- 
duct of  some  other  person,53  or  to  supply  a  fact  which  the  record  shows  to  be 
absent.54  Such  an  attempt  inevitably  fails.55 

Ancient  Facts. — "  There  is  a  time  when  the  rules  of  evidence  must  be  re- 
laxed. We  cannot  summon  witnesses  from  the  grave,  rake  memory  from  its 
ashes,  or  give  freshness  and  vigor  to  the  dull  and  torpid  brain."  56  In  dealing 
with  ancient  facts  the  administrative  canon  of  expediting  trials 5T  is  rein- 
forced by  the  other  principles  of  administration  that  the  actor  in  any  case  will 
be  required  5S  and,  within  the  limits  of  sound  reasoning,  permitted  59  to  pre- 
sent to  the  court  the  best  and  fullest  case  that  it  is  within  his  power  to  oifer. 
It  follows  that  where  the  fact  in  question  comes  to  the  tribunal  from  a  time 
beyond  living  memory,  roughly  placed  by  a  rule  of  procedure  or  substantive  law 
at  thirty  years,  it  will  readily  be  assumed  that  all  conditions  necessary  to  its 
legal  validity  existed.8"  The  greater  the  elapsed  interval,  the  more  strongly 
and  comprehensively  the  assumption  of  regularity  will  be  applied  by  the 
courts.'51  It  results  that  even  in  case  of  formal  documents62  a  shorter  in- 
terval than  30  years  may  operate  to  give  a  proponent  the  benefit  of  the  admin- 
istrative assumption  of  regularity.'53 

§  491.  [Administrative  Assumptions];  Regularity;  Order  of  Events.04 — In 
much  the  same  way,  it  will  be  assumed  that  the  events  which  the  evidence  re- 
lates occurred  in  the  order  which  will  make  them  effective  for  the  accomplish- 
ment of  the  legal  result  which  the  actors  had  in  view.65  Among  such  results 
are  those  embodied  in  documents.66  Acts  which  would  invalidate  or  fail  to 

Mo.  680,  118  S.  W.  425  (1909);  Richards 
v.  Elwell,  supra;  Strange  v.  Oconto  Land  Co., 
136  Wis.  516,  117  N.  W.  1023  (1908):  2 
Chamb.,  Ev.,  §  1195,  n.  5,  and  cases  cited. 

61.  Cooper  v  Turner.  2  Stark.  438  (1819)  ; 
2  Chamb.,  Ev.,  §  1196,  n    1,  and  cases  cited. 

62.  Wood   v.    Frickie.    120   La.    180,   45   So. 
96    (1907)  :   Pope  v.  Patterson,  78  S.  C.  334, 
58  S.  E.  945   (1907). 

63.  Enton  v.  Coney  Island  &  B   R.  Co..  121 
X.    Y.    Supp.    793     (1910).     Prima    facie   in- 
ference   after    a    shorter    period      See    Cob- 
leigh  v   Young,  15  NT.  H.  493   (1844)  :   Austin 
v.  Austin,   supra;  Williams  v    Mitchell,   112 
Mo.   300    (1892).     No  similar  assumption   is 
made  where  the  evidence  in  question  is  matter 
of  public  record.     Brunswick  First  Parish  v. 
McKean,  4  Me   508   (1827) 

64.  2  Chamherlayne,  Evidence,  §  1197. 

65.  Fitzgerald  v.  Barker.  85  Mo.  13  (1884)  : 
Hughes  v.  Dehnam.  53  X.  C.   127    (1860)  :   2 
Chamb..  Ev  .  §  1197.  n    1.  and  cases  cited. 

66.  Rrunke  v.  Oruben,  84  Neb.  806.  122  N. 
W.  37   (1909)  ;  Talbot  v.  Talbot,  23  N.  Y.  17 


51.  L.  S.  v.  Ross,  92  U.   S.  281,  23  L.  ed 
707    (1875) 

52.  Foster  v.  Berry,   14   R.   I.  601    (1884); 
Randall  v.  Collins.  52  Tex.  435    (1880). 

53.  Houghton    County    Sup'rs    v.    Rees,    34 
Mich.  481    (1876). 

54.  Hathaway  v  Clark,  5  Pick.  (Mass.)  490 
(1827)  ;  Gibson  v   Martin,  7  Humphr.  (Tenn.) 
127   (1846). 

55.  U.  S.   v.  Ross,  supra      A  fortiori,  such 
an   assumption   cannot  be   used    to   forfeit   a 
party's  rights  or  deprive  him  of  his  property. 
Christ    v.    Fent,    16    Okl.    375.    84    Pac.    1074 
(1906);    Irwin  v.    Mayes,   31   Tex.   Civ.   App. 
517.  73  S.  W.  33   (1903). 

56.  Richards  v.  Elwell,  48  Pa.  361    (1864). 

57.  §§  304  et  seq.;  1  'Chamb..  Ev.,  §§  544 
et  seq. 

58.  §§  227  et  seq.;  1  Chamb..  Ev.,  §§  465 
et  seq 

59.  §§  149  et  seq.:  I  Chamb..  Ev.,  §§  334 
et  seq. 

60.  Austin   v    Austin,   50   Me.   74,   79   Am. 
Dec.    597    1 1863)  ;    Van    Pelt  v.    Parry,   218 


§  492  ADMINISTRATIVE  ASSUMPTIONS.  344 

afl'ect  a  legal  result  in  accordance  with  the  time,  as  related  to  that  result,  at 
which  it  took  place  will  be  assumed  to  have  been  done  when  the  actor  might 
properly  have  done  as  he  did.07  In  other  words,  conditions  precedent  to 
proper  and  legal  action  will  be  presumed  to  have  occurred  at  a  suitable  time.'18 
Events  will  be  assumed  to  have  occurred  in  the  natural  order  in  which  such 
events  usually  happen.01*  The  assumption  applies  equally  to  the  performance 
of  an  act  or  the  happening  of  an  event  subsequent  to  the  act  in  question  and 
essential  to  its  validity;  it  will  be  taken  that  the  act  has  been  done  or  the 
event  has  happened.7" 

§  492.  [Administrative  Assumptions] ;  Judicial  Proceedings.71 —  Where  the  act 
is  one  relating  to  the  doings  of  any  judicial  tribunal,72  board,  magistrate  ™  or 
officer,74  it  will  be  assumed  that  all  facts  existed  necessary  to  give  the  act  in 
question  full  legal  75  or  logical  76  validity.  The  conduct  involved  must,  for 
the  operation  of  the  assumption,  be  regular,  official  and  in  due  performance  of 
judicial  duty.77 

Courts  of  Record. —  The  assumption  of  regularity  is  made  with  marked 
frequency  in  connection  with  proceedings  of  courts  of  record  78  when  acting 
within  the  scope  of  what  is  known  or  proved  to  have  been  their  jurisdiction.79 
Every  act  of  a  court  of  competent  jurisdiction  is  presumed  to  have  been  right- 
fully done.80  In  other  words,  he  who  would  impeach  the  accuracy  of  judicial 
proceedings  of  a  court  of  record  must  introduce  evidence  to  that  effect.81  The 
rule  applies  equally  to  the  proceedings  of  general  or  special82  terms  of  court, 
and  to  the  proceedings  of  a  probate  court.83 

(1861)  ;  2  Chamb.,  Ev.,  §  1197,  n.  2,  and  cases  77.  Fouke  v.  Jackson  County,  84  Iowa  616, 

cited.  51    N.   W.   71    (1892).     The   assumption,   for 

67.  Eades  v.  Maxwell,  17  U.  C.  Q.  B.   173  example,  does  not  cover  ex  parte  proceedings, 
(1859)  ;  State  v.  Hannibal,  etc.,  R.  R.,  113  Mo.  Morton  v.  Reeds,  6  Mo.  64   (1839*  ;  still  less, 
297   (1893).  those    which    are    extra    judicial.     Fouke    v. 

68.  Appeal   of  Gardner,   81    Conn.    171,   70  Jackson  County,  supra;  Houston  v.  Perry,  3 
Atl   653  (1908).  Tex.   390    (1848). 

69.  Collins    v.     German-Amer.     Mut.     Life  78.  Otto  v.  Young,  227  Mo.  193,  127  S.  W. 
Ass'n,     112    Mo.    App.    209,    86    S.    W.    891  9    (1910). 

(1905).  79.  Walker  v.   Newman,   146   111.   App.  450 

70.  Chamberlain    Banking   House  v.   Wool-  (1909)  ;  State  v.  Vaile,  122  Mo.  33,  26  8.  W. 
sey,  60  Neb.  516,  83  N.  W.  729   (1900)  :  Com.  672     (1894)  ;    Broadway    Trust    Co.    v.    Man- 
v.  Atlantic,  etc.,  R.  Co.,  53  Pa.  9    (1866)  ;   2  heim,  95  N.  Y.  Supp.  93,  47  Misc  415  (1905)  ; 
Chamb.,  Ev..  §  1198,  n.  1,  and  cases  cited.  WTilson   v.    State    (Cr.   App.   Okl.    1910),    109 

71.  2  Chamberlayne,     Evidence,     §      1199-  Pac.   289;    2   Chamb.,  Ev.,   §   1200,  n.  2,  and 
1201.  cases  cited. 

72.  Howcott  v.  Smart,  125  La.  Ann.  50,  51  80.  State  v.  Peloquin,  106  Me.  358,  76  Atl. 
So.  64    (1910);   Austin  v.  Marchant,  21  Wis.  888    (1910);    Pearson    v.    Breeden,    79    S.    C. 
526,  99  N.  W.  320  (1904).  302,  60  S.  E.  706    (1908)  ;   Beale  v.  Com.,  25 

73.  Infra,  §  493;   2  Chamb,  Ev.,  §  1206.  Pa.  U    (1855). 

74.  Infra,  §  493:  2  Chamb.,  Ev.,  §  1209.  81.  Worley  Adm.  v.  Hineman,  6  Tnd.   App. 

75.  Mabb.   v.    Stewart,    143    Cal.    xviii,    77  240   (1892):'  State  v.  Lewis,  22  N.  J.  L.  564 
Pac.   402    ( 1904) .  ( 1849)  ;  2  Chamb.,  Ev.,  §  1200,  n.  4,  and  cases 

76.  Danforth  v.  Egan,  23  S.  D.  43,  119  N.  cited. 

W.  1021  (1909).  82.  Merchant   v.    North,    10   Ohio   St.    251 


345 


PUBLIC  OFFICERS. 


§  493 


Inferior  or  Foreign  Tribunals. —  The  rule  has  been  extended  to  tribunals 
of  inferior  jurisdiction,84  such  as  county  85  or  district 8G  courts.  It  applies 
also  to  justices  of  the  peace  87  and  to  other  committing  magistrates.88  The 
assumption  is  the  same  regarding  the  proceedings  of  foreign  courts.89 

§  493.  [Administrative  Assumptions] ;  Public  Officers.9" —  The  court  will  as- 
sume, in  the  absence  of  intrinsic  improbability,  or  facts  bearing  adversely  in 
the  matter,  that  public  officers  or  persons  purporting  to  act  as  such,91  have 
been  regularly  and  duly  elected,92  that  they  have  complied  with  all  the  forms 
of  law  necessary  to  qualify  them  to  act  as  they  have  done  93  and  that  the  acts 
themselves,  as  they  are  brought  to  the  attention  of  the  tribunal,  were  regularly 
and  properly  performed.94  This  assumption  is  a  general  one  and  applies  to 
all  officials  acting  under  national 95  or  state  9S  authority.97  That  is  to  say, 
the  law  presumes,  in  the  absence  of  evidence  to  the  contrary,  that  public  offi- 
cers,98 of  all  grades,  have  properly  performed  their  duties,99  and  will  do  so  in 


(1859);    Stockslager  v.  U.  S.   116  Fed.  590, 
54  C.  C.  A.  46   (1902). 

83.  Floyd    v.    Ricketson,    129    Ga.    668,    59 
S.  E.  909    (1907)  ;   McKillop  v.  Post,  82  Vt. 
403,   74  Atl.  78    (1909);   Brown  v.  Hannah, 
152  Mich.  33,  115  N.  W.  980   (1908). 

84.  Argo  v.  Barthand,  80  Ind.  63    (1881)  ; 
Hiatt  v.  Simpson,  35  N.  C.  72   (1851)  ;  Mer- 
ritt  v.  Baldwin,  6  Wis.  439  ( 1858)  ;  2  Chamb., 
Ev.,  §  1201,  n.  1,  and  cases  cited. 

85.  Young's   Adm'r   v.   Chesapeake   &   Ohio 
Ry.  Co.,  136  Ky.  784,  125  S.  W    241   (1910)  ; 
Frost  v.  Board  of  Com'rs  of  Teller  County,  43 
Colo.  43,  95  Pac.  289  (1908). 

86.  Stull   v.   Masilonka,   74   Xeb.   309,    104 
X.  W.  188   (1905);  Lethbridge  v.  Lauder,  13 
Wyo.  9,  76  Pac.  682    (1904). 

87.  Oilman   v.   Weiser,   140   Iowa  554,    118 
X.  W    774    (1908). 

88.  People  v.  Warner,  147  Cal.  546.  82  Pac 
196    (1905). 

89.  Christian,  etc.,  Grocery  Co.  v.  Coleman. 
125  Ala.  158,  27  So.  786   (1899)  :  Covenay  v 
Phiscator,    132    Mich.    258,    93    N.    \V     619 
( 1903)       The  preliminary  facts  as  to  jurisdic- 
tion   are    more    carefully    scrutini/ed    except, 
perhaps,   in   case  of   persons   resident   in   the 
foreign     country    or    sister    state.     Com     v. 
Blood,    97    Mass.    538    (1867). 

90.  2  Chamherlayne,     Evidence,     §§     1202- 
1210 

91.  Payne  v   Treadwell.  16  Cal.  220  (1860). 

92.  Blanchard  v.  Dow.  32  Me.  557  ( 1851 ) . 

93.  Story   v.    De   Armond.   77   111.   App.   74 
(1898);    Nelson    v.    People,    23    N.    Y.    293 


(1861);  Gregg  v.  Mallett,  111  N.  C.  74 
(1892)  ;  2  Chamb.,  Ev.,  §  1202,  n.  3,  and  cases 
cited. 

94.  Gibson  v.  Patterson,  75  Ga.  549  (1885)  ; 
Black  v.  Minneapolis,  etc.,  R.  Co.,  122  Iowa 
32,  96  N.  W.  984   (1903)  ;  Ivy  v.  Yancy,  129 
Mo.   501,    31    S.    W.    937    (1895);    Brown    v. 
Helsley  (Neb.  1901),  96  N.  W.  187;  People  v. 
Crane,  125  X.  Y.  535,  26  X.  E.  736   (1891)  ; 
Watkins  v.  Havighorst,  13  Okl.  128,  74  Pac. 
318  (1903)  ;  2  Chamb.,  Ev.,  §  1202,  n.  4,  and 
cases  cited. 

95.  Montgomery  v.  State,  55  Fla.  97,  45  So. 
879   (1908)  ;   Erhardt  v.  Ballin,  150  Fed.  529, 
80  C.  C.  A.  271    (1906). 

96.  Buchanan  v.  James,  130  Ga.  546,  61  S. 
E.   125    (1908);   Whiting  v.  Maiden  &  M.  R. 
Co.,   202   Mass.   298,   88   X.   E.   907    ( 1909 )  ; 
Wenster  v.  Purcell,   186  N.  Y.  549,  79  X.  E. 
1118    (1906),  aff'g  94  X.  Y.  Supp.   1050,  106 
App    Div    360;   State  v    Rose,   140  Wis.  360, 
122    X.    \V.    751     (1909);    2    Chamb.,    Ev.,   § 
1202a,  n.  2,  and  cases  cited. 

97.  State  ex  rel.  Abbott  v   Adcock.  225  Mo. 
335,  124  S.  W.  1100   (1910)  ;   State  v.  Clark. 
32   Xev.    14;>.   104  Pac.  593    (1909):   State  v. 
Middle  Kittitas  Irr.  Dist..  56  Wash.  488,  106 
Pac.  203   (1010). 

98.  In  re  Sheriff  of  Monmouth  County   (N. 
J.  Sup    1906K  69  Atl    305. 

99.  Atwater  v.   O'Reilly.  81    Conn.   367.  71 
Atl    505    (190S):   In  re  Thorp's  Will,  150  X. 
C.  487.  64  S.  E.  379    (lOOfl)  :   Craft  v.  Lent, 
103  X.  Y    Supp.  366.  53  Misc.  4S1    (1907)  :   2 
Chamb.,  Ev.,  §  1202a,  n.  5,  and  cases  cited. 


493 


ADMINISTRATIVE  ASSUMPTIONS. 


future.1  The  same  assumption  has  been  made  in  case  of  the  officials  of 
another  state.2  The  assumption  applies  also  in  criminal  cases.3 

Executive;  National  or  State. —  The  official  acts  of  the  chief  executive  of  a 
nation,  state  4  or  territory  will  be  assumed  to  have  been  regularly  and  prop- 
erly done.5  The  same  assumption  will  be  made  in  case  of  high  executive  offi- 
cers,0 as  the  secretary  of  state,7  the  surveyor-general  s  or  officials  of  the  public 
land  office.9  The  rule  applies  equally  in  case  of  important  official  boards,1" 
as  boards  of  equalization,11  civil  service  commissioners  12  or  the  like.13  The 
official  acts  of  military  officers  of  the  government 14  stand  in  the  same  posi- 
tion.15 

County. —  Important  county  officers,16  as  county  commissioners,17  notaries 
public,18  registers  of  deeds,10  registers  of  probate,20  supervisors,21  treasurer,22 
and  the  like,23  will  be  assumed  to  have  done  their  official  acts  with  exactness 
and  regularity.  The  assumption,  like  others,  furnishes  no  inference  of  fact ;  24 


1.  McCaleb   v.   Dreyfus,   156  Cal.   204,    103 
Pac.  924    (1909). 

2.  State   v.    Lawson,   14  Ark.    114    (1853); 
Koberts    v.    Pillow,    i    Hemp.     (U.    S.)     624 
(1851). 

3.  Montjoy  v.  State,  78  Ind.   172    (1881); 
People  v.  Otto,   101  JV  Y.  690,  5  N.  E.  788 
(1886);    Wilson  v.   State,   16  Tex.  App    497 
(1884);   2  Chamb,  Ev.,  §    1202a,  n.  9,  and 
cases  cited. 

4.  Flores  v.  Hovel    (Tex.  Civ.  App.  1910), 
125  S.  W.  606;  Plank  Road  Co.  v.  Bruce,  6 
Md.  457,  466   (1854). 

5.  State  v.  Dahl,  140  Wis.  301,  122  N.  W. 
748    (1909). 

6.  A  different  ruling  has  been  made  in  cer- 
tain   states.     Milwaukee    Ext.,    etc.,    Co.    v. 
Gordon,   37    Mont.   209,  95   Pac.   995    (1908). 

7.  Erford  v.  City  of  Peoria,  229  111.  546.  82 
N.  E.  374   ( 1907 )  ;  Paxton  v.  State,  59  Neb. 
460,    81    N.    W.    383,    80   Am.    St.    Rep.    689 
(1899). 

8.  Barnhart  v.  Ehrhart,  33  Or.  274,  54  Pac. 
195  (1898)  ;  Buchanan  v.  Barnsley  (Tex.  Civ. 
App.  1908),  112  S.  W.  118. 

9.  Crawford    County    Bank    v.    Baker,    95 
Ark.  438,  130  S    W.  556   (1910):   Houseman 
v.    International    Nav.    Co.,   214   Pa.    552,   64 
Atl.  379    (1906):   2  Chamb.,  Ev.,  §  1202b,  n. 
6,  and  cases  cited. 

10.  Balden  v.  State,  122  Tenn.  704,  127  S. 
W.  134    (1910). 

11.  State  ex  rel   Hammer  v.  Wiggins  Ferry 
Co.,   208   Mo.    622,    106    S    W.    1005    (1907)': 
Jn  re  Webster.  94  N.  Y.  Supp.  1050,  106  App. 
Div.  360    (1905). 


12.  People    v.    City    of    Chicago,    127    111. 
App.  118   (1906). 

13.  Motley  v.  Wilson,  26  Ky.  L.  Rep.  1011, 
82  S.  W.   1023    (1904)    (election  commission- 
ers) . 

14.  Drehmaii  v.  Stifel,  41  Mo.  184,  97  Am. 
Dec.   268    (1867);    Chapman   Tp.   v.   Herrold, 
5«  Pa.   106    (1868). 

15.  Soldiers  may  come  within  the  provisions 
of  the  rule  when  engaged  on  public  business, 
e.g.,  recruiting.     Wolton   v.   Gavin,   16  Q.   B. 
48,  20  L.  J.  Q.  B.  73   (1850). 

16.  Bandow   v.    Wolven,  20  S.  D.  445,   107 
N.    W.   204    (1906). 

17.  Thrash     v.     Com'rs     of     Transylvania 
County,  150  N.  C.  69o,  64  S.  E.  772   (1909). 

18.  People    v.    Sanders,    114    Cal.    216,    46 
Pac.   155    (1896);   Black  v.  Minneapolis,  etc., 
R.  Co.,  supra:  Me  Andrew  v.  Radway,  34  N.  Y. 
511    (1866)  :  2  Chamb,  Ev.,  §  1203,  n.  3,  and 
cases  cited. 

19.  Childers  v.   Pickenpaugh,  219  Mo.   376. 
118  S.  W.  453    (1909). 

20.  Willets   v.   Mandlebaum,   28   Mich.    521 
(1874). 

21.  In  re  Drainage  Dist.  No.  3,  Hardin  Co. 
(Towa    1909),    123    N     W.    1059;    Thayer    v. 
McGee,  20  Mich.  195    (1S70). 

22.  Holtsclaw  v.  State,  46  Tnd.  App   238,  92 
N.  F.  121    (1910). 

23.  Smith  v.  Cox.  82  S.  C.   1.  65  S.  E.  222 
(1909)    (auditor):   Oreen  County  v.  Quinlan, 
211   U.  S.  582.  29  S.  Ct.  162    (1009). 

24.  Chir-aeo.  etc..  TJy    Co    v    Perry  County, 
87  Ark.  408,  112  S.  W.  977    (1908)'. 


347 


PUBLIC  OFFICEKS. 


493 


no  probative  force  exists  in  any  assumption,  whether  of  law  or  of  administra- 
tion.25 

Municipal.  —  The  Mayor  or  alcalde  2G  or  other  city  official  27  of  any  munici- 
pality will  be  assumed  to  have  performed  his  official  acts  in  due  and  proper 
form.28  The  officials  assessing  municipal  taxes  will,  in  like  manner  be  as- 
sumed to  have  done  their  legal  duty.2"  Town  officers,30  including  those  in 
charge  of  the  charities  of  the  town,31  will  be  taken,  in  the  absence  of  evidence, 
to  have  discharged  their  official  duties  in  a  lawful  and  proper  manner.  In  a 
similar  way,  the  officers,32  as  assessors,33  collectors,34  whose  duties  relate  to 
taxation;  or  those,  like  town  clerks,35  treasurers,36  trustees,37  or  township 
committees,38  whose  province  is  more  executive  or  financial  in  its  nature,  are 
all  conceded  the  benefit  of  the  same  administrative  assumption.  Village  offi- 
cers stand  in  the  same  position.39 

Legislative.  —  In  much  the  same  manner,  a  reasonable  presumption  is  to  be 
made  in  favor  of  the  action  of  any  legislative  body  40  or  of  its  officers.  The 
same  judicial  action  is  taken  in  cases  of  municipal  councils,41  or  similar 
bodies. 

Judicial;  Judges.  —  The  fully  official  acts  of  judges  of  general  jurisdiction 
are  distinctively  assumed  to  have  been  regular.42  When  the  necessary  facts  of 
jurisdiction  are  established,  the  same  assumption  is  made  in  favor  of  the  judi- 
cial proceedings  of  judges  of  inferior  courts,  as  county  judges  43  or  justices  of 


25.  Appling  v.  State,  95  Ark.  185,  128  S.  W. 
866    (1910). 

26.  Payne  v.  Treadwell.  16  Cal   220  ( 1860). 

27.  Uoemheld   v.   City  of  Chicago,    131    111. 
App.  76   (1907)  ;  City  of  Syracuse  v.  Hoscoe, 
123   N     Y.   Supp.   403*.  66   Misc.   317    (1910); 
Connor  v.   City  of  Marshtield,   128  Wis.  280, 
107  X.  W.  639    (1906). 

28.  Doe  d    Bowley  v.  Barnes,  8  Q.  B.  1037 
(  1846)  ;  2  Chamb.,  Ev.,  §  1204,  n.  3,  and  cases 
cited.     The  act  assumed  to  have  been   regu- 
larly done  must,  however,  be  one  relevant  to 
some  issue  in  the  case.     Hill  v.  Sheridan.  128 
Mo.    App.    415.    107    b.    W.    426     (1908):     2 
Chamb  .  Ev..  §  1204. 

29.  Southland  Lumber  Co.  v.  McAlpin.  126 
La.  906.  53  So.  45   (1910);   People  v    O'Don- 
nell,  94  X.  Y   Supp.  884.  106  App.  Div  526,  47 
Misc.  267    (1905). 

30.  Wyatt  v.  Burdett,  43  Colo.  208,  95  Pac. 
336    (1908). 

31.  Red  Willow  County  v.  Davis,  49  Xeb. 
796,  69  N.  W.  138    (1896). 

32.  Adams  v.  Osgood,  60  Xeb.  779,  84  X. 
W.  257    (1900)  ;  Eureka  Hill  Min.  Co.  v.  Eu- 
reka, 22  Utah  447,  63  Pac.  654  (1900 K 

33.  State  v.  Savage,  65  Xeb.  714,  91  X.  W 
716  (1902). 


34.  Austin   v.   Austin,   50  Me.   74,   79   Am. 
Dec.   597    (1862);    Downer   v.   Woodbury,    19 
Vt.  329   (1847). 

35.  State  v.  Potter,  52  Vt.  33   (1879). 

36.  Murray  v.  Smith.  28  Miss.  31    (1854)  ; 
Spaulding  v.  Arnold,  125  N.  Y.  194,  26  N.  E. 
295,  afTg  6  X.  Y.  Supp.  336   (1891). 

37.  Miles  v.  Bough,  3  Q.  B.  845,  43  E.  C.  L. 
1001    (1842). 

38.  Mercer  County  Traction  Co.  v.  United 
New   Jersey,   etc.,  Co.,  64  N.  J.   Eq.   588,   54 
Atl.  S19   (1903). 

39.  Bekkedahl    v.    Village   of   Westby,    140 
Wis.  230.  122  X.  W.  727   (1909). 

40.  Bryant  v    City  of  Pittsfield,  199  Mass. 
530,  85  X.  E.  739    (190S)  :   2  Chamh.,  Ev.,  § 
1204a. 

41.  Duniway  v.  City  of  Portland,  81   Pac. 
945.  47  Or    103.  81   Pac.  945    (1905):   State 
v    Mutty.  39  Wash   624,  82  Pac.  118   (1905)  ; 
Grand   Trunk   W.   Ry.   Co.   v.   City  of   South 
Bend.  174  Ind.  203.  91  X.  E.  809   M910K 

42.  Figge  v.  Rowley  84  111.  App.  238.  affd 
185    111    234.   57    X.   E.    195.    (1899):    Den   v 
Applegatp.  23  X   J.  L.  115   (1851  ^  :  2  Chamb.. 
Ev..  §  1205.  n    2.  and  cases  cited. 

43.  Staples  v.  Llano  Co.    (Tex.  Civ.  App.), 
28  S.  W.  569   (1894). 


493 


ADMINISTRATIVE  ASSUMPTIONS. 


348 


the  peace.44  Court  officials  or  magistrates,  such  as  auditors,45  commissioners,46 
referees,47  occupy  the  same  position.  Subordinate  public  officials  exercising 
judicial  functions,  e.g.,  coroners,48  or  notaries  public  49  have  been  regarded  as 
equally  within  the  purview  of  the  rule. 

Attorneys. —  The  official  acts  of  attorneys  at  law,  as  officers  of  the  court, 
will  receive  the  benefit  of  the  assumption  of  regularity.50  Thus,  his  acts  for 
his  client  will  be  assumed  to  have  been  authorized  by  the  latter51  and  to  have 
been  done  without  intent  to  injure  him.52  His  conduct  will  be  in  every  case 
assumed  to  have  been  carried  on  under  a  due  sense  of  responsibility  for  good 
faith  to  the  court.53  A  fortiori,  the  public  prosecutors  54  and  district  attor- 
neys 55  will  be  taken  to  have  well  and  truly  performed  their  official  duty. 

Clerks. —  Conspicuous  among  judicial  officers  whose  acts  will  be  assumed  to 
have, been  regular  until  shown  to  be  otherwise  are  clerks  of  the  court,50  or 
their  deputies,  appointed  by  virtue  of  some  provision  of  law.57  The  assump- 
tion goes  so  far  as  to  take  for  granted  that  these  officers  have  done  their  legal 
and  other  appropriate  duties  in  the  entry,  filing  58  and  docketing  59  of  papers, 
or  the  like.  Clerks  of  subordinate  judicial  tribunals,  as  the  clerk  of  a  grand 
jury  °°  may  receive  the  benefit  of  the  same  assumption. 

Sheriffs  and  Other  Officers. —  It  will  be  assumed  that  the  acts  of  sheriffs,61 


44.  Shattuck  v.  People,  5  111.  477    (1843): 
Hourtienne  v.  Schnoor,  33  Mich.  274   (1876)  : 
2  Chamb.,  Ev.,  §  1206,  n.  2,  and  cases  cited. 

45.  Chelmsford    Foundry    Co.    v.    Shepard, 
206  Mass.    102,   92   N.   E.   75    (1910);    High- 
tower    v.    State,    58    Miss.    636     (1881):     2 
Chamb.,  Ev.,  §  1206,  n.  3,  and  cases  cited. 

46.  Regent    v.    People,    96    111.    App.    189 
(1901);   Kobs  v.   Minneapolis,  22  Minn.    159 
(1875);    Lyman    County   v.    State,    11    S.   D. 
391,  78  N.  W.   17. 

47.  Story   v.  De  Armond,   77   111.  App.   74 
(1898);    Leonard  v.   Root,   15  Gray    (Mass.) 
553    (I860):   Lewis  v.  Greider,  49  Barb.    (X. 
Y.)   606   (1867). 

48.  Woods   v.   State,   63    Ind.   353    (1878); 
People  v.  Dalton,  61  N.  Y.  Supp.  263,  46  App. 
Div.  264    (1899). 

49.  Pardee  v.  Schanzlin,  3  Cal.  App.  597,  86 
Pac.  712   (1906)  ;   Black  v.  Minneapolis  &  St. 
L.  R.  Co.,  122  Iowa  32,  96  N.  W.  984   (1903)  ; 
2  Chamb.,  Ev.,  §  1206,  n.  7. 

50.  Fambles  v.  State,  97  Ga.  625,  25  S.  E. 
365   (1895)  :  Bowman  v.  Powell,  127  111.  App. 
114    (1906);   Rice  v.  Bamberg,  59  S.  C.  498, 
38  S.  E.  209   (1900)  ;  2  Chamb.,  Ev.,  §  1207, 
n.  1,  and  cases  cited. 

51.  Stone  v.  Missouri  Pac.  R.  Co.,  75  Kan. 
600.  90  Pac.  25   (1907). 

52.  Meisenhpimer      v       Meisenheimer,      55 
Wash.  32,  104  Pac.  159   (1909). 


53.  Older  v.   Superior  Court,   10  Cal.   App. 
564,  102  Pac.  829   (1909). 

54.  State  v.   Matejousky,  22  S.  D.  30,   115 
N.  W.  96   (1908). 

55.  Winnek  v.  Mace,   148  Cal.  270,  82  Pac. 
1046    (1905). 

56.  Powers  v.   Hitchcock,   129   Cal.  325,  61 
Pac.  1076   (1900)  ;  Morse  v.  Hewett,  28  Mich. 
481    (1874);    McPherson  v.  Commercial  Nat. 
Bank,   61    Neb.   695,   85   N.    W.    895    (1901); 
Schermerhorn  v.  Talman,  14  N.  Y.  93  (1856)  ; 
2  Chamb..  Ev.,  §  1208,  n.   1,  and  cases  cited. 

57.  Miller  v.  Lewis,  4  N.  Y.  554   (1851). 

58.  Woods  v.  Sargent,  43  Colo.  268,  95  Pac. 
932    (1908). 

59.  Burke  v.  Kaltenbach,  109  N.  Y.  Supp. 
225,  125  App.  Div.  261    (1908). 

60.  State  v.  Pitkin,  137  Iowa  22,  114  N.  W. 
550    (1908).     No  probative  force  necessarily 
resides  in  this  assumption  or  with  the  facts 
as  to  which   it  is  made,  and  should  the  as- 
sumption of  regularity  be  invoked  as  affirma- 
tive  proof,    it   necessarily    fails.     Drennen    v. 
People,  222  111.  592,  78  N    E.  937    (1906). 

61.  San  Francisco  Sulphur  Co.  v.  Aetna  In- 
demnity Co.,  11  Cal.  App.  701,  106  Pac.  Ill 
(1910)  :  Shelton  v.  Franklin,  224  Mo.  342,  123 
S.  W.   1084    (1909);    Simon  v.  Craft.   182  U. 
S.  427.  21  S.  Ct.  836,  45  L.  ed.   llfi.i    (1900)  ; 
2  Chamb.,  Ev.,  §  1209,  n.  1,  and  cases  cited. 


349  FOREIGN  LAW.  §  494 

deputy  sheriffs,62  police  officers  and  constables  °3  connected  with  the  service  of 
legal  process  are  regularly  and  properly  done.  The  same  assumption  is  made 
as  to  other  acts  of  these  officers  of  the  law,64  and  as  to  the  regularity  of  the 
official  acts  of  other  court  officers,*55  and  persons  connected,  even  more  re- 
motely with  court  proceedings,  e.g..  jury  commissioners.66 

Performance  of  Conditions. —  Everything  essential  to  the  validity  of  a 
judicial  act  will  be  assumed  to  have  existed.67  For  example,  if  notice  is  re- 
quired, it  will  be  taken  for  granted  that  it  was  duly  given.0"  If  process  is  to 
be  served  upon  a  given  individual  in  order  that  a  subsequent  legal  act  relating 
to  him  should  be  valid,  it  will,  in  the  absence  of  evidence  on  the  subject,  be 
assumed  that  it  has  been  done.09  If  the  actor  must,  in  order  to  do  a  valid 
act,  have  made  a  preliminary  finding,7"  it  will  be  assumed  that  he  has  made  it. 

§  494.  [Administrative  Assumptions] ;  Relation  Between  Foreign  and  Domestic 
Law.71 —  The  existence  of  a  foreign  law  presents  a  question  of  fact  72  and  the 
matter  is  one  entirely  for  evidence  when  evidence  is  furnished.73  When  there 
is  no  evidence  before  the  court  on  this  point,  the  judge  must  assume  that  the 
foreign  law  is  similar  to  an  analogous  provision  in  some  system  of  law  with 
which  he  is  acquainted,74  providing  that  such  an  assumption  is  reasonably 
possible.75 

Foreiyn  Law  Assumed  to  be  the  Same  as  tliat  of  the  Forum;  Common  Law. 
-  Where  both  the  courts  of  the  forum  and  those  of  the  foreign  state  or  coun- 
try are  under  the  common  law,  it  will  be  assumed  by  the  courts  of  the  forum, 
in  all  cases  where  the  provision  is  not  shown  to  be  statutory  76  and  no  direct 

62.  Massachusetts    Breweries    Co     v.    Her-       Thompson  v.  State,  23  Tex.  Civ.  App.  370,  56 
man,  108  Me.  524,  76  Atl    943   ( 1910)  ;  Dud-       S.  W  603  (1900)  ;  2  Chamb.,  Ev.,  §  1210,  n.  2, 
ley  v.  Barrett,  66  \V.   Va.  363,  66  S.   E.  507       and  cases  cited. 

(1909).  69.  Best  v.   Vanhook,   11   Ky.  L.   Rep.  753, 

63.  McJ.ane  v   Moore,  51  X    C.  520  (1859).       13  S.  W.    119    (1890);    Steinhardt   v.   Baker, 

64.  Thus,  it  will  be  assumed  that  a  sheriff       163  N.  Y.  410,  57  X.  E.  629   (1900). 

in  giving  a  deed  under  a  sale  made  by  him  70.  Mercer  County  Traction  Co.  v.  United 

acted  within  his  legal  powers.     Patterson  v.  New  Jersey,   etc.,   Co.,  64  X.   J    Eq.  588,  54 

Drake,    126   Ga.   478,   55    S.    E.    175    (1906);  Atl.  819   (1903). 

Ivy  v    Yancey,    129    Mo.   501,   31    S    W.   937  71.  2   Chamberlayne,    Evidence,    §§     1211- 

(1.895).  1218- 

65.  Accuracy  of  stenographic  report  of  of-  72.  §  — ,  supra;  1  Chamb.,  Ev..  §  41. 
iH-ial     stenographer,     quaere,    Hutchinson    v.  73.  I'fford   v.   Spaulding.   156  Mass    65,  30 
state,  28  Ohio  Cir.  Ct.  R.  595  (1906).  X    E    360    (1892). 

66.  Louisville,  etc  ,   Ky.   Co.  v    Schwab,  31  74.   Ham  v.  St.  Louis  &  S.  F.   R.  Co..   149 
Ky.    L.    Hep.    1313.    105 '  S     W.    110    (1907):  Mo.    App.    200.    130    S.    W     407     (1910);    2 
Com.  v.  Htighes.  33  Pa.  Super.  Ct.  90  (1907).  Chamb..  Ev..  §  1211. 

67.  Kavanaugh  v.  City  of  St.  Louis.  220  Mo  75.   In  case  of  certain  foreign  countries  not 
-!!>(>,  119  S.  W.  554   (1909)  ;   State  v    Savage.  under  Civil  or  Common  Law  like  Turkey,  or 
ti'i  Xeb    714    91  X.  W    716   (1902);  People  v.  other   Mohammedan    lands    such    an    assump- 

•i.hnson,    46    Hun     (X.    Y.)    667     (1887):    2  tion  would  be.  for  most  tribunals,  an  impos- 

'•imb/Ev,  §  1210.  n.  1.  and  cases  cited.  sible  one.     Aslanian  v    Dostnmian.  174  Mass. 

"3.  Colorado    Fuel.    etc..   Co    v.    State- Bd  3-28.  54   X    E.   845.  75  Am    St.  Rep    348.  47 

-il  Com'rs,   14  Colo    App.   84.  fiO   Pac    3(57  L.  R    A.  495    (1S90K 

>H9)  ;  Morgan  v  Neville,  74  Pa.  52  (1873)  ;  76.  Crane  v.   Blackman,   126   111.   App    631 


494 


ADMINISTRATIVE  ASSUMPTIONS. 


350 


evidence  is  presented  on  the  point,  that  the  legal  or  equitable  77  rule  of  such 
foreign  nation,™  state,79  colony,  or  territory  80  which  is  also  under  common 
law  jurisprudence,  is  the  same  as  its  own.81 

Construction. —  A  similar  assumption  based  upon  like  reasons,  will  at  times 
be  made  as  to  a  similarity  in  construction  of  the  common  law  between  two 
states  s-  or  federal  jurisdictions  which  are  both  under  the  common  law,  or 
between  a  state  or,  under  like  conditions,  between  a  territorial  jurisdiction  and 
that  covered  by  a  federal  court. 8;j  Although  the  court  of  the  forum,  where 
the  foreign  law  is  statutory,84  is  not  in  a  position  to  make  any  assumption  in 
the  matter  whatever,  it  will  feel  obliged  to  assume  that  the  common  law  of  the 
forum  governs  as  to  points  regarding  the  foreign  law  as  to  which  there  is  no 
evidence.85  In  general,  it  is  to  be  observed  that  where  the  foreign  state  is 
said  to  be  under  the  common  law,  the  system  of  law  to  which  reference  is  made 
is  not  the  common  law  of  England  but  that  of  the  forum.80 


(1906)  ;  Jordan  v.  Pence,   123  Mo.  App.  321, 
100  S.   W.  529    (1907). 

77.  Standard    Leather    Co.    v.    Mercantile, 
etc,  Co.,   131   Mo.   App.  701,   111   S.   VV.  631 
(1908). 

78.  Gordon    v.    Knott,    199    Mass.    173,    85 
N.   E.    184    ilU08);    Mexican   Cent.   R.   R.   v 
Eckman,   205    U.    S.    538,   27    S.    Ct.    791,   51 
L.  ed.  920    (1907);   Vazakas  v.  Vazakas,  109 
N.   Y.   Supp.   568    (1908);    2   Chamb.,   Ev.,   § 

-1212.  n.  3,  and  cases  cited. 

79.  Hoxie   v.   New   York,   etc.,   R.   Co.,   82 
Conn.   352,   73   Atl.   754    (1909);    Scholten   v 
Barber,   217    111.    148,   75   N.   E.   460    (1905); 
Miller  v.  Aldrieh,  202  Mass.  109,  88  N.  E.  441 
(1909);    Moreland  v.  Moreland,   108  Va.  93, 
60  8    E.  730   (1908);   2  Chamb.,  Ev.,  §  1212, 
n.  4,  and  cases  cited.     Beard  v    Chicago  &  R 
Co.,  134  Minn    162,  158  N.  \V.  816.  L    R.  A. 
1916  F  866    (1916):   Southworth   v.   Morgan, 
205   N.    Y.   293,   98    X.    E    490.   51    L.    R.    A. 
(N.   S.)    56    H912);   Holbrook  v.   Libhy,   113 
Me.  389,  94   Atl.  4S5,  L.   R.  A.   1916  A   1167 
(1915). 

Presumption  foreign  law. —  The  common 
law  of  a  sister  state  originally  colonized 
from  England  or  formed  from  territory  ceded 
from  England  is  presumed  the  same  as  that 
of  another  common-law  state  in  the  absence 
of  evidence  to  the  contrary.  There  is  no  sucli 
presumption  as  to  the  statutes  of  a  sister 
state  for  they  must  be  proved  under  proper 
allegations  before  the  courts  can  take  cog- 
ni/ance  of  them.  International  Text-Book 
Co.  v.  Connelly.  206  X  Y.  1S8.  99  X.  E  722. 
42  L.  R.  A.  (X.  S.I  1115  (1912). 

80.  St.  Louis  &  S.  F.  R.  Co.  v.  Johnson,  74 


Kan.  83,  86  Pac.  156  (1906);  Keagy  v. 
Wellington  Nat.  Bank,  12  Okl.  33,  69  Pac. 
811  (1902). 

81.  The  presumption  that  the  common  law- 
is  in  force  in  another  state  applies  only  to 
states  carved  out  of  English  territory.     Math- 
ieaon   v.   St.    Louis  &   S.   F.    H.   Co..   219   Mo. 
542.  118  S.  YY.  9  ( 1909).     See  also,  2  Chamb., 
Ev.,  §   1214,  ns.  3,  4. 

82.  Thomas  v    Clarkson,  125  Ga.  72,  54  S. 
E.  77    (1906);   Missouri,  K.  &  T.  Ry.  Co.  v. 
Wise  (Tex.  Civ.  App.),  106  S.  W.  465,  judg. 
aff'd  (Tex.  Sup.  1908),  109  S.  W.  112. 

83.  It  will,   for  example,   be  presumed,  in 
the   absence   of   proof,   that   the   construction 
placed  on   the  common   law  by   the   supreme 
court  of  a  territory  is  the  same  as  that  of  the 
supreme    court    of    the    United    States.     El 
Paso  &  S.  W    Ry.  Co    v.  Smith,  50  Tex.  Civ. 
App.   10,   108  S.  W.  988    (1908). 

84.  2  Chamb.,    Ev.,    §    1215,   ns.   6,   7. 

85.  Thus,   in   construing  a   foreign   statute 
involving  a  question  as  to  the  limitation  of 
actions  in  the  foreign  state,  regarding  which 
no  evidence  is  furnished,  the  domestic  court 
is    justified,  and   indeed  obligated,   in   assum- 
ing   that    the    period    of    limitations    in    the 
foreign  state  is  the  same  as  that  which  pre- 
vails in  its  own  jurisdiction      Missouri,  etc., 
Co.   of  Texas   v.    Harriman    Bros.    (Tex.   Civ. 
App.   1910).  128  S.   W.  932. 

86.  Ha/en    v     Mathews.    184    Mass.    388.   68 
X.  E.  838   (1903)  :  Spencer  v.  Buscli.  98  X    Y. 
Supp.    690.    50    Misc.    284    (1006*:    White    v. 
VJicheson    (Tex.    Civ.    App.    1906),   94    S.   W. 
202 


351  FOREIGN  LAW.  §  494 

Inertia  of  the  Court. —  The  assumption  that  the  law  of  the  foreign  state  or 
country  is  the  same  as  the  common  law  of  the  forum  is  made  with  especial 
ease  when  the  foreign  state  has  formed  part  of  the  jurisdiction  of  the  forum  87 
and  has  adopted  the  same  system  of  jurisprudence.88  The  inertia  of  the 
court  S9  may,  however,  be  increased  by  the  circumstances  of  the  case  as  well  as 
thus  diminished  by  them.  The  judge  will,  for  example,  decline  as  a  rule,  to 
assume  a  similarity  which  would  result  in  working  a  forfeiture,90  voids  a 
transaction  otherwise  valid,91  or  subjects  the  party  to  some  similar  penalty.1*2 

Statutory  Law. —  The  general  uniformity  in  statutory  regulation  in  the 
several  states  of  the  American  Union  and  between  England  and  her  self-gov- 
erning colonies  has  induced  certain  states  in  the  American  Union  to  rule  that 
the  law  of  a  sistei  state  will  be  assumed,  in  the  absence  of  evidence  on  the 
subject,  to'be  the  same  as  the  statute  law  of  the  forum;  93  and  has  led  English 
courts  to  hold  that  the  same  rule  should  apply  to  the  laws  of  one  British  colony 
in  the  courts  of  another.94  In  connection  with  the  assumption  to  which 
reference  has  previously  been  made  <J5  that  the  common  law  of  the  foreign 
state  will  be  assumed  to  be  the  same  as  the  common  law  of  the  forum,  this 
amounts  to  saying  that  in  these  tribunals  the  law  of  a  sister  state90  or  foreign 
country  "7  will  be  taken  in  all  cases  where  no  evidence  is  furnished  to  be  that 
of  the  forum.98 

Foreign  Law  Not  Assumed  to  be  the  Same  as  that  of  the  Forum. —  Among 

87.  State   v     Patterson,   24   X.   C.   346,   3«  .Moehlenpah    v.    Mayhew,    138    Wis.    561,    119 
Am.  Dec.  699   ( 1842  I.  N.  \V.  826   (1909);  2  Chamh.,  Kv.,  §  1214,  n. 

88.  Dormit/er   v.    German   Sav.,   Etc,   Soc.,  1,    and   cases   cited.     Droge    Elevator   Co.    v. 
23  Wash.   132,  62  Pac.  S62    (1900).  W     P.    Brown   Co.,    172    Iowa  4,    151    X.   W. 

89.  Supra,  §  409;  2  Cliamb.,  Ev.,  §  993  1048. 

90.  Fred  Miller   Brewing  Co.  v.  De  France,  94.  Langdon    v.    Robertson,     13    Ont.    497 
90  Iowa  395,  57  N.  \V.  95!)   (  1894)  ;  Citizens'  (1887). 

Sav     Bank    v.    Couse,    124    X.    Y.    Supp.    79          95.  2  Chamb.,  Ev.,  §  1212. 
(1910);    Hull    v     Augustine,    23    Wis.    383  96.  Dagyett  v.  Southwest  Packing  Co.,  155 

(1868)  ;  2  Chamb.,  Ev.,  §  1213,  n.  4,  and  cases  Cal.   762.    103   Pac.   204    (1909);    Reid,   Mur- 

cited.     CONTRA:    Leake  v     Bergen,  27  X.  J  doch  &  Co.  v.  Northern  Lumber  Co.,  146  111 

Eq.  360  (1876)  .   McCraney  v.  Alden,  46  Barb.  App   371   (  1909)  ;  Taber  v.  Seaboard  Air  Line 

(N.    Y.)    272    C1S66).  Ry,  81  S.  C.  317,  62  S.  E.  311   (1908)  :  Elmer- 

91.  Western    Union    Tel.    Co.    v.    Way.    83  green   v.   Weimer.    138   Wis.    112.    119   X.   W. 
Ala.  542,  4  So.  844    (1887)  ;   Smith  v.  Whit-  836   (1909)  ;  2  Chamb.,  Ev.,  §  1214,  n.  4,  and 
aker,  23   111.   367    (I860).     But   see  Terry  v.  cases  cited. 

Robins,  128  N.  C.   140,  38  S.  E.  470,  83  Am.  97.  Lilly-Bracket    Co.    v.    Ronnemann,    157 

St.   Rep.   663    (1901)  Cal.    192,    106    Pac.    715    (19101;    Galard   v. 

92.  Louisiana,    etc,    R.    Co.    v.    Phelps.    70  Winans,  111  Md    434,  74  All.  626   (1909):   2 
Ark.  17.  65  S   W.  709   (1901)  -.   Atchison,  etc..  Chamb,  Ev.,  §   1214.  n.  5,  and  cases  cited. 
R.   Co.   v.   Betts,    10   Colo    431.    15    Pac.   821  98.  Fidelity    Ins.   Co.   v.  Xelson,   30  Wash. 
(1887):    2    Chamb.,    Ev  .    §    1213,   n     6,   and  340,   70   Pac.  961    (1902).     Tt  has  even  been 

cases  cited.  deemed  that  a  domestic  court  could  safely  as- 

93.  O'Sullivan  v.  Griffith.   153  Cal.  502.  95  sume  also  that  the  construction  given  to  tie 
Pac.   873.   96   Pac.   323    (1908)  •    McMillan   v.  statute  in  the  two  jurisdictions  has  been  the 
American   Express  Co.,   123  Towa  236,  98  X.  same.     Howe   v.    Ballard,    113    Wis.    375.    89 
W.   629    (1904):   Peter   Adams   Paper   Co.   v.  N.  W.  136   (1902). 

Cassard,   206   Pa.    179,   55   Atl.   949    (1903); 


ADMINISTRATIVE  ASSUMPTIONS.  352 

Occidental  nations  the  two  general  systems  of  jurisprudence  are  those  of  the 
civil  and  of  the  common  law.  If  the  foreign  state  is  under  the  common  law 
and  the  state  of  the  forum  is  not,  the  only  assumption  reasonably  to  be  indulged 
in  is  that  the  matter  is  to  be  adjusted  under  the  common  law."  Conversely, 
where  the  forum  is  under  the  common  law  and  the  foreign  state  is  not,  no 
assumption  of  similarity  can  be  indulged  by  the  courts  of  the  former.1  In 
other  words,  the  common  law  is  not  to  be  presumed  to  be  in  force  in  any  state 
or  country  where  English  institutions  have  not  been  established.2 

When  Foreign  Laic  is  Statutory. —  A  domestic  court,  where  the  foreign  law 
is  shown  to  be  statutory,  can  make  no  administrative  assumption  as  to  what  the 
provision  of  the  foreign  law  is ;  3  provided  that  the  domestic  rule  is  one  of 
the  common  law. 

Civil  Law  Assumed  to  Govern, —  Where  the  forum  is  under  the  common 
law  and  the  foreign  state  is  under  the  civil  the  permissible  assumption  is  that 
the  case  is  governed  by  the  provisions  of  the  latter  system.4  A  court  admin- 
istering the  civil  law  will  naturally  assume  that  the  law  on  a  given  point  of  a 
foreign  jurisdiction  in  which  the  civil  law  prevails  is  the  same  as  its  own  on 
any  given  point.5 

Common  Law. —  While,  as  has  been  said,  there  is  a  likeness  between  the 
statutes  passed  by  the  American  States  on  any  given  subject  or  between  the 
statutory  legislation  of  England  and  her  colonies,  a  great  diversity  in  particu- 
lars is  so  obvious  as  to  have  induced  many  eminent  courts  to  decline  to  assume 
the  existence  of  any  provision  in  a  foreign  state  or  country  similar  to  that 
contained  in  a  domestic  statute.15  This  is  the  usual  rule  adopted  where  the 
statutory  departure  from  the  common  law  rule  adopted  in  the  jurisdiction  of 
the  forum  has  been  radical  7  or  recent.  As  in  cases  arising  under  the  common 

99.  Martin     v.     Boler,     13     La.     Ann.     369  Ruling  of  Fraternal  Mystic  Circle  v.   Wood, 

(1858);  -2  Chamb.  Ev.,  §  1215.  114   111.   App.   431    (1904);    Com.  v.   Stevens, 

1.  Watford  v.  Alabama  &   Florida  Lumber  196  Mass.  280,  82  X.  E.  .33    (1907)  ;   Hain  v. 
Co,   152  Ala.   178,  44  So.  507    (1907)  St.  Louis  &   S.   F.  R    Co..   136  Mo.  App.   17, 

2.  Banco  De  Sonora  v.  Bankers'  Mut.  Cas-  117  S.  W.  108   (1909). 

ualty    Co..    124    Iowa    576,    100    N.    W.    532  4.  See  Dempster  v.   Stephens,   63   111.  App. 

(1904).     It  will  not  be  assumed  that  tbe  com-  126    HS95). 

mon  law  prevails  in  states  which,  like  Idaho,  5.  Mexican  Cent.  R.  Co    v.  Olmstead   (Tex. 

were  never  under  the   law  of  England.     Me-  Civ.    App.    1900),    60    S.    W.    267;    Mexican 

Manus  v    Oregon  Short  Line  R.  Co.,  118  Mo.  Cent.   R.   Co.  v.  Glover,   107   Fed.   356.   46  C. 

App.  152,  94  S.  W.  743    H906).     See  also,  2  C    A.  334    (1901)  ;  2  Chamb.,  Ev.,  §   1216. 

Chamb.,  Ev.,  §  1213.  n.  6.     I  nder  such  circum-  6.  Baltimore,    etc..    R.    Co.    v.    Hollenbeck. 

stances,   the  court  of   the   forum,   in   the  ab-  161   Ind.  452.  69  X.  E.  136   i 1903)  ;  Cherry  v. 

sence  of  evidence  as  to  what  the  law  of  the  Sprague.   187   Mass.   113.   67   L.  R.   A.  33,  72 

foreign  state  is,  will  determine  the  matters  in  N.   E.   456    (1904)  ;    State   v    Clark,   178  Mo. 

issue  according  to  its  own  laws.  20,  76  S.  W.  1007    (1903)  ;   Patton  v.  Patton. 

3.  Cormo    v.    Boston    Bridse    Works.    205  123  X.  Y.  Supp.  329   (1010)  :   2  Chamb.,  Ev., 
Mass    366,  91  X.  E.  313   (1910).     The  statute  §  1217,  n.  1,  and  cases  cited. 

or  written  law  of  a  foreisn  state  or  country  7.  Dickey  v.  Pocomoke  City  Xat.  Bank,  89 

can  only  be  considered  in  so  far  as  it  is  Md.  280.  43  Atl.  33  (1899);  Demelman  v. 
proved  to  the  court  of  the  forum.  Supreme  Bra.-ier,  193  Mass.  588,  79  X.  E  812  (1907)  ; 


353  WRONGDOING  NOT  ASSUMED.  §  495 

law,8  the  court  of  the  forum  will  not  assume  a  similarity  of  statutory  provision 
where  the  effect  of  so  doing  would  be  to  work  a  forfeiture.9 

Common  Law  of  the  Forum. —  Where  the  law  of  the  forum  is  statutory  and 
assumption  of  uniformity  is  not  taken,  the  judge  is  thus  almost  necessarily 
obliged  to  assume  that  in  the  foreign  state  the  matter  in  question  is  governed 
by  the  common  law.10  This  means  that  the  presiding  judge  will  do  one  of  two 
things.  (1)  He  may  regard  as  applicable  to  the  situation  n  the  common  law 
of  England,12  including  the  law  Merchant,13*  and  English  statutory  law  passed 
prior  to  the  Declaration  of  Independence  of  the  American  Colonies  and  adopted 
by  them  as  suited  to  their  condition.14  (2)  Or,  he  may  apply  the  common  law 
of  England  as  understood  in  the  forum,  i.e.,  as  affected  by  local  usage  or  con- 
struction,15 the  common  law  as  it  would  have  been  had  no  staute  been  passed. 
Of  the  two,  the  latter  is  the  easier  and  more  usual  course.16 

§  495.  [Administrative  Assumptions] ;  Wrongdoing  Not  Assumed.17 —  The  ad- 
ministrative presumption  of  regularity  is  most  readily  made  by  the  court  when 
it  is  the  legal  duty  of  the  actor  to  be  regular  and  where  his  failure  to  do  so 
would  be  an  illegal,18  immoral  19  or  criminal  act.  At  times  it  is  affirmative, 
as  that  there  is  a  presumption  against  fraud  or  wrongdoing,  or  in  favor  of 
good  faith  or  legality,  that  every  one  is  presumed  to  be  innocent,  etc.20  In  other 
cases,  the  form  is  negative,  fraud  or  illegality  is  not  presumed,  there  is  no 
presumption  in  favor  of  fraud,  wrongdoing  will  not  be  inferred,  and  the  like. 
As  a  canon  of  administration,  it  amounts  to  saying  that  there  will  be  no  as- 

Kobb    v.    Washington    and   Jefferson    College,  Low  v.  Learned,  34  N.  Y.  Supp.  68,  13  Misc. 

185  N.  V.  485,  78  X.  K.  .So!)   (1006).  150   (1895). 

8.  2  Chamb.,  Ev.,  §  1213.  14.  Bradley   v.    Peabody   Coal   Co.,   99    111. 

9.  C'iti/.ens'  Sav.   Bank  v.  Couse,  124  N.  Y.  App.  427    (1902). 

Supp.   7!)    (1910):    Fidelity    Ins.,   etc.,   Co.  v.  15.  Robinson  v.  Yetter,  238  111.  320,  87  N. 

..elson,   30   Wash.   340,  70  Pac.  061    (1902)  ;  E.  363  (1909)  ;  Matter  of  Hamilton,  27  N.  Y. 

•2  Chaml).,   Ev.,  §   1217.  n.  4,  and  cases  cited.  Supp.   813,   76   Hun   200    (1894);    2   Chamb., 

CONTRA:      Edleman    v.    Edleman,    125    Wis.  Ev.,  §  1218,  n.  6,  and  cases  cited. 

270,  104  N.  W.  56   (1905).  16.  2  Chamb.,  Ev.,  §  1215,  n.  5. 

10.  Baltimore,    etc.,    K.    Co.   v.   Hollenbeck,  17.  2    Chamberlayne,    Evidence,    §§    1219- 
siipra •;  Hobb  v.  Washington  and  Jefferson  Col-  1223. 

lege,  supra:  2  Chaml)..  Ev.,  §  1218,  n.  1.  and  18.  In  re  Darrow's  Estate,  118  X.  Y.  Supp. 

cases  cited.  1082,  64  Misc.  224   (1909)  ;  Cleage  v.  Laidley. 

11.  Engstrand    v     Kletfman.   86   Minn.   403,  149    Fed.    346,    79    C.    C.    A.    284    (1906):    2 
90  X.  W.  1054   (1902):  State  v.  Shattuck,  69  Chamb.,   Ev.,   §    1219.   n.    1,   and   cases   cited. 
Vt.  40.3,  3S  Atl.   SI,  60   Am.  St.  Rep.  936.  40  2  Chamb.,  Ev.,  §  1222. 

L.  R.  A.  428   (1897).  19.  -rEtna     Indemnity    Co.    of    Hartford    v. 

12.  Schlee  v.  Guckenheimer,  179111.593,54  George   A.    Fuller   Co..    Ill    Md.   321,   73  Atl. 
XT.  E.  302    (1899)  ;    Crandall  v.  Great  Xorth-  738,  74  Atl.  369   (1909)  :  Life  Ins.  Co.  of  Vir- 
ern    R.   Co.,   83    Minn.    190,   86    X.    W.    10.   85  ginia  v.  Hairston.  108  Va.  832,  62  S.  E.  1057 
Am.   St.   Rep.   458    (1901);    Casola   v.  Kugel-  (1908):  2  Chamb..  Kv.,  §  1219,  n.  2,  and  cases 
man.    54    X.    V.    Supp.    89.    33   App.   Div.   428  cited. 

(1898)  ;  2  Chamb..  Ev..  §  1218,  n.  3.  and  cases  20.  Jensen  v.  Montgomery,  29  Utah  89,  80 

cited.  Pac.  504   (1905). 

13.  Reed  v.  Wilson,  41  N.  J.  L.  29   (1879)  ; 


§  495  ADMINISTRATIVE  ASSUMPTIONS.  354 

sumption  made  against  a  person's  good  faith  or  good  conduct  in  the  absence 
of  evidence. 

Fiduciary  Conduct. —  Fiduciaries  are,  it  is  said,  presumed  to  have  acted 
in  good  faith  and  performed  their  duties,  and  not  to  have  permitted  breaches 
of  trust.21 

Professional  Duty. —  In  connection  with  matters  of  professional,  as  distin- 
guished from  legal  or  moral  duty,  the  same  assumption,  in  modified  form, 
will  be  made.22 

No  Probative  Force. —  Certain  courts  have  held  that  there  is  a  probative 
force  in  the  "  presumption  "  or  assumption  itself.23  This  is  clearly  an  error. 
There  can  be  no  probative  weight  in  a  mere  administrative  assumption.24 

Good  Character. —  In  much  the  same  way,  it  is  said  in  a  civil  case,  that  the 
character  of  a  person  is  presumed  to  be  good,25  or  that  a  person  accused  of 
crime  is  presumed  to  have  a  good  character.  In  either  case  the  actual  ruling 
is  to  the  effect  that  if  either  side  desires  to  have  it  appear  that  the  character 
of  the  person  in  question  is  other  than  good,  he  has  the  burden  of  evidence 
to  prove  it  so. 

Fraud. —  It  is  said  that  there  is  a  presumption  against  fraud.20  An  equiva- 
lent expression  apparently  is  that  good  faith  will  be  presumed.27  The  mean- 
ing is  not  varied  when  it  is  announced  that  fraud  is  never  presumed. 2K  The 
real  purport  of  the  expression  is  to  the  effect  that  "  He  who  alleges  fraud  must 
prove  it.1'  29 

Illegality. —  It  is  said  that  there  is  a  presumption  against  illegality,30  that 

21.  McCreery   v.    First    Xat.    Bank,    55   W.       51  Pac.  518   (1897)  ;  Creeden  v.  Mahoney,  193 
Va.  663,  47   S.  E.  800    (1904).     This  rule  of       Mass.   402,   79   N.   E.   776    (1907);    2   Chamb. 
practice  or  administration  is  applied  to  the       Ev.,  §  1221,  n.  1,  and  cases  cited. 

officers  of  corporations      Keady  v.  United  Rys.  27.   \Veybrick  v.  Harris,  31   Kan.  92,  1  Pac. 

Co.,  57  Or.  325,  108  Pac.  l!>7   i  1910).  271    (1883)  ;  State  v.  Washington  Steam  Fire 

22.  A    surveyor,    for    example,    will    be   as-  Co.,    76    Miss.    449,    24    So.    877     (1899);    2 
sumed  to  have  run  out  correctly  the  meander  Chamb.,  Ev.,  §  1221,  n.  2,  and  cases  cited. 
line   of   a   piece   of    land   bounded   by   water.  28.  Smith    v.    Collins,   4    Ala.    394,    10    So. 
Kimball    v.    McKee,    149    Cal.    435.    86    Pac.  334    (1891):    Little  Rock   Bank  v.   Frank,  63 
1089   (1906).         '  Ark.    16,   37   S.   \V.   400,  58  Am.   St.   Rep.  65 

23.  Mordhurst  v.  M.  Wayne,  etc.  Traction  (1896). 

Co.,  163  Ind.  268.  71  X.  E.   642.  66  L.  R.  A.  Fraud  may  be  inferred.— While  fraud  will 

105   (1904):  Childs  v.  Merrill,  66  Vt,  302,  29  not    be   presumed,    it    may,    as    a    matter    of 

Atl.  532   (1894):  .fames  River,  etc..  R.  Co.  v.  course,      be     inferred      from      circumstances. 

Uttlejohn.   18  dratt.    (Va.)    53    (1867).  "The  word  'presumed.'  however,  has  an  en- 

24.  2  Chamh.,  Ev..  §  1219.     That  operates,  tirely  different  meaning  from  the  word  '  in- 
so  far  as  it  operates  at  all.  in  advance  of  the  f erred.'  "     Bannon     v.      Ins.     Co.     of     North 
introduction  of  evidence  and  amounts  merely  America.    115    Wis.    250-259,   91    N.   W.    666 
to  saying  that  he  who  alleges  illegality  will.  ( 1902  I .     See  also,  Morford  v.  Peck,  46  Conn, 
as  a  matter  of  administration,  be  required  to  380     (1878)  ;    State,    to    Use    of    Erhardt    v. 
prove  it.     Id.,  n.  9.  Estel.  6  Mo.  App.  6    (1878);   2  Chamb.,  Ev., 

25.  ftoggans  v.  Monroe,  31  f!a.  331    (I860)  :  §  1221.  n    3. 

Kennedy     v.     Holladay,     25    Mo.     App.     503  29.  Parkhurst    v.    McGraw,    24    Miss.    134 

(1887)  ;  2  Chamb.,  Ev.,  §  1220.  (1852). 

26.  Levy  v.  Scott.  115  Cal.  39.  46  Pac.  892  30.  Doerinir  v.  Peterspn.  75  Minn.   118,  77 
(1896);   Webb  v.  Marks,  .10  Colo.  App.  429.  NT.   W.   568    (1898);    State  v.   Hannibal,  etc., 


355 


CONFLICT  OF  PRESUMPTIONS. 


§  496 


there  is  a  presumption  in  favor  of  legality,"1  that  it  will  be  presumed  that  all 
facts  necessary  to  legality  in  a  given  transaction  in  point  of  fact  existed. :J- 
With  substantially  identical  meaning,  it  may  be  said  that  where  a  particular 
situation  is  presented  to  the  court,  such  an  explanation  of  it  will  be  adopted, 
if  possible,  as  is  consistent  with  legality.33  Without  perceptible  difference  in 
the  intended  meaning,  the  rule,  whatever  it  may  be.  is  frequently  put  in  a 
negative  form.  The  law  is  said  to  make  no  presumption  against  legality,34 
or  it  is  said  that  there  is  no  presumption  that  illegality  exists.35  A  more  in- 
telligible expression  of  identical  meaning  would  be  to  the  effect  that  he  who 
relies  upon  the  existence  of  illegality  has  either  the  burden  of  proof  to  estab- 
lish it  or  the  burden  of  evidence  as  to  it  if  he  be  the  non-actor.;JG 

Corporations. —  The  presumption  of  right  acting,  or  against  illegality,37 
applies  as  to  the  conduct  of  all  corporations,  domestic  or  foreign,  municipal  38 
or  private. 

No  probative  force  attaches  to  the  assumption,  whatever  may  be  true  of  the 
facts  on  which  it  rests  or  with  which  it  deals.39 

§  496.  Conflict  of  Presumptions ;  Civil  Cases.4" —  In  civil  cases,  the  adminis- 
trative assumption  most  frequently  employed  is  that  against  illegality,41  prac- 
tically a  "  presumption  of  innocence  "  in  civil  proceedings.42  Thus  it  may 
be  said  that  the  presumption  from  the  possession  of  a  note  or  other  negotiable 
instrument  that  it  has  been  paid  43  is  not  sufficient  to  overcome  the  presumption 
against  fraud.44  The  presumption-  against  fraud,  being,  in  this  connection  a 


K.  Co.,  1J3  Mo.  297,  21  S.  W.  14  (1892); 
Spaulding  v.  Arnold.  125  X  Y.  194,  20  X.  E. 
2'Jo,  alf'g  6  X.  Y.  Supp.  336  (1891);  2 
Chamb.,  Ev.,  §  1222,  n.  2,  and  cases  cited. 

31.  J.   \Yalter  Thompson   Co.   v.   Whitehed, 
185  111.  454,  50  X.  E.  1106   (1900)  ;   Hartwell 
v.  Root,  19  Johns.   (X    Y.)   345.  10  Am.  Dec. 
232    (1822);   Hays  v    Hill,  23  Wash.  730,  63 
Pae.  576   (1901)  ;  2  Chamb.,  Ev..  §  1222.  n.  3. 
and  cases  cited. 

32.  Friend  v.  Smith  Gin  Co.,  59  Ark    SO.  20 
S.  W.  374   (1894)  :  Korn  v.  Schedler.  11  Daly 
(X.  Y  )   234    (1882). 

33.  FUher   v.    Mclnerney.    137    Cal.    28.   60 
Pac.   022,   907,   92   Am    st     Rep.  68    (1902): 
Osborn  v.  Weldon.  140  Mo    185,  47  S.  W.  936 
•  N'.lsi:    (ireen    v.   Benham.   08   X.   Y.   Supp. 
248.  57   App.  Div    9    (1900);   2  Chamb.,  Ev., 
§  1222.  n.  5,  and  case<  cited 

34.  Sheffield  v.  Halmer,  52  Mo.  474.  14  Am. 
Rep.  430   (1873) 

35.  Detroit  Sav.  Rank  v.  Truesdail.  38  Mich. 
430    (1878);    Luttrell   v.    State.   40   Tex.   Cr 
051. 51  S.  YV    930   (1S991. 

36.  Friend  v.  Smith  Gin   Co..  supra:  Bax- 
ter v.  Ellis.  57  Me.  178   (1869). 


37.  United  Shoe  Mach.  Co.  v.  Ramlose,  210 
Mo.  631,  109  S.  W.  507    (1908) 

38.  Inhabitants   of   Wellington   v.    Inhabit- 
ants  of   Carinna,    104    Me.    252,    71    Atl   889 
( 1908) . 

39.  Thus,  the  fact  that  the  registration  of 
ballots  remains  unchanged  between  the  time 
of  a  balloting  and  a  recount  of  the  votes  can- 
not be  affirmatively  established  as  a  fact  by 
means   of   the   assumption   against   illegality. 
Trumbull  v.  Board  of  Canvassers  of  City  of 
Jackson,  140  Mich.  529.  103  X.  W.  993  (1905). 
See  as  to  rules  of  pleading  and  administra- 
tion. 2  Chamb.,  Ev.,  §  1223 

40.  2     Chamber layne.    Evidence,    §§     1224. 
1225. 

41.  Supra.   §   495:    2   Chamb..   Ev.,   §    1222. 
Chamb..  Ev..  §   1224. 

42.  Ni/pra.   §   47S:    2   Chamb.,   Ev.,   §    1172, 
n.   1. 

43.  Supra.   §   425:   2   Chamb.,   Ev.,   §    1056. 
n.  3. 

44.  Exceisior  Mfg.   Co.   v.  Owens,   58   Ark. 
550.  25  S.  W.  868   (1894). 


§  497  ADMINISTRATIVE  ASSUMPTIONS.  356 

mere  statement  as  to  the  burden  of  proof,45  or  evidence,46  the  ruling  is,  in 
reality,  one  to  the  effect  that  such  possession  does  not,  as  a  matter  of  evidence, 
establish  a  prima  facie  case,  in  a  matter  so  greatly  enhancing  the  inertia  of  the 
court.47  So  of  the  presumption  against  illegality.45*  It  amounts,  as  has  been 
seen,  to  the  statement  that  he  who  claims  illegality  must  allege  it  in  his  plead- 
ings or  establish  it  in  his  proof  by  a  required  preponderance  of  the  evidence. 
Thus  on  an  action  involving  bigamy,  the  party  having  the  burden  of  evidence 
as  to  that  fact  produces  facts  tending  to  show  the  existence  of  a  former  mar- 
riage at  an  early  date  and  asks  the  jury  to  infer  from  the  so-called  presumption 
against  change  that  the  earlier  relation  still  continued  at  the  time  of  the  second 
marriage.  This  inference  does  not  constitute,  under  the  circumstances,  a  prima 
facie  case.  The  burden  of  evidence  is  not  sustained.  In  announcing  a  ruling 
to  this  effect,  the  customary  form  of  expression  is  to  say  that  the  presumption 
of  continuance  does  not  overcome  the  presumption  against  illegality  or  in 
favor  of  right  conduct  or  whichever  of  several  alternative  4!>  expressions  the 
judge  may  see  fit  to  adopt.50 

A  Contrary  View. —  In  view  of  the  fact  that  inferences  alone  possess  pro- 
bative force,  it  seems  clear  that  in  establishing  the  existence  of  a  particular 
fact,  rules  of  procedure,  whether  of  assumption  or  otherwise  must  be  denied 
all  weight  and  the  whole  question  regarded  as  one  for  the  use  of  evidence. 
For  this  reason  the  contention  that  where,  in  a  civil  case,  the  presumption  of 
the  continuance  of  life  tends  to  show  a  subsequent  marriage  to  be  bigamous, 
the  presumption  of  innocence  requires  that  probative  force  should  be  denied 
the  presumption  of  continuance  of  life,  has  been  vigorously  repudiated  by 
courts  of  high  authority.51 

§  497.  [Conflict  of  Presumptions];  Criminal  Cases;  Knowledge  of  Law.r>2 — 
When  the  proposition  of  substantive  law  that  ignorance  of  a  law  furnishes  no 
excuse  for  its  violation  is  paraphrased  into  the  language  of  logic  by  saying 

45.  Rupra,  §   495;    2   Chamb.,   Ev.,  §    1221.  administrative  effect  is  denied  to  the  so-called 

46.  8upra,  §§  402  et  seq.;  2  Chamb.,  Ev.,  "presumption  of  innocence."     *:  The  presump- 
§§  967  et  seq.  tion  of  innocence  is  not  based  upon  facts,  but 

47.  tfupra,  §  409;    2   Chamb.,   Ev..   §   993.  is  independent  of  all  evidence.     The  presump- 

48.  Hitpra,  §   495;    2   Chamb.,  Ev.,  §   1222.  tion  of  continued  life  rests  upon  facts  proved : 

49.  Kxcelsior  Mfg.  Co.  v.  Owens,  supra.  and  those  established  facts,  while  they  raise 

50.  Case  v.  Case,  17  Cal.  598  (1861)  ;  Stein  the  presumption  of  continued  life,  rebut  the 
v.   Stein,  66    111.   App.  526    (1896);   Klein  v.  presumption    of    innocence."     Hyde    Park    v. 
Laudman,    2!)    Mo.    259    (I860);    Clayton    v.  Canton,    130   Mass.    505    (1«S1).     In    such    a 
Wardell,  4  N.  Y.  230   (1850)  ;  2  Chamb.,  Ev.,  case,  as  in  any  other,  entirely  regardless  of 
§   1225,  n.   11,  and   cases  cited.     See  general  any   presumption   of   innocence   in   a   civil   or 
discussion     of    conflict    of    presumptions,     2  criminal    case,    the    logical    inferences    as    to 

51.  Thus,  in  a  case  involving  a  pauper  set-  actual  continuance  of  life  should  receive  care- 
tlement  acquired   by  a   second   marriage  and  ful  consideration.     Murray  v.  Murray,  6  Or. 
residence  in  the  defendant  town,  the  defense  17    (1876)  :  2  Chamb.,  Ev..  §  1225. 

being  that  of  a  prior  marriage  to  a  man  who  52.  2    Chamberlayne,    Evidence,    §§     1226, 

had  abandoned  the  pauper  several  years  be-       1227. 
fore   and   not   shown   to   be   dead,    any    such 


357  INNOCENCE.  §  498 

that  "  everyone  is  presumed  to  know  the  law,"  53  the  effect  of  its  application 
to  a  criminal  case  upon  the  rights  of  a  defendant  may  well  be  stated  as  being 
that  the  presumption  of  knowledge  of  law  is  sufficient  to  overcome  the  pre- 
sumption of  innocence.54  In  reality  the  ruling  is  as  to  the  sufficiency  of  cer- 
tain facts  to  meet  a  legal  requirement  as  to  the  quantum  of  proof. 

§  498.  [Conflict  of  Presumptions] ;  "  Presumption  of  Innocence."  55 —  Anv  actual 
"  conflict  "  between  a  rule  of  substantive  law  relating  to  procedure  like  the 
"  presumption  of  innocence,''  and  the  logical  effect  of  certain  facts  in  creating 
belief  in  the  mind  is  intrinsically  impossible.  When  it  is  said,  therefore,  that 
a  given  fact,  or  set  of  facts  does  or  does  not  overcome  the  "  presumption  of 
innocence,''  the  most  that  can  be  rationally  meant  by  the  court  is  a  ruling  as  to 
the  evidentiary  value  of  certain  evidence  as  constituting  a  prima  facie  case. 
For  example,  it  is  said  of  every  incriminating  fact  which  the  government  in- 
troduces to  show  the  guilt  of  the  accused  that  it  conflicts  with  the  "  presumption 
of  innocence."  Of  every  material  proposition  which  it  succeeds  in  establish- 
ing beyond  a  reasonable  doubt,  it  is  asserted  that  the  prosecution  has  pro  tanio, 
overcome  the  defendant's  "  presumption  of  innocence."  56  On  the  contrary, 
where  a  given  set  of  facts  does  not  establish  guilt  beyond  a  reasonable  doubt,  it 
is  said  that  the  presumption  of  innocence  still  protects  the  accused.57  It  would 
thus  be  entirely  possible,  were  any  advantage  to  be  so  gained,  to  state  the  pro- 
bative value  of  any  incriminating  facts  brought  against  the  accused  in  a  crim- 
inal case  in  terms  of  their  effect  upon  this  so-called  ''  presumption  of  inno- 
cence." 58  On  the  other  hand,  the  insufficiency  of  certain  facts  in  a  criminal 
proceeding  to  make  or  mar  a  prima  facie  case  may,  in  much  the  same  way,  be 

53.  Xupra,  §  477;  2  Chamb.,  Ev  ,  §  1169.  beyond  a  reasonable  doubt,  from  the  observed 

54.  Dunlop  v.   U.  S.,   165   U.   S.   486,   17   S.  regularity  of  certain  public  offices   (Dunlop  v 
Ct.  375,  41  L.  ed.  709   (1896)  ;  2  Chamb.,  Ev.,  I.  S..  supra),  or  from  the  proposition  of  ex- 
§§    1226,    1227.  perience    that    books    of    public    account    are 

55.2    Chamberlayne,    Evidence,    §§    1228-  usually  correct   ( Hemingway  v.  State,  supra ) 

1231.  fan,  were  it  desirable,  readily  be  put  into  the 

56.  Hemingway  v.  State,  68  Miss.  371,  8  So.  form  of  saying  that  the  presumption  or  reg- 
317   (1S90)  :  State  v    Shelley,  166  Mo.  616,  60  ularity   (supra.  §§  490  et  seq  :  2  Chamb..  Ev  , 
S.  \V.  430    (1901);   Dunlop  v    U.  S.. -supra.  §§  H93  et  serf.}   overcomes  the  "presumption 

57.  Dalton  v.  U.  S.,  154  Fed.  461,  83  C.  C.  of    innocence."     So.    on    an    indictment    for 
A.  317    (1907)  adultery,  it  is  a  familiar  proposition  of  expe- 

58.  Thus,  the  fact  that  the  government  need  rience  that  the  defendant's  wife  was  alive  at 
not,   as   part   of   its  original   case,   introduce  the   time   of   the   a  1  lewd    unlawful    act    may 
evidence    that    the*  accused    is    sane     (supra.  logically  be  shown  hy  proof  of  her  being  alive 
§   424.   n.   11:    2  Chamb,   Ev  .   §    1052.  n.    1),  shortly   before,  on   the  presumption   that  life 
may  be  put   in  the  form  of  saying  that  the  once  shown  to  exist,  continues  for  a  reason- 
presumption   of   sanity   is   sufficient   to   over-  able    time      Hiipra.    §    4->0:    2    Chamb..    Ev.. 
come  the  "presumption  of  innocence"     Dun-  §   1042.     Com    v    McCrafh.   140  Mass.  296.  6 
lop  v.  U.  S,  supra.     In  like  manner,  the  ad-  X.   E    515    (1885).     This   may   he   stated   by 
ministrative  canon  that  the  court  will  assume  savin-,'    that    "the    presumption    of    life    out- 
that   official   duty   is   properly   performed    or  \vei«hs   the   presumption   of   innocence  which 
the   circumstance   that   an   inference   of   fact  the  law  indulges."     Howard  v.  State,  75  Ala. 
may  reasonably  be  drawn,   in  the  absence  of  27    (1883). 

evidence  to  the  contrary,  convincing  the  mind 


§  498  ADMINISTRATIVE  ASSUMPTIONS.  358' 

announced  in  terms  of  their  effect  upon  this  "  presumption  of  innocence,"  so 
called.5!> 

Continuance  of  Life.—  As  has  incidentally  been  intimated,  an  inference  or 
presumption  with  which  the  so  called  "  presumption  of  innocence  "  is  said, 
with  special  frequency,  to  "  conflict  "  is  that  of  the  continuance  of  life.00  The 
ruling  by  a  presiding  judge  that  the  person  alleging  that  a  given  individual 
was  alive  at  a  certain  time  must  prove  it,  or  introduce  evidence  tending  to  do 
so,  is  spoken  of  as  one  to  the  effect  that  the  presumption  of  the  continuance  of 
life' does  not  overcome  the  presumption  of  innocence.61  Should  the  judge's 
ruling  be  to  the  contrary  effect,  it  will  probably  be  found  that  he  is  said  to  have 
held  that  the  presumption  of  innocence  overcomes  the  presumption  of  continu- 
ance.02 

Bigamy. —  For  example,  where  one  of  a  married  couple  remarries  in  the 
absence  of  affirmative  evidence  of  the  death  of  the  other  party  and  is  subse- 
quently indicted  for  bigamy,  it  is  for  the  prosecution  to  establish  the  fact  that 
the  absent  consort  was  actually  alive  at  the  time  of  the  second  marriage.  To 
make  this  proof,  it  cannot,  after  a  short  interval,  rely  upon  any  logical  infer- 
ence or  presumption  that  a  person  once  shown  to  be  alive  continues  to  be  so.G:i 
So,  also,  on  an  indictment  for  bigamy,  where  it  is  sought  to  prove  the  former 
marriage  by  evidence  of  cohabitation  and  recognition  of  the  accused  as  a  hus- 
band or  wife,04  a  ruling  that  the  inference  from  such  evidence  does  not  estab- 
lish beyond  a  reasonable  doubt  the  constituent  fact  of  the  existence  of  the 
former  marriage  at  the  time  of  the  alleged  offense  may  be  announced  by  saying 
that  such  facts  do  not  overcome  the  presumption  of  innocence. 

No  Presumption  in  the  Matter. —  The  more  rational  rule  has  been  an- 
nounced, by  many  courts  even  in  criminal  cases,  to  the  effect  that  under  cir- 
cumstances raising  a  conflict  between  the  so  called  "  presumption  of  inno- 
cence "  and  the  inference  or  presumption  of  the  continuance  of  life,  the  only 

59.   Where    the    government    establishes    a  60.  Supra,  §  420;  2  Chamb.,  Ev.,  §  1042. 

fact  which   fails   for  some  reason,   logical  or  61.  Ashbury  v.  Sanders,  8  Cal.  62,  88  Am. 

legal,  to  support  heyond  a  reasonable  doubt.  Dec.  300   (1857):  Reedy  v.  Mulli/.en.  155   111 

a   material   allegation    in    the   indictment,    it  030,  40  X.  E.  1028   (1895);  Smith  v.  Knowl- 

may  be  said  that  the  presumption  from  such  ton,    11    N.    II.    101     (1840):    2   Chamb.,   Ev., 

a  fact  does  not  overcome  the  presumption  of  §   1220,  n.  4,  and  cases  cited 

innocence.     People  v.  Blackmail.  127  Cal   24S.  62.  2  Chamb.,  Ev.,  §   122!) 

59    Pac.   573    (ISO!)):    Lockhart   v.   White.    18  63.  Squire     v.     State.     40     1ml.     450,     467 

Tex.    102    (1856).     So,   on  an    indictment    for  (1874):  Murray  v    Murn^-.  (i  Or.  17    (1870): 

impersonating  an  elector,  the  assumption  that  Rex    v.    Twyning.  2    B.   &    Aid.    386.   20   Rev. 

registration  proceedings  are  regular  (State  v.  Rep.  480    (1810).     See  also.  Smith  v.  Knowl- 

Shelley,   supra) .  may  not  be  received   as  es-  ton,  supra ;  Chapman  v.  Cooper.  5   Rich.    (S. 

tablishing  beyond  a  reasonable  doubt  a  mate-  C  )   452    (1852)  :  2  Chamb.,  Ev.,  §  1230.  n.  1, 

rial     allegation     in     the    government's    case.  and  cases  cited. 

Under  such  circumstances,  the  court  may.  and  64.  Green    v.   State,   21    Fla.   403,   58    Am. 

frequently  does,  say  that  the  presumption  of  Rep.  670   (1885). 
regularity  does  not  overcome  the  presumption 
of  innocence.     2  Chamb.,  Ev.,  §  1228. 


359  INNOCENCE.  §  498 

question  raised  is  as  to  what  evidence  is  admissible  on  the  subject  of  the  con- 
tinuance of  life,  in  other  words,  the  whole  subject  is  one  of  evidence,  there 
being  in  reality,  no  contiict  of  presumptions  in  the  matter.05  The  same  fact, 
in  this  connection,  is  found  to  possess  a  Tery  different  probative  value  under 
varying  circumstances.66 

65.  Uex    v.    Harborne,    2    A.    &    E.    540,    1          66.  Rex  v.  Harborne,  supra;  2  Chamb.,  Ev., 
Hurl.  &  \V.  36,  29  E.  C.  L.  255   (1835).     See       §  1231. 
also,   State  v.   Plym,  43   Minn.   38n    (1890); 
Howard  v.  State,  75  Ala.  27    (1883). 


CHAPTER  XVII. 

ADMISSIONS:  JUDICIAL. 

Admissions  defined,  499. 
Probative  force,  500. 
Formal  judicial  admissions,  501. 
form  of  admissions,  502. 

pleadings;  in  same  case,  503. 
constituting  tlie  issue,  504. 
deliberative  facts,  505. 
nae  as  admissions,  506. 
in  other  cases;  formation  of  issue,  507. 
use  as  admissions,  508. 
code  pleading,  509. 
law  and  equity,  510. 
equity  pleadings;  answer,  511. 
state  and  federal  courts,  512. 
superseded  or  abandoned;  evidence  rejected,  513 
stipulations,  514. 
Informal  judicial  admissions,  515. 

form  of  admissions;  oral;  testimony  by  party,  516. 
writings,  517. 

affidavits,  518. 

answers  to  interrogatories,  519. 
depositions,  520. 
Judicial  admissions:  by  ivliom  made,  521. 

attorneys,  522. 
probative  force,  523. 

formal  judicial  admissions  conclusive,  524. 

informal  judicial  admi&rioni  constitute  prima  facie  case,  525. 

$  499.  Admissions  Defined.1 —  An  admission  may  be  shortly  defined  as  a  state- 
ment 2  to  whomsover  addressed,  by  the  party  to  the  action  against  whom  it  is 
offered,3  or  by  some  one  for  \vho<e  statements,  in  this  eonneetion,  he  is  legally 

1.  2     Chamherlayne    Evidence.     §§      1232-       §§  5/H)  et  seq. ;  2  Chaml> ,  Ev..  §§  1392  et  seq. 
123oa.  Other  definitions:     See  2  Chamh.,  Ev.,  §  1233, 

2.  This    definition    eliminates    the    implied       n.  1,  and  cases*  cited. 

statement  as  to  the  existence  of  a  probative  3.  fnfra,    §§    533   et   seq.;   2   Chamb.,    Ev., 

or  res  (jestrp  fact  arising  from  the  acts  of  a       §§  1311  et  seq. 
party,    "admissions   by    conduct/'    so    called. 

360 


361 


DEFINITION. 


499 


responsible,4  as  to  the  existence  of  a  probative  or  res  gestae  5  fact.6  If  oral, 
it  must  be  satisfactorily  proved  7  by  some  one  who  heard  it.8  Admissions  may 
be  classed  as  judicial  or  extra-judicial.  The  judicial  admission  is  one  made  on 
the  record  or  in  connection  with  the  judicial  proceedings  in  which  it  is  offered. 
An  extra-judicial  admission  is  one  in  pais,  not  made  in  court  for  the  purposes 
of  the  case  on  trial  in  which  it  is  offered."  "  If  a  party  has  chosen  to  talk  about 
a  particular  matter,  his  statement  is  evidence  against  himself/'  10  One  who 
comes  into  court  as  a  party  is  held  to  explain  any  statements  he  may  have 
made  in  the  matter.  The  extra-judicial  admission  will  readily  be  distin- 
guished from  the  ordinary  declaration  against  interest,  an  exception  to  the 
rule  excluding  hearsay,  considered  elsewhere.11 


4.  Infra,    §§    539    et    seq.,    540    et    seq.;    2 
Chamb.,  Ev.,  §§  1329  et  seq.,  1337  et  seq. 

5.  Moore  v.  Crosthwait,  135  Ala.  272,  33  So. 
28  (1902)  ;  McBlain  v.  Edgar,  Go  X.  J.  L.  634, 
48  Atl.  600   (1901)  ;  Hart  v.  Pratt,  19  Wash 
560,  53  Pac.  711   (1898). 

6.  Confession     distinguished. — As    distin- 
guished   from   "  admission  "   the   term   "  con- 
fession "  will  be  confined  to  the  acknowledg- 
ment of  guilt  in  a  criminal  case  or  of  facts 
from  which  guilt  must  necessarily  be  inferred. 
Supra,  §  583;   2  Lhamh.,  Ev.,  §  1476.     State 
v.  Crowder,  41  Kan.  101.  21  Pac.  208   (1889)  : 
State  v.  Picton,  51  La.  Ann.  624,  25  So.  375 
(1899)  :   Musgrave  v.  State,  28  Tex.  App.  57, 

I  S.  W.  927  (1889);  State  v.  Carr,  53  Vt. 
.'{?  (1880).  "The  term  admission  is  usually 
applied  in  riril  transactions,  and  to  those 
matters  of  fact  in  criminal  cases  which  do 
n  t  involve  criminal  intent."  People  v.  Ve- 
larde. 59  Cal.  457  ( 1881 )  :  Colburn  v.  Town 
of  C.roton,  66  X.  H.  151,  22  L.  R  A.  763, 
28  Atl  95  (1890);  State  v.  Porter,  32  Or. 
135.  49  Pac.  964  (1897).  A  contrary  view 
has  been  held  by  certain  courts.  Merri- 
weather  v.  Com,  118  Ky.  870.  82  S.  W.  592 
(1904);  Xotara  v.  De  Kamalaris,  49  X.  Y. 
Supp.  216,  22  .Misc.  37  (1898)  See  also,  2 
Chamb  .  Ev.,  §  1233.  n.  5. 

7.  Arnold   v.   Metropolitan   L.   Tns.   Co.,  20 
Pa.  Super.  Ct    61    (1902):   Stevens  v.   Equit- 
able Mfg.   Co.,  29  Tex.  Civ.   App.   168.  67   S. 
W.  1041    (1902)  :  2  Chamb,  Ev..  §  1233.  n.  6, 
and  cases  cited.     The  exact  words  of  the  dec- 
laration   are   not   required.     Xissley   v     Bru- 
baker.    192    Pa.    388.    43    Atl.    967     H899). 
Where  the  statement  in  question  is  made  by 
means  of  the  telephone  any  reasonable  iden- 
tification of  the  declarant  is  sufficient.     Lord 
Electric  Co   v.  Morrill,  178  Mass,  304,  59  N. 
E.  807    (1901). 


8.  Chapman  v.  Twitchell,  37  Me.  59  (1853). 
See  also,  Calvert  v.  Friebus,  48  Md.  44  ( 1878). 

9.  2   Chamb.,   Ev.,   §    1233.     An   admission 
made  in  the  course  of  judicial  proceedings  in 
a  case  other  than  that  in  which  it  is  offered, 
though  of  record  or  in  connection  with  judi- 
cial proceedings  in  another  case  is  properly 
classed  as   extra-judicial.     The  conditions   of 
admissibility    are,    to   a   certain    extent,    the 
same     in     both     classes     of     admissions.     2 
Chamb.,  Ev ,   §§   1293-1309;    infra,  §   499;   2 
Chamb.,  Ev..  §  1235. 

10.  2  Chamb.,  Ev.,  §  1234,  n.  3,  and  cases 
cited. 

11.  Infra,  §§   880   et  seq.;  4   Chamb.,   Ev., 
§§  2762  et  seq.     The  following  are  the  prin- 
cipal marks  of  distinction,      (a)   The  admis- 
sion is  the  statement  of  a  party;  the  declara- 
tion against  interest  is  made  by  a  third  per- 
son,     (b)   To  be  admissible  at  all  the  decla- 
ration  against   interest   must  contravene,   to 
the  knowledge  of  the  declarant,  his  pecuniary 
or  proprietary  interest.     In  case  of  an  admis- 
sion,  such   a  state  of  affairs  would   enhance 
the  probative  weight,  it  would'  not,  however, 
be  essential  to  admissibility.     To  secure  that, 
it  is  sufficient  that  the  statement  should  be 
the  voluntary  act  of  the  party  and  cover  a 
probative  or  res  pester  fact,      (c)    The  declara- 
tion   against    interest    is    secondary   evidence 
and    is   incompetent    unless   the   declarant   is 
shown  to  be  dead,  absent  from  the  jurisdic- 
tion, or  unavailable  for  some  other  sufficient 
cause      The   admission,    on    the   contrary,    is 
primary  evidence  and  is  competent  though  the 
declarant  be   present   in   court   and   ready  to 
testify.     Guy  v.  Hall.  3  Murph.   (X.  C  )    150 
(1819).     CONTRA:     Gihblehonse  v.  Strong.  3 
Kawle  (Pa.)  437   (1832).      fd)    An  admission 
may  be  made  at  any  time.     Turner  v.  Patter- 
eon,  5  Dana  (Ky.)  292  (1837).     The  declara- 


§§  500,501  ADMISSIONS:  JUDICIAL.  362 

§  500.  [Admissions] ;  Probative  Force.1- —  The  force  and  effect  of  a  judicial 
admission,  as  well  as  its  competency,  are  determined  by  procedural  rules.  On 
the  other  hand,  the  probative  force  of  an  extra-judicial  admission  is  deter- 
mined by  logic.  Substantive  law  goes  no  further  in  this  connection  than  to 
determine  that  the  existence  of  the  statement  will  be  received  as  evidence  of 
the  fact  asserted  in  it,1;{  either  in  an  action  at  law  or  in  a  suit  in  equity.14 
It  will  not.  in  this  connection,  be  deemed  material  whether  the  extra-judicial 
admission  were  made  before  or  after  K)  suit  is  brought.  They  are  rated  en- 
tirely at  their  logical  value.  Logic  may  have  its  appropriate  effect  in  case  of 
the  judicial  admission  when  used  as  probatio  rather  than  as  lecamen  proba- 
tionis.  When  used  as  proof,  the  more  deliberate  and,  as  it  is  said,  solemn, 
nature  of  the  circumstances  under  which  the  judicial  admission  is  made  may 
confer  upon  it  a  probative  force  not  characteristic  of  the  average  extra-judicial 
admission.1" 

§  501.  Formal  Judicial  Admissions.17 —  A  formal  judicial  admission  is  rather 
part  of  the  procedure  of  the  trial  than  in  any  way  connected  with  the  making 
of  proof.  Not  only  in  actions  conducted  according  to  the  course  of  the  com- 
mon law,  but  in  special  ls  or  statutory  proceedings,  as  those  of  bankruptcy  1! 
or  probate,20  may  such  formal  judicial  admissions  be  made.  Exhibiting  such 
an  admission  to  the  tribunal  is  not  to  produce  proof.  It  is  not  even  to  prove 
a  prima  facie  case.  It  is  final,  conclusive,  irrebutable  by  evidence.  It  is  a 
fact  to  which  procedure  assigns  a  definite  value. 

Levamen  Probalionis. —  A  formal  judicial  admission  in  a  pleading  stipula- 
tion, or  by  statement  in  open  court,  if  authorized,  is  a  complete  leva-men  >>ro- 
bationis.  That  was  precisely  the  object  for  which  it  was  made,  to  substitute 
the  statement  for  evidence  of  the  fact  covered  by  it.21 

tion  against  interest  is  incompetent  if  made  16.  Kirkpatrick  v.  Metropolitan  St.  Ry.  Co., 

pout  iitem  motatn.      (e)    The  admissibility  of  211  Mo.  <>8,  10!)  S.  \V.  (\*1   (190S). 

a  declaration  against  interest  is  governed  liy  17.  2  Chamberlayne,  Evidence,  §  501. 

the  rules  of  sound  reason.     That  of  the  admis-  18.  McRainy  v.  Clark,  4  X.  C.  698   ( 1818)  ; 

sion   is  determined   largely   by  procedure.     2  Brown  v.  Moore,  6  Yerg.  (Tenn. )  272   (1834). 

Cham!).,  Ev.,  §  1235.  19.   Dupuy  v.  Harris,  6  B.  Mon.   (Ky.)   534 

12.2     Chamberlayne,     Evidence.     §§     1236,  ( 1846)  ;  Lyon  v.  Phillips,  106  Pa.  57   (1884)  ; 

1237  Rankin  v.  Bushby   (Tex.  Civ.  App.  1894),  25 

13.  Roche  v.   Llewellyn  Ironworks  Co..   140  8.   W.   678. 

Cal.    563,    74    Pac.    147     (1903);    Powers    v.  20.  Beal    v.    State,    77    1ml.    231     (1881); 

Powers,  25   Ky.  L.   Rep.    1468.  78   S    W.    152  State  v.  Richardson,  29  Mo.  App.  595  (1888); 

11904)  :    Wilson   v.    WiWm,   137   Pa    269,   20  Potter  v.  Ogden,  136  X.  Y.  384,  33  X.  E.  228 

Atl.  644   (1890)  ;  2  Chamh.,  Ev .,  §  1236,  n.  1.  (1893)  ;  2  Chamb.,  Ev.,  §  1238,  n.  3.  and  cases 

and  cases  cited.  cited. 

14.  Brandon     v.     Cabiness,     10     Ala.     155  21.  Chouteau  Land  &  Lumber  Co.  v.  Chris- 
(1846);  Smith  v.  Burnham,  2  Sumn.   (U.S.)  man,   204   Mo     371,    102    S.    W.   973    (1907). 
612    (1837).  Tn  like  manner  and  for  the  same  reasons,  a 

15.  Marshall    v.    Sheridan,    10    Serg.    &    R  confession  of   judgment  for  a  portion  of  the 
(Pa.)  268  i  1823)  ;  Morris  v.  Vanderen,  1  Dall.  amount  claimed  is  a  judicial  admission  of  the 
(U.S.)  64   (1782).  plaintiff's    right    of    action    and    constitutes 


363  FORMAL.  §  501 

Control  of  Court. —  But  the  admitting  party  is  not  necessarily  precluded 
by  it.  The  entire  matter  is  within  the  administrative  function  of  the  court.22 
If  an  admission  has  been  made  imprudently  and  by  mistake,  the  court  may 
relieve  parties  from  the  consequences  of  their  mistake,  by  allowing  them  to 
withdraw  the  admission ;  -3  or  they  may  be  allowed  to  alter  the  admissions  con- 
tained in  their  pleadings,  by  an  amendment.  But  until  the  court  exercises 
its  administrative  power  to  permit  it,  which  will  be  done  with  caution,24  a 
formal  judicial  admission  constitutes  a  controlling  fact  in  the  case,  binding 
upon  parties  2i>  and  the  court  -li  alike.  While  a  party  is  at  liberty  to  tender  a 
formal  judicial  admission  to  his  adversary,  neither  of  the  litigants  can  be 
compelled  in  a  civil  case  to  accept  the  offer.27  Nor  can  the  government,28  or 
defendant  in  a  criminal  case  be  required  to  forego,  without  good  administra- 
tive reasons,  the  advantages  in  proving  a  case  in  a  complete  and  orderly 
manner.29 

Limitations  Upon  Effect. —  The  effect  of  a  formal  judicial  admission  is 
limited  to  the  purposes  of  the  pending  trial  and,  if  so  worded,30  to  those  of 
additional  trials,51  or  proceedings,  if  any,  growing  out  of  or  otherwise  con- 
nected with  the  principal  case.32  Unless  extended  by  its  terms  to  later  cases, 
it  then  becomes  simply  a  statement  which  the  party  has  made  and  which  is  to 
be  weighed  solely  upon  the  basis  of  logic,  by  determining  how  justifiable  or 
necessary  is  the  inference  that  the  party  made  the  declaration  because  it  was 
true.33  When  thus  considered  the  circumstances  under  which  the  judicial  ad- 
complete  proof  against  the  party  making  it.  People  v.  Thomson,  103  Mich.  80,  61  X.  \Y. 
The  Citi/ens  Light  &  Power  Co.  v  St.  Louis,  345  (1894). 

34  Can.  S.  C.  H.  4!>5   (1004).     2  Chamb.,  Ev.,  29.  Dunning  v.  Maine  Cent.  R.  Co.,  supra; 

§  1-23!'.  Whiteside  v.  Lowney,  supr'i. 

22.  .v  H /;/•«,   $§   72   et  seq.;   1   Chamb.,   Ev.,          Under  Code  pleading,  the  formal  judicial 
§§  174  et  seq.:  I'restwood  v.  Watson,  111  Ala.       admission  of  the  earlier  type  of  pleading  may 
(504.  20  So.  »i()0    t  1895)  ;   Holley  v.  Young,  68       be  resolved  into  a  statement  of  fact  to  which 
Me.  215.  28   Am.   Kep.  40   (1878);  2  Chamb.,       will  be  accorded  practically  the  force  of  an 
Ev..   1240.  n    1,  and  cases  cited.  extra-judicial    admission.     So    regarded,    the 

23.  Hays   v.    Hynds,   28   Ind.   531    (1867);       same  ruling  may  be  applied  to  it  as  to  other 
Cutler  v.   Cutler.    1:50  X.  C.   1,  40  S.  E.  689,       extra-judicial  admissions,  to  wit,  that  in  the 
89  Am.  St.  Rep.  854,  .17  L.  R.  A.  209   (  1902)  :       absence  of  an  estoppel  the  declarant  may  ex- 
2  Chamb.,  Ev.,  §   1240,  n.  2,  and  cases  cited.       plain  or  even  controvert  the  truth  of  his  dec- 

24.  Prestwood  v.  Watson,  supra ;  Holley  v.       laration.     Dressner    v.    Manhattan    Delivery 
Young,  supra.  Co..  92  X.  Y.  Supp.  800   (1905). 

25.  Id. :  Thompson  v.  Thompson,  9  Tnd.  323.  30.  Central    Branch   Union,   etc..  R.   Co.   v. 
IN    Am    Dec.  038    (1857)  :   Waldron   v.  Wald-       Shoup,  28  Kan.  394,  42  Am.  Rep.  163  (1882)  ; 
ron,  156  U.  S.  361.  15  8.  Ct.  383,  39  L.  ed.  453       Yoisin  v.  Commercial  Mut.  Ins.  Co.,  07  Hun 
I  1 895  i.                                                                                 365.   22  X.   Y.   Supp.   348    (1893);    2  Chamb., 

26.  Urquhart  v.  Butterfield,  37.  Ch.  D.  357,       Ev..  §  1241,  n.   1.  and  cases  cited. 

57  L.  .T.  Ch.  521    (1888).  31.  Home  Tns.  Co.  v.  Field.  53  Til.  App.  119 

27.  Jones   v.   Downs.   82    Conn.   33.    72    Atl.  (1893);     Elwood     v.    Lannon,     27     Md.     200 
589    H909):   Dunning  v.  Maine  Cent.  R.  Co.,  (1867);    2   Chamb.,    Ev.,    §    1241,   n.   2,   and 
91  Me.  87.  39  Atl.  352,  64  Am.  St.  Rep.  208  cases  cited. 

(1897)  :  Whiteside  v.  Lowney,  171  Mass.  431,  32.  Shipman      v.      Haynes.      15      La.      363 

50  X.  E.  931    (189SK  (1840). 

28.  Com.  v.  Costello,  120  Mass.  358  (1876)  ;  33.  Phillips  v.  Middlesex  County,  127  Mass. 


^§   502,503  ADMISSIONS:  JUDICIAL.  364 

mission  was  made  may  be  such  as  to  deprive  it  of  all  force  whatever.34  The 
general  rule  is  that  unless  such  admissions  are  closely  identified  with  the 
party  30  or  expressly  ratified  by  him,3"  their  operation  will  not  be  extended  to 
other  cases,  by  implication.37  It  follows  that  where  a  person  not  sui  juris  is 
represented  in  court,  the  formal  judicial  admission  made  for  him  by  one  acting 
in  a  representative  capacity,  as  guardian  ad  lit  em*8  while  sufficient  for  the 
purposes  of  the  case,  will  not  affect  the  person  under  guardianship  in  another 
action.  Nor  will  such  an  admission  continue  to  operate  in  the  case  itself  after 
having  been  withdrawn.39 

Canons  of  Construction. —  Judicial  admissions  should  receive  a  reasonable 
construction.4"  The  rule  has  even  been  stated  to  be  that  where  the  concession 
of  counsel  is  ambiguous,  its  meaning  should  be  determined  by  the  party  who 
made  it.41  Where  fair  play  requires  it,  as  where  reliance  has  justifiably  been 
placed  upon  a  concession,  it  may  be  construed  most  strongly  against  the  ad- 
mitting party.42 

§  502.  [Admissions] ;  Form  of  Admissions.43 —  While  formal  judicial  admis- 
sions are  most  frequently  made  in  writing,  as  in  confessions  of  judgment,44 
pleadings,45  stipulations,40  and  the  like,  the  admission,  though  formal,  may 
with  equal  effect  be  made  orally;  —  as  where  formal  proof  is  waived  in  open 
court,  ore  tenus,41  or  the  defendant  in  a  criminal  case  pleads  guilty.48 

§  503.  [Admissions];  Pleadings;  In  Same  Case — The  allegations  of  a  plead- 
ing are  considered,  (1)  as  constituting  the  issue  in  the  case  and  (2)  as  inde- 
pendently and  probatively  relevant,  i.e.,  as  furnishing  per  se  deliberative  facts 
from  which  inferences  may  rationally  be  drawn  and,  (3)  in  its  assertive  capac- 
ity, i.e.,  when  viewed  as  an  admission.49 

262     (1870);     Potter    v.     Ojrden,     supra;     2  turns.     Hoffman  v.  Bloomsburg,  etc.,  R.  Co., 

Charal).,  Ev,  §  1241,  n   4,  and  cases  cited.  143  Pa.  503,  22  Atl.  823  (1891). 

34.  Dawson  v.  Schloss,  93  Cal.  194,  29  Pac.  41.  Wright  v.  Dickinson    (Mich.   1889),  42 
31    (1892);   Adee  v.    Howe,   15  Hun    ( X.  Y.)  X.  W.  849. 

20   (1878);  Weisbrod  v   Chicago,  etc.,  R    Co..  42.  Scammon    v.    Scammon,    33    N.    H.    52 

20  Wis    419   (1866).  (1856).     An  admission  may  be  construed  by 

35.  Haller  v   \\orman,  3  L.  T.  Rep.   ( N.  S.)  the  acts  of  the  parties.     Akers  v.  Overbeck, 
741    (1S61).  41  N.  Y.  Supp.  3S2,  IS  Misc.  198   (18961. 

36.  Xichols,  etc.,  Co.  v    Jones,  32  Mo.  App.  43.  2  Chamberlayne,  Evidence,  §  1243. 
657   (1888).  44.  Earnest  v.  Hoskins.  100  Pa   551   (1882) 

37.  Hardin  v.  Eorsythe,  99  111.  312  (1880)  ;  45.  Infra :  2  Chamb  ,  Ev.,  §§1244  et  seq. 
McKinney  v   Salem,  77  Tnd   213   (1881)  ;  Cut-  46.  Infra.   §§   514   et  sec/.;  2   Chamb.   Ev., 
ler  v.  Cutler,  supra.  §§  1261  et  seq. 

38.  Finn     v.     Hempstead,     24      Ark       111  47.  Waldron    v.    Waldron.    156    U     S.    361, 
(1863)  :  lliatt  v.  Brooks.  11  Ind    508   (1858).  15  S    Ct.  383,  39  L.  ed    453    (1895). 

39.  Geraty   v     Xational    Ice  Co.   44   X    Y.  48.  Com.  v.  Avers,   115  Mass    137    (1874): 
Supp   650.  16  App    Div    174  (1807)  Meyers  v.  Dillon,  39  Or    581.  65  Pac.  867.  66 

40.  Thus,   it  will  not  be  assumed,  without  Pac.   814    (1901):   2  Chamb.,  Ev.,  §   1243,  n. 
strong  reason,  that  an  admission  by  counsel  5,  and  cases   cited;  see  post,  §  525a. 

covers   the    point   on    which    the    entire    case  49.  See  discussion  of  the  distinctions  made 

in  2  Chamb  ,  Ev.,  §  1244. 


365  PLEADINGS. 

§  504.  [Admissions;  Pleadings];  Constituting  the  Issue.50 — The  actual  or 
constructive  51  admissions  contained  in  a  pleading,52  so  far  as  determinative 
of  the  issues,  are  without  probative  value.53  Such  allegations,  therefore,  can- 
not be  read  in  evidence  as  proof  of  facts.54  It  is  in  this  sense  that  the  phrase 
lk  pleadings  are  not  evidence "  is  true.  They  are  merely  part  of  the  pro- 
cedure of  the  trial  and  though  conclusive  until  changed  by  amendment  55  of  the 
issue,  possess  no  logical  or  probative  value.  This  issue  the  court  notices 
though  the  pleadings  are  not  formally  introduced  into  evidence.5"  For  sim- 
ilar reasons,  no  use  can  be  made  of  the  allegations  of  one  pleading  upon  the 
issue  raised  by  another,  though  the  latter  be  tiled  in  the  same  action.57 

§  505.  [Admissions;  Pleadings];  Deliberative  Facts.58 — The  allegation  in  a 
pleading  may  throw  important  light  upon  the  good  faith  of  a  party.  The  fact 
that  a  particular  claim  or  denial  59  is  or  is  not  made  at  a  particular  time  may 
be  a  ^iguiticaut,  independently  relevant  circumstance  in  itself  considered,00 
except  so  far  as  it  shall  appear  that  the  statements  are  substantially  the  work 
of  counsel.01 

§  506.  [Admissions;  Pleadings];  Use  as  Admissions.62 — The  persoualitv  of  a 
party  may,  however,  shine  through  the  pleadings  °3  in  the  form  of  a  definite 
statement  of  fact,  apparently  asserted  for  no  controlling  forensic  reason"4  but 
relied  on  because  it  is  true  or  claimed  to  be  so  by  the  party  himself."5  Declara- 
tions of  the  latter  class  are  evidentiary  in  an  assertive  capacity,  as  admissions 

50.  2  Chamberlayne,  Evidence,  §   1245  meaning  and  to  instruct  the  jury  accordingly 

51.  Lee  v.  Heath,  61   X.  ,1.  L.  250,  39  Atl  Tisdale  v.  Delaware  &  Hudson  Canal  Co,  116 
729  (185)7)  ;  Starkweather  v.  Kittle,  17  Wend.  X.  Y.  416,  411),  22  X    E.  700  (1S89).     Admis- 
(X.  Y. )  20  (1837).  sions  are  to  be  taken  as  a  whole      Hensel  v. 

52.  The  writ  may  be  regarded  as  a  pleading  Holfman,  74  Xeb.  382,  104  V  \V    603  (  1903). 
within   the  rule      Southern  R.   Co.  v.  Mayes,  58.  2  Chamberlayne.  Evidence,  §  1246. 

113  Fed.  84,  51  C.  C.  A.  70   (1902)  59.  Roscoe  Dumber  Co    v.   Standard   Silica 

53.  Colter  v.  Calloway,  68  hid.  219  (1879);  Co.,  70  X.  Y.   Supp.    1130.  62  App.   Div.  421 
Shipley  v.   Ueasoner.  87   Iowa  555.  54  X.  W.  (1901)  ;  Tisdale  v.  D.  &  H.  Canal  Co.  supra. 
470   (1893)  ;   Holmes  v.  Jones.  121  X.  Y.  461.  60.  Infra,   §§   837   et  seq.;  4   Chamb.,   Ev., 
466.    24    X     E     701     (1890):    2    Chamb.,    Ev..  §§  2574  et  seq. 

§  1245,  n.  4.  and  cases  cited  61.  Larry  v    Herrick,  58  X.  H.  40   (1876)  ; 

54.  Craig  v.  Burris.  4  Pen     (Del.)    156.  55  Baldwin    v.    Gregg,     13    Mete      (Mass.)     253 
Atl.  353   (1002)  I1S47)  :  2  Chamb.  Ev.,  §  1246 

55.  Brooks  v.  Brooks.  90  X    C    142   MS«H)  62.  2  Chamherlayne.  Evidence.  §  1247. 

56.  Colter  v.   Calloway.  supra;  Woodworth  63.   Aultman  v.  Martin.  49  Xeb.  103,  68  N. 
v     Thompson.    44    Xeb.    311.    62    X     \Y.    450  \Y.  340    (1896);    International,  etc.,  R.  Co.  v. 
(1895);  Holmes  v.  Jones,  supra  Mulliken,    10   Tex.   Civ    App.   663.   32   S.   W. 

57.  Craig  v.  Burris,  supra:  Kimball  v.  Bel  152    M895). 

lows.   13   X'.   H.   58    (1S42);    Gattis   v.   Kilgo.  64.  Howard  v.  Glenn.  85  Ga.  238.  11   S.  E. 

128  X.  C.  402.  38  S   E   931   (1901  )  -.  2  Chaml)..  610.  21  Am    St.  Rep    156   (1890)  :  Sims  v.  La 

Ev,  §  1245,  n    8.  and  cases  cited.     Tf  counsel  Prairie   Mut     F.    Ins    Co .    101    Wis.   586,   77 

do  not  agree   as  to   the   construction   of  the  X*.  \V.  908   (1899). 

pleadings,  a  question  of  law  is  presented,  and  65.  Johnson    v     Zufeldt.   56    Wash.    5,    184 

it  becomes  the  duty  of  the  court  to  construe  Pac.   1132    (1909)  •.   Pence  v.  Sweeney,  3  Tda. 

them,    to    determine    their    legal    effect    and  181.  28  Pac.  413   (1891). 


§§  507,508  ADMISSIONS:  JUDICIAL.  366 

and  may  be  used  by  the  opposing  party,'5"  unless  otherwise  provided  by  stat- 
ute,(i7  011  any  issue  to  which  the  evidence  of  the  fact  stated  is  relevant.08  Good 
faith  to  the  party  whose  declarations  are  used  requires  that  the  entire  state- 
ment be  introduced  in  evidence,  not  garbled  by  the  omission  of  qualifying 
declarations."'*  This,  however,  is  the  limit  of  the  right. 

Adminixlratice  Details. —  It  is  not  material  whether  the  declarant  is  plain- 
tiff 'u  or  defendant;  (1  whether  the  statement  is  offered  on  the  original  or  any 
subsequent  '2  hearing  of  the  cause  or  on  proceedings  in  an  appellate  court.73 
.Nor  is  it  important  whether  the  pleadings  are  in  abatement74  or  in  bar  or, 
indeed,  whether  they  are  still  pleadings  in  the  case  at  all.75 

§  507.  [Admissions;  Pleadings];  In  Other  Cases;  Formation  of  Issue.76 — So 
far  as  the  declaration  in  question  has  been  made  on  account  of  its  desirability 
for  formulating  a  particular  issue,  the  statement  in  a  forrnar  pleading  is 
functus  officio  |T  and  of  no  further  procedural  validity  in  any  subsequent 


§  508.  [Pleadings] ;  Use  as  Admissions.80 —  Unlike  its  procedural  effect,  the 

probative  element,  if  any,  contained  in  an  allegation  of  a  pleading,  is  inherent 
and  goes  with  it  under  all  circumstances,  subject  to  retraction81  and  the  ex- 
planations <;f  inadvertence,  lack  of  knowledge  and  the  like.82  The  formal 
judicial  admission  so  far  as  it  represents  the  actual  or  endorsed  statement  of 

66.  Lynch  v   Chicago  &  A.  Ry.  Co.,  208  Mo.  73.  Warder,  etc.,  Co.  v.  Willyard,  46  Minn. 
1,  106  S-  \V.  68    (1907);   White  v.  Smith,  46  531,    40    X.    W.    300,    24    Am     St.    Rep.'   250 
N.  Y.  41S  I J871)  ;  Lindsay  v.  Button,  227  Pa.  (1801)  ;  Folger  v.  Boyington,  67  Wis.  447,  30 
208,    75    Atl.    1006    (1010);    2    Chamb.,    Ev.,  ,\.  W.  715    (1886). 

§  1247,  n.  4,  and  cases  cited.  74.  Witmer    v.    Schlatter,    2    Rawle    (Pa.) 

67.  Taft  v.   Fiske,   140  Mass.  250,  5  N.  E.  359   (1830) 

621    (1885)  75.   Hastings  v.  Speer,  15  Pa.  Super.  Ct.  115 

68.  Miles   v.    Woodward.    115   Cal.    308,   46  (1900). 

Pac.    1076    (H96):    Blackington   v.   Johnson.  76.  2  Chamberlayne,  Evidence,  §  1248. 

126  Mass    21    (  1878)  ;  2  Chamb.,  Ev.,  §  1247,  77.  Starkweather    v.    Converse,    17    Wend 

n.  6,  and  cases  cited.  I  N.  Y.)   20   (1837). 

69.  Granite    (Jold    Min.    Co     v.    Maginness,  78.  Boileau  v.  Rutlin,  2  Exch.  605   (1848); 
118  Cal.   131,  50  Pac.  269    (1897);   Shrady  v.  2  Chamb.,  Ev.,  §   124S.  n    3,  and  cases  cited. 
Shrady,  58  N    Y.  Supp.  546,  42  App.  Div.  9  For  some  consideration  of  the  probative  effect 
(1800)  ;  2  Chamb.,  Ev.,  §  1247,  n   7,  and  cases  of  the  claims   or  denials   made   in   pleadings 
cited.  as  bearing  upon  the  question   of  good   faith, 

70.  Kankakee,   etc  ,   R.    Co    v.   Horan,    131  see  Admissions  by  Conduct,  infra,   §§  550  et 
Til.  288,  23  X    E    621    (1890);   Lee  v.  Heath,  seq. ;    2    Chamb.,    Ev  .    §§   1392    et    seq.;    see 
61  N.  J.  L.  250,  30  Atl.  729   (1807)  :  Clemens  also,    §   505,   supra;   2   Chamb.,   Ev.,    §    1246. 
V    Clemens,    28    Wis     637,    9    Am     Rep.    520  80.  2    Chamberlayne,    Evidence,    §§    1249- 

(1871)  ;  2  Chamb.,  Ev  ,  §  1247,  n.  0,  and  cases  1251. 

cited.  81.   Perry  v.  Simpson  Waterproof  Mfg.  Co., 

71.  Farley   v.    O'Malley.    77    Iowa   531,    42  40  Conn.  313  ( 1873)  ;  Stowe  v.  Bishop,  58  Vt. 
N.  W7.  435    (1889);   Breese  v.   Graves,  73  N.  498   (1886). 

V.    Supp.   167,   67   App.   Div.   322    (1901)';    2  82.  Smith   v.   Fowler,   12   Lea    (Tenn.)    163 

<  hamb.,  Ev..  §  1247,  n.  10,  and  cases  cited.  (1883)  ;    Buzard  v.   McAnulty,   77   Tex.   438 

72.  Spurlock  v.  Missouri,  etc.,  R.  Co.,   125  (1890). 
Mo.  404,  28  S.  W.  634   (1894). 


367  PLEADINGS.  §  508 

the  party  himself  8:!  is  competent  in  another  case  as  an  extra-judicial  admis- 
sion, in  other  words,  a  pleading  may  contain  the  admission  of  the  party 
which  is  competent  in  any  subsequent  cause  s4  when  properly  introduced  in 
evidence.86  I  nder  these  circumstances,  a  statement  possesses  the  probative 
force  of  an  extra-judicial  admission  and  is  subject  to  the  rules  of  procedure  or 
canons  of  administration  applicable  to  statements  of  this  class.80  For  £he 
same  pervasive  reason  that  a  party  is  accountable  for  his  statements,  it  is  held 
to  be  not  in  the  least  necessary  that  the  litigant  offering  the  declaration  should 
have  had  any  connection  with  the  suit  in  which  the  pleading  was  tiled.* T 

Conditions  of  Admissibility. —  The  essential  conditions  of  admissibility  in 
case  of  a  prior  pleading  regarded  as  an  extra-judicial  admission  are  therefore 
two.  (a)  The  statement  offered  must  be  made  by  a  party  to  the  suit  in  which 
it  is  tendered. ss  (1>)  The  declaration  must  have  been,  when  originally  made, 
that  of  the  party  himself,  based  upon  his  personal  knowledge;  it  must,  in  some 
way.  to  use  a  common  but  expressive  phrase,  "  be  brought  home  "  to  the  party. 
The  agency  of  counsel,  for  the  purposes  of  the  case  in  which  the  statement  is 
made,  may  very  properly  bind  the  client  for  the  time  being,*"  but.  outside  the 
ca*e.  the  latter  is  affected  only  by  his  own  statements,  those  which  he  personally 
makes  as  and  because  he  believes  them  to  be  true  'J0  or  which  for  the  same 
reason,  he  states  through  his  counsel.1'1 

Cicil  and  Criminal  Canes. —  it  is  not  material  that  the  pleading  offered  in 

83.  Solari   v.   Snow,   101   Cal.   387.   35  Pac.  (1908)  ;  2  Chamb.,  Ev.,  §  1249,  n.  7,  and  cases 
1(104    (]8!>4i  :    Long   v.    Lawson.    7   Ga.    App.  cited.     That  the  pleading  was  tiled  in  a  dif- 
401,  67  S.  E    124   (15110).     See  also,  Stone  v.  ferent  jurisdiction   is  not   regarded  as  mate- 
Corn.,   181   Mass.  438,  (i3  N.  E.   1074   (1002):  rial.     Kirkpatrick    v.    Metropolitan    St.    Ry. 
Starkweather   v.   Converse,  supra ;  2  Cliamb.,  Co..  supra. 

Kv.,'§  124!),  n.  3,  and  cases  cited.  88.  Infra,   §§   533  et  seq.:   2   Chamb..   Ev., 

84.  Gardner  v.  Meeker.  16<>  111.  40.  48  X.  E.       §§  1310  et  seq. 

307    (1897)  :   Smith  v.   Paul   Boyton  Co.,'  17(i  89.  Ayres  v.  Hartford  V.  Ins.  Co..  17  Iowa 

Mass.  217.  57   X.   E.  307    (1900)':    Paxton  v.  170,   35   Am.   Dec.   553    (18(54):    Dow/elot   v. 

State,   60   Xeb.    7U3,   S4    X.   W.   254    (1900):  Rawlings,  58  Mo.  75   (1874  I. 

Hutchins  v.  Van  Vechten.  140  X.  Y    115,  35  90.   Duff  v.  Duff.  71   Cal.  513,   12  Pac.  570 

X.   K.  446    (1893)  -.   Limerick  v.  Lee.   17  Okl.  (1886)  :  Tague  v.  John  Caplice  Co..  28  Mont. 

165,    87    Pac.    859     (1906);    2    Chamb..    Ev..  51,    72    Pac.    297    (1903):    Cook    v.    Burr.    44 

§  1249.  n.  4.  and  cases  cited.  X.  Y.   156    (1870)  :  2  Chamb..  Ev.,  §  1250,  n. 

85.  Greenville  v.  Old   Dominion   Steamship  3,  and  cases  cited. 

Co.,    104    X.   C.    91.    10   S.    E.    147    (1889):    2  91.  Johnson   v.   Russell.    144   Mass    409.    11 

Chamb..  Ev..  §   1249.  n.  5.  and  cases  cited.  X.  E.  670   (1887)       It  follows  that  a  party's 

86.  Murphy   v.   Hindman.   58   Kan.    1S4.  48  judicial  admissions  do  not  bind  his  codefend- 
Pac.    850     (1897):    Rich    v.    Minneapolis.    -10  ant,  in  another  case.     McDermott  v.  Mitchell, 
Minn.  82.  41   X.  VT.  l.v,    (1889):   Whitcher  v.  47   Cal.   249    (1874):    Lunday  v.   Thomas.   2fi 
Morey.  39  Vt.  459    (1867):   C'lemens  v.  Clem-  Ga.  537   (1858).     That  they  must  be  clear  and* 
ens.  supra;  2  Chamb.,  Ev..  §   1249.  n.  6,  and  definite,   upon   knowledge    HTartin   v.    Camp- 
cases  cited.  bell,  11  Rich.  En.  (S.  C.)  205   (1860)1  and  not 

87.  Booth  v.  Lenox.  45  Fla.  191.  34  So.  566  proceed    from    information    and    belief    [Xew 
(1903)  :  Kirkpatrick  v.  Metropolitan  St.  Ry.  iork  v.  Fay.  53  Hun  553.  6  X'.  Y.  ^upp.  400 
Co.,  211  Mo.  68,  109  S.  W.  682  (190*)  ;  Floyd  (1889)]    is  established  also.     2  Chamb.,  Ev., 
v.  Kulp  Lumber  Co.,  222  Pa.  257.  71  Atl.  13  §  1250.  n.  7,  and  cases  cited. 


§§  509-511  ADMISSIONS:  JUDICIAL.  368 

a  civil  case  was  originally  filed  in  a  criminal  prosecution,92  although  the  pleas 
of  guilty  y3  or  nolo  contendcre  94  more  closely  resemble  admissions  by  conduct05 
and  are,  in  effect,  merely  circumstantial  evidence,  not  relevant  upon  a  subse- 
quent trial. 

§  509.  Code  Pleading.96—  The  system  of  "  Code  pleading,"  so  called,  by 
the  close  assimilation  of  its  rules  to  those  of  equity  has  materially  affected 
the  relative  importance  of  the  rules  of  equity  and  common  law  pleading, 
at  the  expense  of  the  latter.  Under  such  a  system  the  allegations  of  the  pleader, 
more  particularly  those  contained  in  the  answer,97  may  well  be  more  readily 
regarded  as  requiring  less  of  the  technical  skill  of  counsel  and  correspondingly 
more  of  the  actual  knowledge  and  statement  of  the  party.98  The  most  obvious 
effect  of  the  adoption  of  equity  instead  of  common  law  pleading  for  use  in  jury 
trials  is  to  increase  the  field  of  evidence  in  the  case  of  pleadings,  at  the  expense 
of  that  of  procedure,  making  the  allegations  of  a  pleading  of  comparatively 
trifling  effect  in  forming  an  issue  when  compared  to  their  operation  as  admis- 
sions." 

§  510.  [Pleadings] ;  Law  and  Equity.1 —  The  probative  quality  of  the  state- 
ment being  inherent,  and  independent  of  particular  conditions,  other  than 
tha.t  it  should  have  been  made  by  a  present  party,  it  is  immaterial  that  a  state- 
ment tendered  in  an  action  at  law  was  originally  made  in  a  bill  in  equity,2 
answer  in  chancery 3  or  other  equitable  pleadings,4  or  that  the  admission 
offered  in  a  trial  in  equity  was  originally  made  in  the  pleadings  of  an  action 
at  law. 

§  511.  Equity  Pleadings;  Answer.5 — An  answer  to  a  bill  in  equity  presents 
the  personal  actual  admissions  of  the  party,  in  contradistinction  to  the  con- 
structive admission  of  the  common  law  in  failing  to  deny  the  allegations  of  the 
previous  pleading.  The  statements  contained  in  the  sworn  answer  of  the  de- 
fendant have  therefore  been  customarily  received  'as  his  admissions,  as  that 
term  is  understood  in  the  law  of  evidence.6  The  rule  is  the  same  whether  the 
bill  was  for  relief  or  discovery.7 

92.  Birchard  v.  Booth,  4  Wis.  67   (1885).  Buzard  v.  McAnulty,  77   Tex.  4,38,   14  S.   W. 

93.  Young    v     Copple,    52    111.     App.    547       1.38   (1890);  2  Chamb.,  Ev  ,  §  125.3,  n.  I,  and 
(180.3);   State  v.   Bowe,  61   Me.   171    (187.3):       cases  cited. 

2  Chamb.,  Ev.,  §  1251,  n.  2,  and  cases  cited.  3.  Printup  v.  Patton.  91   Ga.  422    (1893)  ; 

94.  White   v    Creamer,    175   Mass.   567,   56  Radclyffe  v.  Barton,  161  Mass.  .327    (1894). 
N.  E    8.32   (1900)  ;  State  v.  LaRose,  71  N.  H.  4.  Lowney  v  Perham,  20  Me.  2.35  (1841). 
435.  52  Atl.  !)43   (1902).  5.2     Chamberlayne,     Evidence,     §§     1254, 

95.  Infra,   §§   559   et  seq  ;  2   Chamb.,   Ev.,  1255. 

§§  1392  et  seq.;  see  post,  §  525a.  6.  Robbins    v.     Butler,     24     111.    387.     427 

96.  2  Chamberlayne.  Evidence,  §  1252.  (I860);    Broadnp   v.   Woodman.  27   Ohio   St. 

97.  Boots  v.  Canine.  94  Ind.  408   (1883).  553   (1875)  :  2  Chamb.,  Ev.,  §  1254,  n.  1,  and 

98.  Id.  cases  cited. 

99.  2  Chamb..  Ev..  §  1252  7.  Judd    v.    Gibbs,    3    Gray     (Mass.)     539 

1.  2   Chamberlayne.   Evidence.   §    125.3.  (1855). 

2.  Callan  v.  McDaniel,  72  Ala.  96   (1882); 


369  PLKADIXC..S.  §§  512,513 

Bill. —  It  is  natural  that  statements  in  bills  of  equity,  which  are  most  often 
the  work  of  counsel,  are  deemed  of  less  probative  value/  than  those  contained 
in  the  answer  w  which  is  more  directly  moulded  by  information  derived  di- 
rectly from  the  client.  The  bill  in  equity,  while  at  tirst  regarded  in  much  the 
same  light  as  the  answer,1"  and  consequently  as  containing  statements  avail- 
able as  the  admissions  of  the  complainant,  became,  with  the  growth  of  equity 
practice,  subject  to  a  radical  change.  Formal  and  comprehensive  charges,  not 
in  fact  known  to  be  true  or  relied  on  by  the  complainant  as  actually  existing 
were  gravely  advanced  with  limitations  imposed,  not  by  the  knowledge  or 
conscience  of  the  client  but  by  the  ingenuity  and  resourcefulness  of  his  coun- 
sel.11 With  no  semblance  of  fairness  could  such  a  pleading  be  held  to  contain 
the  personal  admission  of  the  complainant.12 

§  512.  [Pleadings] ;  State  and  Federal  Courts. —  Statements  used  in  a  plead- 
ing in  a  federal  court  may  do  service  as  admissions  in  a  state  court  and  the 
reverse  is  equally  true.13 

§  513.  [Pleadings];  Superseded  or  Abandoned;  Evidence  Rejected.14 — While 
a  party  is  no  longer  bound  by  pleadings  which  have  been  superseded  by  amend- 
ment, or  otherwise,  as  pleadings  in  the  case  15  he  is  still  affected  by  the  state- 
ments contained  in  them  lfi  as  extra-judicial  admissions,17  so  far  as  they  can 
fairly  be  considered  as  being  his  own.18  Many  important  considerations  have 
influenced  certain  courts  to  hold  that  except  where  some  special  connection  19 
has  been  shown  to  exist  between  a  party  and  a  superseded  2"or  abandoned  21 

8.  Miller  v.  Chrisman,  25  111.  209    (1861):  332,    90    X     E.    721     (1910):    Meriwether    v. 
Rankin    v.    Maxwell,    2    A.    K.    Marsh    ( Ky  )  Publishers:  Geo.  Knapp  &  Co.  224  Mo.  617, 
488,  12  Am.  Dec.  431    (1820).  123  S.  W    1100   (1909)  :  Fogg  v.  Edwards.  20 

9.  Doe  v.  Steel,  3  Campb.  115.  13  Rev.  Rep.  Hun    (X.   Y.)    90    (1880):   2   Chamb.,   Ev.,   § 
768    (1811).  1257,  n.  2,  and  cases  cited. 

10.  Snow  v.  Phillips.   1   Sid    220   (1065).  17.  McDonald  v    Nugent,  122  Iowa  651,  89 

11.  Adams  v.   McMillan.  7   Port     (Ala.)    73  ->.  \V.  506   (1904)  :  Watt  v.  Missouri.  K   &  T 
(1838):  Rankin  v.  Maxwell,  supra:  2  Chamb.,  Ry.  Co,  82  Kan.  458,   108  Pac    811    (1910): 
Ev.,  §  1255.  n.  4,  and  cases  cited  O'Connell  v    E.  C.  King  &  Son.  26  R.  I.  544, 

12.  Lamar  v.   Pearre,  90  Ga.  377,  17  S.  E.  59  Atl.   926    (1905):   2  Chamb.,  Ev..  §   1257, 
92    (1892)  ;   Elliot  v.  Hayden.  104  Mass.   180  n.  3,  and  cases  cited. 

(1870)  ;  2  Chamb.,  Ev.,  §  1255,  n.  5,  and  cases  18.  Burns  v.  Maltby,  43  Minn.   161,  45  N. 

cited.     CONTRA:     Schmisseur  v.  Beatrie,  147  W.  3    (1890);   Southern  Pac.  Co.  v.  Welling- 

111.  210,  35  N.  E.  525   (1893).  ton    (Tex.   Civ.   App.    1900),   57   S.   W.   856; 

13.  Kankakee,  etc.,  Ry.  Co.  v.  Horan.   131  2  Chamb .  Ev.,  §  1257,  n.  4.  and  cases  cited. 
111.  288,  23  N.  E.  621    (1890)  ;  2  Chamb..  Ev  %          19.  Pfister  v.   Wade,   69   Cal     133,   10  Pac. 
§  1256.  369   (1886):  Barrett  v.  Featherstone,  89  Tex. 

14.  2    ChamberTayne,    Evidence,    §§    1257*-  567.  35  S.  W.  11,  36  S.  W.  245   (1896). 
1260.  20.  Miles   v.   Woodward,    115   Cal.    308,   46 

15.  Boots  v.   Canine.  94  Tnd.   408    (1883):  Pac.   1076    (1896)  :   Corley  v.  McKeag.  9  Mo. 
Woodworth  v.  Thompson,  44  Neb.  311.  62  N.  App.  38   (1880)  ;  2  Chamb.,  Ev.,  §  1257,  n.  12, 
W.   459    (1895):    Strong  v.  Dwijrht.   11    Abb.  and  cases  cited. 

Pr.  N.  S.  (N.  Y.)  319   (1871)  ;  2  Chamb.,  Ev.,  21.  Murphy   v.   St.   Louis,   etc..   R.   Co.,   91 

§  1257.  n.  1,  and  cases  cited.  Ark.  159,  122  S.  W.  636    (1909);  McDonald 

16.  Bartlow  v.  Chicago,  etc.,  R.  Co.,  243  111. 


513 


ADMISSIONS  :  JUDICIAL. 


370 


pleading,  his  statements  contained  in  them  will  not  affect  him ;  —  either  in  the 
same  case,22  or  on  a  retrial  of  it,  or  in  any  other  judicial  proceeding.23 

Evidence  Admitted. —  Other  weighty  considerations  have  induced  other  tri- 
bunals to  hold  that,  unless  the  party  objecting  to  the  contemplated  use  of  his 
statement  can  affirmatively  bhow  not  only  that  he  did  not  authorize  it,24  and 
that  he  never  informed  his  legal  \idviser  to  the  effect  which  the  latter  has 
pleaded,2'"'  but,  further,  that  he  at  no  time  knew  that  the  latter  had  pleaded  as 
he  has  actually  done,2<i  the  allegations  of  the  former  pleading  will  be  received 
as  the  admission  of  the  party,2'  to  be  given  such  weight  as  the  jury  may  see  tit 
to  accord  it.28  The  statement  is  admissible  against  the  party  even  when 
offered  in  another  case.29 

Minor  Details. —  It  is  not  material  that  the  pleading  in  question  has  been 
removed  from  the  files  ;i"  or  has  not  been  tiled  at  all,  provided  a  tiual  determi- 
nation to  do  so  has  been  reached;  31  nor  what  disposition  was  made  of  the  case.'52 
The  superseded  or  amended  pleading  in  one  of  two  ways:  (1)  as  an  admission 
of  the  party,  tending  to  prove  the  fact  asserted  or  (i})  as  a  fact,  the  existence 
of  which  is  inconsistent  with  his  present  position.33 

Verification  by  Oath,  Etc. —  In  general,  in  any  form  of  proceeding,  the  fact 
that  a  party  has  seen  tit  to  swear  to  the  truth  of  certain  allegations,"4  or  to 
verify  them  by  his  signature,35  tends  to  show  that  the  statements  are  made  upon 
the  personal  knowledge  or  responsibility  of  the  party.  When  an  unverified 


v.  Nugent,  supra;  2  Chamb.,  Ev.,  §   1257,  n. 
13,  and  cases  cited. 

22.  Mahoney    v.    Hardware    Co.,    19    Mont. 
377,  48  Pac.  545   (1897) 

23.  Demelman    v.    Burton,    176    Mass.    303. 
57  X.  E.  065    (1900);   Woodworth  v.  Thomp- 
son, supra;  Folger  v.  Boyington,  67  Wis.  447, 
30  N.  W.  715   (1886)  ;  2  Chamb..  Ev..  §  1257, 
n.    15,  and   cases  cited.     For  a   statement   of 
the  considerations  which  have  influenced  the 
courts,  see:     2  Chamb.,  Ev.,  §  1257,  and  cases 
cited  in  notes  5-10:   Wenegar  v.  Bollenliach. 
180   111    222,  54   X.   E.    192    (1899);   Taft   v. 
Fiske,  140  Mass.  250.  5  X    E    621    (1885). 

24  Anderson     v.     Me  Pike,     86     Mo.     29.1 
(18*5);    Galloway   v     Antonio,    etc,    E.    Co. 
(Tex    Civ    App.  1903).  78  S.  W.  32 

25  Galloway     v      Antonio,     etc.,     T\.     Co.. 
supra. 

26.  U.     See   also,    Baldwin   v    Siddons.   46 
Ind.    App.    313,   92    X.    E     349    M910)  -.    Ber- 
nard v    Pittsbunr  Coal  Co..  137  Midi.  279.  11 
Detroit  Leg    X.  246.  TOO  X    W.  396   M004) 

27.  O'Connor's  Estate.  118  Cal.  69.  50  Pac. 
4    (1897):    Alabama    M.    P,.    Co.    v.    Ouilford. 
114  'in.  627.  40  S    F    794    (1902):   Walser  v 
VTeHr    141    Mo     443     42    S     YV.   928    (i^97i- 
Breese    v     Graves,    73    X.    i.    Supp.    167,    67 


App.  Div.  322   (1901)  :  2  Chamb..  Ev.,  §  1258, 
n    7,  and  cases  cited. 

28.  Willis    v     To/er,   44    S.    C.    1,   21    S.    E. 
617    (1894). 

29.  Meriwetber    v.    Publishers,    etc.,    supra. 
For   the   reasons   upon    which    these  decisions 
are  based,  see:      2  Chamb..  Ev.,  §  1258.  notes 

'],  2,  3:  Boots  v.  Canine,  supra;  Keller  v. 
Morton,  117X  Y  Supp  200.  63  Misc.  340 
(1909)  :  Folger  v.  Boyinton,  supra 

30.  Daub  v.  Englebach.  109  111    267   (1884). 

31.  Matson   v.   Melchor.  42  Mich.  477.  4   X 
W.   200    (1880). 

32.  Starns  v.  Hadnot,  45  La.  Ann.  318,  12 
So.  561    (1893)  :  Gordon  v.   Parmelee,  2  Allen 
(Mass  )   212   (1861  ). 

33.  In  re  O'Conner,  118  Cal    69.  50  Pac    4 
(1897)  :    Folger  v.  Boyinton.  67  V\  is.  447.  30 
V  \V.  715    (1886)  :  2  Chamb..  Ev..  §   1259.  n 
4,_  and  cases  cited      A  statute  may  be  such  in 
terms   as   to   exclude    their    use   for   purposes 
even  of  impeachment.     Taft  v.   Fiske,  supra. 

34.  Solomon   P..  Co    v.  .Tones.  30  Kan.   601. 
2   Pac.   657    (1883):    Pope  v.   Alii*.    115   U.   S. 
363    (1885)  :  2  Chamb..  Ev..  §  1260.  n    2.  and 
cases  cited. 

35    Central  Bridjre  Corp.  v.  Lowell,  In  Gray 
(Mass.)    106   (1860)  ;  Cook  v.  Barr,  44  N.  Y. 


371  FORM.  §§  514,515 

pleading  is  offered,   the  tendency  of  modern  decisions  is  to  reject  the  evi- 
dence."" 

§  514.  Formal  Judicial  Admissions;  Form  of  Admission;  Stipulations.37 — 
Stipulations  may  cover  a  variety  of  subjects,  by  way  of  waiving  proof  ;!s  and 
when  executed  within  the-  professional  function  of  the  attorney :{!(  bind  the 
client,  in  the  case  where  tiled,  or  any  rehearing  of  the  cause,40  unless  entered 
into  for  some  special  and  temporary  purpose,41  or  specifically  limited  so  as  to 
possess,  by  express  terms,  a  different  effect.42  Xo  limitation,  however,  is 
implied.43  Stipulations  may  be  effectively  made  at  any  time  during  the 
course  of  the  employment  of  the  attorney  who  executes  them,  either  before  44 
or  after  the  joining  of  issue. 

In  Other  Caxcx. —  When  a  "case  stated"  or  other  declarations  of  a  stipula- 
tion are  offered  as  admissions  of  the  litigant 45  in  any  case  other  than  that  in 
which  the  agreement  was  made41'  or  in  the  same  case  after  it  has  been  with- 
drawn,47 admissibility  is  to  be  determined  by  the  test  whether  the  statement  is 
a  personal  declaration  of  the  party  himself,48  or  made  by  his  counsel  under  the 
client's  immediate  direction.4"  as  aud  because  it  was  true.50  Otherwise,  it 
will  be  rejected  when  offered  in  evidence  in  a  subsequent  case.1'1  The  statement 
may  be  explained,  qualified  or  controlled  by  the  party  at  all  times.5- 

§  515.  Informal  Judicial  Admissions.53 —  Under  the  general  denomination  of 
informal  judicial  admissions  may  be  grouped  statements  of  probative  or  res 
ycstuc  facts  made  by  a  party  in  course  of  proceedings  in  court,  as  a  witness,  a 
deponent,  an  affiant  or  in  any  similar  connection/'4  They  are  classed  as  judi- 
cial simply  because  made  in  the  course  of  judicial  proceedings  by  one  who  was 

156   (1870)  ;  2  Chamb..  Kv..  §  1200.  n.  3.  and  40  Conn.  31.3    (1873)  :  Luther  v.  Clay,  supra. 

eases  cited.  43.  Luther  v.  Clay,  supra  ;  Central  Branch 

36.  Delaware  County  Com'rs   v.  Diebold  S.  Union  Pao.  R.  Co   v.  Shoup,  supra. 

&    L.   Co..   1:53   U.   S.   47:).  4S7.   10  S.  Ct.  309  44.  Jones  v.  Clark,  37  Iowa  58G    (1873). 

ilSOO).  45.  Elting  v.  Scott,  2  Johns.    (  NT.  Y.)    157 

3".  -2     Clmmberlayne.     Evidence.    §§     1261,  (1807). 

1262.                                                                  .  46.   Luther  v.  Clay,  supra ;  Isahelle  v.  Iron 

38.  Luther  v.   Clay.   100  (ia.   236.  28   S.   E.  Cliffs  Co..  57  Mich.  120.  23  X    W.  613  (1885). 
46.  3!i  L.  I?    A.  05    il8!)(i).  47.  King  v    Shepard:  105  Ga.  473,  30  S.  E. 

39.  Prestwood  v.   Watson.   Ill    Ala    604.  20  634    (1S08>. 

So.   600    H805)  :    Virginia-Carolina   Chemical  48.  Isabelle  v.  Iron  Cliffs  Co..  supra 

Co     v.    Kirven.    130    X.    C.    161,    41    S.    E     1  49.    Id.:   Xichols  v.  Jones.  32  Mo.  App.  657 

(1002)  :  2  Chamb..  Ev..  §  1261.  n   2.  and  cases  (1888)  :    Ellin?   v.    Scott,    supra;    2    Chamb., 

cited.  Ev  ,  g  1262.  n    5.  and  cases  cited. 

40.  In. :  Central  Branch   i  nion  Pac.  H.  Co.  50.  TTart's  Appeal,  8  Pa.  32    (1848). 

v     Shoup,    28    Kan.    304.    42    Am.    TCep.    163  51.  Eltinor  v    Scott,  supra:  Hart's   Appeal, 

(1882):    Oallasiher   v.    McHride,   66   X    J.    L.  supra:  2  Chamb..  Ev..  §  1262.  n    7,  and  cases 

360.  40  Atl.  5S-2   <  1001 )  :  2  (  hamb  .  Ev..  1261,  cited 
n.  3.  and  cases  cited.  52.   King   v.    Shepard.    supra  ;    City    of   De- 

41.  Central    Branch    T'nion    Pac.    P.    Co.    v.  troit  v.  L.  H    Little  Co..   146  Mich.  373,   100 
Shoup.  supra.  N.  W.  671,  13  Detroit  Leg.  X.  803    (1906). 

42.  Perry  v.  Simpson  Waterproof  Mfg.  Co., 


§  515  ADMISSIONS:  JUDICIAL.  372 

then  a  party  to  the  latter.50  Where  the  declarant  is  not  a  party  to  the  pending 
proceedings,  as  where  a  witness  gives  his  testimony  in  the  case,56  they  may  be 
received  as  admissions,  so  far  as  they  relate  to  a  probative  or  res  gestae  fact, 
in  any  case  where  the  declarant  is  himself  a  party  but  riot  as  judicial  admis- 
sions, informal  or  otherwise.57 

Probative  Force. —  As  between  formal  and  informal  judicial  admissions  the 
effect,  for  the  purposes  of  the  trial  in  which  they  are  made,  is  determined  by 
procedure.  When  the  attempt  is  made  to  use  them,  in  another  cause,  as  extra- 
judicial  admissions  the  difference  in  probative  force  is  entirely  one  of  logic.08 
In  the  case  in  which  it  is  given,  the  informal  judicial  admission  is  accorded  by 
procedure  the  force  of  a  leva-men  probationis,  the  quality  of  prima  facie  proof 
shifting  the  burden  of  evidence.  In  subsequent  cases,  it  is  available  only  so 
far  as  it  appears  to  have  been  connected  with  the  party  himself,  in  his  personal 
capacity  rather  than  constitute  the- technical  work  of  counsel.  Even  in  cases, 
as  oral  testimony,  where  the  admission  may  fairly  be  regarded  as  the  statement 
of  the  party,  the  probative  force  will  be  largely  affected  by  considerations  as  to 
the  degree  of  deliberativeness  employed  and  the  like.5!) 

Adoption  by  Party;  Oral  Evidence. —  A  party  may,  in  offering  the  testi- 
mony of  a  third  person,  so  affirm  the  truth  of  its  statements  as  to  adopt  them 
as  his  own.  They  thereupon  become  competent  as  his  admissions,  and  nuiy 
be  used  as  such  in  a  subsequent  suit.  This  is  equally  true  whether  the  t>  ali- 
mony is  oral  or  in  writing.01  In  general,  by  calling  a  witness  to  prove  a  par- 
ticular fact,  a  party  impliedly  asserts  merely  its  existence."2  Only  when  the 
witness  testifies  as  desired  by  the  party  calling  him  may  his  statement  be  re- 
garded as  an  admission  of  the  party.  Where  the  proponent  distinctly  repudi- 
ates the  statement  of  the  witness  in  whole  or  in  part fi:J  or  the  latter  volunteers 
statements  not  germane  to  the  subject  on  which  he  is  called,  or  digresses  to 
other  subjects,  the  party  is  not  affected  by  the  repudiated  or  unexpected  state- 
ments either  by  their  being  used  against  him  in  that  case,  or  by  their  employ- 
ment in  any  subsequent  proceeding.'14 

Written  Statements. —  As  to  written  declarations,  e.g.,  a  deposition  given 
by  a  third  person  in  favor  of  a  party  and  offered  by  him  in  evidence,  the  litigant 

53.2  Chamberlayne,  Evidence,  §§  1263-  Am.  Dec.  628  ( 1851)  ;  Rich  v.  Minneapolis,  40 
1267.  Minn.  82,  41  X.  YV.  4.15  (1S8!)|;  2  Chamb., 

54.  See  Dowie  v.  Driscoll,  203   111.  480,  68       Ev.,  §   1264,  n.   1,  and  cases  cited 

N.  E.  56    (1903).  59.  Houston  v.  Chicago,  etc.,  Ry.  Co.,   118 

55.  Jones  v.  Dipert,  123  Ind.  594,  23  N.  E.       Mo.  App.  464,  94  S.  W.  560   (1906). 

944   (1889);  Mercer  v.  King,  13  Ky.  L.  Rep.  60.  State   v.   Gilbert,   36   Vt.    145    M863)  ; 

429   (1891).  Richards   v.    Morgan,    10   Jur.    (N.    ',:.)    559, 

56.  Wheat   v.    Summers,    13    111.    App.    444       564    (1864). 

(1883);    t'adley  v.  Catterlin,  64  Mo.  App.  629  61.  Richards   v.   Morgan,   supra. 

(1895);   Tooker  v.  C-ormer,  2  Hilt.    (N.  Y. )  62.  Id.;  2  Chamb.,  Ev.,  §   1265,  n.   3,  and 

71    (1858)  ;   2  Chamb.,  Ev.,  §  1263,  n.  5,  and  cases  cited. 

cases  cited.  63.  Richards  v.   Morgan,  supra. 

57.  2  Chamb.,  Ev.,  §  1263,  n.  6.  64.  Wilkins  v.  Stidger,  22  Cal.  232  (1863)  ; 

58.  Parsons   v.    Copeland,    33   Me.    370,   54  Martin  v.  Root,  17  Mass.  222   (1821). 


373 


FORM. 


§  516 


is  affected  by  its  statements,  in  the  same  or  a  subsequent  suit ;  65  not  by  all 
which  the  deponent  sees  fit  to  say,  tmt  by  such  statements  as  the  party  has 
used  for  his  own  account,  as  part  of  his  case,  adopting,  by  using  them,  in  a 
sense,  as  his  own.06 

Depositions. —  Depositions  made  by  others  to  which  a  party  accords  no 
actual  or  implied  personal  assent  ° '  do  not  affect  him. 

§  516.  [Informal  Judicial  Admissions];  Form  of  Admissions;  Oral;  Testimony 
by  Party. ('*—  Statements  contained  in  the  evidence  given  by  a  party  as  a  wit- 
ness or  adopted  by  him  69  are  primary  in  tjieir  nature  70  and  constitute  in- 
formal judicial  admissions  which  affect  the  party  not  only  in  the  trial  where 
given  but  in  any  other  hearing  of  a  suit71  even  upon  appeal.72  Such  declara- 
tions are  equally  competent,  unless  the  matter  is  regulated  otherwise  by  stat- 
ute,73 in  a  subsequent  case,74  and  although  the  parties,  except  the  original 
declarant,  are  different  in  the  two  actions.75 

Criminal  Cases. —  Apart  from  considerations  of  voluntariness  in  statement  76 
or  the  privilege  against  self-incrimination  77  elsewhere  considered,  the  defend- 
ant in  a  criminal  case  may  properly  make  admissions  of  an  informal  judicial 
nature  in  connection  with  his  testimony  before  a  judical  tribunal,78  to  the  same 
effect  as  in  civil  cases,  although  all  such  evidence  has  been  excluded  by  statute 
in  certain  jurisdictions.79 


65.  Richards  v.  Morgan,  supra. 

66.  III. ;  2  Chamb.,   Ev.,  §   1266,  n.  2,  and 
case:?  cited. 

67.  2    Chamb.,    Ev.,    §     1267:     Hallett    v. 
O'Brien,  1  Ala.  585   (1840)  ;  Hovey  v.  Hovey, 
9  Mass.  216   (1812). 

68.  2    Chamberlayne,    Evidence,    §§    1268- 
1270. 

69.  Beeckman  v.  Montgomery,  14  N.  J.  Eq. 
106   (1861). 

70.  Matthews  v.  Story,  54  Ind.  417   (1876). 
The  admission  is  competent  though  the  wit- 
ness   is    present    in    court    and    the    opposite 
party  has  a  right  to  compel  him  to  testify. 
Buddee   v.    Spangler,    12    Colo.    216     H88K)  : 
German  Nat.  Bank  v.  Leonard,  40  Xeb.  676 
(18941;  McAndrews  v.  Santee,  57  Barb.    (X. 
Y.)    193   (1S69)  :  2  Chamb.,  Ev.,  §  1268,  n.  2, 
and  cases  cited. 

71.  Wiseman  v.  St.  Louis,  etc..  R.  Co..   30 
Mo.  App.  516   (1888)  ;  Sternbach  v.  Friedman, 
78  N.  Y.  Supp.  318,  75  App.  Div.  418   (1902). 

72. 'Chase  v.  Debolt,  7  111.  371  (1845); 
Stemmler  v.  City  of  New  York,  179  N.  Y. 
473,  72  N.  E.  581  (1904). 

73.  Com.  v.  Ensign,  40  Pa.  Super  Ct.  157 
(1909)  ;  Dalv  v.  Brady,  69  Fed  2«5  (1895). 
A  strict  construction  will  be  applied  to  such 


a  limitation  upon  the  admissibility  of  gen- 
erally accepted  evidence.  Dusenbury  v.  Dus- 
enbury,  63  How.  Pr.  ( N.  Y.)  349  I  1S82)  ; 
Lapham  v.  Marshall,  3  N.  Y.  Supp.  601,  51 
Hun  36  (1889). 

74.  White  v.  Collins,  90  Minn.   165,  95  N. 
W.     765     (1903);     Sternbach    v.     Friedman, 
supra;  Com.  v.   Ensign,   supra;   La   Flam  v. 
Missisquoi  Pulp  Co.,  74  Vt.  125,  52  Atl.  526 
(1902);    2    Chamb.,   Ev.,    §    1268,   n.   6,   and 
cases  cited. 

75.  Tooker  v.  Cornier,  2  Hilt.    (N.  Y.)    71 
(1858). 

76.  Hardy  v.   U.   S.,   186  U.   S.  224,  22   S. 
Ct.    889,    46   L.    ed.    1137    (1901);    People   v. 
Johnson,   1   Wheel.  Cr.    (N.  Y.)    193    (1828); 
2  Chamb.,  Ev .  §   1269,  n.  1,  and  cases  cited. 

77.  Infra,    §§   597   et  seq.;  2   Chamb.,   Ev., 
§§  1540  et  seq. 

78.  State  v.  Miller,  35  Kan.   328,   10  Pac. 
865    (1886);    People  v.   Banker,  2   Park.   Cr. 
(N.  Y.)   26   (1823)  :  State  v.  Rowe,  98  N.  C. 
629,    4    S.    E.    506    (1887);    2    Chamb.,    Ev., 
§  1269,  n.  3,  and  cases  cited. 

79.  Kirby  v.  Com.,  77  Va.  681,  46  Am.  Rep. 
747   (1883)  -.  State  v.  Hall,  31  W.  Va.  505,  7 
b.  E.  422  (1888). 


§  516  ADMISSIONS:  JUDICIAL.  374 

Committing  Magistrates,  Inferior  Courts,  etc.,  are  within  the  rule.SIJ 
Where  the  statement  is  a  voluntary  one, .the  accused  may  make  valid  admis- 
sions before  a  grand  jury.81  The  court  may  have  been  the  one  in  which  a 
former  trial  of  the  declarant  took  place.*2  The  statement  may  have  been 
originallv  made  by  the  present  party  on  a  trial  of  an  indictment  against 
another.8'5 

Cicil  and  Criminal  Cases. —  The  admissions  of  accused  used  in  a  criminal 
case  may  have  been  originally  made  in  a  civil  proceeding,*4  including  those  for 
divorce,'*5  or  in  bankruptcy.'*0 

How  Testimony  May  Be  Proved. —  The  admissions  of  one  accused  of  crime 
may  be  proved  by  parole.  Should  the  magistrate  certify  that  the  accused  de- 
clined to  answer, ST  the  actual  testimony  may  still  be  proved  by  those  who 
heard  it.  A  civil  pleading,  however,  filed  in  a  civil  case,  unless  distinctly 
shown  to  be  under  instructions  from  the  client,  will  not  be  received  in  a  crim- 
inal case  as  the  admission  of  an  accused.** 

Minor  Details.—  So  long  as  it  shall  affirmatively  appear  that  the  statement 
was  made  by  a  party89  or  his  duly  authorized  representative,90  no  formality 
is  needed  in  giving  the  testimony.  If  the  relevant  portions  of  the  testimony 
cannot  be  separated,  all  may  be  read  to  the  jury.91  The  evidence  need  not  be 
given  in  response  to  questions,  nor  even  in  court.92  It  is  not  even  necessary 
that  any  legal  warrant  should  have  existed  for  taking  it.93 

Explanation  Permitted. —  The  party  who  has  appeared  as  a  witness  is  at 
liberty  to  explain  or  control  his  testimony  94  and  to  show,  if  he  can,  thai  he 
gave  explanations  at  the  time  which  were  not  reported.95 

80.  State   v.    Gilman,    51    Ale    206    (1802)  85.  Crow   v.   State    (Tex.    Cr.   App.    1003), 

(coroner)  ;  Reg.  v.  Coote,  L.  R.  4  P.  C.  599,  't2  S.  W.  392. 

42   L.   J.    P.    C.    45    (1872)     (fire   marshal)  ;  86.  People  v.  Weiger,  100  Cal.  352,  34  Pac. 

Rex  v.  Merceron,  2  Stark.  323    (1818)    (com-  826   (1893). 

mittee  of  the  legislature).     The  fact  of  arrest  87.  Reg.  v.   Wilkinson,   8  C.   &   P.   662,   34 

has  been  deemed  immaterial.     State  v.  Van-  E.  C.  L.  949    (1838). 

Tassel,    103   Iowa   6,   72   N.   W.   497    (1897);  88.  Farmer  v.  State,   100  Ga.  41,  28   S.  E. 

People   v.   Thayer,    1   Park.   Cr.    (N.   Y.)    595  26   (1896). 

(1825).  89.  Castleman     v.     Sherry,     46     Tex.     228 

81  People  v    Sexton,   132   Cal.  37,  64  Pac.  (1876). 

107    (1901);   Williams  v.  State,  30  Ohio  Cir.  90.  Dowie  v.   Driscoll,   203   111.  480,   68   X. 

Ct.  342    (1907);  2  Chamb.,  Ev.,  §  1269,  n.  8,  E.  56    (1903);   infra,   §   539;   2   Chamb.,  Ev., 

and  eases  cited.  §   1328. 

82.  Dumas   v.    State,   63   Ga.    600    (1879)  -.  91.  Eaton  v.  Xew  England  Tel.  Co.,  68  Me. 
Com.    v.    Reynolds,    122    Mass.    454     (1877);  63  (1878). 

People  v.  McMahon,  15  N.  Y    384    (1857);  2  92.  Kirk   v.   Garrett,   84   Md.   383,   35   Atl. 

Chamb.,  Ev.,  §   1269,  n.  9,  and  cases  cited.  1089   (1896). 

83.  People  v.  Mitchell,  94  Cal.  550,  29  Pac.  93.  Rex.  v.  Merceron,  supra. 

1106    (1892);    People  v.   Galagher,   78  Mich.  94.  Miller  v    People.  216  Til.  309,  74  N.  E. 

512,  42   N.   W.   1063    (1889);    People  v.   Me-  743    (1905):    Taft  v.   Little,   178  N.   Y.   127, 

Mahon,  supra;  2  Chamb.,  Ev.,  §  1269,  n.  10,  70  N.  E.  211    (1904)  ;  2  Chamb.,  Ev.,  §  1270, 

and  cases  cited.  n.  7,  and  cases  cited. 

8*    Abbott  v.  People,  75  N.  Y.  602  (1878)  :  95.  Boardman  v.  Wood,  3  Vt.  570   (1831). 
State  v.  Hopkins,   13  Wash.  5,  42  Pac.  627 
(1895). 


375  FORM.  §§  517-519 

Conditions  of  Admissibility. —  The  statement,  offered  as  an  admission,  must, 
however,  be  complete  in  itself.96  The  testimony  may  be  reported  by  the  judge 
presiding-  at  the  trial  yT  or  by  any  one  else  who  heard  it,  and  need  not,  in 
order  to  be  admissible,  be  all  the  party  said  on  that  particular  point.98 

§  517.  [Informal  Judicial  Admissions  1 ;  Form  of  Admissions;  Writings. —  So 
an  informal  judicial  admission,  though  commonly  oral,  may  be  in  the  written 
form  as  that  of  a  letter." 

§  518.  [Informal  Judicial  Admissions] ;  Affidavits —  The  statements  in  an 
affidavit  made  or  adopted  *  by  a  party  in  a  given  cause,  are  competent  as  in- 
formal judicial  admissions.2  They  will  be  received  in  a  subsequent  trial  or 
after  removal  to  a  federal  court,3  or  in  another  cause  where  the  declarant, 
against  whom  the  statement  is  offered  is  a  party.4 

Criminal  Cases. —  Unless  deemed  involuntary  within  the  law  excluding  con- 
fession.',5 such  an  affidavit  may  have  been  made  in  a  criminal  case,  e.g.,  on  a 
motion  for  a  continuance.6  or  for  a  change  of  venue.7 

Invalid  Affidavits. —  It  is  not  important  whether  the  document  itself  is  valid 
as  an  affidavit,  e.g.,  whether  the  magistrate  had  jurisdiction  8  or  the  affidavit 
itself  was  regularly  taken.9 

§  519.  [Informal  Judicial  Admissions] ;  Answers  to  Interrogatories.10 —  A 
party's  answers  to  written  interrogatories  are  competent  against  him  as  in- 
formal judicial  admissions  in  the  same11  or  any  other12  suit,  and  have  even 
been  accorded  a  prima  facie  weight.13  It  is  not  important  that  the  inter- 

96.  Misner  v.  Darling,  44  Mich.  438,  7   N.       v.  Mutual  L.  Ins.  Co.,  46  X.  Y.  Super.  Ct.  467 
\V.  77   (1880).  (1880)  ;  2  Chamb.,  Ev.,  §  1272,  n.  4,  and  cases 

97.  Chase    v.    Debolt,    7    111.    371     (1845);       cited. 

t'it/.patrick  v.  Fitzpatrick.  6  R.  1.  64,  73  Am.  5.  Infra.  §  583;  2  Chamb.,  Ev.,  §  1479. 

Deo.  6S1    (1859).  6.  Behler  v.  State,   112  Tnd.   140,   1.3  X.  E. 

98.  Friek  v.  Kabaker,  116  Iowa  494,  90  N.  272    (1887)  ;  Com.  v.  Starr,  4  Allen    (Mass.) 
W.  498    (1902).  301   (1862)  ;  2  Chamb.,.  Ev.,  §  1272.  n.  6,  and 

99.  Holderness    v.    Baker,    44    X.    H.    414  cases  cited. 

(1862)  ;  2  Chamb.,  Ev.,  §  1271.  7.  Boles    v.    State,    24    Miss.    445     (1852); 

1.  Knight    v.    Rothschild,    172    Mass.    546,       Baker    v.    Hess.    53    111.    App.    473     (1893). 
52  X.  E.  1062   (  1899)  ;  Connecticut  M.  L.  Ins.       COXTRA :  Behler  v.  State,  supra. 

Co.  v.  Hillmon,  188  I  .  S.  208,  23  S.  Ct,  294  8.  Morrell  v.  Cawley.  17  Abb.  Pr.   (X.  Y.) 

(1903)  ;  2  Chamb.,  Ev.,  §  1272.  n.  1,  and  cases  76    (1863). 

cited.  9-  Davenport    v.    Cummings,    15    Iowa   219 

2.  Orr  v.  Travelers'  Ins.  Co.,  120  Ala.  647.  (1863). 

24   So.  997    H898)  ;    Cornelissen  v.   Ort,   132  10.  2  Chamberlayne,  Evidence.  §   1273. 

Mich.  294,  93  X.  W.  617    ( 1903)  ;  Stickney  v.  11.  .Tewett    v.    Rines.    39    Me.    0     (1854); 

\Yard.    46    X.    Y.    Supp.    382.    20    Misc.    667  Nichols   v.   Allen.    112   Mass.   23    (1873). 

i  1S97)  ;  2  Chamb.,  Ev.,  §  1272,  n.  2.  and  cases  12.  .Tewett    v.    Rines,    supra:    Williams    v. 

cited.  Cheney.    3    Gray     (Mass.)     215     (1855);     2 

3.  Xational  Steamship  Co.  v.  Tugman.  143  Chamb..  Ev.,  §   1273,  n.  2,  and  cases  cited. 
U.  S.  28.  12  S.  Ct.  361,  27  L.  ed.  87   (1892).  13.  Clairmont  v.   Dickson,  4  L.  C.  Jur.  6 

4.  Knight  v.   Rothschild,   supra:   Rosenfeld  (1859). 
v.  Siegfried,  91  Mo.  App.  169  (1901)  :  Furniss 


§§  520-522  ADMISSIONS:  JUDICIAL.  376 

rogatories  themselves  are  not  put  in  evidence  14  or  that  they  have  failed  of  their 
original  purpose  because  necessary  formalities  have  been  omitted.15 

§  520.  [Informal  Judicial  Admissions] ;  Depositions.10 —  Statements  made  by 
a  party  in  a  deposition  taken  in  the  cause  where  offered,  de  bene  esse,17  or  in 
perpctuam  memoriani  1JS  may  constitute  informal  judicial  admissions  in  that 
cause.  If  the  statement  is  that  of  a  party  on  his  own  knowledge  or  on  infor- 
mation, for  the  accuracy  of  which  he  is  willing  to  become  responsible,19  it  is 
admissible  in  the  same  or  another  2o  suit.  A  statement  made  by  a  specially 
instructed  agent,21  will  be  received  as  if  it  were  the  declaration  of  the  party 
himself. 

Invalid  Depositions. —  The  admission  of  the  party  is  equally  competent 
though  the  document  is  itself  invalid,22  or  if  it  is,  as  a  matter  of  fact,  sup- 
pressed,23 because  of  nonconipliance  with  prescribed  forms  24  or  for  the  reason 
that  the  justification  for  using  it  no  longer  continues.25 

§  521.  Judicial  Admissions;  By  Whom  Made.26 — The  formal  judicial  admis- 
sion is  as  a  rule,  the  work  of  counsel,27  the  informal  judicial  admission  being 
more  often  the  individual  act  of  the  party.  A  formal  judicial  admission  made 
or  adopted  28  by  the  party,  even  when  acting  in  a  representative  2f)  or  differ- 
ent 30  personal  capacity,  may  be  accepted  by  the  court  and  given  full  effect,31 
though  made  without  the  knowledge  of  his  counsel.32 

§  522.  [Judicial  Admissions];  Attorneys.33 — When  a  formal  judicial  ad- 
mission is  entered  into  by  a  legal  representative,  including  any  of  his  neces- 
sary agents  within  their  appropriate  sphere  of  action,34  in  good  faith  :>>5  and 

14.  Cochran   v.   Chipman,    11   Nova   Scotia  23.  Parker  v.   Chancellor,  78   Tex.   524,   15 
254    (1876).                                                                     S.  W.  157   (1890). 

15.  Lynde  v.   McGregor,   13   Allen.  (Mass.)  24.   Carr  v.  Griffin,  supra. 

182   (1866)  ;  Edwards  v.  Norton,  55  Tex.  405  25.  Moore  v.  Brown,  23  Kan.  269   (1880)  ; 

(1881).  Hatch  v.  Brown,  63  Me.  410   (1874). 

16.  2  Chamberlayne,   Evidence,   §    1274.  26.  2  Chamberlayne,  Evidence,  §  1275. 

17.  Meyer    v.    Campbell,    20    N.    Y.    Supp.  27.  Wilson   v.   Spring,   64    111.    14    (1872); 
705,  1   Misc.  283   (1892);  McGahan  v.  Craw-  Adams    v.    Utley,    87    N.    C.    356    (1882);    2 
ford,  47  S.  C.  566,  25  S.  E.   123    (1896).  Chamb.,  Ev.,  §  1275,  n.  1,  and  cases  cited. 

18.  Faunce  v.  Gray,  21   Pick.    (Mass.)    243  28.  Winter  v.   Walter,  37   Pa.   155    (1860). 
(1838)  ;   Chaddick  v.  Haley,  81  Tex.  617,  17  29.  Phillips  v.  Middlesex  County,  127  Mass. 
S.  W.  233    (1891).  262    (1879). 

19.  Cambioso  v.  Maffet,  2  Wash.  (U.  S.)  98  30.  Purcell  v.  St.  Paul  F.  &  M.  Ins.  Co.,  5 
(1807);    2    Chamb.,    Ev.,    §    1274,   n.    3,   and  N.  D.  100,  64  N.  W.  943   (1895). 

cases  cited.  31.  Com.   v.   Miller,   3   Gush.    (Mass.)    243 

20.  In   re    Arnold's    Estate.    147    Cal.    583,        (1849) 

82  Pae.  252    (1905);   Phillips  v.  Lindley,   98  32.  Pence  v.  Sweeney,  3  Ida.   181,  28  Pac. 

N.  Y.  Hupp.  423,  112  App.  Div.  283    (1906):  413    (1891). 

Hatcher    v.    Crews,    78    Va.    460     (1884);    2  33.2    Chamberlayne,    Evidence,    §§    1276- 

Chamb.,  Ev.,  §  1274,  n.  4,  and  cases  cited.  1281. 

21.  Gardner  v.  Moult,  10  A.  &   E.  464,  37  34.  Lord  v.  Wood,  120  Iowa  303,  94  N.  W. 
E.  C.  L.  255    (1839).  842    (1903);    2   Chamb.,   Ev.,   §    1276,   n.    1, 

22.  Carr  v.  Griffin,  44  N.  H.  510  (1863).  and  cases  cited. 


377  ATTORNEYS.  §  522 

within  the  scope  of  his  professional  employment,36  for  the  purposes  of  the 
case  for  which  it  was  made,37  it  is  binding  upon  the  client.38  This  result 
follows  equally  whether  the  statement  is  made  during  the  trial,39  before  it 
begins,40  or  after  it  is  over.41 

Acts  in  Pais. —  Speaking  generally,  a  client  is  not  affected  by  the  acts  in 
pais  of  his  legal  adviser,  or  by  the  latter's  statements,  written42  or  oral,43  not 
relating  to  the  handling  and  management  of  the  case. 

Matters  of  Procedure. —  Speaking  generally,  matters  of  procedure  are  es- 
pecially within  the  province  of  counsel,  with  which  the  client  has,  as  a  rule, 
but  little  to  do.44  In  what  way  facts  shall  be  handled,  how  they  shall  best  be 
pleaded,45  in  what  manner  they  shall  be  presented  in  the  opening  address,  or 
in  the  closing  argument,  are  beyond  the  ken  of  the  client.  What  evidence 
shall  be  used  to  prove  certain  facts,  to  what  effect  particular  witnesses  would 
testify  to  if  present,46  all  this,  and  much  more,  are  within  the  purview  of  the 
art  of  advocacy,  of  which  the  client,  as  a  rule,  knows  nothing.47  The  counsel 
alone  can  effectively  judge  as  to  when  it  is  wise  to  insist  upon  full  proof,  and 
under  what  circumstances  the  formal  requirements  of  evidence,  regarding  in- 
cidental matters,48  may  be  waived.  The  due  execution  of  uncontroverted 
documents,  for  example,49  or  the  existence  of  really  undisputed  facts  50  may, 
under  certain  circumstances,  be  frankly  conceded  with  benefit  to  the  forensic 
fortunes  of  the  litigant.  Wide  discretionary  powers  must  necessarily  be  con- 
ferred upon  the  legal  adviser. 

35.  Williams  v.  Preston,  20  Ch.  D.  672,  51  Saunders   v.   McCarthy,   8   Allen    (Mass.)    42 
L.  J.  Ch.  973    (1882).  (1864)  ;  Lake  Erie,  etc.,  R.  Co.  v.  Rooker,  13 

36.  Dillon  v.  State,  6  Tex.  55    (  1851).  Ind.  App.  600,  41  X.  E.  470  (1895)  ;  2  Chamb., 

37.  Truby  v.   Seybert,   12  Pa.   101    (1849)  :  Ev.,  §  1277,  n.  2,  and  cases  cited. 
Atchison,    etc.,    Ry.    Co.    v.    Sullivan     (Colo.  44.  Anderson  v.  McAleenan,  8  N.  Y.  Supp. 
1909).   173  Fed.  456,  97  C.  C.  A.   1.  483,  15  Daly  444   (1890). 

38.  Starke  v.  Kenan,   11-  Ala.  818:  Central  45.  Supra,  §§   503   et  seq.;  2  Chamb.,  Ev., 
Union  Pac.  R.  Co.  v.  Shoup,  28  Kan.  394,  42  §§   1244  et  se</. 

Am.   Rep.   163    (1882).  46.  Ryan    v.    Beard,   74    Ala.   306    (1883); 

39.  Lord  v.  Bigelow,  124  Mass.  185  (1878):       Virginia    Carolina    Chemical    Co.    v.    Kirven, 
People  v.  Mole,  82  N.  Y.  Supp.  747.  85  App.       130  X.  C.  161,  41   S.  E.  1    (1902). 

Div    33    (10031.  47.  Chicago  City  R.  Co.  v.  McMeen,  70  111. 

40.  Limlley    v.    Atchison.    etc..    R.    Co.    47       App.  220    (18!>9);    Lacoste  v.   Robert,   11   La. 
Kan.    432.    28    Pac.    201     (1891):    Person    v.       Ann.  33    (1856i. 

Wilcox.     19    Minn     449     (1S73>:    2    Chamb.,  48.  Treadway  v.  Sioux  City,  etc.,  R.  Co..  40 

Ev..   §    1276.   n.   7,   and   cases   cited.  Iowa    526     (1875);     Person     v.    Wilcox,     19 

41.  The   Harry,   11    Ped.   Cas.   Xo.   6,147.  9  Minn.  449    (1873):  2  Chamb.,  Ev.,  §  1278,  n. 
Ben.  524    (1878).  5.  and  cases  cited. 

42.  Doe  v.  Richards.  2  C   &  K.  216   (1S45)  49.  Perry  v.  Simpson  Waterproof  Mfg.  Co.. 
See  Loomis  v.  R.  Co..  159  Mass.  .19,  34  X.  E.  40  Conn.   313    (1873)  ;    Voisin  v.  Commercial 
82    (1893).  Mut.   Ins.  Co..  22  X.   Y    Supp.   348.  67   Hun 

43.  Cable  Co.  v.  Parantha.  118  Ga    913,  45  oo5    (1893):    2    Chamb.,   Ev.,    §    1278,   n.    6, 
S.     E.     7S7     (1903):     Pickert    v.     Hair,     146  and  cases  cited. 

Mass    1.  15  X.  E.  79   (1888).     Statements  in  50.  Urquhart  v.  Butterfield,  37  Ch.  D.  857, 

ordinary  social   intercourse,  casual  conversa-       57  L.  J.  Ch.  521   (1887). 
tions,   are  not  the  admissions   of  fhe   client. 


§  523  ADMISSIONS:  JUDICIAL.  378 

Responsibility  -for  Claims.—  In  exercising  these  discretionary  powers  claims 
{ire  continually  made  by  counsel  engaged  at  the  trial  and  concessions  allowed 
for  reasons  far  removed  from  belief  in  or  actual  knowledge  as  to  the  facts 
covered  by  the  statement  itself.  Uncertain  as  to  the  final  form  which  the  facts 
disclosed  at  the  trial  may  eventually  take,  he  may  regard  it  as  wise  policy  to 
make  such  a  variety  and  breadth  of  claim  as  will  meet  any  situation  which 
the  facts  are  likely  to  create.51  To  hold  the  client  personally  responsible  for 
all  these  assertions  as  propositions  of  fact,  would  clearly  be  unjustifiable. 

Responsibility  for  Concessions. —  Concessions,  on  the  other  hand,  may  be 
made,  under  the  advice  of  counsel,  not  because  the  truth  is  stated  but  for  the 
purpose  of  attaining  some  ulterior  end.  These  facts  may  be  taken  for  granted 
provisionally,  in  order  to  obtain  the  opinion  of  the  court  upon  their  legal  effect, 
as  upon  a  demurrer,52  request  for  rulings  53  or  some  similar  expedient.54  it 
may  even,  in  order  to  economize  time,50  to  avoid  an  adjournment,  or  continu- 
ance 5lj  seem  advisable  to  counsel,  formally  to  admit  in  judicio,  for  the  pur- 
poses of  the  case,  that  a  fact  may  be  taken  as  true  which  both  client  and  coun- 
sel believe  not  to  be  so.  An  admission  by  conduct  may  possess  practically  the 
effect  of  a  judicial  admission.57 

Substratum  of  Fact. —  So  far  as  the  substratum,  underlying  basis,  of  ulti- 
mate fact  on  which  the  cause  rests  furnished  by  the  party  appears  to  be 
blended  with  the  formal  judicial  admissions  of  counsel,  or  those  made  under 
legal  advice,  or  so  far  as  these  formal  judicial  admissions  are  shown  to  have 
been  made  with  the  personal  assent  of  the  client  58  or  otherwise  based  on  the 
belief  of  the  party  himself,  they  have  probative  force  as  admissions  in  any 
relevant  connection  in  which  they  may  be  afterwards  offered. 

§  523.  [Judicial  Admissions];  Probative  Force;  Same  Case.59 — The  weight  of 
the  extra-judicial  admission  is  determined  by  logic,  that  is,  it  is  not  predeter- 
mined."" On  the  contrary,  the  force  and  effect  of  a  judicial  admission,  whether 
formal  (;1  or  informal  °2  is  practically  predetermined  by  procedure.  The  ef- 
fect of  the  formal  judicial  admission  is  final  and  conclusive,  that  of  the  informal 
judicial  admission  is  prima  facie. 

51.  Baldwin    v.    Gregg,    13    Mete      (Mass.)1          57.   Asiatic  Stpam  Navigation  Co.  v.  Bengal 
253    (1S4T)  :   2  Chamb..  Ev .,  §   1270  Coal  Co.,  35  Indian  L.  Hep.  Calc.   (pt.  2)   751 

52.  Kankakee,   etc,    H.    Co    v    Horan.    131        (1008). 

111.    28S,    23    X.    E.    621     (1800):    Belden    v  58.  Lord  v.  Bigelow,  124  Mass    185  ( 1877)  : 

Barker,  124  Mich.  667.  83  X.  YV  -616   (1000).  2  Chamh..   Ev..  §   1281. 

53.  Koane  v    I'isher.  7  La.  Ann   334  (1852)  59.  2  Chamberlayne.     Evidence,     §§     1282. 

54.  Beek'r    v     Young.    3    Bibb     (Ky  )     520  1283. 

(1814):    Pa<ze    v.     Brewster.    58    X.    H.    126  60.   Xjipra.   §   500 :    2  Chamb..  Ev..   §    1236: 

i  1S77)  ;  2  Chamb.,  Ev  .  §  1280.  n    3.  and  cases  2  Chamb  .  Ev..  §  1282. 

cited  61,  Supra.  §§  502  et  aeq.:  2  CTiamb.,  Ev  . 

55.  Rays    v.    Hinds.    28    Tnd     531     nSfi7):  §§  1243  et  sen. 

Shipman   v    Haynes.   15   La.  363    (18401  62.  Supra.  §§  515   et  seq.;  2  Chamb.,  Ev., 

56.  Ryan  v.  Beard,  supra;  Cutler  v.  Cutler.       §§  1263  et  seq. 
130  X    C.   1.  40   S.   E.  680.  89  Am.   St.  Rep. 

854,  57   L.  R    A    209    (1902). 


379  WEIGHT.  §§  524,525 

Other  Cases. —  In  cases  other  than  that  in  which  they  were  made,  judicial  ad- 
missions, whether  formal  as  pleadings,  in  civil  and  criminal  cases ;  63  or  in- 
formal, as  the  testimony  of  a  party  as  a  witness,"4  or  by  affidavit,05  or  deposi- 
tion,0" all,  indifferently,  drop  into  the  class  of  extra-judicial  admissions  °7  and 
have  merely  the  logical  force  and  effect  appropriate  to  this  class  of  statements.68 

§  524.  [Judicial  Admissions] ;  Formal  Judicial  Admissions  Conclusive.96 —  As 
a  matter  of  procedure,  the  orderly  conduct  of  a  trial  necessarily  requires  that, 
in  the  absence  of  mistake,70  misunderstanding,71  or  qther  good  cause  shown, 
the  formal  statements  contained  in  pleadings,72  stipulations,73  specific  admis- 
sions by  counsel  at  the  trial  '4  or  before  a  magistrate.75  and  the  like,76  should 
be  once  for  all  settled  and  determined  as  the  ground  work  on  which  the  rights 
of  the  parties  are  to  be  contested.77  They  are  therefore,  not  to  be  withdrawn 
at  the  mere  volition  of  the  party,  even  in  an  appellate  court  7S  or  even  on  a 
subsequent  trial  of  the  same  case,79  unless  the  formal  judicial  admission  shall 
have  been  made  for  a  temporary  purpose.80  The  judge  has,  however,  admin- 
istrative power  to  allow  the  formal  judicial  admission  to  be  withdrawn  or  modi- 
fied, upon  satisfactory  cause  shown.81 

§  525.  [Judicial  Admissions] :  Informal  Judicial  Admissions  Constitute  Prima 
Facie  Case.82 —  In  case  of  the  informal  judicial  admission  the  rules  of  pro- 
cedure attach  a  primn  facie  force.83  The  party  is,  however,  by  no  means  con- 

63.  Parks  v.   Mosher,   71   Me.   304    (1880):  Pac.   1108    (1896);   Leroy   Payne  Co.  v.  Van 
In    re   Duncan,   64    S.   C.   461,   42   S.   E.    433  Evra,    94    111.    App.    356    (1901);    Moling   v. 
(1002)  Barnard,  65  Mo.  App.  dOO  (1896)  ;  2  Chamb., 

64.  Supra,  §§  516  et  seq. ;  2  Chamb.,  Ev.,  Ev.,  §  1284,  n.  5,  and  cases  cited 

§§  1268  et  se<{.;  §  1283  75.  Marsh   v.    Mitchell,    26   IS.   J.   Eq.    497 

65.  Supra,  §  518;    2   Chamb.,   Ev  ,   1272.  (1875). 

66.  .s'wpra.   §  520:   2  Chamb.,  Ev.,  §   1274.  76.  In  re  Henschel,   114  Fed.  968;  McLug- 

67.  Tabb    v     Cabell,    17    Gratt.    (Va.)    160  han  v.   Bovard,  4   Watts    (Pa.)    308    (1835). 
(1867).  77.  Supra,  §  392;  2  Chamb,  Ev.,  §  932. 

68.  Infra,  §§  558  et  seq.:   2   Chamb.,   Ev.,  78.  Montgomery  v.  Givhan.  supra.     The  ad- 
§§  1383  et  seq.  mission,  however,  is  not  conclusive  where,  on 

69.  2  Chamberlayne.     Evidence,     §§     1284,  an  appeal,  the  trial  is  de  noro.     Morrison  v. 
1285.  Riker.    26    Mich.    385     (1873).     If    it     may 

70.  Montgomefy    v.    Givhan.    24    Ala.    56:^  reasonably  be  inferred,  that  the  intention  of 
(18541  :    Hughey  v.  Barrow,  4  La.  Ann.  248  the  parties  was  to  confine  the  scope  of  the 
(1840).  stipulation  to  a  particular  case,  the  rule  is 

71.  State  v.  Paxton,  65  Neb.  110.  90  X.  W.  otherwise      Perry     v.     Simpson     Waterproof 
983   (1902).  Mfg.  Co..  40  Conn.  313  (1873). 

72.  Raridan  v  Central  Towa  R.  Co..  69  Towa  79.  TTolley  v    Young.   68  Me.  215,  28  Am. 
527,  20  X    W.  509   (1886):  Cook  v    Barr.  44  Rep.  40    (1878);   Owen  v.  Cawley,  36  N.  Y. 
N.    Y.    156    (1870);    Goldwater    v.    Burnside.  I  0    (1867). 

22  W<h.  215.  60  Par.  400   (1000)  :   2  Chamb..  80.  Mnllin  v.  Vermont  Mut.  F.  Tns.  Co.,  56 

Ev..    §    12«4.    n     3.   and    cases   cited  Vt.  30    (1884). 

73.  Illinois  Cent.  R.  Co.  v    Fishell.   32   Til  81.  2  Chamh ..    Ev..    §    1285. 

Ann     41      (1*80):    Burba  nk    v.    Rookinsrham  82.  2  Chamberlayne.     Evidence.     §§     1286. 

Mnt    F    Tns.  Co..  24  X.  H.  550.  57   Am    Dec.  1287 

300   (1852).  83.  Stone  v.  Cook.  70  Til   424  HS75)  :  Auer 

74.  Hearne  v.  De  Young.  Ill  Cal.  373,  43  v.  Hoffmann,  132  Wis.  620,  112  N.  W.  1090 


§  525  ADMISSIONS:    JUDICIAL.  380 

eluded  by  his  statement.  A  fact  stated  by  a  party  in  his  testimony  dispense* 
with  further  proof.84  His  estimate  or  opinion  may  be  controlled  by  other 
evidence85  and  even  where  his  testimony  is  against  the  interest  of  the  party 
giving  it,  he  is  not,  as  a  matter  of  law,  concluded.86  A  statement,  however, 
may  be  so  relied  011  by  the  opposite  party  as  to  ground  an  estoppel.87 

§  525a.  Effect  of  Plea  of  Guilty  Withdrawn Where  the  defendant  pleads 

guilty  in  open  court  to  the  charge  made  against  him  and  afterwards  withdraws 
the  plea  it  might  seem  having  in  view  the  rule  of  reason  that  this  is  good  evi- 
dence of  his  guilt  and  should  be  received  against  him  at  a  later  trial.  There 
are  however  many  practical  considerations  against  it.  Most  criminal  defend- 
ants are  ignorant  and  rely  entirely  on  their  counsel  in  such  matters  and  such 
pleas  are  commonly  made  by  attorneys  in  the  nature  of  an  offer  of  settlement 
in  the  hope  of  obtaining  for  the  accused  a  light  sentence  without  intending  to 
admit  guilt  where  the  state  of  the  evidence  or  the  difficulty  of  obtaining  wit- 
nesses renders  the  case  a  precarious  oi.e  to  defend.  The  attorney  may  be 
afraid  of  prejudice  of  the  jury  against  his  client.  For  these  reasons  the  weight 
of  authority  is  properly  against  the  reception  of  the  evidence.88 

(1907)  ;  2  Chamb.,  Ev.,  §  1286,  n.  1,  and  cases  have  been  regarded  as  more  strongly  probative 

citi'd.  than  the  denials  contained  in  his  direct  testi- 

84.  Roach    v.    Burgess     (Tex.     Civ.    App.  mony.     Cohen  v.  Barry,  111  N.  Y.  Supp.  668 
inOl),  62  S.  W.  803.  (1908). 

85.  Culberson   v.   Chicago,  etc.,  R.   Co.,  50  87.  2  Chamb.,  Ev.,  §  1287. 

Mo.  App.  556    (1892).  88.  People  v.  Ryan,  82  Cal.  617,  23  Pac. 

86.  Ephland    v.    Missouri   Pac.    R.    Co.,   71  121;   State  v.  Meyers,  99  Mo.  107,  12  S.  W. 
Mo.  App.  597   (1897)  ;  2  Chamb.,  Ev.,  §  1286.  516;  Heim  v.  United  States  (1918),  46  Wash, 
n    4,  and  cases  cited.     Positive  Stronger  than  L.    Rep.    242.      Contra:     State   v.    Carta,    90 
Negative      Statement. —  Plaintiff's       declara-  Conn.   79,  96  Atl.  411;    Comm.  v.   Ervine,   8 
tions   against    interest  on   cross-examination  Dana  (Ky.),  30.     See  ante,  8.  508. 


CHAPTER  XVIII. 

ADMISS  IONS :     EXTRA-JUDICIAL. 

Extra-judicial  admissions;  definition,  526. 

use  a  general  one,  527. 

Conditions  of  admissibility  ;  statement  must  be  one  of  fact,  528. 
statement  must  be  voluntary,  529. 
statement  must  be  certain,  530. 
statement  must  be  complete,  531. 
statement  must  be  relevant,  532. 

Extra-Judicial  admissions;  by  whom  made;  parties,  533. 
parties  to  the  record,  534. 
co-parties;  declarant  affected  as  if  sole  party,  535. 

co-party  not  affected,  536. 
nominal  parties,  537. 
persons  beneficially  interested,  538. 
admissions  by  privies,  539. 
admissions  by  aye.nts,  540. 

evidence  is  primary,  541. 
res  c/estae   in  this  connection.  542. 
independent  relevancy  distinguished,  543. 
Form  of  Extra- Judicial  admissions;  adoption,  544. 
reference*  to  another,  545. 
writing,  546. 

book-cntrie^,  547. 
business  documents,  548. 
commercial  paper,  549. 
letters,  550. 
obituary  notices,  551. 
official  papers,  552. 
professional  memoranda,  553. 
/a#  Zz's/s,  554. 

temporary  or  ephemereal  forms  of  writing,  555. 
Transmission  by  telephone,  556. 
Scope  of  Extra- Judicial  admissions,  557. 
Probative  force  of  Extra- Judicial  admissions,  558. 

§  526.  Extra-Judicial  Admissions;  Definition.1 — Extra-judicial  admissions  are, 
speaking  generally,  declarations  of  a  party  or  his  legal  representatives  regarding 
1    2  Chamberlayne,  Evidence.   §§   1288,   1280. 


527  Ai.MisjsjoA's:  EXTRA-JUDICIAL.  382 


the  existence  of  a  probative  or  res  yestae  fact*  and  made  in  pais,  i.e.,  not  in 
the  course  of  judicial  proceedings.  They  include,  as  has  elsewhere  been 
noted,3  the  use  in  a  subsequent  legal  proceeding  of  what  were  originally,  i.e., 
when  made,  judicial  admissions. 

§  527.  [Extra-Judicial  Admissions]  ;  Use  a  General  One.4  —  The  extra-judicial 
admission  d  lifers  from  the  judicial  in  that  the  latter  must  be  employed  where 
it  arose,  i.e.,  in  a  particular  case,  for  a  special  purpose.  The  .extra-judicial 
admission  goes  into  every  legal  relation  or  connection  in  which  litigation  is 
pending  where  the  person  who  made  the  statement  is  a  party  and  wherever 
the  opposing  interest  is  able  to  persuade  the  court  that  it  states  a  fact  which 
is  of  a  probative  or  res  (/est.ae  order  in  the  case  where  it  is  ottered.  r>  An  extra- 
judicial  admission  made  by  a  person  in  a  civil  suit  is  equally  available  against 
him  on  a  criminal  prosecution.0  The  reverse  is  equally  true."  In  like  man- 
ner admissions  made  in  actions  at  law  are  competent  in  proceedings  in  equity, 
and  the  reverse.*  This  species  of  statement  is  received  in  evidence  regardless 
of  whether  the  action  be  real  or  personal.9  The  rule  is  the  same  in  any  form  of 
civil  proceeding,  for  example,  those  of  a  probate  court,10  or  for  divorce,11 
•which  are  not  governed  by  common  law  procedure. 

Criminal  Cases.  —  Reserving  the  general  subject  of  confessions  for  separate 
treatment,12  it  may  be  stated  that  an  admission  in  a  criminal  cause  differs  in 
no  essential  particular  from  one  in  a  civil  action.  The  extra-judicial  admission 
by  one  accused  of  crime  is  equally  competent  in  either  case  and  for  the  same 
reasons.  1:: 

Time  of  Making.  —  It  is  not  material  whether  these  statements  were  made 

2.  Hupra,  §§  31,  34;    I  Chamb.,  Ev.,  §§  47,  forth,  95  Mo    App.  441.  69  S.  W.  39   (1902)  ; 
51.  Kimball    v     Huntin<*tori,    10    Wend.    (X.   Y.) 

3.  tiiipra.   $§   524   et   seq.:    2   Chamb.,   Ev.,  675,  25  Am.  Dei-.  590   (1833):   2  Chamb.,  Ev., 
§§    1243    et    seq.,    1283;    2    Chamb.,    Ev.,    §§  §  1290,  n.  5,  and  cases  cited 

1288,    1289.  10.  In  re  Bramherry.    156  Pa.  62S.  27   Atl. 

4.  2  Chamberlayne.     Evidence,     §§      1290-  405.   36    Am.    St     Rep.   64,   22   L.   R.   A.   594 
1292  (-1893). 

5.  Heed  v.   McCord,   160  X.  \.  330,  341,  54  11.  Gardner  v.  Gardner.   104  Tenn.  410,  58 
N.    F.  737    (1S99)  N.  W.  342,  78  Am.  St.  Hep.  924   (1900). 

6.  Ifejr.    v.    McLean,     17    X.    Brunsw.    377  12.   fnfra.   §§   582   et  se</.:  2   Chamb..   Ev., 
(1877).  §§  1472  el  seq. 

7.  Yotara  v    De  Kamalaris,  49  X.  Y.  Supp.  13.   People   v.   Chrisman,    135    Cal.   282.    67 
216.  22  Misc    :!-!7    (1808)  :   Meyers  v.  Dillon.  Par.  136   (1901)  :  Shiuv  v    Stale,  102  Ga.  (it  JO. 
39  Or    581.65  Pac.  807.  60  Pa<-.  «14    (1901):  29    S.    E     477    (1897):    Com.   v.   Chance.    171 
Shurna!<er  v    Heed.  .'?   Pa.  Dist.  45.  13  Pa.  Co.  Mass.  245.  54  X.  K.  551,  75  Am.  St.  Rep.  306 
Ct.    547    (1893)-.    2   Chamb..   Ev..    1290,   n.   3,  (1*99);    State  v    Dalv.  210  MO.  664.    109   S. 
and  cases  cited  \V.   53    (1008):    Peonle  v.   Smith.    172    NT.    Y. 

8.  Spann    v     Tnrbet.    130    Ala.    541,    30    So.  210,  64  X     F..   814    (190i.:    Xeifiold  v.   State. 
389    (1900);    Ear!    v.    Shoulder.    6    Ohio   409  23  Ohio  Cir.  Ct,  246    M001):    State  v.  Shep- 
(1834)  ;    Holland   v.   Spell,    144    Tnd     561,   42  pard,  49  W.  Va.  582.  39  S.  E    976    (1901)  :  2 
N.  E.   1014    (1895)  :   2   Chamb.,  Ev.,   §   1290.  Chamb..  ET..  §  1290a,  n.  ",  and  cases  cited. 

n.  4,  and  cases  cited.  356,  21   S.  E.   575    (1894);   Lowrey  v.  Dan- 

9.  Munnerlyn  v.  Augusta  Sav.  Bank,  94  Ga. 


383 


ADMISSIBILITY. 


§  528 


before  or  after  the  date  claimed  as  that  of  the  commission  of  the  oifense.14 
Even  when  tiie  specific  admission  15  is  part  of  an  "  involuntary  "  confession,  it 
may  still  be  receive-'!.10 

M  inor  Details. —  Apart  from  questions  of  privilege  1T  an  oral  admission  may 
be  testified  to  by  any  one  who  heard  it.llS  A  competent  admission  may  be  made 
to  any  person.11*  That  it  was  made  in  confidence  that  it  would  not  be  divulged 
is  no  ground  for  rejecting  it.2"  Extra-judicial  admissions  may  be  offered  by 
either  party,21  and  are  competent  though  the  declarant  is  present  in  court  and 
available  as  a  witness.22  It  is  not  material  that  the  same  statement  is  also  in 
written  form.23 

§  528.  Conditions  of  Admissibility ;  Statement  Must  Be  One  of  Fact.24 —  It  is 
tirst  of  all  essential  that  the  statement  ottered  as  an  extra-judicial  admission 
should  be  one  of  fact,2''  i.e.,  amrni  some  present  evistence. 

Metier  of  Law. —  Parties  cannot  by  their  admissions  of  law  arising  out  of 
an  undisputed  state  of  facts,  bind  the  court  to  adopt  their  view.20  Conclusions 
of  law  2T  unless  inseparably  blended  with  and  necessary  to  the  understanding 
of  a  statement  of  fact  2S  or  statements  as  to  declarant's  conclusions  from  certain 

14.  Fo\\ler  v.  People,  18  How.  Pr.   i  X.  Y.) 
493    (1SOO):    Broks   v.   I".   S.,   146   Fed.   223, 
70  C   C.  A.  58]    (1906). 

15.  Infra.   §§   013   et   seq.:   2   Chamb.,    Ev., 
Jj§    10(1!)  <-t  seq. 

16.  State  v    Brinkley,  55  Or.   134,  105  Pac. 
708    11909). 

17.  See  2  Chamb.,  Ev.,  §  1291,  n.  1.     Pres- 
ence of  third  person. —  Where  a  third  person 
is  present    at  a  conversation  otherwise  privi- 
leged, the  statements  are  not  confidential  and 
may    be    stated    by    the   third    party    present. 
Reynolds   v.   State.    147    Ind.   3.   46   X.    E.  31 
(1S97):     Com.     v      Griffin.     110     Mass.     181 
(1872)  :    People  v.  Lewis,   16  X    Y    Supp.  881 
( 1891 ) 

18.  Allen    v.   Hall.   04   Xeb.   256,   89   X    W. 
803    (1902):   Egyptian  Flag  Cigarette  Co.  v 
Comisky.   81    X.    V.    Supp.   0,3,   40  Misc.   236 
(1903):    2    Chamb.,    Ev.,    §    1291,   n.    2.   and 
case*  cited. 

19.  Chicago  City  R.  Co.  v.  Tuohy,  196  111 
410.  03  X.  E.  997.  58  L.  R.  A.  270    (1902): 
Douglass    v.    Lonard.    17    X".    Y.    Supp.    591 
(1892):    2   Chamb.,    Ev..    §    1291.   n.    3.   and 
cases  cited. 

20.  Crain  v.  Jacksonville  First  Xat.  Bank. 
114  111.  M6,  2  X    E.  486   (1885). 

21.  Brown  v.  Brown.  4  Fed.  Cas   Xo    1.994. 
1   YVoodb.  &  M.  325    (1846). 

22.  Stevenson    v.    Ebervale    Coal    Co..    201 
Pa.   112,  50  Atl.  818,  88  Am.   St.  Rep.  805 
(1902). 


23.  Burch  v.  Harrell,  93  Ga.  719,  20  S.  E. 
212    (1894). 

Extra-judicial  admissions  are  not  so  much 
an  exception  to  the  rule  excluding  hearsay 
as  based  upon  a  quasi-estoppel  which  controls 
the  right  of  a  party  to  disclaim  responsibility 
for  any  of  his  statements.  2  Chamb.,  Ev.. 

§  *2»* 

Calling  attention  to  admissions. —  Admis- 
sions made  by  the  plaintin"  may  be  put  in  evi- 
dence without  h'rst  calling  his  attention  to 
them.  Adams  v  Chicago  (Jreat  \Yestern  R. 
Co.,  156  Iowa  31.  135  X.  W.  21.  42  L.  R.  A. 
(X.  S.I  373  (1912). 

24.  2  Chamberlayne,  Evidence.  §  1293. 

25.  Bellefontaine  Imp.  Co    v    Xiedringhaus, 
181    111.   420.  55  X.    E.    1*4.   72   Am    S't.    Rep. 
269    (1899):    Welland    Canal   Co.    v.    Hatha- 
way, 8   Wend.    (X.   Y.)    480.  24  Am.  Dec.  51 

(1832)  :  2  Chamb..  Ev.,  §  1293,  n.  1,  and  cases 
cited. 

26.  People  v.   Pittsburg,  etc..   Ry.   Co..  244 
111.    166.   91    X.    E.   48    (1910):    Citv   Club  of 
Auburn  v.  McGeer.    198  X.   Y.    160.  91    X.  E. 
539   (1910).     They  may,  however,  estop  them- 
selves from  afterwards  denying  such  an  ad- 
mission, where  it  was  made  through  fraud  or 
when  it  induced  the  opposite  party  to  assume 
a  position   he   would  not  have   assumed   had 
the  admission  not  been  made.     Id. 

27.  Infra.  §§  803  et  seq.:  3  Chamb..  Ev.,  §§ 
2325  et  seq. 

28.  Lewis  v.  Harris,  31   Ala.   689    (1858). 


§  529  ADMISSIONS:  EXTRA-JUDICIAL.  384 

facts,29  his  "  opinion  "  as  it  is  frequently  called  30  are  not  proper  subjects  for  an 
admission,  except  in  cases  where  the  declarant  might,  if  present  as  a  witness, 
have  testified  to  the  same  inference  or  conclusion. 

Psychological  Facts. —  The  fact  covered  by  an  admission  may  be  a  psycho- 
logical one,  e.g.,  belief.31 

§  529.  [Extra- Judicial  Admissions] ;  Statement  Must  Be  Voluntary.32 It  is 

further  required  that  the  statement  should  have  been  voluntarily  made  by  the 
declarant.33  Threats  of  personal  violence  affect  only  the  weight  of  the  evi- 
dence,34 and  the  bare  custody  of  an  officer  is  not  sufficient  to  exclude  a  state- 
ment otherwise  voluntary.35  Nor  is  it  ground  for  rejecting  a  statement  as  not 
voluntary  that  it  was  given  by  declarant  as  a  witness  in  response  to  compulsory 
process,  whether  in  court30  before  arbitrators,37  commissioners  in  bankruptcy  38 
or  in  other  judicial  proceedings.39  It  is  not  important  that  the  proceedings 
themselves  are  irregular 40  or  that  the  declarant  was  tricked  or  trapped  into 
making  the  admission.41  His  admission  is  equally  received  though  obtained 
by  an  officer  tiy  means  of  a  representation  which  may  be  misleading,  to  say  the 
least.42  It  has  been  held  that  no  preliminary  proof  need  be  given  that  the 
admission  was  voluntarily  made.45 

Criminal  Cases. —  As  in  case  of  the  confession  itself,  any  specific  admission 
must  if  it  is  to  be  received  in  evidence  be  voluntary.44  Should  it  appear  that 
the  admission  constitutes  or  is  equivalent  to  a  confession  and  that  it  was 
induced  by  threats  or  promises  extended  to  the  declarant  by  persons  in  authority 
over  the  proceedings,  the  statement  will  be  rejected  as  involuntary,4'"'  although 

29.  Infra,  §§  7!>2  rt  se</. ;  3  Chamb.,  Ev.,  §§        (1854)  ;     McGahan    v.    Crawford,    47    S.    C. 
2291    et   se<i  ;   2   Chamb.,    Ev.,   §    1293,   n.   6,       566,25  S.  E    123   (1896). 

and  cases  cited.  37.  Calvert  v   Friebus.  48  Md.  41   (1877). 

30.  ITohart  v.  Plymouth  County,  100  Mass.  38.  Lilley   v.   Mutual   Ben.    L.   Ins.   Co.,  92 
159    (1868);    2  Chamb.,  Ev.,   1293,  n.  7,  and       Mich.   153.  52  X.  \V.  631    (1892). 

oases  cited.  39.  McOahan  v.  Crawford,  supra;  Seaborn 

31.  Bradenkamp  v.  Rouge,  143  111.  App.  492       v.   Com.,  25   Ky.  L.  Rep.  2203.  80  S.  W.  223 
(190S);    State  v.   Kclley,    191   Mo.  680,  90  S.        (1904). 

\V.  834    (1905)  ;  2  Chamb,  Ev.,  §  1293,  n.  8,  40.  Carr  v.  Griffin,  44  N   H.  510  (1863). 

and  cases  cited.  41.  Higgins     v.     Bellinger,     22     Mo.     397 

32.  2  Chamberlayne,  Evidence,  §   1294.  (1856)  ;   State  v.  Barrington,  198  Mo.  23,  95 

33.  Truby  v.  Seybert,   12   Pa.   101    (1849);  S.  W.   235    (1906). 

fecott  v.  Home  Ins.  Co.,   1   Dill.    (U.  S.)    105  42.   Collins  v.  State,  115  Wis.  596.  92  NT.  W. 

(1870);    2    Chamb,    Ev.,    §    1294,    n.    1,    and  266    H902      See.  however.  Tines  v.   Com.,  25 

cases  cited      Compare  People  v    Furlong,  187  Ky.  L.  Rep    1233.  77  S    W.  363    (1903). 
N.  Y.   198,  79  N.  E    978    (1907).  43.  People   v.   Stokes,   5   Cal.   App.   205,   89 

34.  Fidler  v.  McKinley,  21  Til.  308   (1859).  Pac.  997    (1907). 

35.  Notara  v.  De  Kamalaris,  supra ;  Daniels  44.  Com    v    Williams,    171    Mass.   461.   50 
v   State,  57  Fla.  1,  48  So.  747   (1909)  ;  Fouse  N.    E.    1035    (1898)  :    State   v.   Schmidt.    137 
v.  State,  83  Neb.  258,  119  N".  W.  478   (1909)  ;  Mo.   266.   38   S.   W.   939    (1896)  ;    Murphy   v. 
State  v.  Smith.  138  N.  C.  700.  50  S.  E.  859  People.  13  N.  Y.  590   (1876)  :  2  Chamb.,  Ev., 
(1905)  ;  2  Chamb.,  Ev,,  §  1294,  n.  3,  and  cases  §  1294a,  n    2.  and  cases  cited. 

cited.  45.  Tnfra.   §§  584   et   seq.;    2   Chamb..   Ev., 

56.  Newhall  v.  Jenkins,  2  Gray  (Mass.)  562       §§  1483  et  seq      See  Tuttle  v.  People,  33  Colo. 

243,  79   Pac.   1035    (1905). 


385 


CERTAIXTY. 


§**  CJ        ~  O  A          *•* 
$     OoO,    O 


it  is  obvious  that  the  will  of  the  declarant  has  fully  co-operated  with  his  act. 
In  several  jurisdictions,  the  logical  rule  is  observed  that  a  threat  or  promise 
by  an  officer  to  an  accused  person  which  does  not  amount  to  duress  leaves  his 
declaration  voluntary,46  and  its  weight  for  the  jury. 

§  530.  [Extra-Judicial*  Admissions] ;  Statement  Must  Be  Certain.47 — An  admis- 
sion must  be  certain,4*  and  consistent,4"  definite 5"  and  clearly  proved.  It 
must,  in  addition,  be  couched  in  language  reasonably  capable,51  without  forced 
or  strained  construction/'2  to  bear  the  interpretation  placed  on  it.  While  con- 
jectural 53  and  supposititious  54  statements  are  excluded,  absolute  precision  is 
not  demanded  in  case  of  a  declaration  offered  as  an  admission.55  Total  failure 
to  identify  the  declarant  will  suffice  to  exclude  the  admission.56 

§  531.   [Extra-Judicial  Admissions] ;   Statement   Must  Be   Complete.57 As   a 

rule,  with  moditications  more  fully  stated  elsewhere,58  a  party  is  at  liberty  to 
offer  merely  such  portions  of  an  entire  statement  as  he  chooses,  leaving  his 
opponent  to  supplement  it  should  he  desire.09  This  the  latter  may  do  either 
by  further  examination  of  the  same  witness,60  or  by  testimony  from  another  per- 
son,01 so  far  as  the  additional  statements  shall  appear  to  the  court02  to  be 
fairly  necessary  to  qualify  and  explain  the  admissions  already  offered  in  evi- 
dence.1'' Where  a  statement  is  certain,  complete  in  itself,  it  is  not  material 


46.  People  v.   Knowlton,   122  Cal.  357.  55 
Pac.   141    (1808*  ;   State  v.   Red,  53  Iowa  69, 
4    X.    \V.   831    (1SSO);    McLain    v.   State,    IS 
Neb.   154.  24  X    W.  720    (ISSoi. 

47.  2  Chamberlayne.    Evidence,  §    1205 

48.  State  v    Kisenmeyer.  94  111.  96   (1879)  ; 
Petzolt    v     Thiess.    55    X.    V.    Mipp.    740,    25 
Misc.   707    (1899). 

49.  Avers  v.  Metcalf.  39  111.  307   (1866). 

50.  Douglass   v.   Davie,   2   McCord    ( S.   C.) 
218    (1822). 

51.  Donovan  v.  Driscoll,   116  Iowa  339.  90 
X.   \V.   60    i  1902). 

52.  Mack  v.  Cole,   130  Mich.   84,  89  X.  W. 
564    (1902):    Hamilton  v.   Patrick,   16  X.   Y. 
Supp    578,  62  Hun  74    (1891):   Middleton  v. 
Westeney.  7  Ohio  Cir.  Ct.  393.  4  Ohio  Cir.  Dec 
650   (1892)  :  2  Chamb.,  Ev.,  §  1295,  n.  5.  and 
cases   cited. 

53.  Driscoll   v    Taunton.  160  Mass.  486.  36 
X'.    E     495     (1894);     Fred    Oppermann,    Jr.. 
Brewing  Co    v    Pearson.  74  X.  V.  Supp.  187. 
68   App    Div.   637    (1902);   2   Chamb.,  Ev.,   § 
1295.  n.   6,  and  cases  cited. 

54.  Mittnacht  v.  Bache.  45  X.  Y.  Supp.  81. 
16  App.  Div.  426  I  1807)  :  Rudd  v.  Dewey,  121 
Iowa  454.  96  X.  W.  973   i  1903). 

55.  Xirhols  v.   Allen.  112  Mass.  23    (1873). 
Possibility  of  ambiguity,  see  Lincoln  v.  Hem- 


enway,  80  Vt.  530,  69  Atl.  153  (1908)  ;  South- 
ern Loan  &  Trust  Co.  v.  Benbow,  135  N.  C. 
303.  47  S.  E.  435  (1904). 

56.  Clark  v    Com..  32  Ky    L.  Rep.  63.  836, 
105  S.  W.  393.   106  b.  W    1191    (1908). 

57.  2  Chamberlayne,     Evidence,     §§     1296- 
1303. 

58.  Supra,  §§  246,  248,  260 ;  1  Chamb.,  Ev., 
§§  490.  492,  505. 

59.  Cramers    v.    Gregg,    40    III.    App.    442 
(1890);    Lewis   Pub.   Co.   v.   Lenz,   83   X.   Y. 
Supp.    841,    86    App.    Div.    451     (1903);     2 
Chamb.,  Ev.,  §  1296,  n.  2.  and  cases  cited. 

60.  Adam  v.  Eames,  107  Mass.  275   (1871)  ; 
Rouse  v.  Whited.  25  X.  Y.   170,  82  Am.  Dec. 
337    i  1862);    Wolf  Creek  Diamond  Coal   Co. 
v.  Schultz,  71  Pa.  180  (1872)  ;  2  Chamb.,  Ev., 
§    1296.   n.   3.   and   cases   cited. 

61.  Oakland  First   Xat    Bank  v.  Wolff,  79 
Cal.  69.  21    Pac    551.  748    (1889):   Morris  v. 
Jamieson.  20o   111    87.  68  N    E    742    (1903); 
Grattan  v.  Metropolitan  L.  Ins.  Co.,  92  N.  Y. 
274,  44  Am.  Rep   372   (1883)  :  2  Chamb.,  Ev., 
§   1296,  n.  4,  and  cases  cited. 

62.  Robinson  v.  Ferry.  11  Conn.  460  (1834). 

63.  Morri?   v.    Jamieson.   supra;    Straw   v. 
Greene.  14  Allen   (Mass  }  206   (1867)  :  Ather- 
ton  v.  Defreeze,  129  Mich    364.  SS  X.  W.  886 
(1902)  ;  People  v.  Bingham.  190  X".  Y.  566,  83 


§  531  ADMISSIONS:  EXTRA-JUDICIAL.  386 

that  it  covers  merely  a  portion  of  an  entire  transaction,64  or  that  it  constituted, 
when  made,  part  of  a  conversation,  the  balance  of  which  is  not  heard."5 

Criminal  Cases. —  An  admission  offered  in  evidence  in  a  criminal  case  should 
be  complete.  Should  the  statement  be  oral,  everything  said  at  the  same  time 
necessary  to  the  full  and  accurate  understanding  of  the  part  offered  should 
be  produced  in  the  first  instance.86  For  example,  a  conversation  said  to  con- 
tain an  admission  by  the  accused  must  be  given  to  the  court  in  its  entirety,67 
though  there  be  included  much  which  is  distinctly  self-serving  and  to  the  in- 
terest of  the  accused.08  All  rights  of  the  accused  have  been  held,  however,  to 
be  fully  protected  by  permitting  him  to  introduce  such  additional  portions  of 
the  conversation  as  he  thinks  best.69  Should  the  incriminating  declaration  be 
in  writing,  the  same  rule  is  applied,  the  entire  document  being  introduced  in 
evidence  at  the  outset.70  The  jury  may  follow  certain  portions  and  disregard 
the  balance.71  Irrelevant  matter  likely  to  mislead  the  jury  may  be  omitted, 
upon  the  original  reading  of  the  document  to  the  jury.72 

Self-serving  Statements. —  Except  so  far  as  above  authorized  the  self-serving 
statements  of  the  defendant  will  not  be  received  in  evidence  when  tendered  by 
him,73  unless  they  are  part  of  the  res  gestae,  either  in  their  independently 
relevant 74  or  assertive  capacity.75  In  like  manner,  an  accused  person  cannot 
insist  upon  giving  a  self-serving  explanation  offered  at  a  conversation  other 
than  that  relied  upon  by  the  prosecution.76 

N.  E.  1129  (1908).  aff'g  106  X.  Y.  Supp.  330,  71.  State  v  Carlisle.  57  Mo.  102  (1874)  : 
121  App.  Div.  593  (1907);  2  Chamb.,  Ev.,  §  State  v.  Sheppard,  49  W.  Va.  582,  30  S.  E. 

1296,  n.  6,  and  cases  cited.  676    (1901). 

64.  Stansell   v.   Leavitt,   51    Mich.    536,    16  72.  People   v.    Coughlin.   67   Mich.   466,   35 
N.  W.  892    (1883).  X.   W.   72    (1887). 

65.  Voorheis    v.    Bovell.    20    111.    App.    538  73.  Dixon  v.   State,   116  Ga.    186,  42   S.   E. 
(1886);    Scott   v.    Young,   4    Paige    (N.    Y.)  357    (1902);    Carle   v.    People.   200    111     404, 
542,  547   (1834)  ;  2  Chamb.,  Ev.,  §  1296,  n    8.  66  N.  E.  32.  93  Am.  Rep.  208   (1903)  ;   Com. 
and  cases  cited.  v.   Cooseboom,   155   Mass.   298.   29   N.   E.   463 

66.  Hanrahan  v.  People,  91  111.  142  (1878)  ;  1 1891)  ;  State  v.  Blitz.  171  Mo.  530.  71  S.  W. 
66  N.  E    32,  93  Am.  Rep.  208   (1903)  ;   Com.  1027    (1903)  :  McKee  v    People,  36  N.  Y    113 
fehotwell  v.  Com.,  24  Ky.   L.   Rep.  255.  68  S.  (1867);    2   Chamb.,   Ev.,   §    1297a,  n.    1.   and 
W.  403    (1902);   State  v.   Kennade,    121    Mo  cases  cited. 

405,  26  S.  W.  347    (1894);   2  Chamb.,  Ev.,  §  74.  Infra,  §§   837   et  seq  ;  4   Chamb,   Ev.. 

1297,  n.  1,  and  cases  cited.  §§  2574  et  seq. 

67.  Campbell  v    State,  23  Ala.  44    (1853)  ;  75.  People  v.  Estrado.  49  Cal.  171    (1875)  : 
State   v.    Curtis,   70   Mo    594    (1879):    State  State  v    Young,   119  Mo.  495.  24  S.  \V.   1038 
v    Swink,  19  X.  C.  9    (1836).  (1893)  :  People  v.  De  Graff,  4  Hun  622.  6  N. 

68.  Walker   v.   State,   28   Ga.   254    (1859):  Y.    St.    Rep.   412    (1887):    2   Chamh..   Ev..   § 
Morrow  v.  State,  48  Ind.  432    (1874):   State  1297a.   n.    3.   and   cases   cited.     The   rule   ex- 
v.  Xapier,  R5  Mo   462   M877):  2  Chamb..  Ev..  eluding  self-serving  statements  is  based  upon 
§  1297,  n    3.  and  cases  cited  the  generally  worthless  character  of  such  as- 

69.  People  v    Murphy,  39  Cal    52    (1870).  sertions.     State    v     Howard.    82    X     C.    623 
Hounds  v    State.  57   Wis,  45,   14  N    W    865  (1880). 

(1883)  ;  2  Chamb,  Ev,  §  1297,  n.  4,  and  cases  76.  State    v     Rutledse.    37    La     Ann     378 

cited  (1885)  :  People  v.  Green.  1   Park    Cr.  (X.  Y  ) 

70.  Si/pro,  §§  256  et  seq  ;  1   Chamb.,  Ev.,  11    (1845)  :  2  Chamb.,  Ev..  §  1297a,  n.  5,  and 
§§  500  et  seq.  cases  cited. 


387  COMPLETENESS.  §  531 

Self-serving  Acts,  Appearances,  Etc. —  One  accused  of  crime  cauiiot  show 
that  be  acted  ~~  and,  indeed  appeared  shortly  after  the  crime  as  he  would  have 
done  if  innocent.7*  For  like  reasons,  it  cannot  be  shown  that  the  accused 
surrendered  himself  as  a  prisoner,  or  voluntarily  offered  to  submit  to  arrest.79 

Irrelevancy. —  A  further  reason  for  rejecting  the  self-serving  statement  fre- 
quently consists  in  the  fact  that  such  evidence  is  irrelevant.8" 

^•1  More  Liberal  Rule. —  A  rule  has  been  adopted  in  several  jurisdictions,  to 
the  effect  that  a  statement,  though  not  in  strictness  explanatory  or  qualifying, 
is  nevertheless  competent,  at  the  instance  of  the  declarant,  if  made  at  the 
same  time  as  his  admission  previously  offered  in  evidence  in  relation  to  the 
same  subject-matter."1 

Statements  On  Other  Occasions. —  The  general  rule  is  to  the  effect  that  even 
qualifying  or  contradictory  statements  made  on  another  occasion  by  a  party  82  or 
a  person  to  whom  he  stands  in  a  relation  of  privity,83  or  other  representative 
capacity,  are  incompetent,  even  where  they  relate  to  the  same  subject-matter,84 
for  the  purpose  of  explaining  or  qualifying  a  declaration  relied  upon  as  an 
admission. 

Written  Declarations. —  The  rule  requiring  that  statements  used  as  admis- 
sions should  be  complete  applies  to  written  declarations,  as  those  contained  in 
letters  sr>  or  cither  documents.86 

Weight  and  Credibility. —  When  the  entire  statement  has  been  received  due 
weight  should  be  given  to  it  as  a  unit.87  Kot  that  all  parts  of  the  statement  are 

77.  Williams  v.  fetate,  52  Ala.  411    (1875).  83.  Royal  v.  Chandler,  79  Me    265,  9  Atl. 

78.  State  v.  Strong,  153  Mo.  548.  55  S    W.  615.  1  Am.  St.  Rep.  305   (1887)  :  Miller's  Ap- 
78     (1899);     People    v     Rathlmn,    21    Wend.  peal,  100  Pa.  568.  45  Am.  Rep.  394    (1882); 
(X.  Y  )    509    i  1839)  ;  2  Chamb.,  Ev.,  §  1298.  Ellen  v.  Ellen,  18  S.  C.  489  (1882)  ;  2  Chamb., 
n.  3,  and  cases  cited.  Ev.,   §    1301,   n.   2,  and   cases   cited. 

79.  Vaughn   v.   State,    130   Ala.    18.   30   So  84.  Stewart     v.     Sherman,     5     Conn.     244 
669    (1901);    State   v.   Taylor.    134   Mo     109,  (1824).     In    certain    jurisdictions,    however. 
35  S.  W.  92    (18951  ;  2  Chamb,  Ev.,  §  1298,  the  use  by  a  party  affected,  of  other  parts  of 
n.    4,    and    cases    cited.     So,    of    refusing    to  a    continuous    conversation,    or    an    extended 
avail  himself  of  a  chance  to  escape  from  con-  and   uninterrupted  correspondence,   regarding 
finement.     People    v.     Montgomery.    53    Cal  the  same  subject,  is  permitted.     Swift   Elec- 
576   (1878)  ;  Com   v    Hersey.  2  Allen  .(Mass)  trie  Light  Co.  v.  Grant.  90  Mich.  469,  51  N. 
173    (1S61):    People  v.  Rathbun.  supra  W.  539    i  1892) :   Lewis   Pub.  Co.  v.  Lenz.  83 

80.  State  v.  Moore,  156  Mo.  204.  56  S    W.  X    Y.  Supp.  841.  86  App.  Div.  451    (1903). 
883    (1899):   Meyers  v    U.  S.  5  Okl    173,  48  85.  Morris    v.    Jamieson.    supra:    Lombard 
Pac.   186   i  1*97):  2  Chamb.,  Ev..  §  1200.  and  v.   Chaplin.  OS  Me.   300.  56  Atl    903    (1903). 
cases  cited.  86.  Lombard  v.  Chaplin,  supra :  Grattan  v 

81.  Robinson     v.      Ferry.     11     Conn.     460  Xew  York  Metropolitan  L.  Tns    Co..  92  N.  Y. 
(1830)  :    Morris   v.    Jamieson.   supra:   Farley  274,  44  Am.  Rep.  372   i  1*83)  :  2  Chamb.,  Ev., 
v.    Rodocanaehi.    100    Mass     427     (1868):     2  §    1302.    n.    2.   and    rases   nted 

Chamb..   Ev..   §    1300.   n     1.   and    cases   cited.  87.  Arnold  v.  Johnson.  2   111.   196    (1835): 

82.  Beebe  v    Smith.   104   111    634.  62  X    E  O'Brien    v     Cheney.    5    Cush      (Mass  )     148 
S.">6    (1002):    Adam  v    Fames.  107  Mass    275  (1849)-.    Shrady   v.   Shrady.  58  X.   Y    Supp. 
(1871):    Smith  v.  Dodge.  3  X.  Y.   Supp.   866  546,  42   App.  Div    9    (1899):   2  Chamb.,  Ev., 
( 1888)  :  2  Chamb.,  Ev.,  §  1301,  n   1,  and  cases  §  1303,  n.  1,  and  cases  cited 

cited. 


532 


ADMISSIONS:  EXTRA-JUDICIAL, 


388 


equally  entitled  to  belief.88  The  jury  may  give  probative  weight  only  to 
such  parts  of  the  whole,  as  they  may  deem  worthy  of  confidence,  and  reject 
the  balance.89  They  cannot  do  so  capriciously  or  without  reason.90 

§  532.  [Extra- Judicial  Admissions];  Statement  Must  Be  Relevant.91 — An  ex- 
tra-judicial admission  must  be  the  statement  of  a  probative  or  res  gestae  fact,92 
for  example,  the  existence  of  a  particular  state  of  consciousness.93  The  fact 
which  is  stated  must,  therefore,  tend  to  establish  or  constitute  the  truth  (or 
falsity)  of  a  proposition  in  issue,94  either  directly  as  a  res  gestae  or  indirectly, 
as  a  probative  fact,  circumstantially  as  is  commonly  said.9j  It  must  be  thus 
relevant  at  the  time  when  it  is  offered  in  evidence.9*5 

Criminal  Cases. —  In  criminal,  as  in  civil  actions,  the  admission  must  be 
that  of  a  relevant  fact.'"  The  scope  of  criminal  admissions,  however,  extends 
so  far  as  to  cover  any  probative  or  deliberative  fact,98  as  well  as  one  in  the 
res  gestae,  e.g.,  the  forfms  delicti.™ 

Conditions  of  Probative  Relevancy;  Adequate  Knowledge. —  That  any  state- 
ment should  be  relevant  it  is  necessary,  inter  alia,  that  it  be  made  by  a  person 
possessed  of  adequate  knowledge.1  The  knowledge,  however,  need  not  be  the 
result  of  his  own  observation,  if  the  declarant  regards  the  information  upon 
which  it  is  based  as  accurate  and  is  willing  to  make  the  assertion  as  of  his  own 
knowledge." 


88.  Sadler  v.  Sadler,  1(5   Ark.  628    (1856)  ; 
Thrall   v.   Smiley,  (J  Cal.  f>2!J    ilSSS);    Pierce 
v.  Delamater,  a  How.  Pr.  i  N.  V.  j   162  ( 1847  ). 
2  Chamb  ,   Ev.,  §  1303,  n.  2,  and  oases  cited. 

89.  Field    v.    Hitchcock.    17    Pick     (Mass) 
182,  28  Am.  Deo    288    <1S35>;    Detroit   Elec- 
tric Light,  etc,  Co    v    Applebaum.   132  Midi 
555,  94    N.   \V     12    (1903';    Barries  v     Allen. 

1  Abb.  Dec.  (  X.  V  )   111.1  Keyes  301)  i  IS64  >  : 

2  Chamb  .  Ev.,  §  1303,  n.  3.  and  cases  cited 

90.  Harris     v      Woodard,     40     Mich      40R 
(1879);    Barnes   v.   Allen,   <tupra ;  2   Chaml)., 
Ev.,  §  1303,  n.  4,  and  cases  cited 

91.  2  Chamber layne,     Evidence,     §§     1304- 
1309. 

92.  Morgan  v   Patrick,  7  Ala.  185   (1844^  ; 
Meyers  v.  San   Pedro,  etc.,  R.  Co.,  36  Utah 
307,   104  Pac.  736    (1909). 

93.  Canton  v   McGraw,  67JVId.  583,  11  Atl. 
287    (1887):    Ford  v.  Savage,  111  Mich.  144, 
69  N.   W.  240    (1896). 

94.  Lamar  v.   Pearre,  00  Ga.  377,   17  S.  E. 
92  (1302)  ;  Hooper  v    Browning,  19  Xeb.  420. 
27  N.  W.  410    <18S6):   Reed  v.  McCourt,  41 
X.  Y.  433    '  IsfiO^  ;  2  Chamb.,  Ev.,  §  1304,  n. 
3,  and  cases  cited. 

95.  Beattyville  Coal  Co    v    Uoskins.  10  T\y 
L.   Rep.   1759.  44   S    W    363    (1898);    Croom 
v.  Sugg,  110  X.  C.  259,  14  S.  E.  748   (1892)  ; 


2  Chamb.,  Ev.,  §  1304,  n.  4,  and  cases  cited. 

96.  Keesling  v.   Doyle,   8   Ind.   App    43,   3.') 
X.  E.  12U   i  18!)3)  ;  \\illard  v.  Horsey.  22  Md. 
89    (1864.1.     A   statement  of  a   relevant   fact 
competent  as  an  admission  is  not  within  the 
rule  under  discussion  and  is  competent  though 
not   made  in  connection  with  the  matter  di- 
rectly   involved    in    the    suit.     Polykranas    v. 
Krausx,   77    X     V     Supp    46    (1002).     As   to 
effect  of  remoteness,  see  Mandlebaum  v.  Xew 
York    City     Ry.    Co.,    90    X.    Y.    Supp.    377 
( 1004) 

97.  People  v.   Williams,   150   Mich.  518.   16 
Detroit  Leg    X.  1008,  124  X.  \V.  555    (1910). 

98.  Walker  v.  State,  136  [nd.  663,  36  X.  E. 
356    (1803);    Com.   v    Waterman.    122  Mass. 
43   (1877);   Murphy  v.  People,  63   N'.  Y.  590 
(1876);    2   Chamb.,    Ev.,   §    1304a,   n.   3,  and 
cases  cited. 

99.  U.  S.  v.  Jones,  10  Fed    460.  20  Blatchf. 
(U.  S.)   235   (1882). 

1.  Mittnache  v.   Bache,.  45  X.  Y    Supp    81, 
16   App.  Div    426    (1897):   Folk  v.  Schaeffer, 
180  Pa    613.  37  Atl    104    (1807).     This  rule 
warrants  the  acceptance  in  evidence  of  a  par- 
ty's   admission    as    to    his    asre.     Koester    v. 
Rochester  Candy  Works.  104  NT.  Y.  92,  19  L. 
R.  A.    (N.  S.)   783,  87  X.  E.  77. 

2.  Wasey  v.    Tns.   Co.,    126   Mich.    119,   85 


389  PARTIES.  §  533 

Infants,  Feeble-minded,  Etc. —  If  the  requisite  degree  of  intelligence  for 
adequate  comprehension  appears  to  be  present,  it  is  not  important  whether  the 
declarant  is  or  is  not  of  full  age.  The  declarations  of  an  infant  party  will 
be  received,8  even  where  he  would  not  be  deemed  competent  to  testify  under 
oath.4 

Remoteness. —  For  probative  relevancy,  it  is  essential  that  the  evidence 
should  not  be,  in  the  judgment  of  the  court,  too  remote  in  point  of  time.5 
Subject  to  the  qualification  of  relevancy,  it  is  not  material  whether  the  declara- 
tion in  question  preceded  °  or  followed  7  the  transaction  to  which  it  relates,  or 
was,  on  the  other  hand,  concurrent  with  it.8 

Deliberative  Facts;  Contradictory  Statements. —  A  litigant  may  use  as 
extra-judicial  admissions  by  his  opponent,  statements  made  by  the  latter 
which  tend  to  establish  the  existence  of  facts  deliberative  in  their  nature,'1  i.e., 
those  used  to  test  the  accuracy  and  general  credibility  of  the  evidence  furnished 
by  the  witness;  such  as  statements  by  a  party  inconsistent  on  some  material 
point  v'  with  his  present  testimony.  The  administrative  requirement  n  which 
insists  that  before  a  witness  can  be  shown  to  have  contradicted  his  present 
testimony  on  a  former  occasion,  the  facts  as  to  the  alleged  prior  statements 
mu»t  be  specifically  and  fully  called  to  his  attention  and  his  denial  or  explana- 
tion taken,  is  not,  as  a  rule,  applied  in  case  of  the  former  inconsistent  state- 
ments of  a  party.12 

§  533.  Extra-Judicial  Admissions;  By  Whom  Made;  Parties.1" — An  extra-ju- 
dicial admission  may,  as  is  said  elsewhere,14  be  made  by  a  party  to  the  record 
or  by  any  one  \vho,  under  the  rules  of  substantive  or  procedural  law  is  able  to 
affect  the  party  by  a  statement.15  The  designation  of  "parties"  includes. not 

X.  W   459  (1901)  ;  Redd  v.  McCord,  160  X.  Y  625   (1884)  ;  2  C'hamb.,  Ev.,  §  1307,  n.  4.  and 

330,   .~>4    N.    E.    737    (1899);    Chapman   v.   R.  oases   cited. 

Co.,  26   Wis.   294    (1870);    2   Chamb.,   Ev ,   §  8.  Crowley     v.     Pendleton.     46     Conn.     62 

1305,  n    2,  and  cases  cited.  (1878). 

3.  Chicago  C    R.  Co.  v.  Tuohy,  196  111.  410,  9.  Supra,  §  34;   1  Chamb.,  Ev.,  §  52. 

63   X.  E.  997    i  1902.1  ;   Atchison,  etc.,  R    Co.  10.  Gould  v.  John  Hancock  Mut.  L.  Ins.  Co., 

v.  Potter.  60  Kan   SOS,  58  Pac.  471   i!899).  99    X.    Y.    Supp.    833,    114    App.    Div.    312 

4.  Mather   v.    Clark.    2    Aikens    (Vt.)    209  (1906);     Zonker     v.     Cowan,     84     Ind.     395 
(1827);  -i  Chamb,  Ev.,  §  1306      Intoxication  (1882). 

may  be  shown  to  have  been  such  as  to  make  11.  Supra,  §§  226  et  seq. ;   1   Chamb.,  Ev., 

it  irrational  for  the  jury  to  act  upon  a  state-  §§  463  et  seq 

ment   as   an   admission.     Bruner   v.   Seelbach  12.  Buck  v   Maddock.  167  Til.  210.  47  X.  E. 

Hotel  Co.,  133  Ky.  41.  117  S.  W.  373   (1909).  208    (18971:    Bullard   v.    Bullard.    112    Iowa 

5.  Bryant    v.    Crosby,    40    Me.    9     (1*55):  423.   84   X.  W.  513    (19001:   Root  v.   Brown, 
Smith    v     Emerson.    43    Pa.    456     (1862):    2  4  Hun    (X.  Y.)    797    (1875):   Drury  v.  Terr., 
Chamb..  Ev..  §   1307.  n.  1,  and  cases  cited.  9  Okla.  398.  60  Pac.   101    (1900);   2  Chamb., 

6.  Hall    v.    Bishop,    78    Tnd.    370     (1881):  Ev.,   §    1309.   n.   6,   and   cases   cited. 
Passavant    v.    Cantor,    17    X.    Y.    Supp.    37  13.  2  Chamberlayne,     Evidence.     §§     1310. 
11891);    2   Chamb.,   EV.,    §   1307,   n.   2,   and  1311. 

cases  cited.  14.  Supra.   §   499 :    2   Chamb.,  Ev..   §   1233. 

7.  Rounds  v.  Alee.  116  Towa  345.  89  X.  W.  15.  Green   v.   Gould.   3   Allen    (Mass.)    465 
1098    (19021  :   Gordon  v.  Stubbs,  36  La.  Ann.        (1862)  :  Marx  v.  Hart,  166  Mo.  503,  66  S.  W. 


§  534  ADMISSIONS:  EXTRA-JUDICIAL.  390 

only  those  who  appear  upon  the  record  in  that  capacity,  but  persons  who  are 
actually  parties  without  so  appearing.  Substance  of  interest  rather  than  form 
of  record  is  regarded  as  the  determining  factor.10 

§  534.  [Extra-Judicial  Admissions] ;  Parties  to  the  Record.17 —  The  typical 
admission,  which  the  law  receives,  is  an  assertion  in  words,  a  statement  or 
declaration  made  by  one  who  is  the  opposing  party  of  record  in  the  case  in 
which  it  is  offered.18  Where  the  declarant  is  a  defendant,  it  is  necessary 
that  he  should  have  been  duly  served  with  process.19  But  it  is  not  essential 
that  the  declarant  should  be  sui  juris.  That  the  person  himself  is  an  infant,20 
under  guardianship  as  an  insane  person  21  or  as  a  spendthrift.22  or  is  under 
some  disability,  as  that  of  coverture,23  is  deemed  to  be  immaterial  in  this  con- 
nection. The  declarant's  statement  is  equally  competent  whether  made  before  24 
or  after  25  the  suit  in  which  it  is  offered  was  brought.  A  discontinuance  of 
the  suit  against  him  renders  his  declaration  incompetent ;  26  but  that  he  has 
been  defaulted  has  no  effect.27  Where  a  party's  statements  are  admissible 
only  while  he  is  possessed  of  a  particular  interest,  his  declarations  before  he 
acquired  the  interest,28  or  after  he  ceased  to  have  it,29  are  excluded.  While  the 
extra-judicial  admissions  of  one  on  trial  for  crime  will  be  received  in  evidence 
as  in  civil  cases.30 

Criminal  Cases. —  The  inculpating  statements  of  third  persons,  alleging  their 
commission  of  the  offense  which  is  the  subject  of  the  pending  inquiry  can- 
not be  proved  by  the  accused  in  his  own  favor  as  the  extra-judicial  admissions 
of  such  a  declarant.31  The  death  of  the  declarant  32  or  the  fact  that  the  state- 

260,  89  Am.  St.  Rep.  715   (1901)  ;  Laidlaw  v.  898    (1899)  ;   Morrell   v.  Cawlev,   17   Abh.  Pr. 

Sage,  37   N.   Y.   Supp.   770,  2    App.  Div.   374  (X.  Y.)   76    (1863). 

(1896)  ;  2  Chamb.,  Ev.,  §  1310,  n.  2,  and  cases  24.  Bartlett  v.   Falk.   110  Iowa  346,  81   N. 

cited.  W.  602   (1900). 

16.  Enloe  v.  Sherrill,  28  N.  C.  212   (1845)  ;  25.  Clark  v.  Smith,  87  Til.  App  409  (1899)  ; 
Dotts  v.  Fetzer,  9  Pa.  88    (1848)  ;  2  Chamb.,  Dole  v.  Young,  24  Pick.   (Mass.)   2.10   (1837)  ; 
Ev.,   §    1311,   n.    1,  and   cases   cited.  2  Chamb.,  Ev.,  §  1312,  n.  7,  and  cases  cited 

17.  2  Chamberlayne,     Evidence,     §§     1312.  26.  Bensley  v.  Brockway,  27  111.  App.  410 
1313.  (1888). 

18.  Fagan  v.  Lentz,  156  Cal.  681,  105  Pac.  27.  Ensminger     v.     Marvin,     5     Blackford 
951    (1909);   Koplan  v.  Boston  Gaslight  Co.,  (Tnd.)    210    (1839). 

177  Mass.  15,  58  N.  E    183   (1900)  ;  \Yilliams  28.  Wallace  v.  Miner,  7  Ohio  249    (1835)  ; 

v.  Sargeant,  46  X.   V.  481    (1871):  2  Chamb..  Mclntyre  v    Union  College.  6  Paicre    (X.  Y.) 

Ev.   §    1312,   n.    1,   and   cases   cited.  239    (1837):    2   Chamb..    Ev.,   §    1312,   n.    11, 

19.  Griswold  v    Burroughs.  15  N.  Y.  Supp.  and    cases    cited. 

314.  60  Hun  558   (1891).  29.   Boshear  v.  Lay,  6  Heisk.    (Tenn.)    163 

20.  Chicago  City  K    Co.  v    Tuohy.  supra :       (1S71) 

Haile  v   Lillie,  3  Hill   (X.  Y.)   149   (1S42).  30.  S'i/prfl.  §  527:   2  Chamb.,  Ev.,  §  1290a. 

21.  Hart    v.    Miller.   29   Tnd.   App.   222,   64  31.  State   v    Hack.   118  Mo    92.   23   S.  W. 
N.  E.  239    (1902).  1089    (1893):    People  v.   Schooley.   149   X".   Y. 

22.  Hoit  v  Underbill.  10  X.  H.  220,  34  Am.  99,  43   X.   E.  536    (1896)  -.    2   Chamb.,  Ev.,  § 
Dec.  148   (1839),  1313,  n.  2.  and   cases  cited. 

23.  Ernest  v.  Merritt,  107  Ga.  61,  32  S.  E.  32.  State  v.  West,  45  La.  Ann.  14,  12  So. 

7    (1893). 


391  COPAKTIES.  §§  5U5,  5ut> 

ment  is  part  of  a  death-bed  confession,33  does  not  affect  the  rule.  The  rule 
applies  to  the  statements  of  the  officers  and  o.ther  agents  of  a  corporate  defend- 
ant.34 

§  535.  [Extra- Judicial  Admissions];  Coparties;  Declarant  Affected  as  if  Sole 
Party.35 —  So  far  as  other  considerations  do  not  intervene,  the  declarations  of 
one  of  several  parties  affect  himself,30  to  the  same  extent  as  if  he  were  the  sole 
litigant  on  that  side  of  the  record,  except  where  at  the  time  such  declarations 
were  made  a  rule  of  substantive  law  operated  as  a  bar  to  the  use  of  the 
declaration.37 

Necessary  Prejudice. —  .'But  where  a  statement  of  one  of  the  co-parties  can- 
not be  received  as  an  admission  without  essentially  injuring  the  substantial  rights 
of  the  others,  as  where  the  declaration  in  question  involves  the  existence  of  some 
specific  fact,  as  the  validity  of  a  will,38  or  other  basic  document,39  upon  which 
the  rights  of  all  the  coparties  are  equally  dependent,  the  declaration,  though 
otherwise  competent,  will  be  excluded. 

§  536.  [Extra-Judicial  Admissions] ;  Coparty  Not  Affected.40 —  The  statements 
made  by  a  party  do  not  affect  his  coparties  in  civil  cases,41  whether  of  common 
law,42  divorce43  or  equity  proceedings.44  The  rule  is  the  same  in  criminal 
proceedings.45  Admissions  by  i  conduct,  as  where  a  statement  made  in  the 
presence  of  all  the  parties  may  be  deemed  to  have  been  adopted  46  or  assented 
to  47  by  them  are  not  within  the  purview  of  the  rule. 

Rights  of  C  opart  it. —  The  rights  of  the  coparty  will  be  safe-guarded  by  the 
court,  if  requested.48  That  the  statement  offered  must,  to  a  certain  extent 
necessarily  affect  the  interests  of  the  coparty,  is  not  sufficient  to  warrant  ex- 
cluding it,  if  otherwise  competent.49  A  coparty  cannot,  as  a  rule,  use  the 

33.  West  v.  State,  26  Ala.  08   (1884).  123  Mass.  309  (1877)  :  2  Chamb.,  Ev..  §  1314, 

34.  People  v.  American   Tee  Co..   120  N.  Y.       n.  4.  and  cases  cited. 

Supp.  443    (1900).  40.  2  Chamberlayne,    Evidence,    §§     1315- 

35.  2  Chamberlayne,  Evidence.  §  1314.  1318b. 

36.  Williams    v     Tannton.     125    Mass.    34  41.  Dean  v.  Ross,  105  Cal.  227.  3R  Pac.  912 
(1878):   Petrie  v.  Williams.  23  X.  Y.  Supp.  (1894):    Dowie  v.  DriscolK   203   111.   480,   68 
237,  68  Hun  589   (1893):  Blondin  v.  Brooks,  N.  E.  56    (1903):   Finelite  v.  Sonbenr.  7S  X. 
83   Vt.   472.   76   Atl.    184    (1910):    2   Chamb.,  -Y.    Supp.    338.    75   App.   Div.   455    (1902);    2 
Ev..   §   1314,  n.   1.  and  cases  cited.     Declara-  Chamb..  Ev..  §  1315,  n.  1.  and  cases  cited, 
tions  of  conspirator.     See  note,   Bender  Ed..  42.  Reed  v.  Xoxon.  48  Til.  323    (1868). 
106  X.  Y.  104.  43.  Allen   v.  Allen,  L.   R.    1S94   Prob.   Div. 

37.  Whittaker   v.   Thaver    (Tex.   Civ.   App.  24*. 

1909).  123  S.  W.  1137.  44.  T.eeds  v.  Ins.  Co.,  2  Wheat.   (U.  S.)  380 

38.  Gorham    v.    Moor,    197    Mass.    522.    84       (1817). 

X.    E.   436    (1908);    Tn    re   Myer's    Will.    1*4  45.  2  Chamb.,  Ev..  §  1315. 

X.   Y.   54.   76   X.   E.   920    (1906):    Moore   v.  46.  Bradley  v.  Bri^s.  22  Vt.  95   (1849). 

Caldwell.  27  Ohio  Cir.  Ct.  R    449    (1904):    2  47.   Caldwell    v     Ausrer.    4    }linn.    217.    77 

Chamb..  Ev..  §   1314.  n.  3.  and  cases  cited.  Am.  Dec.  5!5    (I860):    Crippen  v    Morse.  49 

39.  Livingston's   Appeal.    63    Conn.    6S.    26  X.  Y.  63   H872). 

Atl.  470  (1893)  ;  Britton  v.  Worcester  County,          48.  W-'lliams  v.  Taunton,  supra;  2  Chamb., 

Ev.,   §    1316. 


§  536  ADMISSIONS;  EXTRA- JUDICIAL.  392 

statements  of  his  associate  011  the  record  as  against  the  opposing  interest.50 
He  may,  however,  employ  them  in  his  own  favor  as  against  the  declarant.51 

Joint  Offenses. —  It  thus  appears  that  the  rule  admits  the  declaration  of  a 
coparty  as  against  himself,  but  refuses  it  as  against  the  other  even  in  cases 
like  adultery 52  or  other  joint  offenses,  civil 53  or  criminal  where  both  par- 
ticipants are  equally  guilty  or  equally  innocent. 

Exceptions  to  Uule. —  Where  by  a  provision  of  substantive  law  the  declarant 
stands  in  some  relation  of  agency  or  privity,  he  may,  as  a  matter  of  law,  make 
a  statement  which  will  affect  his  copartner  as  an  admission.54  Where  persons 
are  co-operating  in  a  joint  enterprise  the  admissions  of  one  of  them,  within 
the  scope  of  the  common  undertaking,  are  binding  upon  all.55 

Joint  Ownership. —  Whether  the  relation  established  by  substantive  law  be 
that  of  agency,00  privity r<7  or  under  an  independent  rule,  it  is  well  settled 
that  the  statements  of  a  joint  owner  of  real  or  personal  property  58  affect  the 
other  owners,  when  parties  to  the  record,  provided  that  the  other  conditions  of 
adinissibility  are  present.  Among  these  is  a  requirement  that  the  identity  in 
legal  interest  shall  be  clearly  shown  r'°  and  that  the  joint  ownership  must  have 
existed  at  the  time  the  statement  was  made."0  The  rule  applies  equally  to 
cases  at  law  or  suits  in  equity.  Xo  relation  of  joint  ownership  exists  between 
owners  as  tenants  in  common,61  or  between  those  holding  present  estates  and 
persons  interested  in  reversion  or  remainder,  e.g.,  between  a  tenant  for  life 
and  a  remainderman  when  made  parties  to  the  same  action,02  and  the  statements 
of  a  co-owner  affect  only  himself. 

•Joint  Liability. —  The  declaration  of  one  jointly  liable,  on  some  legal 
obligation,63  with  the  party  against  whom  it  is  offered,  is  admissible  as  the 
admission  of  the  other,  when  both  are  parties  to  the  record.  Thus,  the  state- 
ments of  one  jointly  liable  on  a  contract,  written  or  oral,  are  admissible  against 

49.  Rogers    v.    Suttle,     19    111.     App.     163  58.   Pierce  v.  Roberts,  57  Conn.  31,  17  Atl. 
(1885).     Where   prejudice    is   necessary,   the       275   (1889);  Hollenbeck  v.  Todd,  119  111.543, 

rule  is  otherwise.  See  §  535;  2  Chamb.,  Ev.,  8  X  E.  829  (1887)  :  Jackson  v.  McVey,  18 
§  1314,  ns.  2,  3.  Johns.  (N.  Y.)  330  (1820)  ;  2  Chamb.,  Ev.,  § 

50.  Quinlan  v.  Davis,  6  Whart     (Pa.)    169       1318a.  n.  3,  and  cases  cited. 

(1840).  59.  Blenkinsopp    v.    Blenkinsopp,    17    L.   J. 

51.  Cade  v.  Hatcher,  72  Ga    359   (1884).  Ch.  343,  2  Phill.  607   (1848). 

52.  2  Chamb.,  Ev.,  §   1317,  n.  1,  and  cases  60.   Bakeney    v.     Ferguson,     14     Ark.     640 
cited.  (1854). 

53.  Edgerton  v.  Wolf,  6  Gray   (Mass.)   453  61.   Xaul  v.   Xaul,  78  N.  Y.  Snpp    101.  75 
(1856);    Roberts  v.  Kendall.  3  Ind.  App.  339,  App.    Div.  292    (1902). 

29  N.  E.  487   (1891).  62.  McGregor    v.    Wait.    10    Gray    (Mass.) 

54.  Redding  v.  Wright,  49  Minn.  322.  51  X.  72.   69    Am.    Dec.    305    (1857):    Gallagher   v. 
W    1056   (1892):  2  Chamb.,  Ev..  §  1318.  n    1.  Rogers,   1   Yeates    (Pa.)    390    (1893). 

55.  Summerville  v.  Penn  Drilling  Co.,   119  63.  Thomas   v.    Mosher,    128    111.    App.    479 
111.   App.   152    (1905).  (1900).     An   obligation    to   contribute  or    in- 

56.  Infra.   §§   540   et  ser/.;  2   Chamb.,   Ev.,  demnify  is  not  a   joint  obligation.     Rapier  v 
§§    1337   et  seq.  Louisiana  Equitable  L.   Ins.  Co.,  57  Ala.   100 

57.  Infra,  §  539  et  seq. ;  2  Chamb.,  Ev  ,  §§  (1876)  :   Edwards  v.  Bricker,  66  Kan.  241,  71 
1329  et  seq.  Pac.  587    (1903). 


393  NOMIXAL,  PARTIES.  §  537 

his  co-obligors  wbeu  sued  on  tbe  common  obligation.64  Tbey  must,  however, 
concern  tbe  subject-matter  of  tbe  joint  liability.03  !Xo  new  obligation  can  be 
created  in  this  way  ;06  nor  can  the  original  obligation  be  enlarged  by  such  a 
declaration,07  revived  after  it  has  prima  facie  been  paid,6"  a  condition  limiting 
liability  be  removed,  or  the  performance  of  it  waived. uy 

The  Declarant  Must  Be  a  Party. —  It  is  essential  that  the  declarant  should 
have  been  joined  as  a  party  on  the  record  7"  and,  as  such,  properly  served  with 
process.7 1 

Negotiable  Inslnimoits. —  The  joint  obligation  may,  with  equal  effect,  be 
either  a  simple  contract  or  a  promissory  note72  or  other  negotiable  instrument. 

Covenants. —  It  may  be  one  by  way  of  covenant.  For  example,  the  declara- 
tion of  one  joint  lesee  may  be  admissible  against  the  other.73 

Self-serving  Statements. —  One  jointly  liable  with  another  cannot  use  in  his 
own  favor  statements  of  his  co-obligor.74 

§  537.  [Extra- Judicial  Admissions] ;  Nominal  Parties.75 — The  statements  of  a 
nominal  plaintiff 70  or  defendant  77  are  not  received  as  against  the  person 
beneficially  entitled.  But  one  who  takes  upon  the  litigation  by  virtue  of  owner- 
ship of  the  res  takes  its  benefits  cum  onere,  i.e.,  subject  to  the  effect  of  all  state- 
ments made  by  his  predecessor  in  title  while  he  was  still  beneficially  inter- 
ested.78 If  the  fact  stated  is  one  in  which  the  declarant  alone  has  an  interest  79 
or  where,  for  any  reason,  his  admission  would  not  affect  the  interest  of  the 
person  beneficially  entitled,80  it  continues  to  be  competent.  Familiar  instances 
of  the  rules  under  consideration  are  afforded  by  the  extra-judicial  statements 
of  a  guardian  ad  litem  81  or  "  next  friend,"  82  or  general  guardian.83 

64.  Olson    v.    O'Malia,    75    111.    App.    387  74.  Morgan    v.     Hubbard,    66    X.    C.     394 
(1898)  ;  Martin  v.  Root,  17  Mass.  222  (1821)  ;.       (1872). 

Shirk   v.   Brookfield,   79  N.   Y.   Supp.  225,   77  75.  2  Chamberlayne,     Evidence,     §§     1319, 

App.    Div.    295     (1902);    2    Chamb.,    Ev.,    §  1320. 

1318b,  n.   2,  and  cases  cited.     The  share  in  76.  Shailer    v.    Bumstead,    99    Mass.     112 

the   joint   obligation    for   which    the    speaker  (1868);    Eberhardt  v.   Schuster,    10   Abb.   X 

is  liable  is  not  material.     Walling  v.   Roose-  Cas.    (X.   Y)    374    (1879);   Strither  v.  Aber- 

velt,  16  X.  J.  L.  41    (1837).  deen.  etc.,  Co.,   123  N.   C.   197.  31    S.  E.   386 

65.  Fenn   v.    Dugdale,   40   Mo    63    (1867):  ( 1901)  :  2  Chamb.,  Ev.,  §  1319.  n.  1.  and  cases 
Wallis  v.   Randall,   81   X.   Y.    164    (1880):   2  cited. 

Chamb.,   Ev..  §   13I8b.  n.  4,  and  cases  cited.  77.  Day  v.  Baldwin.  34  Towa  380  (1872). 

66.  Thompson    v.    Richards,    14    Mich     172  78.  Sally  v.  Oooden,  5  Ala.  78   (1843) 
(1866).  79.  Hogan  v.  Sherman,  5  Mich    60   (1858) 

67.  IT.   S.   Bank   v.   Lyman.   1   Blatchf.    (U  80.  Nix  v.  Winter.  35  Ala.  309   (1859). 

S.)   297,  20  Vt.  666   (1848).  81.  Cooper     v.     Mayhew,     40     Mich      528 

68.  Rogers  v.  Clements.  92  X.  C.  81   (1885).  (1879)  :   Chipman  v.  R.  Co..   12  Utah  68,  41 

69.  Thompson  v    Richards,  supra.  Pac.  562   (1895) 

70.  Dickinson    v.    Clarke.    5    W.    Va.    280  82.  Buck  v    Maddock,   167   Til.   219.   47   X 
(1872).  E.  208    (1897):  Mertz  v.  Detweiler,  8  Watts 

71.  Derby  v.  Rounds.  53  Cal.  659  (1876).  A  S.    (Pa.)   376   (1845). 

72.  Kosnagle  v   Armstrong,  17  Ida.  246,  105  83.  Knights'  Templar,   etc..    Indemnity   Co. 
Pac.   216    (1909).  v   Crayton.  209  Til.  550,  70  N.  E.  1066   (1904; 

73.  Miller   v.   Mathias,    145    111.   App.    465  2  Chamb.,  Ev.,  §  1319,  n.  10,  and  cases  cited. 
(1908). 


§  533  ADMISSIONS:  EXTRA-JUDICIAL.  394 

Principal  and  Agent. —  An  agent  may  be  sued,  instead  of  his  principal.  He 
is  then  iiot  a  nominal  party,  but  is  identified  in  legal  interest  with  his  principal 
and  his  relevant  statements  are  thus  competent  admissions  in  the  suit  against 
him.S4 

Persons  Acting  in  a  Fiduciary  Capacity. —  Trustees  and  other  persons  act- 
ing in  fiduciary  capacity,  at  law,  are  not  nominal  parties.  The  statements 
of  such  a  party  before  being  duly  qualified  to  discharge  the  duties  of  his 
office  sr>  do  not  affect  the  estate  prior  to  that  time.  If  such  statements  are  made 
while  the  declarant  is  holding  the  legal  title  to  the  trust  property  they  do  affect 
it.86  In  certain  jurisdictions,  the  equitable  view  is  adopted  87  and  fiduciary 
legal  owners  are  deemed  to  be  nominal  parties  88  within  the  rule,  and  admis- 
sions binding  upon  the  trust  fund  can  alone  be  made  by  those  beneficially  in- 
terested in  it. 

S  538.  [Extra-Judicial  Admissions] ;  Persons  Beneficially  Interested.89 —  The 
declarations  of  the  person  beneficially  interested  are  competent  against  the 
nominal  party  representing  his  interest,90  provided  they  are  made  while  the 
declarant's  interest  continues91  and  a  sufficient  interest  shall  have  been  estab- 
lished to  the  satisfaction  of  the  court,  by  evidence  outside  the  statements  of 
the  declarant.92 

Injured  Person  in  a  Criminal  Proceeding. —  The  prosecutor  in  a  criminal 
proceeding,  the  person  alleged  to  have  been  injured  by  the  offense  is  in  no 
proper  sense  a  party  to  the  proceeding  or  beneficially  interested  in  the  result. 
His  statements,  therefore,  do  not  affect  the  government  in  the  trial,  nor  are 
they  admissible  because  of  his  death.  Subject  to  other  rules  of  admissibility, 
e.g.,  that  receiving  dying  declarations,93  admissions  of  accused  by  non-denial 

84.  Johnson  v.  Kerr,   1   Serg.  &   R.    (Pa.)  statements    made    in    the    application    as    to 
25    (1814).  his   health   and   making   contradictory   state- 

85.  Niskern  v   Haydock,  48  N.  Y.  Supp.  895,  ments    but    where    the    beneficiary    has    no 
23   App    Div.   175    (1897)  ;   2  Chamb ,  Ev.,  §  vested  interest  but  is  liable  to  be  changed  by 
1320,  n.  1,  and  cases  cited.  the  insured  such  statements  are  admissible  in 

86.  Dennis  v.   Weeks.  46  Ga.   514    (1872);  evidence.     Knights   of   Maccabees   v.   Shields, 
McRainey  v.  Clark,  4  N.  C.  698    (1878).  156   Ky    270.    160   S.   W.    1043,   49   L.    R    A. 

87.  Titlow  v.  Titlow,  54   Pa.   216,   93   Am.  (N.  S.)   853   (1913). 

Dec.  691    (1867)  89.  2  Chamberlayne.     Evidence.     §§     1321- 

88.  Bragg  v.  Geddes,  93  111  39  (1879)  :  Cal-       1328. 

vert   v    Alvey,   152   X.   C.   610,  68   S.   E    153  90.  Brown  v.  Brown,  62  Kan    666.  64  Pac. 

(1910).  599    (1901):    Shields  v.   Whitaker.   82   N*.   C 

Executor.— Evidence    of    admissions    made  516    '1880):   Fay  v.  Feeley.  18  R.  I.  715.  30 

by  an  executor  that  he  had  unduly  influenced  Atl    342   (1894)  :  2  Chamb.,  Ev..  §  1321,  n    1, 

the  making  of  a  will  is  not  competent  against  and  cases  cited 

the    beneficiaries.     Their    interests    are    not  91.  Shepherd  v.  Hayes.  16  Vt.  486   (1844) 

joint    and    to    permit    him    to    prejudice    the  92.  Smith  v.  Aldrich.  12  Allen   (Mass.)  553 

rights  of  others  would  open  the  door  to  fraud  USfifi)  :    Kinnane  v.    Conroy.   52   Wash    651, 

Re  Fowler.   156  X.  C    340.  72  S    E.  357,  38  101  Pac   223  (1909). 

J,    R.   A.    (N.  S)    745   (191H  93.  Such    dying   declarations    are   only    re- 

The  insured  cannot  prejudice  the  rights  of  ceived    in    case    of    homicide,    under    a    very 

the  beneficiary  in  the  policy  by  denying  tho  restricted  rule.     Com.  v.  Horner,   153  Mais. 


395 


INTERESTED  PERSONS. 


§  528 


of  statements  made  in  his  presence,94  that  the  declaration  is  part  of  the  res 
gestae,9*  or  the  like,96  the  assertions  of  the  prosecutor  are  not  receivable  for*7 
or  against 9S  the  accused.  His  or  her  declarations  viewed  as  admission  of  a 
private  prosecutor,  would  he  mere  hearsay.9* 

Corroboration  and  Impeachment. —  Naturally  such  declarations  of  the  in- 
jured person  may,  upon  ordinary  principles,  he  received  to  corroborate  *  or 
impeach  2  the  evidence  of  the  injured  person  should  he  appear  to  testify.  Thus, 
where  a  question  arises  as  to  whether  a  person  alleged  to  have  been  injured 
by  a  given  act  consented  to  its  perpetration,  statements  at  other  times,  not 
too  remote  from  the  time  of  the  occurrence  to  be  relevant  in  a  probative  sense,3 
may  be  shown  to  establish  or  negative  the  fact  of  consent.* 

Mental  States.—  There  is  a  marked  disagreement  in  opinion  between  the 
courts  in  different  jurisdictions  as  to  whether  the  declarations  of  an  injured 
person  are  admissible  as  to  his  purpose  or  intent  in  visiting  the  scene  of  a 
given  res  gestae.  Naturally,  adopting  the  view-point  of  independent  relevancy, 
judges  have  held  that  where  the  mental  state  is  probative  or  constituent  the 
declarations  of  the  injured  party  logically  tending  circumstantially  to  establish 
it  are  to  be  received.5  On  the  other  hand,  adopting  the  attitude  of  scrutinizing 
the  statement  declaring  the  existence  of  a  given  mental  state  as  an  assertive  one, 
the  conclusion  that  it  should  be  rejected  as  hearsay  has  impressed  certain  tribun- 
als as  inevitable.6 


343,  26  X  E.  872  (1891);  People  v  Davis. 
56  X.  Y.  95  <  1874) ;  State  v.  Harper,  35  Ohio 

St.  78,  35  Am.  Kep.  96  < 1878) ;  2  Chamb., 
Ev.,  §  1322,  n.  1,  and  cases  cited. 

94.  State  v.  Dillon.  74  Iowa  653.  38  N.  W. 
.525      1888)  ;   People  v.  Meyers,  7  N-  Y.  St 
Rep.   217    (1837):    Moore  v.  ^cate,  96  Tenn 
209.  33   <    W.   1046    (1896);   2  Chamb..  Ev., 
§  1322.  n.  2,  and  cases  cited. 

95.  Bow  v    People.   160  111.  438,  43  X.   K. 
593  1 1896)  :  Com.  v.  Hackett.  2  Allen  (Mass.) 
136   (1S61  i  :  Dickson  v   State.  39  Ohio  S- 

I 1SS3)  -.  2  Chamb..  Ev..  §  1322.  n  3.  and  cases 
cited.  As  to  probative  fact?,  see  the  same 
note  and  cases  cited. 

96.  Disqualifications  by  reason  of  infancy  or 
imbecility.     People  v    Quonsr  Kun.  34  X.   Y 
Supp   26ft  (1893)  :  Horn  heck  v.  State.  35  Ohio 
.,t.  277.  35  Am.  Rep.  60S  (1879). 

97.  Oreen  v    State.   112  r,a.  63*.   37   S.  E. 
885     (1900):    Com.    v.    Xott.    1"r.    Ma.«.    W> 
(1883):    2    Chamb.    Ev..   §    1322.    n     5.   and 
cases  cited.     But  see  People  v.  Doyle.   12  X. 
Y    Snpp.  «36.  58  Hun  535    (1800I:   State  v. 
Shorter.  85  S    C    170.  67  S.  E    131      1910). 

98.  People  v  Shattnch.  109  Cal.  673.  42  Pac 
315     (1S95)  :     Com.     v.     Sanders.     14     Orav 

(Mass,  i  394,  77  Am.  Dec.  335  (1860)  :  Davis 
v.  People,  2  Thomps.  &  C.  (X.  Y)  212 


•  1873);  Benedict  v.  State.  44  Ohio  St  679, 
11  X  E.  125  (1887);  2  Chamb.,  Ev,  §  1322, 
n.  6,  and  cases  cited. 

99.  Graves  v.  People,  18  Colo.  170.  32  Pac. 

63  (1893)  :  Com  v.  Chance.  174  Mass  245.  54 
X.    E.    551,   75    Am.    St.    Rep.    306    (1899); 
People  v.  Molineux.  168  X.  Y.  264,  61  X.  E. 
286,  62  L.  R.  A.  193  (1901) ;  2  Chamb  .  Ev  . 
§  1322.  n.  7,  and  cases  cited. 

1.  Dunn  v.  State,  45  Ohio  St.  249r  12  X   E. 
826  (1887). 

2.  Austine  v.  People,  110  HI.  248   (1884); 
Com.    v     Densmore.    12    Allen    (Mass)     535 
( 1866)  :  2  Chamb.,  Ev..  §  1323.  n  2.  and  cases 
cited. 

3.  Tnfra,  §§  640  et  teg. ;  3  Chamb  .  Ev..  §§ 
1709  et  teg. 

4.  State  v.  Perigo.  80  Iowa  37.  45  X.  W. 
399    (1890).     For   example,   on    an    issue   of 
rape,  if  the  prosecutrix  denies,  as  a  witness, 
that  she  made  a  jriven  statement,  the  accused 
should  reasonably  be  permitted  to  show  that 
she  made  it.     Carroll  v    State.  74  Miss.  688, 
22  So    295.  60  Am.  St    T?pp.  539    (1897). 

5.  Hunter  v   State.  40  X.  -T   L   495  MS?*)  ; 
State  v    Ooodrich.   19  Vt.   116.  47   Am    Dec. 
676    (18471 

6.  Adams  v.   State    (Tex    Cr.  App    1901), 

64  S.  W.  1055;  State  v.  Power,  24  Wash.  34, 


§  5o»  ADMISSIONS:  EXTRA-JUDICIAL.  396 

/ 

Res  Gestae. —  A  res  gestae  fact  constituency  relevant  is,  as  has  been  said, 
admissible  per  se.7  Statements  by  an  injured  person  frequently  constitute  im- 
portant facts  in  the  res  gestae.  As  such,  they  are  uniformly  and  unquestion- 
ably admissible;  8 — although  not  by  virtue  of  any  law  or  rule  relating  to  the 
procedural  rules  under  which  admissions  are  received. 

Test  of  Beneficial  Interest. —  He  who  will  be  entitled  to  receive  the  proceeds 
of  success,0  or  a  portion  of  them  or  who  would  be  obliged  to  respond  to  an 
adverse  result  in  the  event  of  failure  10  is  beneficially  interested  within  the 
rule.  The  interest  of  the  proposed  declarant  in  the  issue  of  the  litigation  must, 
morover,  be  direct  rather  than  indirect,11  present  and  actual,  rather  than  future 
and  contingent.  It  should  be  pecuniary  and  proprietary  12  rather  tban  be 
induced  by  a  sentimental  concern  based  on  natural  relationship,13  professional 
connection  14  or  some  similar  cause.  Neither  a  public  prosecutor  in  a  criminal 
proceeding,15  even  one  whose  private  wrongs  rest  on  the  same  facts  on  which 
a  public  prosecution  is  based  and  who,  therefore,  will  be  affected  by  the  issue,16 
nor  a  person  interested  in  the  same  rights  as  are  involved  in  the  pending  litiga- 
tion 1T  are  real  parties  in  interest  within  the  meaning  of  the  rule. 

Persons  Acting  in  Fiduciary  Capacity. —  Where  the  trustee  is  deemed  a 
nominal  party,  the  declaration  of  the  person  whom  he  represents  is  competent.18 
Where  on  the  other  hand  the  trustee  is  regarded  as  being,  at  law,  the  actual 
party  to  the  litigation  the  statements  of  the  cestui  que  trust  are  rejected.19  In 
this  case,  only  the  representative  capacity  of  the  declarant  will  be  regarded.20 
Statements  made  before  the  trustee  acquired  the  representative  capacity,21  and 
'after  he  has  parted  with  it,  or  ceased  to  represent  the  estate,22  are  inadmis- 
sible. 

63  Pac.  1112   (1901)  ;  2  Chamb.,  Ev.,  §  1324,  15.  Green  v.  State,   112  Ga.  638,  37  S.  E. 

n.  3,  and  cases  cited.  885  (1901). 

7.  Infra,  §§  840  et  seq.j  4  Chamb.,  Ev.,  §§  16.  Com.  v.  Sanders,  14  Gray   (Mass.)    304 
2594  et  seq,  (1860);    State  v.  Knock,   142  Mo.  515,  44  S. 

8.  Lander  v.   People,   104   111.   248    (1882)  ;  W.  235    (1898);  2  Chamb.,  Ev.,  §  1326,  n.  9, 
Com.   v.    Crowley,    165    Mass.   509,   43    X.    E.  and  cases  cited. 

509   (1895);  State  v    Kaiser,  124  Mo.  651,  28  17.  Hamlin    v.    Fitch,    Kirby    (Conn.)    174 

S.  \V.  182   (1894)  ;  2  Chamb..   Kv.,  §   1:525,  n.  '   (1786). 

2,  and  cases  cited.  18.  Atchison,  etc.,  R.  Co.  v.  Ryan,  62  Kan. 

9.  Hamblett    v.    Hamblett,    6    N.    H.    333  682,  64   Pac.   603    (1901);    2   Chamh.,    Kv.,   § 
(1833).  1327,  n.  2,  and  cases  cited. 

10.  Bayley  v.  Bryant,  24  Pick.   (Mass.)   19R  19.  Merchants'  L.  Assoc.  v.  Yoakum,  98  Fed. 
(1839)  ;  *Kerchner    v.    Reilly,    72    N.   C.    171       251,  39  C.  C.  A.  56    (1899);   2  Chamb.,  Ev., 
(1875).     This  obligation  must  be  a  le«al  one-.       §  1327,  n.  3,  and  cases  cited. 

a  moral  obligation  does  not  suffice.     Stratford  20.  Charlotte   O.   &    F.   Co.   v.    Rippv,    123 

v.  Sanford,  9  Conn.  275   ( 1832  i .  X.  C.  656,  31   S.  E.  879   (1898). 

11.  Farfield  County  Turnpike  Co.  v.  Thorp,  21.  Horkan  v.  Benning,  111  Ga.  126,  36  S.  E. 
13  Conn.  173   (1839).  432    (1900)  :   Williams  v.  Culver.  39  Or.  337, 

12.  2  Chamb.,   Ev.,   §    1326,   n.   5.  64  Pac.  763   (1901). 

13.  Taylor  v.  Grand  Trunk  R.  Co.,  48  X.  H.  22.  Freeman  v.  Brewster,  93  Ga.  648,  21  S. 
J04,  2  Am.  Rep.  229    (1869).  E.  165   (1894). 

14.  Underwood  v.  Hart,  23  Vt.  120   (1850). 


39' 


PlUVIES. 


539 


§  539.  [Extra- Judicial  Admissions] ;  Admissions  by  Privies.23 —  Upon  the  es- 
tablishment to  the  satisfaction  of  the  judge,24  of  circumstances  which  by  sub- 
stantive law  constitute  a  relation  of  privity  between  the  declarant  and  a  party 
to  the  record  2r>  regarding  real  property  26  or  personal  estate,  the  statements 
made  by  a  party  standing  in  such  relation  are  competent  as  admissions  against 
the  party,  if  made  while  the  speaker  held  the  title  to  the  interest  in  respect 
to  which  privity  is  claimed.27  The  general  rule  is  that  statements  of  relevant 
facts  made  by  persons  owning  real  or  personal  property,  made  during  the  con- 
tinuance of  the  ownership  are  available,  as  admissions,  against  a  successor  in 
title,  when  the  latter  is  a  party  to  a  litigation  concerning  the  property.2* 

Evidence  Primary. —  Declarations  of  this  kind  are,  like  other  admissions, 
primary  evidence.2"  In  impeaching  a  witness  who  testities  as  a  privy  his  in- 
consistent declarations  on  other  occasions  are  competent  for  purposes  of  im- 
peachment though  they  would  not  be  available  against  the  party  himself  as 
admissions,  e.g.,  where  made  after  alienation  of  the  res.30 

independent  Relevancy;  Admissions  Distinguished. —  Unlike  the  statement 
of  a  privy  offered  as  the  admission  of  a  party  to  the  litigation,  the  independently 
relevant  declarations  of  a  privy  are  competent  in  a  litigation  between  third  per- 
sons; :n  they  may  be  received  although  self-serving,32  or  m(ade  after  alienation 
of  the  interest  in  respect  to  which  the  privity  is  claimed.33 


23.  2    Chamherlayne,    Evidence,    §§     1329- 
1336. 

24.  Aiken    v.    Cato,    25    Ga.     154     (1857); 
Houston  v.   McCluney,  S  \\ .  Ya    135    (1874). 

25.  "  The    term    privity    means    mutual    or 
successive  relationship  to  the  same  rights  of 
property.     The    executor    is    in    privity   with 
the  testator,  the  heir  with  the  ancestor,  the 
assignee    with    the   assignor,   the   donee   with 
the  donor,  the  lessee  with   the   lessor."     Mc- 
Donald   v.    Gregory,    41     Iowa    513     (1875). 
Receivers. —  There  is  no  such  privity  between 
successive    receivers    appointed   hy   the   court 
that    the   petition    filed   hy   a    predecessor    is 
admissible     against     one     subsequently     ap- 
pointed.    Liverpool    &    L.    &    O.    Ins.    C'o.    v. 
McNeill    (Or.  1898),  SO  Fed.  131.  32  C.  C.  A. 
173    [certiorari   denied    172   U.   S    647.   19   S. 
Ct.  885,  43   L.  ed.  1182    (1898)1. 

26.  Langley  v.   Andrews.   142   Ala.   665.   38 
NX  238  i  1005) .     Statements  regarding  bound- 
aries in  disparagement  of  extent  of  territory 
claimed    are    within     the    rule.     Towner     v. 
Thompson.  82  Ga.   740.  0  S.  E.  672    (1889); 
Elgin  v    Beckwith.  119  111.  367.  10  X.  E    558 
(1887)  :   Bush  v.  Hicks.  2  Thomps.  i  C.    (X. 
Y.)   356   (1873)  ;  2  Chamb.,  Ev.,  §  1329,  n.  3. 
and  cases  cited. 

27.  Elliott   v.  Western  Coal  &  Mining  Co.. 
243  111.  614,  90  X.  E.  1104    (1910)  :  Floyd  v. 


Kulp   Lumber   Co.,   222   Pa.  257,   71    Atl.    13 
(1908). 

28.  Binney   v.    Hull,   5    Pick.    (Mass.)    503 
(1827):    Brown   v.    Patterson.   224   Mo.   639, 
124  S.  \\*.   1    1 1009  i  :   Jackson  v.  McChesney, 
7  Cow.  (X.  Y.)   360.  17  Am.  Dec.  521    (1827)  : 
2  Chamb.,   Ev..  §  1320.  n.  5.  and  cases  cited. 
See  discussion  of  privity  and  agency  in  gen- 
eral, 2  Chamb.,  Ev.,  §  1328.     Declarations  of 
grantor,  see  note,  Bender  ed..  110  \    Y.  536. 
Declarations  of   donor   after   gift   t. •••!.:   effect 
ineffective,  see  note,  Bender  ed..  194  N"    Y   65. 

29.  Sandifer  v.  Hoard,  59  III.  246   -1871); 
Coit  v.  Howd.   1  Gray    (Mass.)    547    (1854); 
Bristol   v.   Dann,   12   Wend.    (X.  Y.)    142.  27 
Am.  Dec.  122   (1834)  ;  2  Chamb..  Ev..  §  1330, 
n.  1,  and  cases  cited.     They  are  equally  com- 
petent   though    the    declarant    is    present    in 
court    and    available   as    a    witness.     Guy   v. 
Hall.  7  X.  C.  150   (18191. 

30.  Vogt  v.  Baldwin,  20  Mont.  322.  51  Pac. 
157    (1897). 

31.  Steed  v.  Knowles.  97   Ala.   573,   12  So. 
75  (1893). 

32.  See  Guild  v.  Hull,   127   Til.  523.  20  N. 
E.  665    (1889)  ;  Gay  v.  Gay,  26  Ohio  St.  402 

(1875):    2    Chamb.,   Ev..   §    1332,    n.    2.    and 
cases  cited. 

33.  Howell  v.  Howell,  59  Ga.   145    (1877). 


§  539  ADMISSIONS:  EXTRA-JUDICIAL.  398 

Claim. —  For  example,  that  a  former  possessor  of  real 34  or  personal  35  prop- 
erty lias  declared  during  the  time  of  his  possession  36  that  he  owned  it,  is  not, 
indeed,  under  the  rule  against  hearsay,  any  evidence  that  he,  as  a  matter 
of  law  and  fact,  did  own  it.  But  such  declarations  are  evidence  that  the 
possessor  claimed  to  do  so.  They  characterize  his  possession  as  adverse,  and 
so  are  available  to  a  subsequent  holder.  In  general,  such  statements  are  com- 
petent as  to  the  nature,37  extent,38  and  other  essential  features  of  the  possession. 

Disclaimer. —  The  rule  is  the  same  as  to  disclaimer  of  ownership  regarding 
real  39  or  personal  4U  property. 

Mental  Condition. —  The  mental  condition  of  the  declarant,  standing  in  rela- 
tion of  privity  to  the  party  as  to  his  mental  capacity  to  do  certain  acts41 
may  be  material.  If  so  declarations  of  the  predecessor  in  title  tending  sub- 
stantially to  establish  the  existence  of  a  relevant  mental  condition  are  competent. 
They  are  not,  however,  exceptions  to  the  rule  excluding  hearsay,  nor  are  they 
admissions.42 

Mental  State. —  It  may  be  necessary  to  establish  the  existence  of  other 
probatively  relevant  43  facts  in  connection  writh  a  predecessor  in  title.  Among 
the  constituent,  or  res  gestae  44  facts  to  be  established  in  a  given  case  with  regard 
to  a  predecessor  in  title  may  be  the  existence,  on  his  part,  of  a  mental  state 
relevant  to  the  issue.45  This  may  happen  when  it  is  necessary  to  establish 
intent  in  connection  with  domicil,46  the  existence  of  fraud  or  its  absence,  or  in 
making  proof  of  other  facts.47  Assent48  or  knowledge  whether  acquired  by 
notice40  or  otherwise50  stand  in  the  same  position. 

iee    Independent    Relevancy,    in    geaeral,    2  Fellows  v.  Smith,   130  Mass.  378    (1881);   2 

Jhamb.,  Ev.,  §   1331.  Chamb.,  Ev.,  §  1334,  n.  2,  and  eases  cited. 

34.  Peck,  etc.,  Co.  v.  Atwater  Mfg.  Co.,  61  41.  Howell  v.  Howell,  59  Ga.  145    (1877)  : 
:onn.   31,  23   Atl.   699    (1891);    Herscher   v.  Dowie  v    Driscoll,  203  111.  480,  68  N    E.  56 
Crazier,  38  Jll.  App.  654   (1890)  ;  Hurlburt  v.  (1903). 

iurlburt,  128  X.  Y.  420,  28  N.  E.  651,  26  Am.  42.  2  Chamb.,  Ev.,  §  1335. 

5t.  Rep.  482   i  1891)  ;  2  Chamb.,  Ev.,  §  1333,  43.   Briee  v.  Lide,  30  Ala.  647,  68  Am.  Dec. 

i.  1,  and  cases  cited.  148  (1857)  ;  Roeber  v.  Bowe,  30  Hun   (N.  Y.) 

35.  Guy    v.    Lee,    81    Ala.    163,    2    So.    273  379    (1883). 

1886);   Wilson  v.   Albert,  89  Mo.  537,   1   S.  44.  Cook  v.  Knowles,  38  Mich.  316   (1878). 

V.  209   (1886);  2  Chamb.,  Ev.,  §  1333,  n.  2,  45.  Gibbs  v.   Estey,    15   Gray    (Mass.)    587 

i.nd  cases  cited.  (1860)  ;  Norfolk  City  Nat.  Bank  v.  Bridgets, 

36.  Tierney  v.  Corbett,  2  Mackey    (D.  C.)  128  N.  C.  322,  38  S.  E.  888  (1901)  ;  2  Chamb., 
!64   (1883).  Ev.,  §  1336,  n.  3,  and  cases  cited. 

37.  Wisdom  v.  Reeves,  110  Ala.  418,  18  So.  46.  Wilson  v.  Terry,  9  Allen    (Mass.)    214 
3    (1895).  (1864). 

38.  Austin  v.  Andrews,  71  Cal.  98,  16  Pac.  47.  Whitney    v.    Wheeler,    116    Mass.    490 
>46     (1886);    Gratz    v.    Beates,    45    Pa.    495  (1875);    Hopkins   v    Clark,   35   N.   Y.   Supp. 

1863)  ;  2  Chamb.,  Ev.,  §  1333,  n.  5,  and  cases  360,  90  Hun  4   (1895)  ;  2  Chamb.,  Ev.,  §  1336, 

ited.  n.  5,  and  cases  cited. 

39.  New   Jersey   Zinc,    etc.,    Co.   v.   Lehigh  48.  Beecher  v.  Parmele,  9  Vt.  352,  31  Am. 
:inc,  etc.,  Co.,  59  N.   J.  L.   189,  35  Atl.  915  Dec.  633    (1837):   Gibbs  v.  Estey,  supra. 
[1896):    2    Chamb,    Ev.,   §    1334,   n.    1,    and  49.  Fisher  v   Leland,  4  Cush.    (Mass.)   456, 
ases  cited.  50  Am.  Dec.  805    (1849). 

40.  Smith    v.    Page,    72    Ga.    539    (1884);  50.  Bicknell  v.  Mellett,  100  Mass.  328,  35 


390 


AGENTS. 


510 


§  540.  [Extra- Judicial  Admissions];  Admissions  by  Agents.51 — As  related  to 
procedure  in  connection  with  admissions,  the  substantive  law  of  agency  con- 
tents itself  with  declaring  that  the  declarations  of  an  agent,  whenever  such 
statements  would,  under  the  laws  of  agency,  affect  the  principal,52  are  compe- 
tent against  the  latter,  as  his  admissions  whenever  he  appears  as  party  to  an 
action  to  the  issues  of  which  the  fact  stated  by  the  agent  is  relevant. 

Agency  Must  be  Affirmatively  ^hoini. —  Unless  the  fact  be  admitted,53  that 
the  relation  of  agency  itself  exists  between  the  declarant  and  the  party  against 
whom  the  declaration  is  offered  it  must  be  affirmatively  shown,54  by  the  pro- 
ponent of  the  statement,  to  the  reasonable  satisfaction  of  the  judge.  This  may 
be  done  by  direct  testimony  including  that  of  the  agent  himself.55  or  by  a  resort 
to  circumstantial  evidence.56 

Proof  of  Agency  by  Declarations  of  Agent. —  While  the  testimony  of  an  agent 
to  the  existence  of  the  agency  is  unquestionably  competent,57  the  agent's  as- 
sertions are  rejected,58  except  where  ratification  59  or  other  corroborative  or 
confirmatory  evidence  6°  is  submitted  or  promised.  The  evidence  as  a  whole 
must  be  sufficient  to  warrant  the  jury,  as  reasonable  men,  in  finding  the  exist- 
ence of  an  agency.61  The  court  may  accept  the  statement  of  the  agent, 


X.  E.  1130  (1894)  ;  Adams  v.  Bowerman,  109 
X.  Y.  23.  LI  X.  E.  S74  1 1888)  ;  2  Chamb.,  Ev.. 
§  1336,  n.  8.  and  cases  cited. 

51.  2    Chamberlayne,    Evidence,    §§    1337- 
1342. 

52.  Brickell   v.   Camp  Mfg.   Co.,   147   X.   C. 
118,  60  S.  E.  905    (1908)  ;  Tenhet  v.  Atlantic 
Coast  Line  R.  Co.,  82  S.  C.  465,  64  8.  E.  232 
( 1909)  ;  2  Chamb.,  Ev.,  §  1337,  n.  1.  and  cases 
cited.     Admissions  of  servant  against  master, 
see  note,   Bender  ed.,  54  X.  Y.  335.     Admis- 
sibility    of    declarations    showing    necligence 
from  breach  of  duty  by  servant  or  agent  as 
against   principal,   see   note,   Bender   ed.,   106 
N.  Y.   172. 

53.  Bihby  v.  Thomas.   131   Ala.  350,  31  So. 
432   (1901). 

54.  Howell  v.  YV.  F.  Maine  &  Co..  127  Oa. 
574,  56  S.  E.  771    (1907)  :   Pease  v.  Trench. 
197  111.   101,  64  X.  E.  368    (1902):   Walkeen 
Lewis  Millinery  Co.  v.  Johnston,  131  Mo.  App. 
693,  111  S.  W.  639    (1908)  ;   Arnold  v.  Rock- 
land   Lake,   etc.,   Co.,    108    X.   Y.    Supp.   296, 
123    App.    Div.    659    (1908):    Schwalhach    v. 
Chicago,  etc..  R.  Co..  73  Wis.   137.  40  X.  W. 
579   (1888)  ;  2  Chamb.,  Ev.,  §  1338,  n.  2.  and 
cases  cited 

55.  Davis  v.  Anderson,  163  Ala.  385.  50  So. 
1002    (1909);    Connor   v.   Johnson.    59    S.    C. 
115,  37  S.  E.  240    (1900). 

Physician. —  The  plaintiff  is  not  bound  by 
statements  made  by  his  physician  where  the 


defendant  asks  for  a  statement  from  the  at- 
tending physician  and  the  plaintiff  asks  him 
to  make  one  where  the  plaintiff  never  saw  the 
statement  and  did  not  know  what  it  con- 
tained. The  physician  cannot  be  put  in  the 
same  class  with  a  referee  to  whom  the  plain- 
tiff has  referred  a  question.  Aldridge  v. 
.Etna  Life  Ins.  Co.,  204  X.  Y.  83,  97  X.  E. 
399,  38  L.  R.  A.  (N.  fc>.)  343  (1912). 

56.  Porter    v.    Robertson,    34    111.    App.    74 
(1889)  ;   Hannan  v.  Greenfield,  36  Or.  97,  58 
Pac.  888    (1899).;  2  CTiamh..  Ev..  §  1338.  ns. 
4,  5,  6. 

57.  See   last   preceding   section ;    McRae   v. 
Preston,  54  Fla.  190,  44  So.  946    (1907). 

58.  Castner  v.  Rinne,  31  Colo.  256,  72  Pac. 
1052   (1903)  :  State  v.  Oder,  92  Iowa  767,  61 
X.  W.  190    (1894);  Richmond  Iron  Works  v. 
Hayden,   132  Mass.   190    (1882):   Bank  of  X. 
Y.    Banking   Assoc.    v.    American   Dock,    etc.. 
Co.,  143  X.  Y.  559.  38  X.  E.  713    (1894):   2 
Chamb.,  Ev..  §  1339.  n.  2.  and  cases  cited. 

59.  Toledo,  etc.,  R.   Co.   v.   Hsher.   13   Tnd. 
258    (1859):    Marsh   v.   Hammond.    11    Allen 
(Mass.)   483   (1866). 

60.  Louisville,  etc.,  R.  Co.  v.  Tift.  100  Ca. 
86,  27  S.  E.  765    (1896):    Shesler  v.  Patton. 
100    X.    Y.    Supp.    286.    114    App.    Div.    84»> 
(1906). 

61.  Peters  v    Davenport.   104  Towa  625.  74 
X.  \Y.  f.  (1898)  :  Wendell  v.  Abbott,  45  X.  H. 
349    (1864). 


§  540 


ADMISSIONS:  EXTRA- JUDICIAL. 


400 


de  bene,  contingent  upon  the  introduction  of  evidence  showing  the  agency.62 
Statement  Must  be  Within,  Scope  of  Agency. —  t'nder  the  general  rules  of 
agency,  the  statement  must  be  made  within  the  scope  of  the  agency,  actual  or 
constructive.  The  declaration  must  be  made  while  the  agent  is  engaged  on 
the  business  of  the  principal,  and  in  course  of  bona  fide  G;i  effort  to  advance 
his  interests  by  the  statement  which  the  agent  has  made.64 

Specific  Authority  Must  Be  Shown. —  It  is  necessary  not  only  that  the  declar- 
ant be  an  agent  to  do  the  business  on  which  he  is  engaged  at  the  time  of  making 
the  declaration,  but  also  that  he  should  be  authorized  to  make  the  declaration 
itself.''"5  Statements  prior  to  the  delegation  of  power  to  act  as  agent  made  by 
one  who  afterwards  was  given  such  power  are  incompetent  to  affect  one  who 
subsequently  became  the  principal.60  This  rule  holds  even  where,  as  in  case 
of  the  future  officers  of  a  proposed  corporation,67  the  formation  of  the  rela- 
tionship has  been  definitely  prearranged.  Equally  incompetent  to  bind  the 
principal  are  statements  which  are  made  by  the  agent  after  the  relation  of 
agency  has  ended.08  Xor  is  it  material  whether  the  agency  has  been  re- 
voked,69 or  has  expired  by  limitation.  In  the  absence  of  some  proof  of  special 
agency,70  the  near  relatives  71  or  intimate  personal  friends  of  a  party  in  a  civil 


62.  Buist  v.  (Juice,  96  Ala.  255,  11  So.  280 
(1892)  ;  Smith  v.  Dodge,  3  X.  Y.  Supp.  866, 
49  Hun  611    (1888);   2  Chamb.,  Ev.,  §   1339, 
n.  7,  and  cases  cited. 

63.  Sopeland  v.  Boston  Dairy  Co.,  184  Mass. 
207,  68  X.  E.  218  ( 1903 ) . 

64.  Knarston  v.  Manhattan  L.  Ins.  Co.,  140 
Cal.  57,  73  Pac.  740   (1003)  ;  Matzenbaugh  v. 
People,  194  111.  108,  62  X.  E.  546,  88  Am.  St. 
Rep.   134    (1902);    Bergeman  v.  Indianapolis, 
etc.,  R.  Co.,  104  Mo.  77,  15  S.  Vv.  992  ( 1890)  ; 
Keeler   v.   Salisbury,   33   X.   Y.   648    (1865); 
Patterson  v.  United  Arto/ans,  43  Or.  333,  72 
Pac.  1095    (1903);   2  Chamb.,  Ev.,  §  1340,  n. 
2,  and  cases  cited. 

After  agency  has  terminated. —  The  state- 
ment of  an  agent  may  be  admissible  against 
the  surety  even  after  his  agency  has  ceased 
where  it  is  made  in  pursuance  to  a  duty  he 
owes  his  employer.  The  court  sees  no  reason 
why  such  a  statement  should  not  be  admis- 
sible as  part  of  the  res  gestae  when  made  as 
part  of  his  duty  though  his  principal  duty  as 
agent  has  ceased.  United  American  Fire  Ins. 
Co.  v.  American  Bonding  Co.,  146  Wis.  573, 
131  X.  \V.  994,  40  L.  R.  A.  (X.  S.)  661 
(1911). 

65.  Pacific  Mut.  L.  Ins.  Co.  v.  Walker,  67 
Ark.   137,  53  S.  W.  675    (1800):   Sweeney  v. 
Sweeney,    110   Ga.   76,   46   S.   E.   76    (1903); 
Crowley    v     Boston    Elevated    Ry     Co.,    204 
Mass.   241,   90   X.   E.   532    (1910);    Diehl  v. 


\Yatson,  85  X.  Y.  Supp.  851,  80  App.  Div.  44.1 
(1903)  ;  2  Chamb.,  Ev.,  §  1341,  us.  1,  2,  and 
cases  cited. 

66.  Portland     First    Xat.     Bank    v.     Linn 
County  Xat    Bank,   30  Or.   206.   47   Pac.   614 
(1897):    2    Chamb.,    Ev.,   §    1341,   n.    3,   and 
cases  cited. 

67.  Fogg  v.  Pew,  10  Gray   (Mass.)   409,  71 
Am.    Dec.    662     (1858):    Matter    of    Kip,    1 
Paige   (X.  Y.)   601    (1829). 

68.  Atlanta  Sav.  Bank  v.  Spencer,  107  Ga. 
629,  33  S.  E.  878   (1890)  -.  Pomeroy  v.  Fuller- 
ton,  131  Mo.  581,  33  S.  W.   173    (1895)  ;  Dit- 
mars  v.  Sackett,  30  X.  Y.  Supp.  721,  81  Hun 
317    (1804)  ;  2  Chamb.,  Ev.,  §  1341,  n.  5,  and 
cases  cited. 

69.  Loving  Co.  v.  Hesperian  Cattle  Co.,  176 
Mo.    330,    75   S.    W.    1005    (1003):    Small    v. 
McGovern,  117  Wis.  608,  04  X.  W   651  (1003). 

70.  A  statement  made  within  the  scope  of 
an     agency     for     accused     may     be     received 
against  him,  if  otherwise  relevant.     Pierce  v. 
State.    100    Tnd.    535,    10   X.    E.    302    (1SS6): 
Wait  v.  Com.,  24  Ky.  L.  Rep.  604,  60  S.  W. 
607    (1903)  -.  2  Chamb..  Ev.,  §  1341,  n.  7,  and 
cases  cited.     Admissions  by  counsel. —  An  ad- 
mission by  the  defendant's  counsel  in  a  crim- 
inal case  not  made  witli  the  client's  consent 
does  not  bind  him.     State  v.  Beatty.  45  Kan. 
492,  25   Pac.   800    (1801);   2   Chamb.,  Ev.,   § 
1341,  n.  7,  and  cases  cited. 


401  AGENTS.  §  540 

case  or  of  the  accused  in  a  criminal  one  are  not  entitled  to  make  admissions 
which  will  affect  him. 

General  and  Special  Agency. —  Much  with  regard  to  the  actual  or  ostensible 
authority  of  one  acting  for  his  principal  under  a  contract  of  agency  '-  will  be 
found  to  depend,  under  the  substantive  law,  upon  whether  the  agency  itself  is 
general  7;i  or  special.'4 

In  cane  of  a  general  agency  the  powers  necessary  for  or  usually  incident 
to  an  agency  of  the  type  disclosed  will  be  assumed,  in  the  absence  of  evidence 
to  the  contrary,  to  have  been  conferred  upon  the  agent  in  any  particular  case. 
For  example,  the  statements  of  a  general  agent  which  may  be  used  against 
his  principal  are  not  rendered  less  eftiicacious,  nor  js  the  use  of  such  admissions 
impaired  because  of  the  fact  that  the  principal  is  ignorant  of  his  acts,  or  be- 
cause of  any  undisclosed  instructions  or  other  limitations  upon  the  agency 
which  may  exist  unknown  to  the  person  with  whom  the  agent  is  dealing.75 

The  statements  of  a  special  agent  which  may  be  used  against  his  principal 
are  governed  more  strictly  by  the  exact  extent  of  the  scope  of  the  agency. 
Thus  declarations  of  a  special  agent  must,  to  be  competent,  be  within  the  precise 
scope  of  the  particular  authority  delegated  and  must  be  made  while  the 
agent  is  discharging  the  duties  of  the  particular  work  which  has  been  com- 
mitted to  him.76 

The  statements  of  both  general  and  special  agents  are  subject  to  the  applica- 
tion of  the  rules  in  reference  to  the  exclusion  of  declarations  which  do  not 
form  part  of  the  res  gestae  77  or  which  are  merely  narrative.78  The  general 
rule  of  substantive  law  that  an  agent  cannot  delegate  his  authority  without 
the  assent  of  the  principal  does  not  apply  to  ministerial  acts  to  be  performed  by 

the  agent.79 

Opinion  Excluded.—  In  order  that  the  statement  of  an  agent  should  bind 
his  principal,  it  is  essential  that  his  declarations  should  be  one  of  fact;  his 
expressions  of  opinion,  inference,  conclusion,  or  judgment  are  to  be  rejected.8(> 

71  People  v    Dixon,  04   Cal.  255,  29   Pac.       Atl.  910,  92  Am.  St.  Rep.  199,  53  L.  B.  A.  690 
504    (1892);   People  v.  McLaughlin,  35  X.  Y.        (1901).     Principal      in     foreign     country.- 
Supp    73    13  Mist.  287   (1805)  :  Com.  v.  Rob-       Scope  of  general  agent  conducting  business  in 
ins    3   Pick     (Mass)    03    (18251:    2   ("hamb.,       his    absence    enlarged.     Rothschild    v.    Schu- 
Ev'    8  1341    n.  8.  and  cases  cited.  berth,  S  Bosw.   (X.  Y.)  280   (1861). 

72  See    Definitions    of    a-ency,    2    Chamb.,-  76.  Krohn  v.   Anderson.  20   Ind.  App.  379. 
F-     8  134 la    n    1                                                           64   X    E-  621    (]n02) '•   Rowe  v-   Cannev'   139 

'V  Rutland  v.   Southern   Rv.  Co..  81   S.  C.  Mass.  41,  20  X.  F,  219   (1885)  :  Berdan  v.  J. 

448    62  S    E    Sfio    i  ions )       A   general   aarent  M.    Bour   Co..   10   Ohio   Cir.   Ct.    127.   6 

is'one'emploved  in  his  capacity  as  a  profes-  Cir.  Dec   154  ,1800)  :  2  Chamb.,  Ev.,  §  1341a, 

sional  man  or  master  of  an  art  or  trade,  or  n.  5.  and  cases  cited. 

one  to  whom  the  principal  confides  his  whole  77.  Butters    Salt,    etc,    Co.    v.    \ogel. 

busine«  or  all  transactions  or  factions  of  a  Mich.  381.  07  X.  \V.  757   (1004)  ;  infra,  §  542, 

designated  class.     Black's  Law  Diet.  2  Chamb.,  Ev.,  §  1344. 

74     \    special    agent    is    one    employed    to  78.  Infra,  §  542:   2  Chamh.,  Ev.,  §  1346. 

conduct  a  particular  transaction  or  authorized  79.  Bowman    v.    Lickey,    S      Mo.    App. 

to  perform  a  special  act      Black's  Law  Diet.        (1900). 

75.  Carney  v.  Hennessey,  74  Conn.  107.  40  80.  School  Trustees  v.  Mitchell,  /3      1.  App. 


§§  541,  542  ADMISSIONS:  EXTKA- JUDICIAL.  402 

It  is  even  more  essential  than  in  cases  of  direct  statements  by  a  party  81  that 
the  declaration  of  the  agent  should  be  made  upon  the  personal  knowledge  82  of 
the  declarant,  rather  than  based  upon  his  information,  inferences,  or  con- 
jectures.83 

§  541.  [Extra-Judicial  Admissions];  Admissions  by  Agents;  Evidence  is  Pri- 
mary.84—  Admissions  by  an  agent  have  the  same  quality  of  primary  proof  which 
characterizes  other  admissions.85  The  declaration  is  equally  competent  though 
the  declarant  be  in  court  and  available  as  a  witness.80  The  evidence  furnished 
by  the  fact  of  an  admission  is  primary.87  So,  also,  the  statement  continues 
competent  after  the  death  of  the  principal,  if  made  by  the  agent  before  that 
event.88  It  is  entirely  unaffected  by  the  death  of  the  agent.89 

§  542.  [Extra-Judicial  Admissions];  Admissions  by  Agents;  "Res  Gestae  "  in 
this  Connection.90 —  Among  the  many  uses  of  the  term  "  res  gestae  "  is  one  in 
connection  with  the  law  of  agency.01  In  stating  the  rule  that  the  agent  must, 
in  order  to  affect  his  principal  by  his  declaration,  have  been  engaged,  at  the 
time  when  it  was  made,  upon  the  business  of  his  agency,  the  word  "  business  " 
is  Latinized  into  the  familiar  res  gesfae.  The  proposition  is  then  announced 
that  for  the  declaration  of  an  agent  to  affect  the  principal,  it  must  be  made  as 
"  part  of  the  res  gestae."  °2  By  the  courts  of  certain  jurisdictions  it  is  said 
that  his  declaration  must  be  part  of  some  res  gestae  fact  which  it  assists  to 
characterize  and  explain.93 

Spontaneity  Required. —  Under  this  "  res  gestae  rule,"  there  is  another  quali- 
fication. It  is  said  that  the  declaration  of  an  agent  is  competent  as  part  of 
the  res  gestae  when  the  transaction  to  which  it  relates  is  continuing  at  the  time 
of  the  statement  or  so  recently  past  as  to  continue  to  exercise  a  controlling  in- 

543    (1807);   Boston,  etc,  R    Co.  v.  Ordvvay.  90.  2    Chamherlayne,    Evidence,    §§     1344- 

140  Mass.  510,  5  X.  E.  627   (1886)  :  Rhode  v.  1346. 

Metropolitan   L.    Ins.  Co.,   129   Mich.   112,  88  91.  Supra,  §  31;   1  Chamb.,  Ev.,  §  47.     Res 

X.   \V.  400    (1001)  ;    2   C'hamb.,   Ev.,   §    1342,  gestae  as  used  in  the  present  treatise  is  con- 

n.  1,  and  cases  cited.  fined  to  denoting  that  portion  of  the  actual 

81.  Hupra.  §  528;  2  Chamb.,  Ev.,  §  1203.  world-happenings  out  of  which  the  right  or 

82.  McCormick  Harvester  Mach.  Co.  v.  Rip-  liability  asserted  in  the  action  arises,  if  at  all. 
ley,  6  Ky   T..  Rep.  658  (1885).  92.  Luman  v.  Golden  Ancient  Channel  Min. 

"  83.  Ft.   Smith   Oil    Co.   v.    Slover,   58   Ark.  Co.,  140  Cal.  700.  74  Pac.  307    (1003):  U.  S. 

168,  24  S.  W.  106  (1803).  Express  Co.  v.  Rawson,  106  Ind.  215,  6  X.  E. 

84.  2  Chamberlayne,  Evidence,  §  1343.  337    (1885);   Allin  v.  Whittemore.  171   Mass. 

85.  .S'Hpra,  §  527;  2  Chamb..  Ev.,  §  1201,  n.  250,  50  N.  E.  618    (1808)  :   Raker  v.  Temple, 
6.  160  Mich.  318,  16  Detroit  Leg.  X.   1002.   125 

86.  Phenix   Mut.   L.   Tns.   Co.   v.   Clark.   58  N.   W    63    (1010):    Trueadell   v.   Chumar,  27 
X.  H.  164    (  1877)  :  2  Chamb..  Ev..  §  1343,  n.  \.  Y.  Supp.  87,  75  Hun  416  (1804)  :  2  Chamb., 
2,  and  cases  cited.  Ev.,  §  1344.  n.  2,  and  cases  cited. 

87.  Smith   v.  Wallace.  25   \Yis.   55    (1860).  93.  Infra.   §§  051    et  seq. :   4   Chamb.,   Ev., 

88.  Hines  v.  Poole,  56  Ga.  638   (1876).  §§  2085  et  seq.     Waters  v.  West  Chicago  St. 

89.  Van  Rensselaer  v.  Morris,  1  Paige    (X.  R.   Co..    101    Til.    App.   265    (1002):    Fogg  v. 
Y.)    13    (1828);    Howerton    v.   Lattimer,   68  Child,    13    Barb.     (X.    Y.)'    246     (1852):    2 
N.  C.  370  (1873).  Chamb.,  Ev.,  §  1344,  n.  3,  and  cases  cited. 


403  AGENTS.  §  542 

fluence  on  the  mind  of  the  declarant,  thus  excluding  the  probability  of  inven- 
tion.94 In  other  words,  merely  narrative  statements  regarding  past  events 
made  by  an  agent  in  the  full  exercise  of  his  inventive  or  reflective  faculties  are 
excluded.95  They  are  deemed  "  mere  hearsay." 

Xarratice  Excluded. —  Under  the  rule  admitting  statements  as  part  of  the 
res  gestae  a  declaration  narrating  past  events  is,  as  a  rule,  inadmissible  be- 
cause it  is  lacking  in  the  all  important  element  of  spontaneity.  Xarrative 
statements  of  an  agent  are  rejected  under  the  substantive  law  because  it  is  no 
part  of  his  agency  to  talk  about  his  principal's  affairs.  It  has  proved  easy  to 
say,  in  either  case  or  aspect,  that  the  agent's  statement  is  no  part  of  the  res 
gestae.  In  other  words,  the  narrative  statement  of  an  agent  96  as  to  past  trans- 
actions,97 even  those  not  long  past,98  is  excluded,  in  the  two  cases ;  —  although 
by  a  different  rule  and  for  a  different  reason. 

As  a  matter  in  the  law  of  agency,  it  may  be  said  that  an  agent  is  not  in 
general  required  or  authorized  by  the  terms  of  his  agency  to  discuss,  post 
factum?*  his  principal's  conduct  x  or  affairs,  especially  his  legal  rights  or 
liabilities.2  Only  dum  fervet  opus,  while  the  business  is  going  forward,  is 
it  that  the  agent  has  any  mandate  from  his  principal  which  could  empower 
the  agent  to  affect  the  principal  by  his  statements.3  Even  where  the  authority 
continues  until  the  work  entrusted  has  been  completed,4  the  declaration  of  the 
agent  is  competent  against  the  principal  only  when  the  statement  itself  is  an 
authorized  act  of  agency.  The  same  rule  refuses  to  give  any  effect,  as  against 
the  principal,  to  the  admission  of  the  agent  made  after  a  transaction  has  been 
completed.5  The  agent  is  not  at  liberty  to  talk  in  pais  about  a  past  transaction 

94.  Steelier  Lithographic  Co.  v.  Inman,  175  Mich.  218,  75  X.  W.  459    (1898);   Walter  A. 
V   Y.   124,  67   X.  E.  213    (1903)  ;    Shafer  v.  Wood  Mowing,  etc..  Mach.  Co.  v.  Pearson,  64 
Lacock,  168  Pa.  407,  32  Atl.  44,  29  L.  R.  A.  Hun    638,    19    X.    Y.    Supp.    485     (1892);    2 
254   (1895)  ;  2  C'hamh.,  Ev.,  §  1345,  n.  1,  and  Chamb.,  Ev.,  §   1346.  n.  5,  and  cases  cited, 
cases  cited.  1-  Koch  v.   Godshaw,    12   Bush    (Ky.)    318 

95.  See   next    section.     For   an    illustrative  (1876). 

instance  of  the  rule,  see  2  Chamb..  Ev.,  §  1345.  2.  McKenna  v.  Gould  Wire  Cord  Co.,   197 

96.  Cherokee,  etc.,  Coal,   etc.,  Co.   v.   Dick-  Mass.  406.  83  X.  E.  1113   (1908);   Shaver  v. 
eon,  55  Kan.  62.  39  i  ac.  601    (1805)  :  Clarke  Xew  York,  etc..  Transp.  Co.,  31  Hun   (N.  Y.) 
v.   Anderson.    14   Daly    ( X.  Y.)    464    (1888):  55   (1883);  2  Chamb.,  kv.,  §  1346,  n.  7,  and 
2  Chamb.,  Ev.,  §   1346.  n.  2.  and  cases  cited.  cases  cited. 

97.  Silveira  v.  Iversen.  128  Cal.  187.  60  Pac.  S.Adams     v.     Humphreys,     54     Ga.     496 
687     (1000):    Pennsylvania    Co.    v.    Kenwood  ( 1875)  :  Chicago,  etc.,  R.  Co.  v.  Riddle,  60  111. 
Bridge  Co.,  170  111.  645,  40  >    E.  215   (1808):  534    (1871);    Gilmore   v.   Mittineague   Paper 
Geary  v.   Stevenson,   160   Mass.   23.  47   X.  E.  Co.,    160   Mass.    471,   48   X.    E.    623    (1897); 
508   (1897)  :  Kay  v.  Metropolitan  St.  R.  Co.,  Anderson  v.  Rome,  etc..  R.  Co..  54  X.  Y.  334 
163  X.  Y.  447.  57  X.  E.  751    (1000):   Root  v.  (1873):    2   Chamb.,    Ev..   §    1346,   n.    8.   and 
Monroeville.  16  Ohio  Cir.  Ct.  617.  4  Ohio  Cir.  cases  cited. 

Dec.  53   (  1S04)  -.  2  Chamb.,  Ev.,  §  1346,  n.  3,  4.  Union  Bank  v.   Wheat.  58  Mo.  App.   11 

and  cases  cited.  (1894):    Graham   v.    Schmidt,    1    Sandf.    (N. 

98.  Goehring   v.    Stryker    (Pa.    1000).    174       Y.)    74   (1847). 

Fed.    S07:    Rogers    v.    McCune,    19    Mo.    557  5.  Goehring  v.  Stryker.  supra •:  Tillotson  V. 

(1S54).  McCrillis,  11  Vt.  477   (1839). 

99.  Maxson  v.  Michigan  Cent.  R.   Co.,   117 


§  543  ADMISSIONS:  EXTRA-JUDICIAL.  404 

to  the  injury  of  his  principal,  though  the  declarant  took, memoranda  during  the 
progress  of  the  transaction  and  proposes  to  speak  from  them.6  The  same  re- 
sult follows  even  where  the  statement  is  made  by  an  agent  as  a  witness  in 
court.7 

Admissions  May  be  in  Narrative  Form. —  As  a  matter  of  agency,  the  state- 
ments of  the  agent,  where  suitable  authority  is  shown,  not  only  may  be  but 
frequently  are  in  narrative  form.  The  statement  of  a  party  being  rendered 
competent  by  the  rules  of  procedure,8  his  declaration  made  personally  or  "by 
agent,  though  narrative,  is  competent  either  in  a  civil  !)  or  criminal  l"  proceed- 
ing. 

Admissions  by  Conduct.' —  In  case  of  a  party,  or  of  one  identified  with  him 
in  legal  interest  under  the  provisions  of  substantive  law,11  not  only  are  his 
statements,  though  narrative,  received,  the  same  rule  applies  to  his  so-called 
"  admissions  by  conduct."  12  For  example,  where  statements,  though  narrative, 
are  made  in  the  presence  and  hearing  of  the  party  under  circumstances  i:  which 
require  or  permit  his  silence,  partial  statement,  or  other  conduct  rationally  to 
be  construed  as  raising  an  inference  of  acquiescence  in  the  truth  of  the  state- 
ments made,  they  may  be  offered  in  evidence.14 

§  543.  [Extra-Judicial  Admissions];  Admissions  by  Agents;  Independent 
Relevancy  Distinguished.15 — As  distinguished  from  statements,  a  verbal  act  is 
viewed  as  being  complete  in  itself,  not  as  constituting  a  vehicle  for  the  assertion 
of  a  fact.  Generally,  the  term  ''  statement  "  is  broad  enough  to  embrace  both 
the  assertive  declaration  and  the  verbal  act.  There  is,  in  essence,  no  real 
difference  between  the  two  classes  of  fact  which  the  law  of  evidence  persistently 
seeks  to  differentiate.16  While  all  statements  are  verbal  acts,  all  verbal  acts 
are  not  assertions. 

Probative  or  Constituent  Acts  of  an  Agent. —  Verbal  acts  of  an  agent  may 
constitute  or  assist  to  constitute  17  a  transaction  involving  legal  consequences,18 

8.  Morris   v.    Brooklyn   Heights  R.   Co,,   47  13.  Infra,   §§   566   et  seq. ;   2   Chamb.,  Ev.. 

N.  Y.  Supp.  242,  20  App    Div.  .157    (1*97  I.  §§   1418  et  seq. 

7.  Canadian  Bank  of  Commerce  v.  Coumbe.  14.   Lampkin  v.  State,  87  Oa.  516,  13  S    E. 
47  Mich.  358,  11  N.  W.  196   (1882).  523    (1891);    People  v.   Foley,  64  Mich.    148, 

8.  Supra,    §§    56    et    seq.;    1    Chamb.,    Ev.,  3'    N    W.  94    (1887):  2  Chamb.,  Ev.,  §  1346. 
§§  123  et  seq  n    19.  and  cases  cited. 

9.  Gulzoni   v    Tyler,   64   Cal     334,   30   Pac.  15.  2    Chamberlayne,    Evidence,    §§    1347- 
981    (18831:   Tyler   v.   Xelson.    109   Mich    37.  1350. 

66  N".  W.  671    (1896);    Barrett  v    New  York  16.  Infra,   §   837:    4   Chamb.,   Ev.,   §   2580. 

Cent.,  etc.,  R.  Co,   157  N    Y    663    (|899i.   2  2  Chamb.,  Ev.,  §  1347 

Chamb.,  Ev  ,  §   1346,  n.  14,  and  cases  cited.  17.  The   statements  of  an   ajrent  may  con- 

10.  Texas  v.  Davis,  104  Tenn    501,  58  S   W.  stitute   the   basis   upon   which   a   transaction 
122    (1900):   Johnson  v.   State,   8  Wyo.  494,  takes   place.     Lewis   v.    Burns.    106   Cal     381, 
58  Pac.  761    (1899).  39    Pac     778    (1895);    Kelly    v    Campbell,    2 

11.  Supra,  §§538  et  seq.;  2  Chamb,  Ev.,  Abb.  Dec.    (N.  Y.)   492,   1   Keyes  29    (1863); 
§§  1328  et  sten.  2  Chamb  ,  Ev.,  §  1348,  n.  1.  and  cases  cited. 

12.  Infra,   §§   559   et  seq  ;  2   Chamb.,   Ev.,  18.  Ohio,  etc,  R.  Co    v.  Porter.  92   111.  437 
§§  1392  et  seq.  (1879)  ;    Murray  v.  isweasy,  74  X.  Y.  Supp. 


405 


AGEXTS. 


§   5-t3 


as  an  acceptance,19  claim,20  an  oral  contract,21  disclaimer,22  fraud,23  offer,24 
ouster,25  ratification,26  waiver,27  or  the  like,  provided  such  acts  are  done  in 
pursuance  of  the  authority  conferred  by  the  agency  28  or  the  acts  have  been 
ratified  by  the  principal.29 

Impeachment,  Inconsistency,  Etc. —  The  statements  of  an  agent  may  be  used 
to  impeach  his  testimony  30  or  invalidate  his  claim  by  showing  that  it  is  in- 
consistent with  his  present  conduct.31 

Narrative  Statements  Independently  Relevant. —  It  is  by  no  means  material 
in  this  connection  that  the  statements  of  the  agent,  when  used  for  purposes  of 
contradiction  or  proof  of  any  other  deliberative  fact  should  be  in  narrative 
form.32 

Mental  State. —  In  accordance  with  the  general  rule  of  evidence  that  where 
the  existence  of  a  mental  state  by  a  given  person  at  a  certain  time  is  probative, 
the  fact  may  be  proved  by  appropriate  declarations  of  the  person  in  question,33 
the  statements  of  an  agent  may  be  independently  or  circumstantially  relevant 
to  establish  the  existence  on  his  part  of  intent  34  or  intention,33  knowledge,36 
motive,37  or  other  material ;{8  mental  state.39  As  the  statement  is  merely  a 


543,  69  App.  Div.  45  (1902)  ;  Tillyer  v.  Van 
Cleve  Glass  Co.,  13  Ohio  Cir.  Ct.  99,  7  Ohio 
Cir  Dec.  209  (1896)  ;  2  Chamb.,  Ev.,  §  1348, 
n.  2,  and  cases  cited 

19.  Fischer   Leaf   Co.    v.    Whipple.   51    Mo. 
App.  181    (1892) 

20.  Barker   v.   Mackay,    175   Mass.   485,   56 
X.    E.    614     (1900);     Smith    v.    Sargent,    4 
Thomps.  &  Co.  (X   V  )  684  (1874)  ;  2  Chamb.. 
Ev.,  §  1348,  n.  4.  and  cases  cited 

21.  Blessing  v.  Dodds,  53  Ind.  95    (1876)  ; 
Steinhach   v.    Prudential    Ins    Co.,    70   N.   Y. 
Supp.     809,    62     App.    Div.     133     (1901);     2 
Lliamb.,  Ev.,  §   1348.  n.  5,  and  cases  cited. 

22.  Pearson  v.  Adams,  129  Ala.  157,  29  So. 
977   (1900). 

23.  U.  S.  Home  Assoc.  v.  Kirk,  8  Ohio  Dec. 
(Reprint)   592.  9  Cine.  L.  Bui.  48   (1882):  2 
Chamb.,  Ev..  §  1348.  n    7.  and  cases  cited. 

24.  Gray    v.    Rollinsford.    58    X.    H.    253 
(1878). 

25.  Morgan   v.   Short,   34   N.   Y.   Supp.    10. 
13  Misc.  279   (1895). 

26.  U.  S.  v.  Conklin,  1  Wall.    (U.  S.)   644, 
17  L.  ed.  714   (1863) 

27.  Zielke  v.  London  Assur.  Corp  ,  64  Wis. 
442,  25  X.  W.  436     \  885). 

28.  Capital  F.  In*.  Co.  v   Watson.  7f>  Minn. 
387.    70    X.    W.    601,    77    Am.    St.    Rep.    657 
(1899). 

29.  Paul  v.  Berry.  78  Til.  158   H875)  :  Liv- 
ingston   MirUlleclitch    C'o.   v    Xe\v   York   Den- 
tistry College,  64  N.  Y.  Supp.  140,  31  Misc. 


259,  7  N.  Y.  An.  Cas.  398  (1900)  ;  2  Chamb., 
Ev.,  §  1348,  n.  13,  and  cases  cited. 

30.  Pettibone  v.  Lake  View  Town  Co.,  134 
Cal.   227,    66    Pac.   218    (1901):    Stillwell   v. 
Xew  York  Cent.  R.  Co.,  34  X.  Y.  29   (1865)  ; 
2  Chamb.,  Ev  ,  §  1349,  n.  14,  and  cases  cited. 

31.  Roth  v.   Continental   Wire  Co.,  94  Mo. 
App   236,  68  S.  W.  594  (19021. 

32.  Farmers'  Bank  of  Wic-kliffe  v   Wickliffe, 
131  Ky.  787,  116-S.  W.  249:  Riggs  v.  Metro- 
politan St.  Ry.  Co.,  216  Mo.  304,   115  S.  W. 
969   (1909). 

33.  Infra,   §§   847   et  seq.;  4   Chamb.,   EV., 
§§  2643  et  seq. 

34.  Consolidated   Ice  Mach.   Co.   v.   Keifer, 
134  111.  481,  25  X.  E    799,  23  Am.  St.  Rep. 
688,  10  L.  R.  A    696   (1890)  ;  Jones  v.  Jones, 
120    X.    Y.    589,    24    X.    E.    1016     (1890);    2 
Chamb.,  Ev.,  §   1349.  n.  2,  and  cases  cited 

35.  Ball   v.   Bennett,   21   Ind.   427,   83   Am. 
Dec    356   (1863). 

36.  Denver   v.   Cochran,   17   Colo.   App.   72, 
67  Pac.  23    (1902)  ;  Chapman  v.'  Erie  R.  Co., 
55  X    Y.  579   (1874)  :   Youn<i*town  v.  Moore. 
30  Ohio   St.    133    (1876):    2   Chamb..   Ev.,   § 
1349,  n.  4.  and  cases  cited. 

37.  Strohmeyer  v.  Zeppenfeld.  28  Mo.  App. 
268   (1887). 

38.  Evans  v.  Boyle.  94  Towa  753.  64  X.  W. 
619   (1895). 

39.  Georgia   R.   Co.  v.   Smith.   76   Ga.   634 
(1886):    Jones   v.    Jones,    supra;   2    Chamb., 
Ev.,  §  1349,  n.  7,  and  cases  cited. 


§  544  ADMISSIONS:  EXTRA-JUDICIAL.  406 

fact  tending  to  prove  the  existence  of  a  state  of  m-ind  from  which  it  would 
naturally  arise,  it  may  properly  precede  40  or  follow  41  the  time  at  which  the 
existence  of  the  mental  state  is  of  importance. 

Statements  Throuyh  Interpreter. —  The  foregoing  rnles  with  relation  to  the 
statements  of  agents  in  general,  both  as  affecting  the  principal  by  way  of  admis- 
sion or  as  independently  relevant,  apply  equally,  mutatis  mutandis,  to  cases 
where  the  agent  is  an  interpreter.42 

§  544.  Form  of  Extra-Judicial  Admissions;  Adoption.43 — It  is  not  essential  that 
the  statement  should  have  originally  been  made  by  a  party.  It  may  have 
been  the  declaration  of  another  person  and  adopted  by  the  party  as  his  own. 
This  may  be  done  indirectly ;  —  as  where  an  inference  of  acquiescence  arises 
from  silence  under  circumstances  naturally  calling  for  a  reply.44  The  adopted 
statement  may  be  oral,  or,  in  writing;  —  as  where  an  insured  person  or  beue- 
liciary  adopts  the  findings  of  a  coroner's  inquest 45  or  other  written  statement  46 
as  part  of  his  proofs  of  loss. 

Oral. —  The  oral  declaration  of  a  party  is  competent  against  him  under  all  cir- 
cumstances,4 7  even  though  a  written  admission  4S  contained  in  an  instrument  of 
a  formal  character49  upon  books  of  account50  or  in  a  written  contract51 
exists  to  the  same  effect. 

Completeness  will  be  required. —  Where,  therefore,  the  admission  is  con- 
tained in  an  answer  in  response  to  a  question,  the  latter,  so  far  as  reasonably 
necessary  to  the  complete  understanding  of  the  admission,  will  be  received  in 
evidence.52 

Evidence  is  Primary. —  Though  the  declarant  is  present  in  court  and  available 
as  a  witness,  evidence  of  his  oral  statement  will  be  received.  The  "  best  evi- 
dence rule  "  r>;!  so  called,  docs  not  apply  to  admissions,  even  where  the  statement 

40.  International,  etc.,  R.  Co.  v.  Telephone,  46.  Wasey  v.   Ins.  Co.,   126  Mich.   110,  85 
etc.,  Co.,  69  Tex.  277,  5  S.  W.  517,  5  Am.  St.  N.    W.    459     ( 1904 )  ;    Modern    Woodmen    v. 
Rep.  45  (1887).  Kozak,  63  Neb.   146,  88  N.  W.  248    (1901): 

41.  Keough  v.  Scott  County,  28  Iowa  337  2  Chamb.,  Ev.,  §  1351,  n.  3,  and  cases  cited. 
(1869);   Paper  Works  v.  Willett,  1  Rob.    (N.  47.   Leyner    v.    Leyner,    123    Iowa    185,    98 
Y.)    131   (1863).  X.   W.   628    (1904);'  Stewart  v.  Gleason,   23 

42.  Miller  v.  Lathrop,  50  Minn.  91,  52  N.  Pa.  Super.  Ct.   325    (1903)  ;   2  Chamb.,  Ev., 
\v.  274  (1892)  ;  Wright  v.  Maseras,  56  Barb.  §  1352.  n.  1,  and  cases  cited. 

(N.  Y.)    521    (1869);  2  Chamb.,  Ev.,  §  1350,  48.  Bayliss    v.    Cockcroft,    81    N.    Y.    363 

n.  1,  and  cases  cited.  (1880);    Cross  v.   Kistler,    14   Colo.   571,  23 

43.  2    Chamberlayne,    Evidence,    §§    1351-      Pac.  903  (1890). 

1353.  49.  Bimon  v.  Keery,  66  N.  Y.  Supp.  817, 

44.  Infra,  §§   566   et  seq.;  2   Chamb.,   Ev.,       54  App.  Div.  318  (1900). 

§§  1418  et  seq.     As  to  direct  acquiescence,  see  50.  2  Chamb.,  Ev.,  §  1352,  n.  4,  and  cases 

State  v.  Wooley,  215  Mo.  620.  115  S.  W.  417  cited. 

(1908)  ;  State  v.  Peterson,  149  N.  C.  533,  63  51.  Newhall  v.  Holt,  4  Jur.  610,  9  L.  J. 

S.  E.  87   (1908).  Exch.  293  (1840). 

45.  Walther  v.  Ins.  Co.,  65  Cal.  417.  4  Pac.  52.  State   v.    Price,    121    La.    Ann.    53,    46 
413   (1884);  U.  S.  Life  Ins.  Co.  v.  Kielgast,  So.  99  (1908). 

26  111.  App.  567  (1887);  2  Chamb.,  Ev.,  53.  Supra,  §§  227  et  seq.;  1  Chamb.,  Ev., 
§  1351,  n.  2,  and  cases  cited.  §§  464  et  seq.  See  also,  Southern  Bank  of 


ADOPTION.  §§  545,  546 

is  in  writing.     The  copy  of  a  letter,  if  shown  to  be  correct,  is  as  admissible  in 
this  connection  as  iue  IL-H.LT  itsi'lf  would  be  if  produced.54 

Criminal  Cases. —  As  in  civil  cases,  the  criminal  admission  is  primary  evi- 
dence. It  is  not,  therefore,  material  that  the  fact  covered  by  the  admission 
could  have  been  proved  by  the  testimony  of  a  witness  who  is  not  produced.55 

§  545.  [Extra- Judicial  Admissions] ;  References  to  Another.50 —  A  rather 
anomalous  rule  is  that  which  admits,  by  virtue  of  an  agency  thereby  created.57 
statements  of  a  person  to  whom  a  party  has  referred  another  for  information 
which  shall  be  final r'8  regarding  a  given  matter  which  is  uncertain  or  in  dis- 
pute.59 These  statements  by  the  referee  are  admissible,  in  favor  of  the  person 
referred,60  as  against  the  party  referring,  as  the  admission  01  of  the  latter.  If 
the  reference  is  to  a  number  of  persons,  they  must  be  definitely  ascertained  °2 
or  readily  ascertainable.  The  intention,  moreover,  to  refer  must  be  clearly 
shown.63  The  statement  of  the  referee  must  be  one  of  fact  64  and  appear  to 
have  been  made  by  one  who  possesses  adequate  information  on  the  sub- 
ject.05 

§  546.  [Extra-Judicial  Admissions] ;  Writing.6? —  An  admission  may  be  in 
any  written  form  capable  of  conveying  thought  regardless  of  its  formality  and 
of  whether  the  writing  is  valid  for  the  purpose  which  it  seeks  to  accomplish.67 
The  declaration  m!ay  be  received  as  an  admission  although  the  document 
which  contains  it  may  have  been  void  ab  initio  because  contrary  to  law  6S  or 
as  it  was  not  executed  with  the  necessary  formalities  69  or  has  been  avoided  by 
act  of  an  individual  entitled  to  do  so.70  The  only  important  consideration 

Fulton   v.   Nichols,   202   Mo.   300,    100   S.   W.  63.  Robertson  v.  Hamilton,  supra. 

613   (1007).  64.  Lambert   v.    People,   76   N.   Y.   220,   32 

54.  Kelly  v.  MoKenna,  18  Mich.  381   ( 1869) .  Am.  Rep.  293   (1879)  :  2  Chamb.,  Ev.,  §  1354, 

55.  Com.  v.  Kenney,  12  Mete.   (Mass.)  235,  n.  9,  and  cases  cited. 

46  Am.  Dec.  672  (1847).  65.  Hood  v.  Reeve,  3  C.  &  P.  532,  14  E.  C. 

56.  2     Chamberlayne,    Evidence.    §§     1354,  L.  700    (1828).     As  to  action  conditioned  on 
1355.  that  of  others,  see  2  Chamb.,  Ev.,  §  1355,  and 

57.  Duval  v.  Covenhoven,  4  Wend.   (X.  Y. )  cases  cited. 

561    (1830)  :  Jennings  v.  Haynes,  1  Ohio  Cir.  66.  2  Chamberlayne,  Evidence,  §  1356. 

Ct.  22,  1  Ohio  Cir.  Dec.  13  ( 1885)  :  2  Chamb.,  67.  Hickey  v.  Hinsdale,  12  Mich.  99  (1863)  ; 

Kv.,  §  1354,  n.  1,  and  cases  cited.  Morrell  v.  Cawley,   17  Abb.  Pr.    (X.  Y.)    76 

58.  Over  v.  Schiffling,   102  Ind.   101.  26  X.  (1863):    Reis   v.    Hellman.   25   Ohio   St.    180 
E.  91    (1885)  ;  Wehle  v.  Spelman,  1  Hun  (X.  (1874)  :  2  Chamb.,  Ev.,  §  1356,  n.  1,  and  cases 
Y.)    634,    4    Thomps.    &    C.    640     (1874):    2  cited. 

Chamb.,  Ev.,  §  1354,  n.  2,  and  cases  cited.  68.  Ayres  v.  Bane.  30  Towa  518   (1874). 

59.  Robertson    v.    Hamilton.    16    Ind.    App.  69.  Lusk  v.  Throop,  80  111.  App.  509.  aff'd 
328,  45  X.  E.  46,  50  Am.  St.  Rep.  310   (1806).  ISO  111.   127,  50  X.  E.  529    (1000).     Lack  of 

60.  Cohn  v.  Goldman,  76  X.  Y.  248  (1870).  delivery  seems  to  preclude  a  statement  con- 

61.  Craig  v.  Craig.  3  Rawle   (Pa.)   472,  24  tained  in  the  document  so  retained  from  hav- 
Am.  Dec.   390    (1832)  ;   McElwee  Mfg.   Co.  v.  ing  effect  as  an  admission.     United  Press  v. 
Trowbridge,  22  N.  Y.  Supp.  674,  68  Hun  28  A.  S.  Abell  Co..  80  X.  Y.  Supp.  454,  79  App. 
(1893).  Div.  550   (1003). 

62.  Rosenbury    v.     Angell,     6     Mich.     508  70.  Indianapolis  Chair  Mfg.  Co.  v.  Wilcox, 
(1859).  59  Ind.  429   (1877). 


§  547  ADMISSIONS:  EXTRA-JUDICIAL.  408 

is  that  the  party  has  made  it.71  The  responsibility  of  the  party  for  the 
document  in  question,  his  having  written,  authorized  or  ratified  it,  must  be 
clearly  shown.  Surmise  or  conjecture  is  not  sufficient.72 

§  547.  [Extra-Judicial  Admissions] ;  Book  Entries.™ —  Written  admissions  are 
frequently  contained  in  book  entries.74  In  fact,  entries  in  books  of  account 
which  the  party  himself  has -made75  or  which  are  made  by  others  under  his 
supervision  or  control,70  are  among  the  most  commonly  employed  vehicles  for 
written  admissions.  As  the  only  fact  of  importance  is  that  the  party  made 
the  entry  or  is  responsible  for  it,  the  form  in  which  the  book  containing  it  is 
kept,77  or  the  nature  of  the  book  itself  is  of  but  little  consequence,  in  relation 
to  adinissibility.  The  book  may  be  only  a  "  blotter "  78  or  it  may  be  torn 
or  otherwise  mutilated.70  The  proponent,  however,  cannot  select  such  of  a 
series  of  connected  items  as  serve  his  purpose  and  exclude  the  rest.  The 
entries  that  help  his  adversary  are  equally  competent  so  long  as  they  are 
connected  with  those  introduced  as  admissions.80  But  the  opponent  cannot 
produce  in  evidence  another  book,  in  no  way  related  to  the  first,81  and  use  it  for 
his  own  purpose. 

Banks. —  Books  kept  by  a  bank  in  its  business  may  be  received  in  evidence 
arid  the  relevant  statements  therein  contained  pointed  out  to  the  court  as 
admissions  made  by  the  bank.82  The  depositor's  bank  book  —  which  the 
bank  keeps  for  the  depositor,  showing  amounts  placed  in  the  bank's  custody 
by  the  depositor  is  admissible  against  the  institution.83  If  the  bank  keeps  its 
accounts  with  its  customer  on  an  envelope,  the  piece  of  paper  would  be  equally 

71.  Facts  essential  to  the  validity  or  oper-  burg  City  F.   Ins.   Co.   v.   Frothingham.    122 
ation  of  a  document  may   be  established  by  Mass.  391    (1877)  ;  Nelson  v.  New  York,  131 
parol  evidence.     Saunders  v.  Dunn,  175  Mass.  N.  Y.  4,  29  N.  E.  814   (1892)  ;  2  Chamb.,  Ev., 
164,  ,55   N.   E.   893    (1900):    2   Chamb.,   Ev.,  §  1357,  n.  3,  and  cases^cited. 

§  1356,  n.  5,  and  cases  cited.  77.  Loewenthal  v.  McCormick,  101   111.   143 

72.  Rex  v.  Lawrence.  25  N   Zealand  L.  Rep        (1881). 

129   (1905).     Adoption  by  Party.— A  litigant  78.  Beyle  v.  Reid,  31  Kan.  113,  1   Pac.  264 

may  give  the  force  and  eJl'ect  of  an  admission  (1883). 

to  any  document  statements  of  which  be  sees  79.  McLellan  v.  Crofton,  6  Me.  307   (1830). 

fit  to  adopt  as  his  own.     Weidner  v.  Olivit,  96  80.  Dewey    v.    Hotchkiss,    30    N.    Y.    497 

N.  Y.  Supp    37,  108  App.  Div.  122   (1905).  (1864)  :  Rowan  v.  Chenoweth,  49  W.  Va.  287, 

73.  2    Chamberlayne,    Evidence,    §§     1357-  38  S.  E.  544    (1901). 

1363.  81.   Bently  v.  Ward,  116  Mass.  333  (1874)  ; 

74.  German  Nat.  Bank  v.  Leonard.  40  Neb.       Doolittle  v.  Stone,  supra. 

676,  59  N.  W.   107    (1894):   infra,  §§  977   et  82.  Johnson  v    Culver,  116  Ind    278,  19  N. 

seq.;  4  Chamb.,  Ev.,  §§  3051  et  seq.  E.  129  I  1888)  ;  Com.  v.  Ensign.  40  Pa.  Super 

75.  Com.  v.  Clark,  145  Mass.  251,  13  N    E.       Ct.  157   (1909). 

888    (1887);    Doolittle   v.    Stone.    136   N     Y.  83.  Nicholson  v.  Randall  Banking  Co ,  130 

613,  32  NT.  E.  639  (1892)  :  Hallec-k  v.  State,  11  Cal.  533,  62  Pac.  930   (1900)  :  Atlanta  Trust, 

Ohio  400  (1842)  ;  2  Chamb.,  Ev.,  §  1357,  n.  2,  etc.,  Co.  v.  Close,  115  Ga.  939,  42  S.   E.  265 

and  cases  cited.  (1902)  :   Jermain  v.  Denniston.  6  N.  Y.  276 

76.  San    Pedro    Lumber    Co..    v.    Reynolds,  (1852):    2   Chamb.,   Ev.,  §    1358,  n.   2,  and 
121  Cal.  74,  53  Pac.  410   (1898);   Williams-  cases  cited. 


409  BOOK  ENTRIES.  §  5-17 

admissible.84  It  is  not  necessary  to  produce  the  clerk  who  actually  made 
the  entry.83 

Loan  Agencies,  Railroads. —  The  admission  may  be  contained  on  the  books 
of  a  loan  agency.86  Books  kept  by  railroad  agents  are  within  the  rule.87 
The  report  of  a  railroad  company  to  the  tax  assessors  may  be  competent 
against  the  company  in  proceedings  for  the  abatement  of  taxes  assessed  on 
the  basis  of  that  particular  report.88 

Admissions  of  Non-owner  of  Books. —  The  entry  set  forth  on  a  book  of 
account  may  be  used  as  containing  the  admission  of  a  person  other  than  the 
owner  or  keeper  of  the  book  or  of  some  principal,  for  whom  he  is  lawfully 
acting.  This  may  happen  where  the  other  party  to  the  transaction  makes 
the  entry  himself  upon  the  book  of  his  associate  in  the  agreement,  sale  or  the 
like,89  or  he  sees  or  is  informed,  without  objection  on  his  part,  as  to  the  fact 
and  nature  of  the  entrv.90  The  rule  is  the  same  where  the  entrv  is  made  by 

v  */  •/ 

mutual  consent  of  the  parties,  as  the  settlement  of  their  accounts.91  Where 
a  clerk  makes  an  entry,  relating  to  himself,  and  his  employer  has  occasion 
to  sue  him,  the  entry  then  becomes  the  admission  of  him  who  made  it.92 
In  other  words,  an  entry  by  A.  upon  his  own  books,  made  against  B.  is  the 
admission  of  B.  if  B.  has  in  any  way  consented  to  its  correctness.93  Should 
a  merchant,  tradesman  or  the  like  write  upon  the  pass  book  held  by  the  cus- 
tomer an  entry  concerning  the  delivery  of  goods,  etc.,  the  entry  is  the  admis- 
sion of  the  seller.94  The  effect  of  the  pass  book  has,  however,  been  limited 
to  the  matter  of  receipt  of  goods,95  the  question  of  fairness  of  price  being 
proved  in  some  other  way.  Where  a  clerk  makes  upon  his  employer's 
books  an  entry  favorable  to  himself,  he  is  entitled  to  show  the  fact  and  the 
silence  of  his  principal  or  employer  as  constituting  an  admission  by  the 
latter.96 

When  Original  Entries  Need  Not  be  Produced. —  Where  the  object  of  the 

84.  L'Herbette  v.  Pittsfield  Isat.  Bank,  162       (1898)  ;  Earle  v.  Reed,  10  Mete.   (Mass.)  387 
Mass.  137,  38  X.  E    368,  44  Am    St.  Rep    354        (1845) 

(1894).  92.  Williamsburg  City  F.  Ins.  Co.  v.  Froth- 

85.  Watson     v.     Phoenix     Bank,     8     Mete  ingham,  supra ;  Lucas  v.  Thompson.  27  N.  Y. 
(Mass)    217,  41  Am.  Dec    500   (1S44).  Supp    659.   75   Hun   584    (1894):    Stetson   v. 

86.  Dexter   v.   Berge,   76  Minn    216.   78   X.  New    Orleans    City    Bank.    12    Ohio    St.    577 
W.  1111   (1899).  (1861)  :  2  Chamb.,  Fv  ,  §  1360,  n.  4,  and  cases 

87.  Louisville,  etc  .   R.  Co.   v.   McGuire.  79  cited. 

Ala.  395    (1SS5)  :    Root  v.  Great  Western   R  93.  Bartlett  v.  Tarhox,  1  Abb   Dec.   (X.  Y.) 

Co.,  55  X.  Y.  636.  affg  65  Barb    619   (1873).       120.   1  Keyes  495    (1864):   Halleck  v.   State, 

88.  Atchison,    etc..     Ry.     Co.     v.     Sullivan       11  Ohio  400  ( 1842) . 

(Colo.  1909).  173  Fed.  456,  97  C.  C    A.  1:2  94.   Folsom  v.  Grant,  136  Mass.  493  (1884)  ; 

Chamb.,  Ev.,  §  1359.  Ruck  v.  Fricke,  28  Pa.  241    (1857). 

89.  Rembert  v    Brown,  14  Ala    360  (1848).  95.  Hovey  v.  Thompson.  37  111.  538  (1865). 

90.  Reviere  Y.   Powell.   61   Ga.   30,   34   Am  96.  Wiggins  v.  Graham.  51  Mo    17   (1872); 
Rep.     94     (1878);     Tucker     v.     Stephens.    4  Rockwell  v.  Merwin.  1  Sweeney   (X.  Y.)   484, 
Thomps.  &  C.  (N.  Y.)  593  (1874)  :  2  Chamb..  8  Abb.  Pr.    (N.  S.)    330,  aff'd  45  N.  Y.  166 
Ev..  §  1360,  n.  2,  and  cases  cited.  (1869). 

91.  McDavid    v.    Ellis,    78    111.    App.    381 


§  548  ADMISSIONS:  EXTRA-JUDICIAL.  410 

evidence  is  to  prove  that  the  opposite  party  admitted  or  assented  to  the  cor- 
rectness of  an  account,  the  book  of  original  entries  need  not  be  produced.97 
Xor,  on  the  other  hand,  where  the  party  has  admitted  the  correctness  of  a 
particular  account,  is  it  necessary  to  produce  the  ledger,  though  it  appear 
that  the  items  have  been  posted.98 

Effect  of  Agency. —  Upon  familiar  principles,  an  entry  not  made,  adopted 
or  authorized  by  the  party,  does  not  in  general,  affect  him  as  his  admission." 

Banks. —  Where  the  parties  to  the  transaction  have  each  deposited  in  the 
same  bank  and  the  institution  is  the  common  agent  for  both  in  keeping  their 
accounts,  its  books  are  admissible  against  either  of  the  parties  in  favor  of 
the  other  as  being  authorized  admissions.1 

Partnersh  ip  Books. —  The  entries  upon  partnership  books,  made  by  the 
partners,  or  one  of  them  or  by  their  authorized  clerks  and  employes,  are  the 
admissions  of  all  partners  who  had  access  to  the  books.2 

Real  Estate. —  The  books  of  a  real  estate  agent  do  not  affect  the  principal 
where  the  latter  had  no  right  to  make  entries  upon  the  books,  or,  in  any  way, 
exercise  supervision  and  control  over  them.3 

Independent  Relevancy. —  Where  the  relevant  fact  is  that  certain  entries  are 
on  the  books,  and  that  therefore  a  party  knew  of  them,  rather  than  that  they 
are  correct,  the  fact  that  the  books  are  incorrectly  kept,  in  that  other  items 
also  should  have  been  entered,  is  not  material.4 

§  548.  [Extra- Judicial  Admissions] ;  Business  Documents.5 — t  Business  docu- 
ments other  than  book  entries  such  as  contracts,6  reports,7  settlements,8  and  the 
like,9  which  are  commonly  used  in  the  ordinary  transaction  of  business,10  may 
well  constitute  the  vehicle  for  an  admission.  A  favorite  form  of  written 
admission  is  the  account  stated,  or  account  rendered.11  Applications  for  in- 
surance policies  may  stand  in  the  same  position.12 

97.  Snodgrass  v.   Caldwell,  90  Ala.   319,  7  6.  Springer   v.    Chicago,    37    111     App.    206 
So.    834     (1890);     Darlington    v.    Taylor,    3  ( 1890)  ;  Lynch  v.  Troxell,  207  Pa.  162,  56  Atl 
Grant  (Pa)    195  (1855).  413   (1903). 

98.  Stetson     v.    Godfrey,    20    N.    H.    227  7.  Roche  v.  Llewellyn  Iron  Works  Co.,  140 
(18f)0);  2  Chamb,  Ev.,  §  1361.  Cal.   563,   74   Pac.    147    (1903);    Merrill   N'at. 

99.  Davison  v    West  Oxford  Land  Co.,  126  Bank  v.   Illinois,  etc..  Lumber  Co.,   101   Wis. 
N.  C.  704,  36  S.  E    162    (1900);   2  Chamb.,  247,  77  N.  W.  185    (1898);  2  Chamb,  Ev.,  § 
Ev .,  $   1362,  n.   1,  and  cases  cited.  1364,  n.  2,  and  cases  cited 

1.  Oliver  v.  Phelps,  21  X.  .1.  L   597   (1845).  8.  Miller  v.   Campbell   Commission  Co.,    13 
CONTRA:     Perrine    v.    Hotchkiss,    58    Barb       Okl    75,  74  Pac.  507    (1903). 

(N.  Y.)    77    (1870)  9.  Putnam   v.   Gunning,   162   Mass.   552,   39 

2.  Eden  v.  Lingenfelter,  39  Ind    19  (1872):  N.    E.    347     (1895);    Weidner    v.    Olivit.    188 
Tucker  v.  Peaslee.  36  N.  H.  167   (1858)  ;  Fair-  N.  Y.  611,  81  N.  E.  1178   (1907)  :  2  Chamb.. 
child  v.  Fairchild,  64  X    Y.  471,  aff'g  5  Hun  Ev..  §  1364.  n    4.  and  cases  cited 

407    i  1876)  ;  2  Chamb  ,  Ev.,  §  1363,  n.  1,  and  10.  Ackerman  v.  Berriman,  113  N.  Y.  Supp. 

cases  cited.  1015    (1909). 

3.  McKeen  v.  Providence  County  Sav  Bank,  11.  Wotherspoon  v.  Wotherspoon,  49  N.  Y 
24  K.  I    542,  54  Atl.  49  (15)02)  Super.   Ct     152    (1883):    Thorn   v    Smith,   71 

4.  Foster  v    Fifield,  29  Me    136   (1848).  Wis.  IS,  30  X    W.  707 

5.  2  Chamberlayne,  Evidence,  §  1364.  12.  Trudden  v    Metropolitan  Life  Ins.  Co.. 


411  COMMERCIAL  PAPER;  LETTERS.  §§  549,  550 

§  549.  [Extra-Judicial  Admissions] ;  Commercial  Paper.13 —  Promissory  notes,14 
specialties  under  seal,1"'  and  other  negotiable  instruments  or  other  specimens 
of  commercial  paper  may  be  used  in  evidence  as  containing  admissions. 

§  550.  [Extra-Judicial  Admissions] ;  Letters.16 —  Official  business  or  social  let- 
ters are  equally  available  for  the  proof  of  admissions. ,  It  must,  however, 
be  shown  by  the  proponent  that  the  party  against  whom  the  admission  is 
offered  is  responsible  for  the  letter.  This  may  be  done  (1)  by  affirmative 
evidence  that  he  has  written  it,17  (2)  that  the  actual  writer  had  been  previ- 
ously authorized  to  make  the  statement  by  the  party  against  whom  it  is  now 
offered,  or  (3)  that  the  latter,  upon  adequate  information,  has  ratified  the 
deed  of  one  who  without  previous  authority  has  acted  as  his  agent.18  Under 
any  of  these  circumstances,  the  statements  are  competent  against  the  writer,19 
although  the  person  offering  the  evidence  is  not  the  one  to  whom  the  letter 
was  originally  sent.20  The  writing,  if  written  by  or  for  the  party  to  be 
affected  by  it  as  his  admission,  may  well  have  been  written  to  any  third 
person,  the  writer's  attorney  21  or  even  to  a  newspaper.22 

Completeness  Required. —  Where  an  admission  is  said  to  be  stated  in  a 
letter,  the  admitting  party  is  entitled  to  have  the  whole  letter  or  even  the 
entire  correspondence  of  which  it. forms  a  part  so  far  as  relevant  placed  be- 
fore the  tribunal.23  This  he  may  himself  do  at  a  subsequent  stage  of  the 
trial,24  unless  the  proponent  puts  in  the  entire  correspondence,  as  tending  to 
explain  the  crucial  statements  on  which,  in  reality,  he  is  relying.25  Where 
a  part  of  a  letter  has  gone  in  evidence  anything  in  it  which  tends  to  explain 

64  X.  Y.  Supp.  183,  50  App.  Div   473  (1900)  ;  18.  Neely  v.  Xaglee,  23  Cal    132    (1863). 

Taylor  v.  Grand  Lodge  A.  O    U.  W.  of  Minne-          19.  Conant  v   Evans.  202  Mass  34,  88  N.  E 

sota,  101  Minn.  72,  111  X.  W.  919   (1907).  438   (1909);   Rapp  v.  Platt,  117  X.  Y    Supp. 

13.  2  Chamberlayne,  Evidence,  §  1365.  987    (1909)  -.   Russell  v.  Weiler,  28  Ohio  Cir. 

14.  Travis  v.  Barger,  24  Barb    (X.  Y.)  614  Ct.  176    (1905)  ;  Griffin,  etc.,  Co.  v.  Joannes, 
(1857)  ;   Hennessy's  Estate,  4  L    T.    (X.  S.)  80  Wis.  601,  50  N.  W.  785  (1891)  ;  2  Chamb., 
(  Fa.)  9   1 1882)  ;  2  Chamb.,  Ev.,  §  1365,  n.  2,  Ev.,  §  1366,  n.  3,  and  cases  cited. 

and  cases  cited.     It  is  not  necessary  that  the  20.  Downey    v.    Taylor     (Tex.    Civ.    App. 

document    itself    should    actually    have    been  1898),  48  S    W.  541:  Little  v.  Keyes,  24  Vt. 

shown  to  a  party  to  make  his  admission  of  118   (1851)  ;  2  Chamb.,  Ev.,  §  1366,  n.  4,  and 

its    genuineness    competent.     It    is    sufficient  cases  cited 

that  it  has  been  read  to  him  and  has  received  21.  Lyle  v.  Higginbotham,  10  Leigh    (Va.) 

his  assent.     Stewart  v.  Gleason,  23  Pa.  Super  63  ( 1839) 

Ct.  325  i  1903).  22.   Beecher  v.  Pettee.  40  Mich    181   (1879). 

15.  Jobe    v.     Weaver.     77    Mo.     App      660  23.  Stringer  v    Breen,  7   Ind    App.  557.  34 
(1898)  :   Lefevre  v    Silo.  98  X.  Y.  Supp    321.  X.  E.  1015   (1893)  :  Trischet  v.  Hamilton  Ins 
112    App.   Div.   464    (1006):    2   Chamb..   Ev.,  Co.,  14  Gray   (Mass,    456    (I860):   Raymond 
§  1365,  n    1,  and  cases  cited.  v.  Rowland.   17   Wend.    (X.  Y)    380    (1837); 

16.2    Chamberlayne,    Evidence,    §§    1366-  2  Chamb  ,  Ev  .§  1367,  n.  1,  and  cases  cited. 

1370.  24.  Supra.  §§  272  et  seq.;  1  Chamb.,  Ev., 

17.  Quarles    v.    Littlepage,    2    Hen.    &    M.  §§  518  et  seq. 

(Va.)   401.  3  Am.  Dec.  637    (1808):  McDer-  25.  Buffum  v.    York   Mfg.   Co.,    175   Mass, 

moot  v.  Mahoney,  139  Iowa  292,  115  N.  W.  471,  56  N.  E.  599  (1900). 
32.   116  N.  W.   788    (1908):    2  Chamb.,  Ev., 
§  1366,  n.  1,  and  cases  cited. 


§   550  ADMISSIONS:  EXTRA-JUDICIAL.  412 

or  qualify  the  portion  of  the  document  which  is  used  is  also  admissible.26 
A  litigant  cannot  produce  a  letter  which  evidently  is  an  answer  to  a  previous 
part  of  the  correspondence  without  submitting  the  latter  27  or  accounting  for 
its  absence  by  showing  that  it  has  been  lost,28  or  is,  for  some  other  reason, 
beyond  his  power  to  produce.  If  it  is  beyond  his  power  to  produce  the  letter, 
he  must  prove  its  contents,  or  leave  the  other  party  to  do  so,  if  the  latter's 
knowledge  is  more  complete  on  the  subject  than  his  own.29  A  party  cannot, 
however,  put  in  evidence  his  own  self-serving  letter  merely  because  it  was 
written  in  reply  to  a  letter  from  his  opponent.30 

The  general  rule  as  to  completeness  does  not  apply  to  cases  where  a  party 
seeks  to  put  in  evidence  a  letter  received  by  him  from  a  third  person  in 
reply  to  a  letter  of  his  own.  He  is  not  required  to  prove  the  contents  of  his 
own  letter,  or  produce  it,  as  a  preliminary  to  introducing  the  letter  received 
by  him  when  the  sender  is  dead  or  is,  for  some  other  reason,  beyond  his 
power  to  exhibit  as  a  witness,  e.  g.,  where  the  sender  is  out  of  the  jurisdic- 
tion.31 Where  it  is  intended  to  offer  only  a  special  and  particular  admission, 
not  affected  by  the  rest  of  the  correspondence,  the  proponent  of  the  admission 
need  not  produce  the  entire  series  of  letters.32  This  is  especially  reasonable 
as  a  rule  where  the  letter  offered  in  evidence  explains  itself.33  The  sender 
of  the  letter  is  not  entitled  to  insist  that  the  entire  writing  shall  be  received 
in  evidence,  in  such  a  way  as  to  give  him  the  benefit  of  his  own  self-serving 
statements.34  The  letter  to  which  the  one  containing  the  competent  statement 
is  itself  in  reply,  need  not  be  produced  35  nor  its  absence  explained.36  Nor 
is  it  material  that,  on  account  of  the  death  of  the  declarant,  the  person  pro- 
ducing his  letter  could  not  testify  against  his  estate  to  the  same  facts  as  are 
admitted  in  the  document  itself.37 

Criminal  Cases. —  The  rules  regulating  the  operation  of  the  canon  of  com- 
pleteness in  this  connection  are  equally  applicable  in  criminal  38  as  in  civil 
cases. 

Self-serving  Statements  Not   Competent. —  Letters  and   the  like,   not  sent 

Walker  v.  Griggs,  28  Ga.  552    (1859)  :  31.  Hayward   Rubber  .Co.   v.  Duncklee,   30 

Glover  v.   Stevenson,   126   Ind.  5.32,  26  N.   E.  Vt    29   (1856) 

486   (1890);  2  Cliamb.,  Ev.,  §  1367,  n.  4,  and  32.  Stone    v     Sanborn,    supra:    Dainese    v. 

cases  cited.  Allen.  45   How.   TV     (N.   Y.)    430    (1873);   2 

27.  Belmont  Coal  Co   v.  Richter,  31  W.  Va.  Chamb ,  Ev..  §  1367,  n.  10.  and  cases  cited. 
858,  8  S.  E.  609   (1888).      .  33.  Brayley  v.  Ross.  33  Iowa  505   (1871). 

28.  Failure  to  make  such  a  submission  and  34.  Leslie  v.  Morrison.   16  U.  C.  Q.  B.   130 
even   the   voluntary   destruction   of   the   con-  (1858). 

nected    documents    by    the    producing    party  35.  Wiggin  v.   Boston,  etc.,  Co.,   120  Mass, 

have  been  held  merely  to  affect  the  probative  201    (1876). 

weight  of  the  admission  shown.     Stone  v.  San-  36.  Mortimer  v.  Wright,  4  Jur.  465,  9  L.  J. 

born,  104  Mass.  319,  6  Am    Rep.  238   (1870)  Exch.  158  (1840). 

29.  Newton  v.  Price,  41  Ga.  186   (1870).  37.  Harriman    v.    Jones,    58    N.    H.    328 

30.  Houde  v    Tolman,  42  Minn.  522,  44  N.  (1878). 
W.  879   (1890). 


413  NOTICES,  ETC.  §§  551-553 

to  the  opposite  party  or  some  one  whose  acts  affect  him  are  not,  as  a  rule, 
receivable  iii  the  writer's  favor.39 

M  inor  Details. —  It  has  been  considered  better  practice,  where  the  pro- 
ponent desires  to  use  only  a  portion  of  a  letter  as  a  written  admission  thatv 
he  should  produce  in  evidence  the  entire  document; — reading  to  the  'jury 
such  parts  as  he  relies  upon  and  leaving  his  opponent  to  do  the  same.40 
Where  a  portion  of  the  letter  is  missing,  the  document  itself  is  competent 
unless  it  appear  that  the  portion  which  is  absent  is  material  and  cannot  be 
supplied.  The  opponent  is  not  at  liberty  to  refuse  to  assist  in  solving  the 
question  of  materiality  and  simply  insist  upon  the  rejection  of  an  uncompleted 
letter.41 

§  551.  [Extra- Judicial  Admissions] ;  Obituary  Notices.42 —  Obituary  notices 
stand  in  much  the  same  position  as  that  occupied  by  tax-lists.43  Assuming 
that  the  declarant  is  possessed  of  adequate  knowledge  the  feelings  deemed 
appropriate  to  the  writing  of  such  a  composition  excuse,  if  they  do  not  justify, 
such  lack  of  precision  in  statement  as  to  remove  all  evidentiary  quality.44 

§  552.  [Extra-Judicial  Admissions] ;  Official  Papers.45 —  Public  records,  such 
as  accounts,  inventories,46  schedules  47  and  other  probate  or  bankruptcy  pro- 
ceedings may  contain  relevant  admissions  of  a  party.  It  is  deemed  essential, 
however,  that  the  statements  should  be  properly  connected  with  the  party 
himself,  e.  g.,  where  he  has  personally  made,  revised  48  or  otherwise  adopted 
them.49  Statements  in  records  of  various  kinds  may  be  used  in  this  way.50 
The  returns  of  officers  upon  writs,  executions,  and  the  like  may  constitute 
admissions  of  the  official  whose  acts  they  purport  to  record.51 

§  553.  [Extra-Judicial  Admissions] ;  Professional  Memoranda.52 —  Abstracts  of 
title,53  books  of  claims,54  and  other  legal  documents  or  writings  used  in  pro- 

38.  Humph  v.   State,  91   Ga,  20.   16  S.   E.       (1856)  -.  2  Chamb.,  Ev.,  §  1372,  n.  1,  and  cases 
104   (1892)  :  Com.  v.  Harden,  163  Mass.  453,       cited. 

40  X.  E.  846   (1895)  ;  2  Chamb.,  Ev.,  §  1368,  47.  Rankin  v.  Busby  (Tex.  Civ.  App.  1894), 

n.  1,  and  cases  cited.  25  S.  W.  678 

39.  Snow  v.  Warner.  10  Mete.   (Mass.)   132,  48.   Henkle  v.   Smith,  21    111.  238    (1859): 
43  Am.  Dec.  417    (1845);   J.  K.  Armsby  Co  Downs  v.  New  York  Cent.  R.  Co.,  47  X.  Y. 
v.  Eckerly,  42  Mo.  App.  299  ( 1890)  :  2  Chamb  .  83   ( 1871 ) . 

Ev..  §  1369,  n.  1.  and  cases  cited.  49.   Rich  v.  Flanders.  39  X.  H   304  (1859)  ; 

40.  Lester  v.  Piedmont,  etc..  Ins.  Co.,  55  Ga        Klatt  v.  X.  C.  Foster  Lumber  Co.,  92  Wis.  622, 
475     (1875);    Raphael    v.    Hartman,    87    111.       66  X.  W.  791   (1896). 

App.  634  ( 1899  ) .  50.  Lyon  v.  Phillips.  106  Pa.  St.  57  (1884)  ; 

41.  Van  Vechten,  20  X.   Y.   Supp.   140.   65  2  Chamb.,  Ev..  §  1372.  n.  5.  and  cases  cited. 
Hun  215  (1892:)  2  Chamb..  Ev..  §  1370.  51.  Woodward     v.     Larking.     3     Esp.     286 

42.  2  Chamberlayne.  Evidence.  §  1371.  (1901). 

43.  Infra,  §  554;   2  Chamb..,  EV..  §  1374.  52.  2  Chamberlayne.  Evidence.  §  1373. 

44.  Hull's   Will.    117   Towa   738,   89   N.   W.  53.  Ege   v.    Medlar,   82    Pa.    86    (1876);    2 
979   (1902)  ;  2  Chamb..  Ev..  §  1371.  Chamb.,  Ev.,  §  1373. 

45.  2  Chamberlayne,  Evidence.  §  1372.  54.  Webster    Mfg.   Co.   v.    Schmidt.    77    111. 

46.  Dupuy  v.  Harris,  6  B.  Mon.   (Ky.)  534      App.  49  (1897). 
(1846):    Morrill    v.    Foster.    33    N.    H.    379 


§§   554-556  ADMISSIONS:  EXTKA-JUDICIAJ..  414 

fessional  work  in  law  or  conveyancing  may  be  introduced  into  evidence  as 
containing  admissions. 

><  554.  [Extra-Judicial  Admissions] ;  Tax  Lists.55 —  So  far  as  the  written  return 
required  or  permitted  by  law,  of  property  subject  to  assessment  made  by 
the  owner  for  purposes  of  taxation,  contains  an  enumeration  of  the  property 
of  the  taxpayer,  it  has  been  held  by  certain  courts  that,  in  view  of  the  motives 
which  may  be  assumed  to  have  actuated  the  declarant,  no  quality  of  an  evi- 
dentiary value  should  attach  to  a  statement  so  made.56  On  the  other  hand, 
it  has  been  strenuously  insisted  that  good  faith  to  the  cause  of  justice  forbids 
that  a  man  should  not  be  held  to  the  truth  of  a  solemn  declaration  under  oath, 
and  the  party  is  accordingly  affected  by  the  declaration  not  alone  as  an  ad- 
mission operating  directly  as  to  the  fact  of  ownership,  or  lack  of  it ;  57  but 
as  a  circumstance  tending  to  establish  the  fact  as  to  whether  the  declarant 
claimed  38  or  did  not  claim  59  to  own  it.  The  declarant  may  not  when  acting 
in  entire  good  faith  be  possessed  of  competent  knowledge  regarding  the  value 
of  his  property.60  He  may  be  more  or  less  warped,  consciously  or  uncon- 
sciously, by  the  financial  penalty  attached  to  placing  a  high  valuation.  A 
statement  made  under  these  circumstances  is  not  available  as  an  admission 
on  the  question  of  value.61 

§  555.  [Extra-Judicial  Admissions] ;  Temporal  or  Ephemeral  Forms  of  Writing.62 
-  The  writing  containing  the  admission  need  not  be  of  a  permanent  nature. 
A  newspaper  article,63  and  even  more  fugitive  publications,  are  equally  ad- 
missible with  the  most  solemn  instrument.  It  is  not  even  essential  that  the 
admission  should  have  been  committed,  as  a  whole,  to  the  writing.64  The 
computation  of  interest  on  a  note,05  mathematical  calculations,66  the  footings 
of  bookkeepers  °7  and  the  like,  will  be  received. 

§  556.  [Extra-Judicial  Admissions] ;  Transmission  by  Telephone.68 —  Oral  ad- 
missions may  be  communicated  by  any  means  usually  employed,  as  through 

55.  2  Chamberlayne,  evidence,  §  1374.  792    (1893);    Randidge  v.  Lyman,   124  Mass. 

56.  Tuckwood    v.    Hanthorn.    67    Wis.    326,  361    (1878)  ;  2  Chamb.,  Ev.,  §  1374,  n.  7,  and 
30  N.  W.  705   (1886).  cases  cited. 

57.  Comstock  v.  C.rtndle,   121   Ind.  459.  23  62.  2  Chamberlayne,  Evidence,  §  1375. 

N.  E.  494   (1S89)  ;  Mifflin  Bridge  Co.  v.  Juni-  63.  Edwards  v.  Watertown,  13  X.  Y.  Supp. 

ata  County,  144  Pa.  365,  22  Atl.  896.  13  L.  R.  309,  59   Hun  620   (1891).     Southern  Pac.  Co. 

A.  431    (1891);  2  Chamb.,  Ev.,  §   1374,  n.  2,  v.  Godfrey   (Tex.  Civ.  App.   1908).  107  S.  \V. 

and  cases  cited.  1135,  railroad  folder  or  time-table. 

58.  Washburn  v.  Dannenberpr  Co.,   117  Oa.  64.  Manning  v.   City  of  Lowell,   173  Mass. 
567,  44  S.  E.  97   (1903)  ;  Lefever  v    Johnson,  100,  53  N".  E.  160  (1899). 

79  Ind    554   (1881)  65.  Harris  v.  Burley.  10  X.  IT.  171    HS39). 

59.  Lefever  v.  Johnson,  oipra;  Whitfield  v.  66.  Pendexter   v.    Carleton,    16    X.    IT.    482 
Whitfield,  40  Miss.  352   t'    •'"  i .  (1845) 

60.  This  is  still   more  ••lear  where  the  de-  67.   Rutler  v.  Cornell,  148  111   276.  35  X.  E. 
clarant  is  not  the  owner.     San  Jose,  etc.,  R  767    (1893i  :   2  Chamb..  Ev.,  §   1375.  ns.  6,  7, 
Co.  v.  Mayne.  83  Cal.  566.  23  Pac.  522  ( IS90) .  and  cases  cited. 

81.  Swaim  v.  Swaim.  134  Ind   596,  33  X.  E  68.  2  Chamberlayne,  Evidence.  §  1376. 


415  SCOPE.  §  557 

a  telephone  operator,69  or  by  the  direct  use  of  the  telephone  itself.70  .  The 
rule  is  the  same  even  in  criminal  cases,71  provided  the  speaker  be  properly 
identified.72 

§  557.  Scope  of  Extra-Judicial  Admissions.73 — In  general,  such  a  statement 
carries  all  fair  inferences  with  it.74  There  are,  however,  obvious  limits  as 
to  how  far  an  inference  should  reasonably  extend.  It  is  not,  for  example, 
a  reasonable  inference  to  presume  the  existence  of  a  fact  from  its  express 
denial.75 

Contents  of  a  Writing. —  The  rule  laid  down  by  the  English  courts  76  that 
the  contents  of  a  written  instrument,  even  the  most  form,al,  may  be  established 
by  an  oral  admission  as  to  what  they  are,  has  been  followed  in  certain  Ameri- 
can jurisdictions.77  The  English  rule  has  not  been  adopted  by  other 
tribunals  either  as  proof  of  contents  78  or  of  the  execution  79  of  the  document. 

Criminal  Cases ;  Facts  of  Conduct. —  Admissions  in  criminal  cases  may 
cover  any  probative  fact  in  the  conduct  of  the  accused.  It  may  be  shown,  for 
example,  by  the  admissions  of  the  accused  that  he  has  fled  from  justice,80 
attempted  to  break  jail  81  or  aided  the  escape  of  others.82  The  fact  that  such 
statements  by  an  accused  may  show  the  commission  of  other  crimes  furnishes 
no  ground  for  excluding  them.83  The  doing  of  other  criminal  r.cts,  how- 
ever, cannot  be  shown  by  the  prisoner's  admissions  for  the  mere  purpose  of 
discrediting  him  or  showing  bad  character.84 

Physical  Facts. —  Any  physical  or  bodily  facts  affecting  the  prisoner  in  a 
probative  way  may  be  established  by  his  admissions.  Thus,  he  may  prove 
his  own  age  85  or  race  86  or  the  fact  that  he  has  been  married  87  by  an  ad- 

69.  Sullivan  v    Kuykendall,  82  Ky.  483,  56       App.    355     (1894);     Cooley    v.    Collins.    186 
Am.  Hep.  901    (1885).  Mass.  507.  71   X..  E.  979    (1904);   2  Chamb., 

70.  Godair  v.  Ham  Nat.  Bank,  225  111.  572,      Ev.,  §  1378,  n.  2,  and  cases  cited. 

SO   X.   E.   407    (1007);    Star   Bottling  Co.  v.  78.  Jameson  v.  Conway.  10  111.  227  (1848); 

Cleveland  Faucet  Co.,  128  Mo.   App.  517,  100  Hasbrouck  v.  Baker,   10  Johns.    (X.  Y.)    248 

S.  W.  802  (1908)  :  2  Chamb.,  Ev.,  §  1376,  n.  2,  (813). 

and  cases  cited.     See  Rimes  v.  Carpenter,  114  79.  Palmer  v.  Manning,  4  Den.   (X.  Y.)   131 

N.  Y.  Supp.  06,  61  Misc.  614   (1909).  (1847). 

71.  People  v   Ward,  3  X.  Y.  Cr.  483  (1885).  80.  Thomas   v.   State.    100   Ala.   53,    14   So. 

72.  Stepp  v.   State,  31   Tex.  Cr.  :UO,  20  S.  621    (1892). 

W.  753   (1892).  81.  State  v.  Jackson,  95  Mo.  623,  8  S.  W. 

73.  2    Chamherlayne.    Evidence.    §§    1377-       749   (1888). 

13S2.  82.  Campbell  v.  State.  23  Ala.  44  (1853). 

74.  Sloan   v.   Digjrins,   40   Cal.   38    (1874):  83.  Gore  v.  People.   162  111.  250.  44  X.  E. 
Rendlemann    v.    Willard,    15    Mo.    App.    375       500   (1806). 

(1884)  :  Xew  York  Ice  Co.  v.  Parker,  8  Bosw.  84.  Henderson  v.  Com.,  16  Ky.  L.  Rep.  289, 

(X.  Y.I   688    (1861)  :  2  Chamb..  Ev.,  §  1377,  27  S.  W.  808   (1804)  :  2  Chamb.,  Ev.,  §  1379, 

n.  1,  and  cases  cited.  n.  5. 

75.  Clarendon  v.  Weston,  Ifi  Vt.  332  (1844).  85.  People  v.  Tripp,  4  X.  Y.  Leg.  Obs.  344 

76.  See  Slatterie  v.  Pooler,  fi  M.  &  \Y.  664  (1846). 

HS60)  :    2    Chamb.,   Ev.,    §    1378,   n.    1.   and  86.  Bell  v.  State,  33  Tex.  Cr.  IfiS.  25  S.  W. 

cases  cited  "60    (1*041. 

77.  Denver,  etc.,  R.  R.  v.  Wilson,  4  Colo.          87.  Tucker  v.  People,  117   111.  88,  7  X.  E. 


§  558  ADMISSIONS:  EXTEA-JUDICIAL.  416 

mission.  The  identity  of  one  accused  of  crime  may  be  admitted  by  him.88 
Mental  Conditions. —  Declarations  of  accused  are  receivable  as  admissions 
to  establish  mental  conditions,  as  the  mental  capacity  necessary  for  the  com- 
mission of  crime.89  Even  the  conclusion  or  inference  on  the  part  of  the 
accused  is  competent  against  him,  regarding  this  matter.90  The  declaration 
of  the  prisoner  that  he  was  feigning  insanity  at  a  given  time  will  be  received 
against  him  as  an  admission.91 

Mental  State. —  Declarations  of  accused  are  admissible  to  show  the  exist- 
ence of  mental  states.  Thus  the  government  may  show  that  the  prisoner  has 
admitted  having  guilty  knowledge.92  Such  an  admission  may  either  directly 
allege  the  existence  of  the  mental  state  or,  on  the  other  hand,  it  may  assert 
the  existence  of  probative  facts  from  which  the  mental  state  may  be  inferred, 
for  example,  where  the  accused  says  he  committed  other  crimes  the  effect 
of  which  is  to  show  guilty  knowledge  on  the  occasion  in  question.93  Criminal 
intent  94  may  be  established  in  the  same  way. 

§  558.  Probative  Force  of  Extra-Judicial  Admissions.05 —  Extra-judicial  ad- 
missions range  in  probative  force  from  the  faintest  trace  of  probability  up  to 
statements  which  carry  an  overwhelming  weight  of  conviction.06  So  great 
is  the  effect  of  variations  in  deliberateness,97  lack  of  motive  to  misrepresent, 
means  and  extent  of  knowledge,  and  the  like,  that  it  would  be  impossible 
with  any  approach  to  logical  accuracy  to  speak  of  the  probative  value  of 
admissions  as  a  class.  It  is  possible,  however,  to  make  certain  deductions 
with  confidence.  In  the  absence  of  an  estoppel,  extra-judicial  admissions 
are  not  conclusive.98  It  may  fairly  be  said,  further,  that  in  so  far  as  any 
particular  admission  is  one  in  the  popular  sense,  its  probative  force  is  in- 
creased.99 Likewise,  where  a  declarant  makes  a  statement  obviously  con- 
trary to  that  which  he  knows  to  be  his  pecuniary  or  proprietary  interest,  or 

51    (1886);    Stanglein   v.   State,    17   Ohio   St.  94.  State   v.    Long,    103    Ind.   481,   3   N.   E. 

45.3   (1807)  ;  2  Chamb.,  Ev.,  §  1380,  n.  4,  and  169    (1885).     Compare   People  v.   Corhin,   56 

cases  cited.  X.  Y.  363,  15  Am.  Kep.  4-27    (1874). 

88.  Com.  v.  Gay,   162  Mass.  458,  38  X.  E.  95.  2    Chamberlayne,    Evidence.    §§     1383- 
112    (1894);    State  v.   Elhvood,   17   R.  1.  763,  1391. 

24  Atl.  782   (1893).  96.   Pence   v.   Makepeace.   65   Ind.   345,   365 

89.  State   v.    Kring,    74    Mo.    612    (1881);  (1879);   Lipsey  v.  People,  227   111.  364,  81  X. 
People  v.  Tripp.  supra.  E.  348    (1907). 

90.  State  v.  Kring.  supra.  97.   Holmes  v.   Connable,   111   Iowa  298.  82 

91.  Cogswell   v.  Com.,   17  Ky.  L.  Rep.  822,  X.  \V.  780   (1900)  :  State  v.  Mickle.  25  I'tali 
32  S.  \V    935    (1895);  2  Chamb.,  Ev.,  §  1381.  179,   70    Pac.   S56    (1902):    2   Chamb.,   Ev.,   § 
n.  5,  and  cases  cited.  1383.  n.  2,  and  cases  cited 

92.  Com.  v.  Crowe,  165  Mass.  139.  42  X.  E.  98.  Cooper  v    Central  R.  Co..  44  Iowa   134 
563    (1895):   State   v.  Hogard.   12  Minn.  293  (1876 1:    State   v.   Shorter.   85   S.   C.    170.   67 
(1867)  ;  2  Chamb.  Ev.,  §  138-.  n.  1.  and  cases  S.  E    131    (1910). 

cited.  99.  Simeone    v.    Lindsay     (Del.    1907),    65 

93.  Com.  v.  Edgerly.  10  Allen    (Mass.)    184       Atl.  778. 
(1865)  ;  infra,  §§  1012  et  seq.;  4  Chamb.,  Ev., 

§§  3228  et  seq. 


417  WEIGHT.  §  555 

which  charges  himself  with  the  doing  of  acts  which  clearly  carry  criminal 
liability.1 

Criminal  Cases. —  The  prosecution  in  a  criminal  case,  is  not  by  offering 
the  admission  of  an  accused  person,  concluded  by  it,  in  any  sense  which 
could  estop  it  from  denying  the  truth,  in  point  of  fact,  of  any  portion  of  the 
prisoner's  statement.2 

Judicial  Estimates;  Unfavorable. —  To  the  judicial  observer  whose  atten- 
tion is  attracted  to  the  weaknesses  by  which  admissions  are  occasionally  char- 
acterized and  the  ease  by  which  they  may  be  fabricated,  they  have  appeared 
as  presenting  but  little  probative  value ;  3  and,  indeed,  have  seemed  danger- 
ous evidence  on  which  to  rely  at  all.4  This  is  felt  to  be  especially  true 
where  a  considerable  interval  has  elapsed  since  the  statement  was  made.5 

Judicial  Estimates;  Favorable. —  To  those  who  have  been  impressed  with 
the  powerful  sense  of  conviction  which  admissions  are  capable  of  creating 
they  have  seemed  judicial  instruments  of  proof  of  great  value.6  In  reality, 
for  the  reasons  indicated,  generalization  is  impossible.7 

Not  Conclusive  in  the  Absence  of  Estoppel. —  It  may  be  regarded  as  set- 
tled that,  in  the  absence  of  proof  of  facts  which  would  properly  ground  an 
estoppel  and  a  claim  by  the  adverse  party  that  to  allow  the  proof  offered  would 
improperly  prejudice  his  rights,8  a  litigant,  is  entitled  to  introduce  evidence 
tending  to  control  the  probative  effect  of  his  admissions.  To  exclude  the 
evidence  on  this  ground  it  is  sufficient  that  it  should  be  made  to  appear  that 
some  definite  preJMdicial  substantive  legal  change  would  take  place  in  the 
rights  and  relations  of  the  party  against  whom  the  evidence  is  tendered,9 
the  testimony  which  ib  offered  to  control  the  effect  of  the  prior  statement  by 
the  party  admitted  in  evidence  for  the  purpose.  The  "  admission "  may 
be  deemed  conclusive  also  when  such  is  the  direct  result  of  a  rule  of  sub- 
stantive law,  as  where  an  indorser  of  a  negotiable  instrument  is  said  to  "  ad- 
mit "  (warrant)  the  genuineness  of  prior  indorsements.10 

1.  General    Tire   Repair   Co.    v.    Price.    115  berge  v.  Bonner.  88  N     V    Supp.  91,  94  App. 
N.  Y.  Supp    171    i  1909  i.  Div..  342   (19041:  Thompson  v.  Thompson,  18 

2.  State  v.  Wisdom.  119  Mo.  539.  24  S.  W.  Ohio   St.   73    (1868);    McClellan   v.   Sanford, 
1037    -1893);    Lowenberg  v.   People.  5   Park  26   \Vis.  595    (1870):   2  Chamb..  Ev..  §   1385, 
Cr.     (N.    Y.I     414     i!863):     2    Chamh  .    Ev..  n.  3.  and  cases  cited. 

§  1384.  and  oases  cited.  6.  Ector  v.  Welsh.  29  Ga.  443  (1859)  ;  Rob- 

3.  Freeman   v     Peterson,  45   Colo.    102.    100       inson  v.  Stewart.  08  Me.  61    (1878). 
Pac.  600  (1909).     See.  however.  Burk  v.  Hill.  7.  Pence  v.  Makepeace,  supra. 

119  Ga.  38.  4."»  S.  E.  732  (1903).  8.  Caft'eratta    v.    Cafferatta.    23    Mo.    235 

4.  Kauffman  v.  Maier.  94  Cal.  269.  29  Pac.  (1856)  :    Bosert  v.   Turner.   120   N.   Y.  Supp. 
481,  18  L.  R.  A    124    i!892);  Kinnev  v.  Mur-  420.    135    App.   Div.    530    (1909);    2   Chamb., 
ray.  170  Mo    674.  71  S    W   917   (1902)  :  Gar-  Ev..  §  1387.  n.  2.  and  cases  cited. 

rison  v.   Akin.  2   Barb.    (X.  Y)    25    ,1847':  9.  Batturs   v.   Sellers.   5   Har.   &   J     (Md.) 

t  rowell  v    Western  Reserve  Bank.  3  Ohio  St.  117.  9  Am.  Dec.  492  (1820)  :  Chicago,  etc.,  Ry. 

406   (1854)  .  2  Chamb..  Ev..  §  1385.  n.  2.  and  Co.    v.    Mashore,    21    Okl.    275.    96    Pac.    630 

cases  cited  (1908)  :  2  Chamb..  Ev..  §  1387.  n.  3.  and  cases 

5.  Harris  v.  Mclntyre,  118  111.  275.  8  X.  E  cited. 

182    (1886);    Kinnev  v.  Murray,  supra;  Ro-          10.  Critchlow  v.  Parry.  2  Camp.  182  ,1809). 


558 


ADMISSIONS  :  EXTRA- JUDICIAL. 


418 


Declarant  May  Explain,  Supplement. —  It  thus  appears  that  in  cases  where 
no  estoppel  is  shown  the  declaring  party  is  not  concluded  by  his  statement,11 
but  may  control  its  effect  by  other  evidence.12  He  may,  in  any  event,  deny  13 
the  truth  of  the  statement,  whether  oral  u  or  written.15  He  may  explain16 
or  supplement  it.17  He  may  show  that  the  statement  originated  through 
mistake,18  either  of  law,19  or  of  fact.20  lie  may  offer  evidence  tending  to 
show  that  his  statement  was  based  upon  ignorance  of  important  facts,21  or 
was  made  only  by  way  of  jest,-2 

Deceased  Persons. —  Where,  as  in  case  of  admissions  by  persons  since  de- 
ceased, no  explanation  of  a  statement  is  available,  its  probative  force  is  natur- 
ally decreased.2'*  Still,  such  evidence  is  frequently  regarded  as  competent,24 
although  a  judicial  warning  regarding  unreliability  may  well  be  war- 
ranted.-5 

Criminal  Cases. —  In  a  criminal  case,  the  party  against  whom  an  admission 
is  offered  is  at  all  times  at  liberty  to  explain  the  meaning  of  what  he  has 
said  and  the  intent  with  which  he  said  it.-"  The  circumstance  that  an  ac- 


11.  See   last    preceding   section.     See   also. 
People  v.  Ouderkirk,  105  X.  Y.  Supp.  134.  120 
App.  Div.  6.10   (1907)  :  Bruger  v.  Princeton  & 
St.   M.   Mat    F.   Ins    Co.,   129   Wis.   281,   109 
N.  W.  95    (1!)06)  ;  2  Chamb.,  Ev.,  §  1388,  n 
1,  and  cases  cited. 

12.  Boyd  v.  L.  H.  Quinn  Co.,  41  N.  Y.  Supp. 
391,  18  Misc.  169  "(1896);  Campbell  v.  Sech, 
155  Mich.  634,  1 19  X.  W.  922,  15  Detroit  Leg. 
N.  1105   (1909). 

13.  Robinson  v.   Smith,  7   N.   Y.   Supp.   38, 

3  Silv.   (N.  Y.)   490   (1889). 

14.  Home  Ins.  to.  v.  Atchison,  etc.,  R.  Co., 

4  Kan.   Auu    60,  46   Pac.    179    (1896);    King 
v.   Ford   River  Lumber  Co.,  93  Mich.   172,  53 
X.   W.   10    (1892);   Wall  v.   New  York  Cent,, 
etc,  R    Co.  (57  NT.  Y.  Supp   519,  56  App    Div. 
599     (1900);     Bennet    v.     Kesarty,     Wright 
(Ohio)    696    (1834);   2  Chamb.,   Fv.,  §   1388. 
n.  4,  and  cases  cited. 

15.  Illinois  Cent.   R.  Co.  v.  Cowles,  32  111. 
116    (1863):    Knight  v    New   England   Wor- 
sted Co.,  2  Cush.    (Mass.)   271    (1848);  Xew- 
comb  v.  Jones,   37   Mo.   App.   475    (1889):    2 
Chamb.,  Ev.,  §   1388,  n.  5,  and  cases  cited. 

16.  Risdon  v.   Yates,   145  Cal.  210.  78  Pac. 
041    (1904);    Phoenix    Ins.   Co.   v.   Gray,   113 
Ca.  424,  38  S.  F.  992   (1901)  :  Thon  v.  Roch- 
ester R.  Co.,  29  X,  Y    Supp.  675,  30  id.  620, 
83  Hun  443    (1894)  :   ,-xidy  v.  Church.  118  X. 
Y.  Supp.  795.  64  Misc.  7    (1909)    (words  and 
phrases)  ;    2   Chamb.,   Ev.,  §   1388,  n    6.  and 
cases  cited 

17.  Johnson  v.  Opfer,  58  Xeb.  631,  79  N. 


W.  547  (1899)  ;  Xew  \  ork  Fidelity,  etc.,  Co. 
v.  Dorough,  107  Fed.  389,  46  C.  C.  A.  364 
( 1901 )  :  2  Chamb.,  Ev.,  §  1388,  n.  7,  and  cases 
cited.  Parol  evidence  is  admissible  Sperry 
v.  Wilcox,  1  Mete.  (Mass.)  267  (1840): 
Bingham  v.  Bernard,  36  Minn.  114,  30  X.  W. 
404  (1886).  Privies,  agents,  coparties,  etc., 
occupy  the  same  position.  Lang  v  Met/.ger, 
206  111.  475,  69  X.  E.  493  (1904):  Cady  v. 
Shepherd.  11  Pick.  (Mass.)  400,  22  Am.  Dec. 
379  (1831)  ;  Davidson  v.  Hightmyer.  77  X.  Y. 
Supp.  977,  38  Misc.  493  (1902):  2  Chamb., 
Ev..  §  1388.  n.  7,  and  cases  cited. 

18.  Chicago,  etc.,  R.  Co.  v.  Bartlett,  20  111. 
App   96  (1886)  ;  Moore  v.  Hitchcock,  4  Wend. 
(X.    Y.)    292     (1830):    Cullen    v.    Bimm,    37 

Ohio  St.  236  (1881);  2  Chamb..  Ev..  §  1388, 
n.  8,  and  cases  cited. 

19.  Solomon  v.  Solomon,  2  Ga.   18    (1847) 

20.  Xewton    v.     Liddiard,     12    Q.     B.    925 
(1848) 

21.  Pennsylvania  Ins.  Co.  v.  Telfair,  61  X. 
Y.    Supp.    322,    45    App.    Div.    564     (1899); 
Rowen  v    King,  25  Pa.  409    (1855). 

22.  Beebe  v.  De  Baun,  8  Ark.  510   (1848). 

23.  Succession  of  Gabisso,  122  La.  824,  48 
So.  277   (1909). 

24.  Powers  v   Johnson,  107  Minn.  476,  120 
X.  W.  1021    (1!I"M. 

25.  Hoffman   v.   Condon,    118   X.  Y.   Supp. 
899.  134  App.  Div.  205   (1909). 

26.  State  v.  Kirby,  62  Kan.  436,  63  Pac. 
752    (1900). 


419 


WEIGIIT. 


558 


cused  is  drunk  at  the  time  of  making  a  statement,  while  its  effect  is  not  to  render 
the  evidence  inadmissible,  may  seriously  impair  its  weight.'2' 

Prima  Facie  Quality. —  A  prim  a  facie  effect  has  been  accorded  to  extra- 
judicial  admissions  in  general,-""  in  the  absence  of  statutory  regulation  on  the 
subject.-9 

Question  for  the  Jury. —  The  substantive  or  procedural  law  prescribes  no 
predetermined  weight  for  extra-judicial  admissions,  whether  oral 3"  or  in 
writing."1  It  leaves  the  question  of  weight32  and  construction  of  an  ad- 
mission, verbal  33  or  written,34  to  the  jury,  entirely  unaffected  as  to  specific 
rules  as  to  weight. 

Criminal  Cases. —  Decisions  in  criminal  cases  to  the  effect  that  admissions 
alone  are  not  sufficient  to  convict  without  proof  of  the  corpus  delicti  are  not 
applicable  to  civil  cases.35 

Impeachment. —  The  probative  force  of  admissions  is  not  impeached  by 
proof  of  inconsistent  statements.36 


27.  People  v.  Farrington.   140. Cal.  656,  74 
Pac.    288     (1903);    Com.    v.    Howe,    9    Gray 
(Mass.)    110  (1857)  ;  2  Chamb.,  Ev.,  §  1388a, 
n.  2,  and  cases  cited. 

28.  Joralmon   v.   McPhee.   31   Colo.   26,   71 
Pac.  419    (1903);   Vinal  v.   Burrill,   16  Pick. 
(Mass.)    401    (1833):    Martin   v.    Farrell,   72 
N.   Y.   Supp    934,  66  App.   Div.    177    (1901); 
Lane   Implement  Co.  v.   Lowder,   11   Okl.   61, 
65  Pac.  926    (1901):   2  Chamb.,  Ev.,  §   1389, 
n.  1,  and  cases  cited. 

29.  Hickman  v.  Thompson,  28  La.  Ann.  265 
(1876). 

30.  Betts  v.  Betts.  113  Iowa  111.  84  N.  W. 
975    (1901):    Stephens  v.    Vroman.    18    Barb. 
(X    Y.)    250    (1854);  2  Chamb.,  Ev.,  §   1390, 

n.  1,  and  cases  cited. 

31.  Holmes  v.  Hunt.  122  Mass.  505,  23  Am. 
Rep.  381    (1877)  :  Miner  v    Baron,  131  N.  Y. 
677.  30   N     E.  481,  aff'g  15  X.   Y.  Supp    491 
(1S92);    Baldi    v.    Metropolitan    Ins.   Co.,    18 
Pa.   Super.   Ct.   509    (1902):   2   Chamb.,  Ev., 
§  1390,  n.  2,  and  cases  cited. 


32.  Stephens  v.  Vroinan,  supra;  Saveland  v. 
Green,  40  Wis.  431    (1876);   Gibson  v.   Row- 
land, 35  Pa   Super.  Ct.  158  (1908)  ;  2  Chamb., 
Ev.,  §  1390,  n.  3,  and  cases  cited. 

33.  Stewart  v.   De   Loach,   86  Ga.   729,   12 
S.  E.  1067   (1890)  ;  Stacy  v.  Graham.  3  Duer 
(X.  Y.)   444    (1854);   2  Chamb.,  Ev  .  §  1390, 
n.  4,  and  cases  cited. 

34.  Dampf  v.  Greener,  46  Hun  675,  11  X.  Y. 
St.    Rep.    90     (1887):    Chadwick    v.    United 
States    (U.  S    Ohio   1905),  72  C.  C.  A.  343, 
141  Fed.  225. 

35.  Xorth    v.    Zerwick,    97    111     App.    306 
(1901). 

36.  A  criminal  defendant  is  not  at  liberty 
to  show,  in  disproof  of  having  made  a  state- 
ment at  one  time  inconsistent  with  his?  present 
position,  that  on  another  occasion  he  made  a 
statement  quite  in  accordance  with  his  present 
view.     U.    S.    v.    Gleason,    25    Fed     Cas.    No. 
15.216,  Woolw.  (U.  S.)  128  (1867)  ;  2  Chamb., 
Ev.,.  §  1391. 


CHAPTER  XIX. 

ADMISSIONS;    15V   CONDUCT. 

Admissions  by  conduct;  inconsistent  conduct,  559. 
silence,  560. 

failure  to  object  to  written  statements,  561. 
probative  force,  562. 
scope  of  inference ;  book  entries,  563. 
independent  relevancy,  564. 
falsehood,  565. 

silence  as  />roof  of  acquiescence,  566. 
conditions  of  admissibility,  567. 

statement  must  have  been  understood,  568. 
denial  must  be  natural,  561). 
adequate  knowledge,  570. 

•party  must  be  physically  and  mentally  capable  of  reply,  571. 
probative  force  and  effect,  572. 
Statements  and  other  facts,  573. 

§  559.  Admissions  by  Conduct;  Inconsistent  Conduct.1 — Any  act  of  a  party 
from  which  an  inference  can  legitimately  be  drawn,  unfavorable  to  his  pres- 
ent interest  or  contention,  as  to  the  existence  of  a  probative  or  res  f/estae  fact.2 
is  thought  to  be  available  to  his  opponent  as  an  admission.3  Acts  done  by  a 
party  suggesting'  an  inference  that  his  present  contention  is  false  or  an 
exaggeration  4  or  is  an  after-thought  may  be  shown  by  the  adverse  interest.5 
Either  party  may,  in  like  manner,  prove  that  the  other  has  failed  to  assert 
a  claim  which  he  now  makes,6  has  recognized  the  validity  of  a  demand  which 
he  at  present  disputes,7  or,  in  other  particulars  occupied  in  the  past  a  position 
inconsistent  with  his  present  one.8 

1.  2     Chamberlayne,     Evidence.     §§     1392-       1   Misc.  431    (1892);    East  Brandywine,  etc., 
1400.  R.  R.  v.  Ranck,  78  Pa.  454  (18751  -.  2  Chamb., 

2.  Supra,  §§  31,  34;    1  Chamb.,  Ev..  §§  47,       Ev  ,  §  1393,  n.*3. 

51.  7.  Lusk   v.   Throop,   89   111.    App.   509.  aff'd 

3.  2  Chamberlayne,  Evidence.  §  1392.  189    111.    127.  59   X.  E.  529    (1900)  ;    Jones  v. 

4.  Berger  v.  Abel  &   Bach  Co.,  141  Wis    321,  Shaltnck,  175  Mass.  415.  56  X    E.  736  (1900)  ; 
124  X    W.  410   (1910)  Miller  v.  Savnnnah  Ocean  Steamship  Co.,  118 

5.  Tripp  v.  Metallic  Parking  Co..  137  Mass.  X.  V.   199.  23   X.   E.  462    (1890);    2   Chamb.. 
499    (1884):    Terwillicrer    v.    Industrial    Ben.  Ev..  $   K'03.  u.  4. 

Assoc.    31     X.    V.    ^-'npp.    03s',    S3    TTun    320  8.  Coorpia    Central    R.   Co.   v.   Moseley.    112 

(1894)  :  2  Chamb..  Ev..  §  1393.  n.  2  Ca.    914.    38    S.    E.    350     (1900):     Boston    v. 

6.  Millard  v.  Adams,  21   X    Y.   Supp    424.       Richardson,    13   Allen    (Mass.)     146    (1866); 

420 


421  INCONSISTENCY.  §  559 

Failure  to  Advance  Present  Defense. —  A  plaintiff  may  well  attempt  to 
show  that  one  who  now  denies  facts  essential  to  liability  on  his  part,  failed, 
on  a  previous  occasion  and  under  circumstances  which  would  have  made  a 
denial  natural,  could  it  have  been  truthfully  done,"  to  set  up  the  denial  on 
which  he  now  relies.  If  he,  with  a  fair  opportunity  of  doing  so,  omitted  to 
advance  his  present  claim  to  absence  of  liability,1"  such  a  fact  is  significant 
to  the  effect  that  the  present  defense  is  an  invention.  In  general  a  litigant 
may  show,  in  the  same  way,  that  his  adversary,  up  to  the  time  of  formally 
denying  the  claim  against  him,  has  acted  as  if  it  were  true;  has  previously 
assigned  a  defense  which  was  consistent  with  the  existence  of  liability  on 
his  part;11  and  instead  of  disputing  the  claim  itself,  has  tried  to  arrange 
favorable  terms  for  adjusting  it.12  It  has  even  been  held  that  the  proponent 
may  show,  under  certain  circumstances,  that  his  opponent  has  settled  with 
others  whose  legal  position  in  the  matter  is  no  better  than  that  of  the  plain- 
tiff.13 If  these  acts  shall  apparently  have  been  done  upon  the  basis  that  the 
claim  that  he  is  liable  is  a  valid  one,  and  not  by  way  of  compromise  14  or  for 
some  other  reason  than  because  the  claim  is  felt  to  be  a  just  one,15  an  in- 
ference that  the  party  has  by  his  cqnduct  conceded,  or,  as  is  commonly  said, 
u  admitted,"  the  legal  validity  of  the  demand  made  against  him  naturally 
arises.  In  criminal  cases,  the  inference  may  be  similar.  For  example, 
should  one  accused  of  crime  discuss  the  case  with  the  prosecution  lawyer 
and  confine  himself  to  threats  of  violence  making  no  claim  of  innocence,  this 
may  well  be  considered  a  relevant  circumstance  to  the  effect  that  he  is  con- 
scious of  guilt,  i.  e.,  is  giiilty.16 

Fqjilure  to  Allege  Present  Claim. —  The  reverse  is  equally  true.  A  defend- 
ant may  very  properly  attempt  to  show  that  a  plaintiff  who  now  claims  a 

Walser  v.   Wear,   141   Mo.  443,  42  S.   \V.  928  55   X.   W.   363    (1893):    Moore  v.    Hamilton. 

(1897);    2  Chamb.,   Ev.,  §    1393.  n.   5.     Con-  48  Barb.   (X.  Y.)   120   (1865):  2  Chamb..  Ev.. 

tradictory  statements  in  evidence  given  on  a  §  1394,  n.  2. 

former  trial  may  be  used  to  impeach  a  pres-  11.  Broschart  v.  Tuttle.  59  Conn    1.  21  Atl 

ent  witness.     Wiseman  v.  St.  Louis,  etc.,  R.  925,  11  L.  E.  A.  33   (1890):  Day  v.  Gregory. 

Co.,  30  Mo.   App.  516    (1888):   Me  Andrews  v.  60    111.    App     34    (1894):    2    Chamb..    Ev.,    § 

Santee,  57  Barb.   (X.  V)    193.  7  Abb   Pr.   (X.  1394.  n.  3. 

S.)   408    (1869).  12.  Wise   v.    Adair,   50   Iowa    104    (1878): 

Transfer  of  Property  to  avoid  Liability. —  Peck  v.  Richmond.  2  E.  D.  Smith  (X   Y.)  380 

Evidence    that    a    defendant    transferred    his  ( 1854)  :  2  Chamb.,  Ev..  §  1394.  n    4. 
property    to    his    wife   after    an    accident    in  13.  Campbell    v.    Missouri    Par    R.   Co..   86 

which  his  motor  vehicle  was  involved  is  com-  Mo.  App.  67    (1900)  ;  Grimes  v.  Keene.  52  X. 

petent  as  bearing  on   the   good    faith   of   bis  H   330  (1872)  :  2  Chamb..  Ev..  §  1394.  n.  5. 
defense  that  bis  agent  was  not  acting  in  the  14.   Infra.   §§  574   et  sen.:  2   Chamb..   Ev., 

scope  of  his  authority  at  the  time  of  the  acci-  §§1439    rt    seq      Slinserland    v.    Xorton.    12 

dent.     Chaufty    v.    De    Vries.    R.    I.     (1918)  .V    Y.    Supp.    647.    58    Hun    578     (1891);    2 

102  Atl.  012  Chamb..  Ev..  §  1394.  n.  6. 

9.  See  Woolner  v    Hill.  47  X.  Y    Super.  Ct  15.  Mi-souri.  etc..   K.  Co.  v    Eulmore    i  Tex. 
470    (1881)  :   Hayes  v.  Kelley.   116  Mass.  300  Civ.  Apr..  1895).  29  S.  W.  688. 

(1874):   2  Chamb..   Ev..  §   1394.  n.   1.  16.  Tom.    v.    Coughlin.    182    Mass.    558,    66 

10.  Parsons  v.  Martin.  11  Gray  (Mass.)   Ill       X.  E  207   (1903). 
(1858)  ;  Evans  v.  Montgomery,  95  Mich.  497, 


§  559  ADMISSIONS:  BY  CONDUCT.  422 

certain  right  has  in  the  past  done  acts  inconsistent  with  the  actual  existence 
of  such  a  right  as  is  now  set  up.  He  has  failed  to  assert  his  claim  on  occa- 
sions when  such  a  course  would  have  been  proper.17  It  may  be  shown  that 
he  settled  without  trial  litigation  which  involved  the  assertion  of  the  same 
right.18  Where  he  claims  that  property  possesses  a  certain  value,  it  may  be 
proved  that  he  has  offered  to  sell  it  for  less.19  Where  he  advances  a  claim, 
at  the  present  time,  that  he  is  entitled  to  receive  a  certain  sum  of  money  on  a 
given  account,  it  may  be  shown  that  on  other  occasions  he  has  stated  a  smaller 
amount  as  being  that  to  which  he  was  entitled.20  On  the  other  hand  the 
act  of  alleged  inconsistency  may  be  explained  by  the  party  against  whom  it  is 
offered.21 

Clear  Relevancy  Demanded. —  Where  the  act  of  one  against  whom  a  de- 
mand is  made  may  equally  well  have  been  done  for  other  reasons  than  belief 
in  legal  liability; — as  where  it  is  without  probative  value  on  that  issue;22 
or  where  the  conduct  in  question  is  equally  explainable  as  a  mere  matter  of 
business  prudence,23  a  natural  impulse  of  human  kindliness,24  or  as  proceed- 
ing from  a  desire  to  avoid  the  annoyance  of  litigation  25  the  act  will  be  re- 
jected. . 

Conduct  Consistent  With  Adversary's  Claim. —  In  general,  any  act  of  a 
party  may  be  shown  by  his  opponent  which  is  consistent  with  the  latters 
claim.*  Thus,  upon  a  question  whether  a  certain  relation  exists,  one  party 
may  show  that  the  other  who  now  denies  it  has,  by  his  conduct,  recognized  its 
existence,26  as  by  accepting  benefits  under  it.  In  like  manner,  one  who  is 
claimed  to  be  entitled  to  a  given  office  may,  as  against  himself,  be  proved  to 
have  exercised  its  powers.27  For  similar  reasons  where  it  is  insisted  by  one 
party  that  some  one  else  has  a  right  to  an  office,28  to  stand  in  a  certain  position 
or  is  entitled  to  exercise  the  functions  of  a  given  calling  29  or  profession  30 

17.  Williams    v.    Harter,    121    Cal.    47.    53       787     (1900);    Anderson    v     Duckworth,    162 
Pac.  405    (1898)  ;  Sears  v.  Kings  County  El       Mass.  251,  38  N.  E.  510    (1894)  ;   2  Chamb., 
R.  Co.,   152  Mass.   151,  25  X.   E.  98,  9  L.   R.       Ev.,  §   1396,  n.  2. 

A.  117   (1890);   Lloyd  v.  Lloyd,  I  Redf.  Surr.  24.  Sias  v.   Consolidated  Lighting  Co.,   73 

(N.  Y.)   399   (1859)  ;  2  Chamb.,  Ev.,  §  1395,  Vt.  35,  50  Atl    554   (1901). 

n.  1.  25.  Kelley  v.  Schupp,  60  Wis.  76,  18  N".  W. 

18.  Pym  v.  Pym,   118  Wis.  662,  96  X.  W.  725    (1884);    Camp  v.  U.   S.,   113   U.  S.  648, 
429    (1903).  5  S.  Ct.  687,  28  L.  ed.  1081   (1885) 

19.  Springer   v.    Chicago,    135    111.    552,   26  26.  Turrentine    v.    Grigsby,    118    Ala.    380, 
N.  E    514,  12  L.  R.  A.  609   (1891);  Houston  23    So.    666    (1898);    Bertha   Mineral   Co.    v. 
v.  Western  Washington   R.  Co.,  204  Pa.  321,  Merrill,  171  Mass.  167.  50  X.  E.  534   (1898)  ; 
54  Atl.  166   (1903).  2   Chamb.,    Kv.,   §   1397,  n    1. 

20.  State    v     Berning,   74   Mo    87    (1881):  27.  T  row-bridge  v.   Baker.   1   Cow.    (N.  Y.) 
Shiland  v.  Loeb,  69  N    Y    Supp.  II.  58  4pp  251    (1823). 

Div.  365   (1901)  ;  2  Chamb.,  Ev..  §  1395,  n   4  28.  Dickinson  v.  Coward,  1  B.  &  Aid.  677 

21.  Moore  v    Dunn.  42   X.  H.  471    /1861)  :        (1818). 

Chamberlain  v.   Iba,   181  N.  Y.  486,  74  X.  E.  29.  Rex  v    Borrett,  6  C.  &  P.  124,  25  E.  C. 

481    (1905).  L.  353  (1883). 

22.  Talcott  v.  Harris.  93  X.  Y.  567  (1883)  30.  2  Serg.  &  R.  (Pa.)  440  (1816). 

23.  Amour  v.  Ross,  110  Ga.  403,  35  S.  E. 


423  INCONSISTENCY.  §  559 

one  may  show  that  his  antagonist  has,  in  his  own  conduct,  recognized  and 
assented  to  the  truth  of  the  assertion.  In  general,  the  character  in  which  the 
plaintiff  sues,  or  in  which  the  defendant  is  sued,  may  be  admitted  by  the 
conduct  of  the  opposite  party.31 

Bodily  Condition. —  A  litigant  may  show  that  his  opponent  or  other  per- 
sons are  sick  by  evidence  that  they  received  sick  benefits.32  In  general,  each 
litigant  may  prove  in  either  a  civil 33  or  criminal  34  action  any  conduct  on 
the  part  of  his  adversary  which  corroborates  the  contention  of  him  who  offers 
the  evidence. 

Mental  State. —  Psychological  facts  may  also  be  shown  by  acts  of  con- 
sistent conduct  For  example,  either  litigant  may  prove  that  his  opponent 
had  at  any  given  time  a  relevant  mental  state,  suclr  as  intent,35  intention, 
knowledge,30  the  influence  of  a  particular  motive,37  or  other  relevant  state 
of  consciousness.38  This  he  may  do  by  showing  that  his  opponent  acted  as 
one  naturally  would  who  was  affected  by  the  existence  of  such  a  mental  state. 

Efforts  at  Settlement. —  Any  conduct  of  accused  in  a  criminal  case  showing 
h;s  consciousness  of  guilt  or  his  doubt  in  the  merits  of  his  defense,  such  as 
an  attempt  on  his  part  to  compound  a  felony  or  to  arrange  terms  for  a  settle- 
ment with  the  injured  person,39  is  admissible  in  evidence. 

Suppressing  Prosecution. —  Any  effort  to  suppress  the  prosecution,  by  tam- 
pering with  its  witnesses,  and  the  like,  will  be  deemed  significant  of  con- 
sciousness of  guilt.40  So  arranging  the  facts  as  to  lead  to  false  inferences,41 
fabricating  evidence,  or  in  any  way  perverting  the  course  of  justice  stand  in 
the  same  position. 

Flight. —  Prominent  among  relevant  acts  of  the  accused  showing  a  con- 

31.  Stanford  v.  Hurlstone,  L.  R    9  Ch.  116       Minn.  487,  43  X.  \V.  375    (1889);  2  Chamb., 

(1873)  ;  2  Chamb.,  Ev.,  §  1397,  n.  6.  Ev.,  §  1399,  n    2. 

32.  Seidenspinner    v.    Metropolitan   L.    Ins.  37.  Sanscrainte   v.   Torongo,    87    Mich.    69, 
Co.,  175  N.  Y.  95,  67  X.  E.  123   (1903).  49   N.  \V.  497    (1891);   Fulmer  v.   Williams, 

33.  Chicago,  etc.,  R.  Co.  v.  Eaton,   194  111.  122  Pa.  191,  15  Atl.  726,  9  Am.  St.  Rep.  88, 
441,    62    X.    E.    784,    88    Am.    St.    Rep.    161  1    L.   R.   A.   603    (1888);    2   Chamb.,    Ev..    § 
(1902);    Manning  v.   Lowell,   173  Mass.    100,  1399,  n.  3. 

53  X.  E.  160   (1899);  Swee  v.  Xeumann,  123  38.  Hackett   v.   King,    8    Allen    Mass.    144, 

X.    Y.    Supp.    776.    67    Misc.    605    (1910);    2  85  Am.  Dec   695   (1864):  Sheldon  v    Sheldon, 

Chamb.,  Ev,  §  1398.  n.  2.  32  X.   Y.   Supp.  419,  84  Hun  422    (1895)  ;   2 

34.  Greenfield   v.    People,   85   X.   Y.   75,   39  Lhamb.,  Ev.,  §  1399,  n.  4. 

Am.   Rep.    636    (1881):    State   v.   Greene,   33  39.  State  v    Farr,   29   R.  I.   72,  69   Atl.   5 

Utah  497,  94  Pac.  987   (1908)  :  2  Chamb  ,  Ev.,  (1908)  :  Booth  v.  State  (Tex.  Cr.  App.  1908), 

§  1398,  n   3.  108  s-  w-  68":  -  Chamb..  Ev..  §  1399,  n.  6. 

35.  Starks  v.   Sikes.   8   Gray    (Mass.)    609.  40.  Booth  v.  State,  supra.     The  act  of  spoli- 
69     Am.     Dec.     270     (1857):     \Vohlfarth     v.  ation   must  in   some  way   be  connected   with 
Chamberlain.   14  Daly    iX.  Y.)    17S.  6  X.  Y  the  party.     People  v.   Long.    144   Mich.   585, 
St.   Rep.  207    (1887)':    Emery  v.   Irving  Xat.  108  X.  W    91   (1906)  :  2  Chamb.  Ev..  §  1399, 
Bank.    25    Ohio    St.    360,    18    Am.    Rep     299  n.  7. 

(1874)  -,  2  Chamb..  Ev.,  §  1399,  n.  1.  41.  Barnes  v.  State    (Tex.  Cr.  App.  1908), 

36.  Miller  v.  Cook,  124  Ind    101.  24  X.  E        111    S.    \Y.    943.     See,    however,    Sanders    v. 
577   (1890)  :  Smith  v.  Duncan.  1S1   Mas*.  435.       State,  148  Ala.  603,  41  So.  466  (1906). 

63  X*.   E.   938    (1902);   Potter   v.   Mellen,  41 


§  559  ADMISSIONS:  BY  CONDUCT.  424 

sciousness  of  guilt  is  flight.42  Where  the  prosecution  can  show  in  a  criminal 
case 43  that  the  accused  has  become  a  fugitive  from  justice,44  such  a  fact 
urgently  calls  for  explanation  from  the  defendant.  Where  one  charged  with 
crime,  without  good  ground,  departs  from  the  jurisdiction  45  shortly  after  the 
commission  of  the  crime  with  which  he  is  charged,  the  circumstance  may 
often  be  highly  significant.  The  law  of  early  times  made  flight  conclusive 
evidence  of  guilt.46  Under  the  more  rational  system  of  later  times,  the  fact 
of  flight  is  merely  a  circumstance  tending  to  establish  consciousness  of  guilt.47 

Explanation  Received. —  It  is  settled  that  the  defendant  may  offer  any 
relevant  explanation  of  his  act.48  The  accused  may,  for  example,  allege,  in 
explanation  of  his  flight,  that  he  was  apprehensive  of  personal  violence.49 
The  advice  of  friends  may  be  assigned  as  the  cause  of  fleeing  from  the  juris- 
diction.50 In  all  cases,  the  accused  is  entitled  to  prove  by  his  own  testimony 
the  actual  motive  which  has  influenced  his  conduct.01  An  absence  due  to  in- 
sanity obviously  gives  rise  to  no  inference  of  guilt.52 

An  attempt  to  escape  stands  in  the  same  position  as  would  an  escape  itself.53 
Not  unnaturally,  moreover,  the  possession  of  tools  calculated  to  assist  an  at- 
tempt at  escape  is  regarded  as  a  probative  fact  in  such  a  connection.54  Ef- 
forts to  bribe  a  custodian  of  the  jail  in  order  to  facilitate  flight  give  rise  to  a 
similar  inference,  i.  e.,  consciousness  of  guilt.55  Xorie  of  these  incriminating 
circumstances  constitute  a  prima  facie  case  of  liability  to  the  consequences  of 
crime."0  Standing  alone,  therefore,  they  will  not  warrant  a  conviction.57 

Actor  Alone  Affected. —  Naturally,  flight  or  an  attempt  to  flee  affects  only 
the  actor,  the  person  so  conducting  himself.58 
.  Declining   to   Flee,    Voluntary   Return,   Etc. —  While    flight    is    competent 

42.  2  Chamb.,  Ev.,  §   1399a,  n.   1.  50.  State  v.  Phillips,  24  Mo.  475   (1857). 

43.  In  a  civil  case,  flight  is  probably  not  51.  Webb    v.    Com.,    4    Ky     L.    Rep     436 
evidence    of    liability.     This    rule   is   not    af-  ( 1882 )  :   Lewallen  v.  State,  33  Tex.  Cr.  Rep. 
fected   by  the  circumstance  that,   as  in   case  412,   20   S.    \V.   832    (1804);    2   Chamb.,   Ev., 
of  seduction,  a  criminal  remedy  may  exist  for  §  1399a,  n.  11. 

the  offense.     See  Wise  v.  Schlosser,  111  Iowa  52.  Peacock   v.   State,  50  X.  J.  L.  653,   14 

16    (1900);  2  Chamb.,  Ev.,  §  139!)a.  n.  2.  All.  893   (1888i 

44.  In  re  Voorhees,  32  N.  J   L.  150  (1867 K  53.  Campbell  v.  State.  23  Ala.  44    (1853)  ; 

45.  United  States  v.  O'Brian,  3  Dill.  C.  C.  State  v.  Jackson,  95  Mo.  623  (1888). 

(U   S.)  381   (1874).  54.  Clark   v    Com.    ( Ky.    1895),   38    S.    W. 

46.  Chamb.,  Ev.,  1399a,  ns.  5,  6.  131  ;  State  v    Duncan,  1  Ifi  Mo.  288.  22  S.  W. 

47.  People  v.  Sheldon,  68  Cal.  434,  9  Pac        699    (1893). 

457   (1886)  :  Com.  v.  Brigham,  147  Mass.  414.  55.  McKea    v.    State.    71    Ga.    96     (1883); 

18   X.   E.    167    11888);   State  v.  Howell,   117  Dean  v.  Com.,  4  Gratt.    (Ya.)    541    (1847) 

Mo.  307,  23  S.  W.  263   (1893)  :  People  v.   Me-  56.   \\ayl.Tiuht  v.  State.  5<>  I  ml.  122  H877)  : 

Keon,    19    X      Y.    Supp.    486,    64    Hun    504  State  v.   Ah   Kung.   17  Xev.  361.  30  Pao.  99.-) 

(1892)  ;  2  Chamb.,  Ev.,  §  1399a,  n.  7.  (1883)  :   2  Chamb..  Ev..  §   13!)<»a.  n.  Ifi. 

48.  Sewell    v.    State,    76    Ga.    836    (1888):  57.  Webb   v    Com.,   suprn. 

People  v.  Cleveland,  107  Mich.  3(57,  65  X.  W.  58.    People  v.  Stanley.  47  Cal.   113    (1874)  : 

216    (1895i  :   2  Chamb.,  Ev.,  §  1399a,  n.  S.  People  v.  Sharp.  107  X.  Y   427,  14  X   E.  319. 

49.  State  v    McDevitt.  69  Iowa  549.  29   X.  1    Am.   St.  Rep.  581    (1887);   2  Chamb.,  Ev., 
W.  459   (1886)  ;  State  v.   Rarham.  82  Mo.  67  §  1399a,  n.  18. 

( 1884 )  ;   2  Chamb. ,  Ev.,  §  1399a,  n.  9. 


425  SILENCE.  §§  560,  561 

evidence,  as  grounding  an  inference  that  the  accused  knew  he  was  guilty, 
declining  to  flee  when  urged  is,  at  most,  a  self-serving  act,  without  probative 
force.59  Any  other  rule  of  administration,  indeed,  would  flood  the  courts 
with  fabricated  testimony.60  For  the  same  reasons,  one  accused  of  crime 
cannot  show  that,  having  fled,  he  afterwards  voluntarily  returned.61 

Order  of  Acts. —  The  act  claimed  as  consistent  with  the  proponent's  claim 
may  precede  the  fact  to  which  it  is  relevant,1''2  or  nuiy  follow  iii  point  of  time 
the  res  yebiae  of  the  particular  case,  as  where  a  master  discharges  a  servant 
alleged  to  have  been  negligent,'''3  or  pays  money  into  court.64 

§  560.  [Admissions  by  Conduct] ;  Silence.65 —  Should  a  party  to  a  litigation 
deny  the  truth  of  a  statement  made  to  him  no  reason  exists  for  introducing 
the  fact  in  evidence,  as  an  admission  that  the  statement  was  true.66  On  the 
contrary,  should  he  fail  to  deny  the  truth  of  the  statement  made  to  him.  or  in 
his  presence,  it  has  been  thought  that  under  cover  of  the  maxim  that  "  silence 
gives  consent  "6"  some  rule  of  evidence  renders  admissible  as  against  the 
party  all  which  was  said  in  his  presence  and  not  categorically  or  in  substance 
denied  by  him.68  The  dangers  of  such  a  rule  are  obvious.  !Xo  rights  of  a 
party  whom  anyone  saw  fit  to  address  concerning  them  would  be  safe  under 
such  a  state  of  the  law.69  Silence  may  be  probatively  relevant  by  giving  rise 
to  other  inferences  than  that  of  acquiescence.  For  example,  failure  to  answer 
a  pertinent  question  may  be  significant  to  the  effect  that  the  person  addressed 
knows  of  no  way  in  which  it  can  be  truthfully  or  even  plausibly  answered  to 
his  advantage.70 

§  561.  [Admissions  by  Conduct];  Failure  to  Object  to  Written  Statements.71 
-  Failure  to  object  to  the  written  statement  of  a  party  may  be  explained  by 
so  many  causes  not  applicable  to  silence  when  the  parties  are  in  personal  con- 
versation that  all  such  evidence  is  of  a  lighter  character  than  when  the  same 
facts  are  orallv  stated  to  the  party,  even  where  other  circumstances  continue 
to  be  the  same.72  Fnder  many  states  of  fact  it  is  doubtful  whether  failure 

59.  State  v.  Cicely,  13  Smedes  &  M.  (Miss.)  n.  1.     Reiteration  of  Denial. —  A  denial  is  not 
208   (1849).  so  far  conclusive  as  to  remove,  of  necessity, 

60.  People  v.  Rathbun,  21   ^Yend.    (X.  Y.)  probative  effect  from  a  subsequent  failure  to 
509    520   (1S39).  deny.     Jewett     v.     Banning,     21     N.     \.    27 

61.  People    v.    Cleveland.     107    Mich.    367  (I860). 

iisn.j).  67.  Bailey  v.  Bailey,  139  Mo.  App.  176,  122 

62.  Chicago,  etc.,  Ry.  Co.  v.  Eaton,  194  111.       S.  W.  1099  (19091. 

441.    62    X     E.    784,    88    Am.    St.    Rep.    161  68.  Mattocks  v.  Lyman,  16  Vt.  113   (1844). 

(1002).  69    Moore  v.   Smith,   14   Serg.  &   R.    (Pa.) 

63.  Martin  v.  Towle.  59  X.  H.  31   (1879).  388   (1826)  :  Mattocks  v.  Lyman,  supra. 

64.  Lucy   v.   Walrond,   3   Bing.   X.   C.   841,  70.  Jackson-  v.   State,   167   Ala.   77,  52   So 
6  L.  J.  C.  P.  290   fl'837).  730   (1910). 

65.  2  Chamberlayne.  Evidence,  §  1401.  71.  2    Chamberlayne,    Evidence,    §§    1402- 

66.  People  v.  Morton,  139  Cal.  719,  73  Pac.  1406. 

609   (1903)  ;  Low  v.  State.  108  Tenn.  127,  65  72.  Fenno  v.  Weston,  31  Vt.  345   (1858)  ;  2 

S.   W.   401    (1901)  ;    2   Chamb.,  Ev.,   §    1401.       Chamb.,  Ev.,  §  1402,  ns.  1,  2,  3,  4. 


§   561  ADMISSIONS:  BY  CONDUCT.  426 

/ 

to  deny  a  written  statement  can  fairly  be  said  to  have  any  probative  value 
whatever.73 

Oblif/alion  of  Good  Faith. —  In  order  that  any  inference  should  properly  be 
drawn  against  a  party  from  failure  to  reply  to  written  statements  brought  to 
his  notice  it  must  affirmatively  appear  not  only  (a)  that  he  received  the 
writing  in  question,74  and  understood  its  meaning;  but  also  (b)  that 
some  moral  or  legal  obligation  thereupon  became  imposed  upon  the  person  in 
question  to  take  at  once  a  definite  attitude  on  the  subject  and  not  permit  the 
writer  of  the  statement  to  continue  to  assume  it  to  be  true,  unless,  in  fact,  it 
be  true.75 

Effect  of  Denials. —  One  to  whose  attention  statements  in  a  writing  are 
brought  is  not  required  to  reiterate  a  previous  denial.76  Nor  can  one  who 
has  denied  all  liability  reasonably  be  required  to  furnish,  in  addition,  a  specific 
denial  of  each  separate  item.77 

Conditions  of  Admissibility ;  Party  Must  Understand  the  Statement. — • 
Where  it  is  affirmatively  made  to  appear  to  the  court,  by  access  to,78  posses- 
sion 7!t  or  use  of  them,80  that  the  party  had  full  opportunities  of  becoming 
acquainted  with  papers  and  documents,  it  will  be  assumed,  in  the  absence  of 
evidence  to  the  contrary,  that  he  was  acquainted  with  their  contents.  So  far, 
therefore,  at  least,  as  they  affect  himself  it  will  be  reasonably  assumed  that 
he  knew  them.  Such  knowledge  does  not,  in  itself,  imply  assent  to  the  truth 
of  the  proposition  stated  in  the  document.81  It  merely  makes  the  conduct  of 
the  party  significant;  for  without  such  knowledge  it  can  have  no  force  in 
establishing  acquiescence. 

Party  Must  be  Under  a  Definite  Duty  to  Declare  the  Truth. —  Where  one 
is  under  no  obligation,  moral  or  legal,  to  declare  his  position  in  a  given  matter, 
his  silence  is  meaningless.  Still,  showing  that  a  party  has  read  a  newspaper 
article 82  or  accepted  a  bill  of  costs  as  taxed 83  without  objection  to  any 
statement  found  in  such  documents  furnishes  some  evidence  of  assent  to  the 
truth  of  the  assertions  made  in  them.  Where,  however,  it  is  known  that  the 
party  addressed  has  already  taken  a  final  position  in  the  matter,84  and  there- 

73.  2  Chamb.,  Ev.,  §  1402.  People  v.  Colburn,  105  Cal.  648,  38  Pac.  1105 

74.  Greenburg  v.    S.   D.   Childs  &   Co..  242        (1895). 

111.   110,  89  N.  E.  679    (1909).  80.  Prout  v.  Chisholm,  47  N.  Y.  Supp.  376, 

75.  Lucy  v.  Mouflet,  5  H.  &  N.  220,  29  L.  21  App.  Div.  54  (1897)  :  Ryder  v.  Jacobs,  196 
J.  Ex.  110  1 1860)  ;  2  Chamb..  Ev.,  §  1403,  n.2.  Pa.  386,  46  Atl.  667    (1900)  ;  2  Chamb.,  Ev., 

76.  Churchill  v.  Fulliam,  8  Iowa  45  (1859)  ;  §  1405,  n.  3. 

Cheney  v.  Cheney,   162   Mass.  591    (1895):   2  81.  Com.  v.  Eastman,  1  Cush.   (Mass.)    189, 

Chamb.,  Ev.,  §  1404,  n.  1.  215    (1848);    Starkweather   v.    Converse,    17 

77.  Hinton  v.  Coleman,  45  Wis.  165  (1878):  Wend.    (N.   Y.)    20    (1837):    2   Chamb.,    Ev., 
Watson  v.  Travelers'  Tns.  Co.,  43  Wash.  396,  §  1405,  n.  4. 

86  Pac.  659    (1906).  82.  People  v.  Smith,  172  N.  Y.  210,  64  N. 

78.  Cheney  v.  Cheney,  supra.  E.  814    (1902). 

79.  Wilshusen    v.    Binns,    45    N.    Y.    Supp.  83.  Hamilton  v.  Gray,  67  Vt.  233,  31  Atl. 
1085,  19  Misc.  547    (1897)  :  Oeorjre  A    Fuller  315    (1894). 

Co.  v.  Doyle,  87  Fed.  687  (1898).     CONTRA: 


427  WEIGHT.  §  562 

fore,  the  sender  of  the  letter  carmot  be  misled  by  failure  to  reply,  or  derive 
advantage  from  further  repetition  of  familiar  statements,  no  obligation  to 
speak  exists.  The  presence  of  unsettled  matters  tends  to  increase  the  urgency 
for  the  exercise  of  good  faith.  For  example,  that  there  is  a  pending  cor- 
respondence assists  to  create  a  duty  to  reply  to  statements  deemed  erroneous.85 
So.  where  one  in  receipt  of  a  letter  sees  n't  to  answer  it  in  part,  he  must  answer 
fulJy,  if  he  desires  to  avoid  the  inference  that  he  acquiesces  in  any  statements 
which  he  does  not  deny.8"  Iti  case  of  documents  other  than  letters,  the  party 
in  order  to  be  atfected  must  either  have  been  under  some  legal  or  m,oral  obliga- 
tion to  speak,  or  should  have,  in  part  at  least,  undertaken  to  do  so.87  Other- 
wise, failure  to  give  a  claim  any  attention  is  without  probative  effect  upon 
the  situation.88 

£  562.  [Admissions  by  Conduct] ;  Probative  Force.89 —  The  inference  of  assent 
may  arise  equally  from  other  facts,  e.  g.,  long  retention  without  objection, 
and  then  only  when  there  is  a  duty  which  would  impel  to  dissent  in  view  of 
the  nature  of  the  statements  if  they  were  false.  If  the  party's  conduct  taken 
in  connection  with  these  statements,  either  in  the  way  of  a  reply,90  failure 
to  answer  91  or  other  conduct,92  tends  to  show  concurrence  in  the  truth  of  a 
relevant  written  statement,93  evidence  of  such  conduct  is  competent. 

Active  Adoption. —  The  rule  under  consideration  is  limited  to  cases  of 
inference  from  silence.  It  does  not  extend  to  positive  acts  in  adoption  of 
the  statements  of  a  letter,  as  where  the  party  acquainted  with  the  contents 
assists  in  its  mailing,94  or  letter  press  copies  of  them  are  found  in  his  pos- 
session.95 Such  conduct  may  prove  a  written  admission  or  constitute  one 
by  active  rather  than  passive  adoption. 

Effect  of  Partial  A-nsivers. —  Increased  weight  96  and  even  a  prima  facie 
quality,97  attaches  to  failure  to  object  to  a  given  assertion,  if  the  truth  of 

84.  Learned   v.   Tillotson,   97    N.   Y.    1,   49  91.  Gaskill  v.  Skene,  14  Q.  B   664,  68  E.  C. 
Am.   Rep    508    (1884);    Dempsey   v.  Dobson,      i..   664    (1850). 

174   Pa.    122,   34   Atl.   459,   52   Am.    St.    Rep.  92.   Keith  v.  Electrical  Engineering  Co.,  136 

516,  32  L.  R.  A.  761    (1806):  2  Chamb.,  Ev.,  Cal.    178,    68    Pac.    598     (1902):    Hulett    v. 

§  1406,  n.  4.  ^arey,  66  Minn.   327,   69  N.  W    31,   61   Am. 

85.  Fenno  v.  Weston,  supra.  St.    Rep.    419,    34   L.    R.    A.    384    (1896);    2 

86.  Com.    v.    Eastman,    supra;    Tilton    v.  Chamb.,  Ev.,  §  1407,  n.  3. 

Beecher,  59  N.  Y.  176   (1875)  ;  Fenno  v.  Wes-  93.  Reg.  v.  Hare,  3  Cox  C.  C.  247    (1848). 

ton,  supra  94-   Hulett  v.  Carey,  supra;  2  Chamb.,  Ev., 

87.  Burns  v.  Campbell,  71  Ala.  271    (1882).  §   1408,  n.    1. 

88.  Sullivan  v.  Louisville,  etc.,  R.  Co.,  128  95.  Com.  v.   Jeffries,   7   Allen    (Mass.)    548 
.ila.    77,    30    So.    528     (1900);    Robinson    v.  (1863). 

Fitehburg,   etc,   R.   Co.,   7   Gray    (Mass.)    92  96.  Burns    v.    Campbell,    supra:    Tarns    v. 

(1856).  Lewis.  42  Pa.  402    (1862):   2  Chamb.,  Ev.,  § 

89.  2  Chamberlayne,     Evidence.    §§     1407-       1409,  n.  1. 

1410.  97.  Prout   v.   Chisolm,   supra;   Wiggina   v. 

90.  Trischet  v.  Hamilton  Mut.  Ins.  Co.,  14      Burkham,   10  Wall.    (U.   S.)    129,   19  L.  ed. 
Gray   (Mass.)   456   (1860);  2  Chamb.,  Ev.,  §      884   (1869). 

1407,  n.  1. 


§  563  ADMISSIONS:  BY  CONDUCT.  428 

other  assertions  in  the  same  \vriting  is  disputed,  while  the  declaration  in 
question  i.s  accepted  without  demur.  By  any  recognition  of  the  correctness 
<jf  the  statements  contained  in  a  letter,"8  as  by  accepting  benefits  conferred  on 
him  by  its  terms""  or  retaining,  without  demur,  money  sent  under  certain 
conditions,1  the  litigant  may  furnish  corroborative  evidence  of  his  acquies- 
cence in  the  correctness  of  its  statements. 

Inference  Rebutiable. —  The  inference  of  acquiescence  from  failure  to  deny 
a  written  statement  is  by  no  means  of  conclusive  force.  Such  silence  is  merely 
one  circumstance,  to  be  weighed  with  others,  bearing  upon  the  truth  of  the 
statement  itself.2 

§  563.  [Admissions  by  Conduct];  Scope  of  Inference;  Book  Entries.3 — Asser- 
tions of  relevant  facts  contained  in  ordinary  accounts  current,4  or  book  entries, 
whether  kept  by  clubs,3  corporations,6  firms  7  or  individuals  s  may  be  shown, 
together  with  the  conduct  of  a  party  to  be  affected  by  such  statements.  Fail- 
ure to  object  to  the  truth  of  these  may  reasonably  be  deemed  relevant  on  the 
issue  of  acquiescence." 

Convntrt'cial  }\'ritinyt>. —  The  same  rule  applies  to  statements  made  in  other 
mercantile  papers,  commonly  employed  iu  business  dealings.10  Such  declara- 
tions may,  in  connection  with  a  party's  failure,  for  a  considerable  time,  to 
object  to  them.11  be  significant,  even  to  the  extent  of  suggesting  the  inference 
that  the  party  knew  them  to  be  true. 

.Legal  Document*. —  The  same  observations  apply  to  statements  in  any 
usual  legal  documents.12  Notice  to  a  tenant  requiring  him  to  quit  and  de- 

98.  Murray  v   East  End  Imp.  Co.,  22  Ky.  L  be  furnished.     Rudd  v.   Robinson,   126   X.   V. 
Kep    1477,  60  S.  VV.  G48    (1001);   2  Chamb.,  113,  26  X.   E.   1046    (1891);   2   Chamb.,   Ev., 
Ev.,  §   1405),  n.   3  §  1411,  n.  4.     See  as  to  other  views,  2  Chamb., 

99.  St.  .Toseph   Hydraulic  Co.  v.  (Jlobe  Tis-  Ev.,  §  1411,  n.  4 

sue   Paper   Co.,    15(5    Ind.    165,   50   X.    E.   995  7.   Kohler  v.  Lindenmeyr,  129  X.  V.  498,  29 

(I'.MU):    Sturtevant    v.    Wallack,    141    Mass.       \.  E.  957    (1892);   Chick  v.  Robinson,  37  C. 

119,  4  X.  E.  015   (1886).  C.  A.  205,  95  Fed.  619  (1899). 

1.  Id.  8.  Cheney  v.  Cheney,  supra;  Raub  v.   Xis- 

2.  Waring  v.   U    S.  Telegraph  Co.,  4  Daly  bett,    118   Mich.   248,   76   X.   W.   393    (1898); 
(X    Y.)    233,  44   How.    Pr.   69    (1S72);    Hill  Tanner  v.   Parshall,  3  Keyes    (X    Y.)    431,  4 
v    Pratt,  29  Vt.   119    (1856);  2  Chamb,  Ev.,  Abb.   Dec    356,   35   How.   Pr.  472    (1867);    i 
§    1410,    n     1.  Chamb.,   Ev.,   §    1411.   n.   6. 

*3.  2  Chamberlayne,     Evidence,      §§      1411-  9.  Safe  Deposit  &  Trust  Co.  v.  Turner,  OS 

1415.  Md.  22,  55  Atl     1023    (1003). 

4.  House  v,  Beak,  43  111.  App.  615   (1801)  -.  10.  Traders'  Xat.  Bank  v.  Rogers.  167  Mass. 
Fisk    Pavement,    etc.,    Co     v     Evans.    60    X.  315.  45  X.   E.   023,  57   Am.  St.   Rep.   45S.   36 
Y    640    (1875)  ;  Jones  v.  De  Muth.  137  Wis>.  L.  R.  A.  530   (1807)  :  Del  Piano  v.  Caponigri. 

120,  118   X.   W.  542    (1008);   2  Chamb.,  Ev.,  40  X.  Y.  Supp.  452.  20  Misc.  541    (1807);   2 
§  1411,  n.  2.  Chamb.  Ev..  §  1412.  n.  1. 

5.  Raggett  v.  Musgrave,  2  C.  &  P.  556,  12  11.  Weigle  v.  Brautigam,  74  111.   App.  2S.~> 
E.  C.  L.  730   (1827K  (1807)  ;  Pabst  Beer  Co.  v   Lueders.  107  Mich 

6.  Anderson    v.    Mutual    Reserve    Fund    L.  41,  64  X.  W.  872   (1805):  Murray  v   Toland. 
Assoc,    171    111     40.   40    X.    E     205    (1898):.  3  Johns.  Ch.   (X.  Y.)  569   (1818);  2  Chamh., 
Allen   v    Coit.   6    Hill    (X.    Y)    318    (1S44).  Ev..  §  1412.  n.  2. 

Some  implication  of  actual  knowledge  muat          12.  Patrick  v.  Crowe,  15  Colo   543,  25  Pac. 


429  SCOPE.  §  563 

liver  up  possession  of  certain  premises  ln  is  a  common  instance  of  the  em- 
ployment of  this  rule.  Even  less  formal  writings  l4  stand  in  the  same  posi- 
tion. The  rule  applies,  with  especial  stringency,  to  "  proofs  of  loss "  ren- 
dered under  a  contract  of  insurance.15 

Letters. —  Failure  to  object  to  statements  in  a  letter  does  not,  as  a  rule, 
admit  their  truth.10  Xo  obligation  exists,  under  ordinary  circumstances,  to 
reply  to  any  self-serving  declarations  which  another  sees  tit  to  send  to  him  in 
this  form.17  One  who  is  injured  is  under  no  obligation  to  complain  of  the 
damage  done  to  him  under  penalty  of  losing,  by  silence,  a  right  to  redress.18 

Evidence  Admitted. —  There  are  however,  important  exceptions  to  this 
rule,19  circumstances  under  which  failure  to  reply  to  written  statements  tends 
to  show  acquiescence  in  their  truth.20  Whenever  good  faith  requires  that 
the  receiver  of  a  letter  should  declare  his  position  frankly  in  order  that 
the  person  sending  the  original  letter  may  not  be  misled,21  his  retaining  the 
letter  without  objection  is  a  significant  fact.  This  may  happen  when  he  is 
aware  that  the  sender  is  about  to  act  upon  the  assumption  that  he  is  correct 
in  his  own  statement.22  Under  such  circumstances  failure  to  deny  will  be 
deemed  evidence  of  acquiescence  in  the  truth  of  the  facts  asserted. 

Criminal  Cases. —  For  similar  reasons,  in  a  criminal  case,  the  letters  sent 
to  defendant  by  the  prosecuting  witness,  or  other  person  are  inadmissible  as 
admissions  by  conduct  of  the  former  by  mere  reason  of  the  fact  that  he  makes 
no  reply  to  the  statements  therein  contained.23  Xo  inference  of  acquiescence 
by  silence  could  possibly  arise  unless  and  until  it  be  shown  that  the  accused 
actually  received  the  letter.24  Even  should  he  have  received  it.  no  inference 

985    (1890);    Schrowang  v.   Sahler,   2   X.    Y.  08   X.   E.   954    (1903);    Com.   v.    Edgerly.    10 

Supp.  140   (1888).     Memorandum  of  sale,  see  Allen    (Mass.)    184    (1865);    Gray   v     Kauf 

.Friedman    v.    Enders,    116   X.    Y.    Supp.    461  man.  D.  &  I.  C.  Co..   162  N.  Y.  388,  397,  56 

(1900).  N".  E.  903  (1900)  :  2  Chamli.,  Ev..  §  1414,  n.  2. 

13.  .St.   Louis  Consol.  Coal  Co.  v.  Schaefer,  18.  Starkweather    v     Converse,    17    Wend. 
31    111.  App.  364   (1889).  (X.   Y)    20    ilS37). 

14.  Grier  v.  Deputy,  1  Marv.   (Del.)    19,  40  19.  Richards  v.  Gellatly.  L.  R.  7  < '.  P.  127 
Atl.    716    (1S04).  (1872). 

15.  When  the  insurer  submits,  as  required  20.  Meach  v.  Travelers'  Ins    Co.,  73  Conn, 
by  the  contract,  proofs  of  loss,  any  unneces-  118.   46    Atl.    867     (1900):    Murray   v.    East 
sarv  retention  of  them  by  the  insurer  without  End  Imp.  Co.,  supra  :  Whitaker  v.  White.  23 
objection,  will  be  deemed  an  acquiescence  in  X.    Y.    Supp.    487.    69    Hun    258    (1893);    2 
the  truth   of   the   statements   made   in   them.  Chamb..  Ev..  §  1414.  n.  5 

especially     if    the    time    during    which    new  21.  Thomas    v.    Gage.    141    X.    Y.    506,    36 

proofs  may  be  filed   has  elapsed.     2  Chamb.,  X.    E    3S5    (1894):    Janin   v.   Cheney.   60   X. 

Ev..  §   1413.  n    4.  V.  Supp.  645,  44  App.  Div.  110   (1899i. 

16.  Ra/or  v.  Razor,  149  Til.  621.  36  X.  E.  22.  Dutton   v    Woodman.  '.)  Cixh     (Mass.) 
fl63     (1804);     Fearing    v     Kimball.    4    Allen  257   (  1852)  :  Hill  v    Pratt.  29  Yt    1 19  ( 1856) . 

(Mass  )    125.  81  Am    Dec.  690   (1862)  :    Haas.  23.    People  v.  Colburn.  105  Cal.  64*  (1894)  ; 

Schachter   &    Ka«s   v.    Honwit.   Teller   &   Co..  People   v     Fit/gerald.    156   X    Y.   253.   50   X 

119    X.    Y.    Supp.    202     (1909):    Thomas    v.  E.  846    (1898):   2  Chamb..  Ev .  §   1414.  n.  9. 

Gaae.   141    X.  Y    50fi.  36   X.  E.  385    (1894)  :  24.  Com.  v   Edgerly.  supra;  Payne  v.  Com., 

2   Chamb.   Ev..  §    1414.  n     1  31  Gratt.   (Va.)    85s'(1878). 

17.  Chicago    v.    McKechney,    205    111.    372, 


§§  564-566  ADMISSIONS:  BY  CONDUCT.  430 

of  acquiescence  from  silence  naturally  arises.25  Should  the  accused  have  re- 
plied to  the  letter  or  otherwise  acted  upon  it  the  reply  or  other  conduct  may 
be  shown  in  evidence  and  so  much  of  the  letter  as  tends  to  give  probative 
point  to  the  evidence  so  introduced.26  A  fortiori,  the  accused  himself  is  not 
permitted  to  introduce  as  evidence  in  his  own  behalf,  favorable  letters  sent  to 
him  by  persons  not  connected  with  the  res  gestae.'2'1 

§  564.  [Admissions  by  Conduct] ;  Independent  Relevancy.28 — It  is  advisable 
that  the  effect  of  the  written  statement  which  is  not  denied  by  a  party  under 
circumstances  which  render  his  conduct  significant  on  the  issue  of  acquiescence 
should  be  distinguished  from  declarations  which  are  received  in  evidence  be- 
cause they  are  independently  relevant.  The  writing  in  the  latter  case  is  not 
offered  as  evidence  of  facts  stated  by  it;  its  probative  force  lies  rather  in  the 
results  directly  accomplished  by  it,  by  reason  of  its  bare  existence.29  It  gives 
notice,30  constitutes  a  demand,31  affords  knowledge,32  creates  an  identifica- 
tion 3:{  or  the  like.34 

§  565.  [Admissions  by  Conduct] ;  Falsehood.35 —  Prominent  among  admissions 
by  conduct  is  the  making  of  false  statements  by  the  accused  regarding  im- 
portant matters  involved  in  the  inquiry.  The  inference  is  the  same  as  that 
which  arises  in  other  cases  of  fabrication  or  spoliation,36  i.  e.,  the  accused 
knows  that  he  will  be  shown  to  be  guilty  in  a  criminal  proceeding  or  un- 
successful in  a  civil  one  were  the  facts  fully  known.  The  government,  there- 
fore, is  at  liberty  to  show  the  most  self-serving  explanations  or  other  state- 
ments of  the  accused  with  a  view  to  proving  the  fact  that  they  are  false  37 
and  that  the  accused  must  have  known  it. 

§  566.  [Admissions  by  Conduct] ;  Silence  as  Proof  of  Acquiescence.38 —  Failure 
to  deny  a  statement  made  in  one's  presence  under  surroundings  which 

prompt  to  speech  if  the  statement  were  false,  is  some  evidence  of  acquiescence 
i 

25.  People  v.  Green,  1  Park.  Cr.  (N.  Y.)   11  33.  R.  v.  Phimer,  R.  &  R.  264   (1814). 
(1845),                                                                                 34.  Dutton  v.  Woodman,  supra;  Hullett  v. 

26.  People  v.  Colburn,  supra ;  State  v.  Stair,      Carey,  supra. 

87   Mo.   268,   56   Am.   Rep.   449    (1885).  35.  2  Chamberlayne,   Evidence,   §    1417. 

27.  State  v    Crowder,  41  Kan.  101,  21  Pac.  36.  Supra,  §§  430  et  seq.;  2  Chamb.,  Ev., 
208    (1889).  §§   1070  et  seq. 

28.  2  Chamberlayne,   Evidence,   §    1416.  37.  People  v.  Scalamiero,   143  Cal.  343.  76 

29.  Sturtevant  v.   Wallack,   141   Mass.   119,  Pac.  1098   (1904)  ;  Com   v.  Goodwin,  J4  Gray 
4  N.  E.  615   (1886).  (Mass.)    55   (1859);   People  v.  Wilkinson,  14 

30.  Com.  v.  Jeffries,  7  Allen  (Mass.)  548,83  N.   Y.   Supp.   827    (lh;il):    2   Chamb.,  Ev.,   § 
Am.    Dec.    712     (1863):    Allen    v.    Peters,    4  1417,   n.    2. 

Phila.   (Pa.)   78   (I860).  38.  2  Chamberlayne,     Evidence,     §§     1418- 

31.  Hand  v.   Howell,   61    N.   J.   L.   142,   38  1422.     Admissions    by    failing   to   contradict. 
Atl.   748    (1897);    Hill   v    Pratt,   29  Vt.   119  See  note,  Bender  Ed.,  162  N.  Y.  399.     Failure 
(1856).  to    deny    statements    as    an    admission.     See 

32.  Infra,   §   S50;   4  Chamb.,  Ev  ,   §  2666;  note,  Bender  Ed.,  92  N.  Y.  29. 
Came  v.   Steer,  5  H.  &  N.  628    (1860). 


431  SILENCE.  §  566 

in  the  truth  of  the  assertion.39  Regarded,  therefore,  as  evidenc  of  acquies- 
cence in  4fl  or  adoption  of  a  statement  made  in  the  presence  of  a  party  41  or 
even  as  a  relevant  circumstance,  his  total  42  or  partial 4S  silence  and  failure 
to  denv  the  truth  of  the  statement  made  in  his  presence  is  probative  in  pro- 
portion to  the  strength  of  the  impulse  to  speak  which  is  thus  controlled.44 
It  follows  that  it  is  not  the  fact  of  silence  which  is  probative.  It  is  the  fact 
of  silence  under  certain  circumstances.  Standing  alone,  the  statement  made 
in  the  party's  presence  is  without  logical  bearing  as  to  the  existence  of  the 
fact  asserted ;  only  in  connection  with  some  evidence  of  significant  conduct  45 
on  the  part  of  the  listener  does  the  statement  itself  become  entitled  to  evi- 
dentiary weight.46 

Civil  Cases. —  The  inference  of  acquiescence  from  silence  may  arise  in 
civil  eases.47  Reading  a  statement  to  a  party  may,  in  connection  with  his 
non-denial  be  sufficient  to  show  acquiescence  in  its  assertions.48  In  any  case, 
it  must  be  made  affirmatively  to  appear  that  the  party  in  question  understood 
the  force  and  effect  of  what  was  said  to  him,  and  that  he  was,  in  view  of  the 
circumstances,  under  the  duty  or  probably  influenced  by  some  impulse  to 
speak,  if  this  well  could  have  been  done.49  Relevant  statements  made  in  an 
agent's  presence  and  not  denied  by  him,  may  be  competent  facts.50  But  nar- 
rating a  past  occurrence  in  the  presence  of  an  agent  who  is  not  called  upon 
to  act  upon  the  information  furnished,  may  be  entirely  immaterial.51  Muni- 
cipal agents  stand  in  the  same  position.52  Self-serving  statements,  where  not, 

39.  State  v.  Quirk,   101  Minn.  334,  112  N.        (1895)  -.  Gibney  v.  Marchay,  supra,  2  Chamb., 
.   409    (1907)  ;    Bass  v.  Tolbert    (Tex.   Civ.       Ev.,  §  1418,  n.  6. 

App.  1908),   112  S.  W.  1077:   Vail  v.  Strong.  45.   People  v.  Mallon,  103  Cal.  513,  37  Pac. 

10   Vt.  457    (1838);    2   Chamb.,   Ev.,  §    1418,  512   (1894);  Gibney  v.  Marchay,  supra ;  Com. 

n.    l.  v.  Trefethen,  157  Mass.  180  (1892) ;  2  Chamb., 

40.  Holston   v.    Southern    R.    Co.,    116    Ga.  Ev.,  §   1418,  n.  7. 

656,  43  S.  E.  29    (1902)  ;  Proctor  v.  Old  Col-  46.  People  v.  Mallon,  supra;  Senn  v.  South- 

ony    R.    Co.,    154    Mass.    251,    28    X.    E.    13  ern    R.    Co..    108    Mo.    142,    18    S.    W.    1007 

(1891);    Lathrop    v.    Bramhall,    3    Hun     (X.  (1891).     Functions    of    judge   and    jury,    see 

Y.)   394    (1875)  ;  2  Chamb.,  Ev.,  §  1418,  n.  2.  2  Chamb.,  Ev.,  §   1418,  n.  8. 

41.  Silence  of  an  agent  may  bind  the  prin-  47.  Kozlowski  v.  City  of  Chicago,   113   111. 
cipal.     Gault  v.   Sickles,  85    Iowa  260,  52  X,  App.  513    (1904);    Proctor  v.  Old  Colony  R. 
E.  206    (1892)  ;    Stecher  Lithographic  Co.  v.  Co.,  supra;  Cable  v.  Bowlus,  21  Ohio  Cir.  Ct. 
Inman,  175  N.  Y.  124,  67  X.  E.  213    (1903)  ;  53,  11  Ohio  Cir.  Dec.  526   (1900)  ;  2  Chamb., 
2  Chamb.,  Ev.,  §  1418,  n.  3.  Ev.,  §  1419,  n.  1. 

42.  Gibney     v.     Marchay,     34     X.     Y.     301  48.  Huggins  v.  Southern  Ry.  Co.,  148  Ala. 
(1866i  :  Webb  v.  Atkinson,  124  X.  C.  447,  32  153,  41  So.  856   (1906)  :  People  v.  Rollins,  14 
S.  E.  737    (1899);   2  Chamb..  Ev.,  §  1418,  n.  Cal.  App.   134,  111  Pac.  123    (1910). 

4.     See.   however,    Merri weather   v.   Com.,   26  49.  Parulo  v.  Philadelphia  &  R.  Ry.  Co.  (U. 

Ky.  L.  Rep.   793,  82   S.   W.  592    (1904).  S.  C.  C.,  X.  Y.   1906),   145  Fed.  664. 

43.  People  v.  Swaile,  12  Cal.  App.  192,  107  50.  Linderberg  v.  Crescent  Min.  Co..  9  Utah 
Pac.    134     (1909);    Rowe    v.    Bregen/.er.    161  163,  33  Pac.  692    (1893). 

Mich.  684,  126  X.  W.  706   (1910)  ;  2  Chamb.,  51.  St.   Louis,   etc.,    R.    Co.   v.    Weakly,   50 

Ev.,  §  1418,  n.  5.  Ark.  397,  8  S.  W.  134    (1887). 

44.  Proctor  v.   Old  Colony   R.   Co.,   supra;  52.  Maher  v.  Chicago,  38  111.  266  (1865). 
Peck    v.    Ryan,    110    Ala.    336,    17    So.    733 


§  567  ADMISSIONS:  BY  CONDUCT.  432 

as  a  rule,  admissible  in  favor  of  the  declarant,53  may  be  received  if  made  in 
the  presence  of  the  opposite  party  and  not  denied  by  him.54 

Criminal  Prosecution. —  The  same  inference  of  acquiescence  from  silence 
may  be  made  in  the  case  of  one  accused  or  suspected  of  crime.55  It  may  be 
employed  to  establish  the  existence  even  of  the  corpus  delicti  itself,06  the 
connection  of  the  person  in  question  with  it,  or  regarding  the  existence  of  any 
other  material  fact.57  Alleged  admissions  by  accused  from  his  failure  to 
deny  incriminating  statements  made  in  his  presence  are,  it  is  said,  subject 
to  the  same  rules  as  applied  to  confessions.58  It  is  not  a  consideration  of 
any  importance  that  the  person  who  makes  a  relevant  assertion  in  the  presence 
of  a  criminal  defendant  would  himself  be  incompetent  to  testify  as  a  witness 
on  the  point  to  the  same  effect.59 

Self-serving  Statements. —  The  declarant  is  not  entitled  to  use  his  self-serv- 
ing statements  60  except  so  far  as  fairly  necessary  to  qualify  the  effect  of  the 
concatenated  facts,  the  statement  and  his  conduct  in  respect  to  it,  used  against 
him."1  A  denial  by  the  defendant  of  liability  for  an  offense  makes  the  charge 
in  his  presence  irrelevant.02  Should  the  accused,  however,  answer  in  part, 
his  reply  will  be  considered  by  the  jury  as  a  whole.03 

Inference  of  Acquiescence  Rebuttable. —  In  the  absence  of  facts  grounding 
an  estoppel  64  the  failure  to  deny  may  be  controlled  in  its  effect  by  other 
evidence.65  Non-denial  is  merely  one  fact  among  others  be'aring  on  the 
question.  It  is  not  conclusive  in  its  nature.60 

§  567.  [Admissions  by  Conduct] ;  Conditions  of  Admissibility. —  There  are  four 
conditions  of  adrnissibility  required:  (a)  The  party  must  be  shown  to  have 
understood  the  statement,  (b)  It  must  appear  that  it  would  have  been 
natural  to  have  denied  the  statement  if  it  had  been  false,  (c)  The  person 
addressed  must  possess  at  the  time  adequate  knowledge  on  the  subject  covered 
by  the  statement,  (d)  He  must  have  been  physically  and  mentally  able  to 

53.  Infra,  §§  857  et  seq.;  4  Chamb.,  Ev.,  §§  Richards  v.  State,  82  'Wis.  172,  51  X.  \V.  652 
2698  et  seq.  (1892). 

54.  Wonsetlor  v.   Wonsetler,  23   Pa.   Super.  60.  Williams  v.  Mower,  2!)  S.  C.  332,  7   S. 
Ct.  321    (1903).  E.  505    (1888). 

55.  People    v.    Swaile,    supra;    Conway    v.  61.  Davidson  v.  State,  135  Ind.  254,  34  X. 
State,    118   Ind.   482,   21   X.   E.   285    (1888):  E.    972    (1893);    Clement   v.     Drybread,    108 
Com.    v.   O'Brien,    179    Mass.    533,    61    X.   E.  Towa   701.  78  X.  W.  235    (-ISO!))  :   2   Chamb., 
213     (1901);    People    v.    McCue,    178    N.    Y.  Kv..  §  1421,  n.  2. 

579,   70   X.   E.   1104    (1904)  ;   2   Chamb.,  Ev.,  62.  Low  v.  State,   108  Tenn.   127,  65  S.  W. 

§  1420,  n.  1.  401     (1901). 

56.  The    contrary    view    has    been    main-  63.  Com.  v.  Robinson,  165  Mass.  426,  43  X. 
tained.     People  v.  Rowland,   12  Cal.  App.   6,  E.    121    (1S95). 

106  Pac.  428   (1909).  64.  Mattocks  v.  Lyman.  16  Vt.  113   (1844). 

57.  Com.  v.   Finai,   146  Mass.  570    (1888);  65.  Hagenbaujih    v.    Crabtree,    33    Til.    225 
State  v.  Burton,  94  X.  C.  947   (1886).  (1864)  ;    Cable  v.   Bowlus,  supra;  2  Chamb., 

58.  Hauler   v.   U.    S.    (W.   Va.    1909).    173  Ev.,  §   1422,  n.   2. 

Fed.   54,   97   C.   C.   A.   372.  66.  Jones   v.   Morrell,    1    C.   &   K.   266,   47 

59.  People  v.  McCrea,  32  Cal.  98    (1867);       E.  C.  L.  266    (1844). 


433  Coxnrnoxs  OF.  §  568 

deny  the  statement  had  he  seen  fit.07  The  burden  is  upon  the  proponent  of 
the  evidence  to  show  r>8  to  the  satisfaction  of  the  court,69  that  these  conditions 
of  admissibility  exist  in  any  particular  case.  There  is,  however,  no  im- 
propriety in  leaving  the  question  70  as  well  as  that  of  weight  71  to  the  jury. 

§  568.   [Admissions  by  Conduct] ;  Statement  Must  Have  Been  Understood.7-— 
Affirmative  evidence  must  be  produced  by  the  proponent  73  to  the  effect  that 
the  statement  was  a  definite  74  declaration  of  fact ;  75  and  that  the  party  ac- 
tually heard  7(i  and  understood  it.77 

All  Attendant  Object  ice  Facts  Considered. —  Thus,  the  loudness  of  tone  in 
which  a  remark  is  made,78  the  intervention  of  objects  calculated  to  deflect 
sound,'"  the  proximity  of  the  speaker,  all  are  or  may  be  material  considera- 
tions determining  whether  it  may  fairly  be  inferred  that  the  party  heard  the 
statement  and  understood  it.80 

Understanding  Assumed  From  Hearing. —  If  it  appears  that  a  person 
heard  a  remark,  it  may  fairly  be  assumed,  in  the  absence  of  evidence  to  the 
contrary,  that  he  understood  it.  If  made  in  a  party's  hearing,  it  is  not 
necessary  that  it  should  have  been  made  in  his  immediate  presence.81  One 
may  -be  said  to  be  "  present  "  if  there  is  "  proximity  within  a  distance  suffi- 
cient to  permit  hearing."  82  Proof  that  a  remark  is  made  within  hearing 
distance  of  a  person  is  not  equivalent  to  proof  that  the  remark  was  heard,83 
unless  the  person  must  necessarily  have  heard  it,84  or  it  can  reasonably  be 
inferred  that  he  did  so. 

All   Attendant    Subjective   Facts    Considered.- — It   must    appear   that    the 

67.  Com.  v.  Kenney,   12  Mete.    (Mass.)    235  574,  41  S.  E.  983    (1002):    Farrell  v.  Weitx, 
(1847);   2  Chanib.,  Ev..  §   1423.  160-Mass.  288,  35  X.  E.  783    (1804):   People 

68.  People  v.  Mallon,  103  Cal.  513,  37  Pac.  v.  Bissert.  75  X.  Y.  Supp.  630,  72  App.  Div. 
512    (1S94J  ;   Drumright  v.  State.  29  C.a.  430  620   (1902)  ;  2  Chamb..  Ev..  §  1424,  n.  4. 
(1859),  77.  Martin    v.    Capital    Ins.    Co.,    85    Iowa 

69.  Miller  v.   Dill,   149   Ind.  320.  49  X.   E.  643,  52  X.  \Y.  534    (1892);   Com.  v.  "Kenney. 
272      (1897)  ;     Com.     v.     Kenney,     supra:     2  supra:  State  v.  Burton.  94  X.  C.  947   (1886)  ; 
Chamb..  Ev..  §  1423,  n.  2.  2  Chamb.,  Ev..  §  1424,  n.  5.     The  silence  must 

70.  State  v.  Perkins.  3  Hav.ks   i  X.  C.)   377  amount    to    voluntary    demeanor.     State    v. 
,18-241.  Blackburn    (Del.    1892 1,    75    Atl.   536. 

71.  Jewett  v.  Bannhi-.  21  X.  Y.  27   (I860):  78.  Vincent   v.    Huff.   8    Serg.   &   R.    (Pa.) 
Pi-ce    v.    Pierce,    60    Vt.    309,    29    Atl.    304  381    (1822). 

(1894)  -.  2  Chamb.,  Ev..  §  1-23.  n.  4.  79.  Yale    v.    Dart.     17     X.     \'.    Supp.     179 

72.  2  Chaml>erVn-'ie.     Evidence.     §§     1424-  i  1891)  :  Josephi  v.  Furnish,  supra  :  2  Chamb., 
14l>7  Ev.,    §    1425.   n.   2.  . 

73.  Joseph i     v.     Furnish.    27    Or.    260.    41  '  80.  State    v.    Record.    151    N.    C.    695.    65 
Pac.    424     i  ISO.',  i:     People    v.    Cascone.    1?«  S.  E.   1010    (1909). 

N     Y    317     7*   X.    P..  2S7    i!906>:    2   Chnmb..  81.  Xeile   v.    Jakle.   2   C.    &    K.    709,   61    E. 

Ev.,  §  1424.  n.  1.  C.  L.  700    .1849). 

74.'  Chapman  v.  State.  109  O..  1".  34  S.  E.  82.  People    v.    Philbon,    13S    Cal.    530.    71 

369    (1899).  Pao-  (]™   '  10031  :  2  Chamb..  Ev..  §  1426.  n.  2. 

75.  State  v.  Foley,   144  Mo.  600.  40  S.  W.  83.  Jackson    v.    Builders'    \Yood    Working 
733  '(1898).  Co.,  36  X.  Y.  Supp.  227.  91  Hun  435   <  1895  i . 

76.  Dawson    v.    Schloss,    93    Cal.    194.    29  84.  Moore  v.   Smith,    14  Serg.  &  R.    (Pa.) 
Pac.  31    (1892);   Simmons  v.   State,   115  Ga.  388   (1826). 


§  569  ADMISSIONS:  BY  CONDUCT. 

party  both  heard  and  understood  85  the  declaration  in  question.  If  the  person 
appears  to  have  been  unconscious,80  asleep,87  or  even  semi-conscious,88  the 
statement  is  incompetent,  though  there  is  some  evidence  that  the  person  may 
be  shamming  his  unconsciousness.89  The  rule  is  the  same  if  the  person  was, 
at  the  time,  drunk  or  stupified.90  If  it  shall  appear  that  he  was  so  deaf  91 
as  to  be  unable  to  hear,  no  inference  will  be  drawn  from  his  silence. 

Attention. —  In  order  that  an  inference  should  arise  to  the  effect  that  he 
understood  a  given  statement  made  in  his  presence,  it  must  affirmatively  ap- 
pear that  his  attention  was,  in  point  of  fact,  directed  to  the  remark,92  i.  e., 
that  he  was  listening  to  it.93  If  it  appears  that  his  attention  was  so  diverted 
from  what  was  being  said  at  the  time  by  present  suffering,94  or  occupation  in 
distinct  affairs,95  no  inference  arises  from  failure  to  controvert  any  injurious 
statement  made  in  the  party's  presence. 

§  569.  [Admissions  by  Conduct] ;  Denial  Must  be  Natural.96 —  Affirmative  evi- 
dence must  also  be  submitted  that  the  party  would  be  interested  to  deny  the 
statement  were  he  able  to  do  so,  i.  e.,  were  it  false.97  All  the  relevant  facts 
pertaining  to  the  declaration  should  be  taken  into  consideration.5'8  The  en- 
tire occurrence  should,  therefore,  be  placed  before  the  jury,  who  are  at  liberty 
to  draw  any  legitimate  inferences  from  it  as  to  the  guilt  of  the  accused.99 
It  is  good  circumstantial  evidence.1 

(1)  Declaration  Must  Invite  a  Reply. —  The  statement  in  respect  to  which 
the  conduct  of  the  party  is  significant  must  be  such  as  to  call  for  a  reply.2 
The  fact  covered  by  the  statement  and  by  it  directly  or  indirectly  asserted  to 

85.  Riley    v.    Martinelli,    97    Cal.    575,    32          97.   Brantley  v.  State,  115Ga.  229,  41  S.  K. 
Pac.    579     (1893);     Wright    v.    Maseras,    56  695    (1902):    Slattery   v.   People,   76   111.   217 
.barb.    (N.   Y.)    521    (1869);    2   Chamb.,   Ev.,  (1875);    Drury    v.    Hervey.    12(i    Mass.    510 
§   1427,  n.   1.  (1879);   Stecher  Lith.  Co.  v.  Tnman.   175  N. 

86.  Dean  v.  State,   105   Ala.  21,   17   So.   28  Y.   124,  67  X.  E.  213   (1903);  2  Chamb.,  Ev., 
(1894);    People   v.   Koerner,    154   N.   Y.   355,  §    1428,   n.    1. 

48  N.  E.  730  (1897).  98.  Fearing   v.    Kimball.   4    Allen    (Mass.) 

87.  Lanergan  v.  People,  39  N   Y.  39  (1868).  125,  81  Am.  Dec.  690   (1862)  :   Davis  v.  Gal- 

88.  Gowen  v.  Bush,  76  Fed.  349,  22  C   C.  A.  lagher,  124  X.  Y.  487.  26  X.  E.  1045  (1891)  ;  2 
196    (1896).  Chamb..  Ev..  §  1428.  n.  2. 

8§.   People  v.  Koerner.  supra.  99.  Aokerson    v.    People,    124    111.    563,    16 

90.  State  v.  Perkins,  supra.  1\.  E.  847    (1888)  ;  Com.  v.  Funai,  146  Mass 

91.  Tufts  v.  Charlestown,  4  Gray    (Mass.)  570.  16  \.  E.  458    (1888):   Kelley  v.  People. 
537   (1855).  55  N.  Y.  565.  14  Am.  Rep.  342    (1874):   Ha- 

92.  Jones  v.  State,  65  Ga.  147   (1880).  berty  v.  State,  8  Ohio  Cir.  Ct.  262   (1893)  ;  2 

93.  Steer  v.  Little,  44  X    H.  613    (1863);  Chamb..  Ev.,  §  1428.  n.  3 

State  v.  Rosa   (X.  J.  1905).  62  Atl.  695.  1.  Watt  v.  People,  126  111.  9,  18  X.  E.  340 

94.  Schilling    v.    Union    R.    Co.,    78    X.    Y.  (1888)  :   Musfelt  v.  State.  64  Xeb.  445.  90  X. 
Supp.     1015,    77     App.    Div.    74     (1902):     2  \Y.  237    (1902):  2  Chamb.,  Ev..  §  1428.  n.  4. 
Chamb.,  Ev.,  §   1427,  n.  10.  2.  Whitney    v.    Houghton.    127    Mass.    527 

95.  Drury  v.  Hervey,  126  Mass.  519  (1879) .  (1870)  ;  Sira  v.  Wabash,  etc.,  R.  Co.,  115  Mo. 

96.  2  Chamberlayne,    Evidence,    §§     1428-  127,  21  S.  W.  905    (1893);  2  Chamb..  Ev.,  § 
1431.  1429,  n.  1. 


435  SILENCE. 

be  true  must  be  such  as  as  to  injuriously  affect  some  considerable  interest  of 
the  party  in  his  real  3  or  personal 4  property,  his  right  to  liberty  or  some  other 
privilege,5  or  to  expose  him  to  the  social  and  legal  punishment  of  crime.6 
Should  the  party  addressed  be  falsely  led  to  believe  that  he  has  no  concern 
in  the  subject  matter  of  the  inquiry,  his  silence  loses  all  probative  force.7 
In  like  manner  where  a  party  is  led  to  think  that  he  has  no  motive  to  respond 
to  the  statements  made  in  his  presence,  e.  g.,  because  the  remarks  \vere  suf- 
ficiently favorable  to  him,8  failure  to  reply  possesses  no  evidentiary  value. 

Party  Expected  to  Speak. —  The  person  addressed  must  realize  that  he  is 
the  person  addressed  and  is,  at  least,  expected  to  speak  and  at  liberty  to  do  so. 
Where  the  remarks  in  question  are  not  addressed  to  the  party  9  or  apparently 
intended  for  his  consideration,10  or  where,  for  any  other  reason,  he  may  ra- 
tionally think  that  he  is  not.  to  be  affected  by  his  silence,11  his  conduct  in  the 
matter  may  have  no  probative  value  whatever. 

Inducements  to  Silence. —  Jf  a  person  is  at  the  time  under  the  influence  of 
fear,  in  the  custody  of  arresting  office1  rs,  12  o,r  is  restrained  from  making  reply 
by  the  presence  of  those  with  whom  he  is  not  in  the  habit  of  speaking  on 
terms  of  equality,13  the  silence  may  be  without  logical  bearing. 

(2)  The  Declarant  Must  be  Entitled  to  Reply. —  The  declarant  must  be 
one  who  is  a  proper  person  to  receive  from  the  party  in  question  information 
upon  the  subject  to  which  the  statement  relates.14  A  mere  stranger  is  en- 
titled to  no  reply.15  Reticence  due  to  mere  disinclination  to  discuss  private 
affairs  with  others  10  especially  with  those  who  by  reason  of  intoxication,17 
or  for  some  other  cause,  are  in  no  present  condition  to  rationally  consider 
what  is  said,  has,  in  many  cases,  little,  if  any,  logical  significance.  The 
person  making  the  statement  need,  however,  have  no  relation  to  the  case  in 

3.  Wheeler  v.  State,  109  Ala.  56,  19  So.  993  10.  Pierce  v.  Pierce.  66  Vt.  369   (1894). 
(1894)  ;  Adams  v.  Morgan,  150  Mass.  143,  22  11.  Ludwig  v.  Blackshere.  102  Iowa  366,  71 
N.  E.  708    (1889)  ;  2  Chamb.,  Ev.,  §  1429,  n.  X.  \V.  356  (1897)  ;  Gerding  v.  Funk,  64  N.  Y. 
2.  Supp.    423,    48    App.    Div.    603     (1900);     2 

4.  Matthews   v.    Forslund,    112   Mich.    591,  Chamh.,  Ev.,  §  1429,  n.  10. 

70  X.   W.   1105    (1897)  :   State  v.  Henderson,  12.  Infra,  §  593 ;  2  Chamb.,  Ev.,  §  1530. 

80  Mo.   App.   482    (1900):    2   Chamb.,   Ev.,   §  13.  Bob  v.  State,  32  Ala.  560    (1858). 

1429,  n.   3.  14.  Drury  v.   Hervey,  supra;  Blanchard  v. 

5.  Walhridge     v.     Arnold,     21     Conn.     424  Evans,  55  X.  Y.  Super.  Ct.  543   (1888):  Gei- 
(1852);   Springer  v.  Byram,   137   Ind.  15.  36  ger   v.   State.  25   Ohio  Cir.   Ct.   742    (1904); 
N.  E.  361,  45  Am.  St.  Rep.   159.  23  L.  R.  A.  2  Chamb.,  Ev.,  §  1430,  n.   1. 

244    (1893);   2  Chamb.,  Ev.,  §   1429,  n.  4.  15.  Larry   v.    Sherburne,    2   Allen    (Mass.) 

6.  Hicks   v    Lawson.    39    Ala.    90    (1863)  :  34   (1861)  :  People  v.  Page,  162  X.  Y.  272,  56 
State  v.  Reed,  62  Me.  129  ( 1874) .  X.  E.  750  ( 1900)  ;  2  Chamb.,  Ev.,  §  1430,  n.  2. 

7.  Guy  v.  Manuel.  89  X.  C.  83   (1883).  16.  Thornton   v.   Savage,   120   Ala.   449,  25 

8.  People  v.  Foo,  112  Cal.  17,  44  Pac.  453  So.   27    (1898)  :    Vail   v.   Strong,   10   Vt.   457 
(1896).  (1838). 

9.  State  v.  Mullins,  101  Mo.  514,  14  S.  W.  17.     Jones  v.  State,  2  Ga.  App.  433,  58  S.  E. 
625   (1890)  :  Fry  v.  Stowers.  92  Va.  13,  22  S.  559   (1907)  ;  Francis  v.  Edwards,  77  N.  C.  271 
E.  500   (1895);  2  Chamb.,  Ev.,  §  1429,  n.  8.  (1877). 


§   5GU  ADMISSIONS:  BY  CONDUCT.  •!•>!> 

which  it  is  offered.18  In  any  case,  the  person  addressed  must  be  aware 
that  he  is  entitled  to  speak.19 

Duty  to  tijjeak. —  Where  the  circumstances  are  such  as  to  impose  upon  the 
party  a  duty  to  speak,20  as  where  persons  are  met  for  the  express  purpose 
of  adjusting  the  matter  under  consideration,21  or,  for  some  other  reason,  it  is 
evident  that  the  party  whose  silence  is  being  considered  is  under  some  moral 
or  legal  duty  to  declare  his  position,22  the  inferences  to  be  drawn  from 
silence  grow  to  be  more  cogent  in  proportion  as  the  duty  of  full  disclosure 
becomes  plain  and  pressing. 

Husband  and  Wife. —  Statements  by  a  wife  in  presence  of  her  husband,  or 
vice  ve.rxa?*  are  subject  to  the  same  tests  as  are  applied  to  the  statements  of 
persons  standing  in  less  intimate  relations.24 

(3)  Time  Should  be  Appropriate  for  Denial. —  Should  the  circumstances 
be  such  that  it  would  not  be  natural  to  expect  a  reply  at  that  particular 
time,25  as  where  an  immediate  denial  would  constitute  an  unseemly  in- 
terruption of  solemn  ~6  or  orderly  proceeding's  then  in  progress ;  where,  for 
example,  the  declarant  is  a  minister  in  the  course  of  the  delivery  of  a 
sermon,27  failure  on  the  part  of  hearers  to  interrupt  and  correct  his  state- 
ments on  the  spot  implies  no  acquiescence  in  their  truth.  The  same  rule 
applies  to  a  judge,2s  an  examining  -tf  or  committing  magistrate,  prosecut- 
ing officers,30  counsel/11  parties  appearing  pro  se :{2  or  other  person33  dis- 
charging an  appropriate  function  in  court.  For  the  same  reasons  a  party 

18.  Selig  v    1,'ehfiiss,   195   Pa.   200.  45   Atl  25.  McKlmurray    v.    Turner,    86    Ga.    215 
919    (1900);   Boyles  v.  McCovven,  3  X.  J.   L.  11890);    Johnson    v.    Holliday,    79    Ind.    151 
253  (181(1).  (1881);   2  Chamb.,  Ev.,  §  1431,  n.   1. 

19.  Broyles  v    State,  47    fnd.  251    (1874);  26.  R.  v.  Mitchell,   17  Cox  Cr.  503    (1892). 
Stowell    v.    Hall,   56    Or.    256,    108    Pac.    182  Statements  made  by  a  dying  man.  in  presence 
(1910);   2  Chamb.,  Ev.,  §   1430,  n.  6.     Court  of   accused,   regarding  the   circumstances   at- 
1'roccedings. —  One   in   open   court   is   not   re-  tending  the  infliction  of  the  fatal  injury  have, 
garded   as   being  at   liberty   to   speak   out   in  however,    been    received    in    evidence.     Don- 
denial  of  charges  of  guilt  made  against  him  nelly    v.    State,   26    X.    J.    L.    463,    504,    601, 
at  the  time      Xo  adverse  inference,  therefore.  612    (1857)  ;    People   v.    Driscoll,    107    X.    Y. 
arises  from  his  silence.     Coin.  v.  Walker,   13  414.  424.    14   X.   E    305    (18S7) 

Allen   (Mass.)   570   (1866);  State  v.  Mullins.  27.  Johnson  v.  Trinity  Church  Soc.,  11  Al- 

101    Mo.    514    (1S90);    People   v.    Willett,   92  len    (Mass.)    123    (1865). 

N.  Y.  29   (1883)  :  2  Chamb.,  Ev..  §  1430.  n.  6.  28.  Keith    v.    Marcus,    181    Mass.    377,    63 

20.  Giles  v.  Vandiver,  91  Ga.   192    (1892);  X.   E    924    (1902). 

Bulfer    v.    People,    141    111.    App     70    (1908).  29.  Weaver  v    State,  77  Ala.  20   (1SS4K 

21.  Darlington  v.  Taylor,  3  Grant  (Pa.)  195  30.   H.    v.    Hollingshead.    4    C.    &    P..    242 
(1855).  (1830). 

22.  Des  Moines  Sav.  Bank  v.  Colfax  Hotel  31.  Puett   v.    Beard.   86    Ind.    104    (1882): 
Co.,   88   Iowa  4,   55   X.   W.   67    (1893):   Reid  Little   v.    R.   Co.,   72   X.    H.   61.   55   Atl.    190 
v.  Barnhart.  54  X.  C.  142   (1853)  :  2  Chamb..  (1903)  :  2  Chamb..  Ev..  §  1431.  n.  7. 

EV.,  §    1430,  n.   9.  32.  Abercrombie     v.     Allen.     29     Ala.     281 

23.  Pierce   v.    Pierce.    66    Vt  369    (1894).  ( 1856  ):  Brainard  v    Buck.  25  Vt.  573  ( 1853) . 

24.  Owen  v    Christensen.   106  Iowa  394.  7i»  33.  Johnson  v.  Holliday.  supra:  Varnum  v. 
N.   W.    1003    (1S98);    Boyles   v  McCowen.   3  Hart.  47  Hun  (X.  Y.)   18  (1888). 

N.  J.  L.  253   (1810)  ;  2  Chamb.,  Ev.,  §  1430, 
n.  11. 


437  SILENCE.  §  569 

is  not  at  liberty  to  make  instant  contradiction  of  the  statements  of  a  witness, 
even  though  the  person  testifying  should  have  been  called  by  himself,34 
while  the  latter  is  giving  testimony  in  a  judicial  hearing,35  coroner's  in- 
quest 36  or  preliminary  investigation.37  The  rule  is  the  same  where  a  person 
is  engaged  in  giving  his  testimony  as  a  deponent.38  If  no  suitable  oppor- 
tunity for  reply  is  afforded  later,  non-denial  of  statements  so  made  is  mean- 
ingless, in  an  evidentiary  sense.39 

Failure  to  Deny  Later. —  Failure  to  improve  a  subsequent  known  oppor- 
tunity for  denial,  as  where  the  party  might  testify  as  a  witness  40  or  testifying 
as  a  witness  might  have  denied  the  statement  but  failed  to  do  so,41  may  be 
as  significant  as  if  an  opportunity  for  instant  denial  were  offered  and  allowed 
to  pass.42 

Effect  of  Arrest. —  The  courts  of  several  jurisdictions  have  deemed  the 
position  of  one  under  arrest  on  a  criminal  charge  as  presenting  an  instance 
of  the  application  of  the  rule  which  regards  as  insignificant  statements  made 
in  a  person's  presence  at  a  time  inopportune  for  denying  it,  however  false.43 
They  have  accordingly  denied  all  force  to  the  making  of  unanswered  state- 
ments in  the  prisoner's  presence.  The  same  considerations  have  not  im- 
pressed other  courts  to  the  same  effect.44  When  the  relation  of  the  speaker 
to  the  accused  is  such  as  to  make  a  reply  appropriate,45  the  person  addressed 
knows  that  he  is  at  liberty  to  speak,46  and  other  circumstances  of  probative 
force  are  presented  in  connection  with  the  failure  to  reply,47  the  evidence 
has  been  received,  even  when  the  party  in  question  was  under  arrest.  No 
rule  of  exclusion  has  been  formulated  by  the  prevailing  current  of  authority, 
due  weight,  in  each  case,  being  accorded  to  the  fact  of  arrest,  as  furnishing 
a  possible  explanation  of  silence.48  The  question  of  admissibility  in  each 
case  is  decided  upon  the  facts  presented  to  the  court,49  It  is  generally  agreed, 

34.  McElmurray  v.  Turner,  supra.  42.  Supra,   §   566:    2  Chamb.,  Ev..   §   1418 

35.  Id.;   State  v.   Hale.   l.">6  Mo.   102.  06  S.  But  see.  to  the  contrary.  Blackwell  D.  T.  Co. 
W.  881    (1900)  ;  Leggett  v.  Schwab,  97  X.  Y.  v.  McElwee,  96  X.  C.  71,  1  S.  E.  676   (1887) 
Supp.    805,    111    App.    Div.    341     (1906):    2  43.  Smith    v.   Duncan,    181    Mass.    435,    63 
Chamb.,  Ev.,  §  1431,  n.  11.  N.   E.  938    (1902):    State  v.   Foley.   144  Mo. 

36.  State  v.  Mullins.  supra  :  People  v.  Wil-  600,  46  S.  W.  733    (1898)  :   Hanger  v.  U.   S. 
lett.  36  Hun   (X.  Y.)   500   (18S5).  (W.  Va.  1909),  173  Fed.  54.  97  C.  C.  A.  372: 

37.  Bell  v.  State,  93  Ga.  557.  19  S.  E.  244  2  Chamb.,  Ev.,  §  1431.  n.  19. 

(1894)  ;  Com.  v.  Zorambo,  205  Pa.  109,  54  Atl.  44.  Kelley  v.  People,  55  X.  Y.  565.  14  Am. 

716  (1903)  :  2  Chamb.,  Ev..  §  1431,  n.  13.  Rep.  342    (1874)  :   Murphy  v.  State.  36  Ohio 

38.  Tobacco  Co.   v.   McElwee,   96   X.   C.   71  St.  628   (1881)  ;  Green  v.  State.  97  Tenn.  50, 
(1887).  36  s-  w-  "°°   HS96)  :  2  Chamb.,  Ev.,  §  1431, 

39.  Persons  v.  Jones.   12   Ga.   371,  58  Am.  n.  20. 
Dec.  476    (1853);    2   Chamb..   Ev.,   §    1431,  n.  45.  Id. 

15  46.  People  v.  Swaile,  12  Cal.  App.  192,  107 

40.  Blanchard    v.    Hodgkins,    62    Me..    119       Pac.  134   (1909). 

(1873):    Connell   v.   McXett,    109   Mich.   329,  47.  Spencer   v.    State.   20   Ala.    24    (1852). 

67  X.  W.  344   (1896).  48.   People  v.  Amaya,  134  Cal.  531,  66  Pac. 

41.  State  v.  Dexter,   115   Iowa  678,  87  N.      794   (1901). 

W.  417    (1901).  49-  People  v.  Smith,  172  N.  Y.  210,  64  N. 


§§  570,  571  ADMISSIONS:  BY  CONDUCT.  438 

however,  that  when  the  officer  enjoins  silence  upon  the  prisoner  or  cautions 
him  not  to  speak,  no  inference  of  acquiescence  in  the  statements  subsequently 
made  in  his  presence  can  properly  be  drawn.50  Conduct  in  the  presence  of 
an  officer  immediately  before  arrest  stands  practically  in  the  same  position 
as  conduct  after  arrest  has  taken  place/*'1 

Silence  of  Prudence. —  J\*o  inference  of  acquiescence  arises  from  failure 
to  deny  statements  made  in  cases  of  difficult  or  dangerous  discretion  where  a 
reasonable  prudence  would  suggest  the  wisdom  of  reticence  until  an  un- 
usual state  of  affairs  can  be  diagnosed  under  competent  advice.  In  general, 
where,  for  any  reason,  a  party  is  not  at  liberty  to  speak,  e.g.,  because  he  has 
agreed  not  to  do  so,02  or  he  is  acting  under  advice,53  in  accordance  with 
previous  instructions,54  or  for  some  other  reason  at  the  time  by  some  influence 
outside  of  the  free  exercise  of  his  own  volition,55  his  silence  implies  no 
acquiescence  or  assent. 

§  570.  Same ;  Adequate  Knowledge —  Failure  to  reply  to  statements  made 
in  one's  presence  is  not  an  adoption  or  acquiescence  in  their  truth  to  such 
an  extent  as  to  make  them  those  of  the  person  addressed,  nor  is  such  failure 
even  a  relevant  fact,  unless  it  can  be  affirmatively  shown  that  the  person  so 
addressed  was,  at  the  time  possessed  of  adequate  knowledge,56  as  to  the 
truth  or  falsity  of  the  statements.  He  must  know  the  facts.57 

§  571.  [Admissions  by  Conduct] ;  Party  Must  be  Physically  and  Mentally  Capable 
of  Reply. —  It  is  further  necessary  that  the  party  in  question  should  be  in  a 
physical  and  mental  condition  such  as  to  enable  him,  when  addressed,  to 
reply  if  he  so  desires.  Where  the  individual  in  whose  presence  a  statement 
has  been  made  is  so  severely  injured  by  shooting 58  or  other  violence,  as  to  be 
unable  to  answer,  remarks  addressed  to  him,  and  received  by  him  in  silence, 
cannot  be  taken  to  have  secured  his  assent.  Tf  he  is  merely  sick,59  or  in 
course  of  transportation  in  an  ambulance,60  and  though  suffering  some  dis- 
comfort, is  able  to  answer,  if  so  disposed,  his  failure  to  reply  may  still  be 
significant,  by  leading  to  an  inference  of  assent.  The  rule  is  the  same 
where  the  person  addressed  is  suffering  such  agony,  grief61  or  other  mental 

E.  814    (1902);   Murphy  v.  State,  supra;  2  Corser  v.  Paul,  41  X.  H.  24  (1860)  ;  2  Chamb., 

Chamb.,  Ev.,  §   1431,  n.  25.  Ev.,  §   14.32,  n.  1. 

50.  People  v.  Kennedy,  164  N.  Y.  449,  58  N.  57.  Griffith  v.  Zipperwick,  28  Ohio  St.  388 
E.  652    (1900);    People  v.  Kessler.   13  Utah  (1876);    Morris  v.  Xorton,  75  Fed.   912,  21 
69,  44  Pac.  97    (1896).  C.  C.  A.  553    (1896);  2  Chamb.,  Ev.,  §  1432, 

51.  People  v.  Wennerholm,  166  N.  Y.  567,  n.  2. 

60  N.  E.  259    ( 1901 ) .  58.  Dean  v.   State,   105  Ala.  21,   17   So.   28 

52.  Slattery  v.  People,  76  111.  217    (1875).  H895)  ;  2  Chamb.,  Ev.,  §  1433.  n.  1. 

53.  Killian  v.  Georgia,  etc.,  R.  Co.,  97  Ga.  59.  Lallande  v.    Brown,    121    Ala.   513,   25 
727,  25   S.   E.   384    (1895).  So.  997    (1899). 

54.  People  v.  Kessler,  supra.  60.  Sprinjrer  v.  Byram,  137  Ind.  15,  36  N. 

55.  Flanagin  v.  State,  25  Ark.  92   (1867);  E.  361    (1893). 

Sindall  v.  Jones,  57  Ga.  85    (1876).  61.  State  v    Blackburn,  7  Pennew.    (Del.) 

56.  Robinson  v.  Blen,  20  Me.   109    (1841)  ;       479,  75  Atl.  536    (1892). 


439  WEIGHT.  §§  572,  573 

agitation  as  to  be  unable  to  understand  or  answer 62  any  remarks  made  in 
his  presence. 

§  572.  [Admissions  by  Conduct] ;  Probative  Force  and  Effect.03 —  Admissions 
by  conduct  are  properly  classified,  as  to  force  and  effect,  with  extra-judicial 
statements.04  An  admission  by  silence,  being  in  reality  another's  statement 
adopted  by  a  party  to  be  affected,  not  being  controlled  by  the  rules  of  pro- 
cedure, rests  for  its  force  and  effect  entirely  upon  its  logical  quality.  In 
this  respect,  it  is  to  be  judged  as  any  other  admission  65  and  may  be  con- 
trolled and  explained  in  like  manner.'56  It  has  been  said  that  the  probative 
force  of  this  evidence  is  not  great  and  that  it  should  be  received  with  cau- 
tion.67 

§  573.  [Admissions  by  Conduct] ;  Statements  and  other  Facts.68 —  The  state- 
ment that  "admissions  by  conduct"  are  to  be  classed  as  admissions  of  the 
extra-judicial  type  should  not,  it  would  seem,  be  accepted  as  correct.  In 
point  of  principle,  and  the  symmetry  which  comes  from  consistency,  such  a 
course  seems  objectionable,  in  that  it.  ignores  two  distinctions  deeply  em- 
bedded in  the  frame  work  of  the  English  law  of  evidence:  (a)  that  between 
statements  and  other  acts,  (b)  that  between  the  respective  operation  of  pro- 
cedure and  logic.  In  reality,  these  two  distinctions  are  different  illustra- 
tions of  a  single  fact  which  is  yet  more  fundamental  in  the  law  of  evidence, 
that  while  logic  recognizes  no  distinction  between  statements  and  other  acts 
of  a  party,  procedure,  as  applied  to  the  law  of  evidence,  asserts  the  existence 
of  a  wide  one.  In  other  words,  procedure  places  statements,  whether  made 
by  a  party  or  not,  in  a  class  by  themselves  in  any  connection  where  the  state- 
ment is  used  as  proof  of  the  fact  asserted  in  it. 

This  distinction  appears  artificial  and  invalid  and  is  an  incidental  result 
of  the  jury  system.  There  is  no  real  distinction  between  the  testimony  of 
a  witness  concerning  a  statement  he  has  heard  and  other  facts  he  has  ob- 
served. 

62.  State  v.  Epstein,  25  R.  I.  131,  55  Atl.  City,  etc.,  R.  Co.,  116  Mo.  114,  22  S.  W.  474 
204   (1903).  (1893)  ;   2  Chamb.,  Ev.,  §  1434,  n.  3. 

63.  2  Chamberlayne,  Evidence.  §  1433.  67.  Stephens  v.  Barnwell,  154  Ala.  124,  45 

64.  Yarhorough  v.  Moss.  9  Ala.  382  (1846):  So.   233    (1907);    Godwin   v.   State,    1    Boyce 
Yates  v    Shaw,  24  111.  368    (I860).  (24  Del)    173.   74   Atl.   1101    (1910).     As  to 

65.  White  v.  White,  47  X.  Y.  Supp.  273,  20  the  distinctions  between  statements  and  other 
App.  Div.  560    (1897)  :   Commercial  Bank  v.  facts,  see  2  Chamb.,  EV..  §§  1435,  1436,  1437; 
Jackson.  9  S    D.  605.  70  X.  W.  846    (1897)  :  and  as  to  deliberative  facts.  §   1438. 

2  Chamb..  Ev.,  §  1434.  n.  2.  68.  2  Chamberlayne,    Evidence,    §§     1435- 

66.  Traders'  Nat.  Bank  v.  Rogers.  167  Mass.       1438. 
315,  45  X.  E.  923  (1897)  ;  Webster  v.  Kansas 


CHAPTER  XX. 

OFFERS  OF  COMPROMISE. 

Offers  of  compromise;  rule  of  exclusion,  574. 

Concessions  of  liability  received;  accepted  offers,  575. 

By  whom  compromise  offer  may  be  made;  plaintiff,  576. 

Independent  relevancy,  577. 

Specific  admissions,  578. 

What  offers  are  for  peace,  579. 

Without  prejudice;  English  practice,  580. 

Reasons  for  the  rule;  value  of  peace,  581. 

§  574.  Offers  of  Compromise ;  Rule  of  Exclusion.1 —  If  peace  between  parties 
to  a  controversy  could  reasonably  have  been  the  motive  for  making  the  offer 
of  compromise,  it  will  be  assum/ed  that  the  thought  was  to  buy  peace  re- 
gardless of  liability.2  It  i^,  accordingly  the  rule  of  procedure  that  the 
statement  should  not  be  received  against  the  party  making  it.  It  is  peremptor- 
ily rejected  when  offered  for  such  a  purpose.3  Any  act,  other  than  a  state- 
ment, done  for  the  purpose  of  facilitating  a  compromise  settlement  will  be 
excluded  for  the  same  reasons,  should  the  inference  from  it  tend  to  establish 
a  concession  of  liability  on  the  part  of  the  doer.4 

Collateral  Purposes. —  Even  for  collateral  purposes  the  bona  fide  offer  to 
settle  a  dispute  by  paying  or  receiving  a  given  sum  is  excluded  as  evidence 
of  an  indebtedness  or  of  any  fact  injuriously  affecting  the  rights  of  the 

1.  2  Chamberlayne,      Evidence,     §§      1439-  654   (1907)  ;  Sherer  v.  Pip'er,  26  Ohio  St.  476 
1441.     Admissibility    of    evidence    of    offers  (1875);     Richards    v.    Noyes,    44    Wis.    609 
made  in  way  of  compromise.     See  note,  Ben-  (1878)  ;    West  v.   Smith,    101   U.   S.   263,   25 
der    Ed.,    144    N.    Y.    901.  L.  ed.  809   (1879)  ;  2  Chamb.,  Ev.,  §  1440,  n. 

2.  Chicago,   13.  &  Q.   R.  Co.  v.  Roberts,  26  2. 

C'olo.  329,  57   Pac.   1076    (1899);   Sanborn  v.  4.  Stranahan  v.  East  Haddam,  1 1  Conn.  507 

Neilson,    4    X.    H.    501,    509    (1S28):    White  (1836);   O'Brien  v.  New  York  City  Ry.  Co., 

v.  Old  Dominion  S.  S.  Co.,   102  X.  Y.  660,  6  105  N.   Y.   Supp.  238,  55  Misc.   228    (1907)  ; 

N.  E.  289    (1886);   2  Chamb.,   Ev.,   §§   1439,  Gehm  v.  People,  87  111.  App.   158    (1899). 

1440,  n.  1.  5.  White  v.  Old  Dominion  S.  S.  Co..  supra; 

3.  Mahan    v.    Schroeder,    236    Til.    392,    86  West  v.  Smith,  supra.     The  offer  cannot,  for 
N.   E.   97    (1908);    Boylan  v.   McMillan,    137  example,   be   used   to    impeach   the   declarant 
Iowa  142,  114  X.  W.  630   (1908)  ;  Hutchinson  as   a   witness   by   evidence   of   it   as   being   a 
v.  Nay,  183  Mass.  355,  67  N.  E.  601    (1903)  :  statement  contradictory  of  his  present  testi- 
Xew   York    Life   Ins.    Co.   v.    Rankin    (Mo.),  mony.     Walbridge  v.  Barrett,  118  Mich.  433, 
162  Fed.  103   (1908)  ;  Tennant  v.  Dudley,  144  76  XT.  W.  973    (1898)  ;  Neal  v.  Thornton,  67 
N.  Y.  504,  39  X.  E.  644    (1895)  ;    Schiavone  Vt.  221,  31  Atl.  296   (1894). 

v.   Callahan,   102   N.   Y.   Supp.  538,  52  Misc. 

440 


441 


CONCESSIONS. 


offerer.5     Documents-  prepased   for    use    in    negotiations   for   a   compromise 
cannot  be  given  in  evidence  whether  executed  or  not.6 

§  575.  [Offers  of  Compromise];  Concessions  of  Liability  Received;  Accepted 
Offers.7 —  A  limitation  upon  the  rule  is  that  as  soon  as  the  offer  of  compromise 
is  accepted,  no  further  objection  exists  to  proving  the  fact  or  the  terms  8  of 
such  offer,  the  fact  of  its  having  been  accepted,9  or  as  to  any  conditions  at- 
taching to  the  acceptance,10  or  any  other  relevant  fact  relating  to  the  exist- 
ence of  a  contract  for  settlement.11 

Incidental  Admissions  of  Liability. —  It  is  at  all  times  possible  for  a 
party,12  even  during  the  progress  of  compromise  negotiations,13  to  make  a 
distinct  admission  of  liability.14  or  one  by  implication,15  as  well  as  a  specific 
admission  of  an  individual  fact.16  Such  a  declaration  is  at  once  competent.17 

Liability  Assumed. —  Where  negotiations  for  the  settlement  or  adjustment 
of  a  claim  are  conducted  without  denial  of  liability  on  the  part  of  the  debtor 
expressed  or  implied,  the  existence  and  scope  of  the  negotiations  are  intelligible 
only  upon  the  theory  that  the  liability  itself  was  assumed  by  both  parties  to 
exist.18  For  example,  should  the  only  questions  discussed  be  as  to  what  is 
the  amount  properly  due,19  or  as  to  what  are  the  best  terms  of  payment  which 
will  be  conceded  by  the  creditor,20  whether  some  collateral  indulgence  will  be 


6.  Sterrett    v.    Metropolitan    St.    Ry.    (";•. 
225   Mo.   99,    123   S.   W.   877    (1910);    Roonu> 
v.   Robinson,   90   X.   Y.   Supp.   1055,  99   App. 
Div    143    (1904);   2  Chamb,  Ev.,  §  1441. 

7.  2  Chamber layne,     Evidence.     §§      1442- 
1444. 

8.  Miller  v.   Campbell   Commission  Co.,    13 
Okl.  75,  74  Pac.  507    (1903)  ;  2  Chamb.,  Ev., 
§  1442,  n.  1. 

9.  Harman     v.     Vanhattan,     2     Vern.     717 
(1716). 

10.  International^  etc.,  R    Co.  v.  Ragsdale. 
67  Tex.  24,  2  S.  W.  515   (1886). 

11.  Stuht  v.  Sweesy,  48  Neb   767,  67  X.  \V. 
748    (1896);    Pym  v.  Pym.   118  Wis.  662,  96 
X.  \V.  429   (1903)  ;  2  Chamb.,  Ev.,  §  1442,  n. 
4.     A    stricter   rule. —  It    has,    however,    also 
been  held  that  not  until  the  contract   for  a 
settlement    has    actually     been    carried    out 
into  an  accord  and  satisfaction  does  the  rule 
excluding  a  compromise  offer  cease  to  apply. 
Rideout    v.    Newton,    17    N.    H.    71     (1845): 
Tennant  v.  Dudley,  supra. 

12.  Tenhet  v    Atlantic  Coast  Line  R.   Co., 
82   S.   C.  465,  04   S.   E.   232    (1909). 

13.  Hartford   Bridge   v.    Granger,   4    Conn 
142  (1822)  ;  Hudson  v.  Williams  (Del.  1908). 
72   Atl.   985. 

14.  Story    v.    Nidiffer.    146    Cal.    549.    SO 
Pac.  692   (1905)  ;  Teasley  v.  Bradley,  110  Ga. 


"17.  35  S.  E.  782    (1900);   Hyde  v.  Stone,  7 
end.    (N.  Y.)    354    (1831);   2  Chamb.,  Ev., 
§    1443,   n.   4. 

15.  Hopkins    v.    Rodgers,    91    X.    Y.    Supp. 
749    (1905);  Mason  v.  Agricultural  Ins.  Co.. 
150  Mo.  App.   17,   129  S.  W.  472    (1910)  ;   2 
Chamb.,  §  1443,  n.  5. 

16.  Infra,  §§  578  et  seq.;  2  Chamb.,  Ev.,  §§ 
1451  et  seq. 

17.  Paris  v.  Waddell,  139  Mo.  App.  288,  123 
S.  W.  79   (1909)  ;  Bartlett  v.  Tarbox,  1  Keyes 
(X.    Y.)     495,    1    Abb.    Dec.    120     (1864);    2 
Chamb.,  Ev.,      1443,  n.   7.     For  example,  an 
offer  to  retract  a  libellous  statement  cannot 
be  treated  as  an  offer  of  compromise.     Dal 
ziel  v.  Press  Pub.  Co.,  102  X*.  Y.  Supp.  909,  52 
Misc.  207   (1906). 

18.  Kutcher  v.  Love,  19  Colo.  542.  36  Pac. 
152    (1894):    Armour   v     Gaffey.    165   X.    Y. 
630,  59  X.  E.   1118    (1901). 

19.  Brice  v.   Bauer,   108   X.   Y.   428,   15  N. 
E.  695,  2  Am.  St.  Rep.  454   (18S8)  -.   Kahn  v. 
Traders'  Ins.  Co..  4  Wyo.  419,  34  Pac.   1059, 
62  Am.  St.  Rep.  47    (1893)  ;  2  Chamb.,  Ev.,  § 
1444.   n.  2. 

20.  Teasley    v.    Bradley,    supra ;    Snow    v. 
Batchelder.    8    Cush.     (Mass.)     513     (1851); 
Ferguson  v.  Davidson.  147  Mo.  664,  49  S.  W. 
859     (1899);    Bartlett    v.    Tarbox,    supra;    2 
Chamb.,  Ev.,  §   1444,  n.  3. 


§§  576,  577  OFFERS  OF  COMPROMISE.  442 

afforded  the  declarant  other  than  as  to  time  of  payment,21  the  evidence  of  acts 
or  statements  of  the  debtor  made  or  done  under  such  circumstances  will  be 
competent  as  admissions.22 

§  576.  [Offers  of  Compromise] ;  By  Whom  Compromise  Offer  May  be  Made ;  Plain- 
tiff.-3—  The  peace  oiler  may  have  been  made  by  a  plaintiff  who  agrees  to 
accept  a  payment  of  money  or  other  act  in  discharge  of  his  claim,  not  as  con- 
stituting a  measure  of  his  true  demand,  but  as  a  concession  made  as  an  in- 
ducement for  the  purpose  of  obtaining  an  adjustment.24  If  his  offer  be  refused, 
he  is  entitled  to  insist  that  he  shall  not  be  prejudiced  by  having  made  it.25 
Xor  should  he  be  permitted  to  suffer  from  having  intimated  a  willingness  to 
consider  a  peace-offer  if  his  adversary  should  see  fit  to  make  one.26 

Defendant. —  The  typical  peace-offer  is  perhaps  more  frequently  made  by 
the  debtor  than  by  the  creditor,  by  the  defendant,  than  by-  the  plaintiff.27  Such 
an  offer  will  be  denied  all  evidentiary  force  as  an  admission.28 

Afjent. —  An  offer  of  compromise,  in  the  sense  of  a  peace-offer,  may  be  made 
by  an  agent  on  behalf  of  his  principal.29 

§  577.  [Offers  of  Compromise] ;  Independent  Relevancy.30 —  An  offer  of  com- 
promise may  be  independently  relevant.31  Such  an  offer  may  render  a  relevant 
reply  intelligible.32  It  may  serve  to  transfer  the  obligation  of  paying  costs 
after  is  was  made.33  An  otherwise  unexplained  lapse  of  time  may  be  accounted 
for  in  this  way.34  Mental  states  other  than  consciousness  of  liability  may  be 
established  in  the  same  way.35  Composite  facts  such  as  waiver,30  good  faith 

21.  Bassett  v.  Shares,  63  Conn.  39,  27  Atl.       139   App.   Div.   217    (1910);    2   Chamb.,   Ev., 
421    (1893);    Wallace  v    Hussey,  63   Pa.   24      §  1447,  n.  1. 

(1869)  ;  2  Chamb,  Ev.,  §  1444,  n.  4.  28.  Georgia  Ry.  &  Electric  Co.  v    Wallace 

22.  St.  Louis  &  S.  F.  R.  Co.  v.  Stone,  78  &  Co.,    122   Ga.   547,   50  S.   E.   478    (1905); 
Kan    505.  97  Pac.  471    (1908):  Tapp  v.  Dib-  Grebenstein  v.   Stone  &  Webster  Engineering 
rell,  134  N.  C.  546,  47  S.  E.  51  (1904).  Corp.,  205  Mass.  431,  91  N.  E.  411    (1910). 

23.  2  Chamberlayne,     Evidence,    §§     1445-  29.  Beattie    v.    McMullen,    Weland    &    Mc- 
1449.  Dermott,  82  Conn.  484,  74  Atl.  767    (1909); 

24.  South   Covington  &   C.   St.   Ry.   Co.   v.  Larsen  v.   City  of   Ledro-Woolley,   49   Wash. 
McIIugh,  25  Ky.  L    Rep    1112,  77  S.  W.  202  134.   94   Pac.   938    (1908);    2   Chamb..   Ev.,   § 
(1903);     City    of    San    Antonio    v.    Stevens  1448.     Explanation         Permitted  —  See         2 
(Tex    Civ.  App.   1910),  126  S.  W.  666.  Chamb,  Ev.,  §  144!) 

25.  Fox  v.   Barrett,    117   Mich.    162.   75  X.  30.   2  Chamberlayne,   Evidence,   §   1450 

W.  440    (1898)  ;   Tennant  v.  Dudley,   144   N.  31.  Western  Union  Telegraph  Co   v.  Stubbs 

Y.  504,  39  N    E.  644   (1895);  2  Chamb.,  Ev.,  (Tex.    Civ     App.    1900).   94    S.    W.    1083;    2 

§    1445,   n.   2.  Chamb.,  Ev.,  §  1450. 

26.  Pentz  v.   Pennsylvania   F.   Ins.   Co,   92  32.  Lucas  v.  Parsons.  27  Ga.  593   (1859). 
Md     444,   48   Atl.    139    (1900);    Edwards    v.  33.  Brown   v.   People,  3  Colo.    115    (1876). 
Watertown,    13   X.    V.   Supp.   309    (1891);    2  34.  Jones  v.   Foxall.   15  Beav.  388    (1852) 
Chamb.,  Ev ,  §  1445,  n.  3.     Object  other  than  35.  Cross  v.  Kistler,   14  Colo.  571,  23  Pac. 
to  buy  peace.     See  Daniels  v.  Woonsocket,  11  903    (1890) 

R.  I    4   (1874);  2  Chamb.,  Ev..  §  1446.  36.  Gould  v.  Dwelling-House  Ins.  Co.,   134 

27.  Acker,  Merrall  &  Condit  Co  v.  McGaw.      Pa.   570,   19  Atl.  793,  19  Am.   St.   Rep.   717 
106  Md.  536,  6S  Atl.  17   (1907)  :  Union  Bank       (1890). 

of  Brooklyn  v.  Deshel,  123  N.  Y.  Supp.  585, 


443 


SPECIFIC  ADMISSIONS. 


§1  578,  579 


in  advancing  a  claim,57  alleging  a  defense  38  or  the  like  39  in  which  a  relevant 
mental  state  forms  an  important  element,  stand  in  the  same  position. 

§  578.  [Offers  of  Compromise] ;  Specific  Admissions.40 — Statements  of  a  party 
asserting  the  existence  of  facts  other  than  liability  are  not  within  the  rule  which 
rejects  offers  of  compromise  and  are,  therefore,  so  far  as  relevant,41  received. 
Unlike  the  concessions  of  liability  implied  in  an  offer  of  compromise,  such  state- 
ments are  in  the  great  proportion  of  instances,  made  as  and  because  the  actual 
facts  are  believed  to  be  as  they  are  asserted  to  be.42  They  are  therefore  received 
in  evidence  as  admissions  either  by  statement  43  or  conduct.44 

Connection  }\ith  Compromise  Negotiations. —  That  assertions  of  this  nature 
were  made  in  the  course  of  treaties  for  peace  40  does  not  conclusively  establish 
their  unavailability  as  evidence.  That  the  specific  admission  of  a  separate  fact 
was  given  at  an  interview  held  for  the  purpose  of  effecting  a  compromise  settle- 
ment,46 furnishes  no  ground  for  its  rejection.  The  admission  of  any  distinct 
fact,  made  eo  nomine,  is  competent,47  though  made  in  course  of  proceedings 
for  a  compromise.48  That  such  admissions  of  independent  facts  are  connected, 
to  some  extent,  with  compromise  negotiations,49  may  always  be  brought  to  the 
attention  of  the  tribunal  as  bearing  on  probative  force. 

§  579.  [Offers  of  Compromise] ;  What  offers  are  for  Peace.50 —  The  vital  ques- 
tion in  every  such  connection  is  one  of  intention  5l  or,  more  properly  speaking, 

37.  Anderson    v.     Robinson,     73    Ga.    644 
(1884)  ;  Whitney  Wagon  Works  v.  Moore,  61 
Vt.  230,  17  Atl.  1007   (1888)  ;  2  Chamb,  Ev., 
§  1450,  n.  7.     The  courts  of  New  York  carry 
immunity  for  compromise  offers  so  far  as  to 
deem    them    immaterial    in    this    connection 
also.     York   v.   Conde,   20   N    Y     Supp.   961. 
66  Hun  316    (1892). 

38.  List's    Ex'x    v.    List,    26    Ky.    L.    Rep. 
691,  82  S.  W.  446    (1904). 

39.  Watson  v.  Reed,   129  Ala.  388.  29  So. 
837    (1900);    Butler   Ballast  Co    v.   Hoshaw, 
94   111    App.   68    (1000)    (interest  in  result). 

40.  2  Chamberlayne,     Evidence.     §§     1451- 
1455 

41.  Pentz  v.  Pennsylvania  F.  Ins.  Co.,  supra 

42.  Hose    v.    Kose.    112    Cal.    341,    44    Pac. 
608    (1896);    Domm    v.    Hollenbeck,    142    111 
App.    439     (1908);    Durgin    v     Somers.    117 
Mass    55    (1875);  Hess  v.  Van  Auken,  32  X. 
Y.   Supp.    126,    11   Misc.   422    (1895):    White 
v.  Old  Dominion  S.  S.  Co.,  supra;  2  Chamb., 
Ev.,  §  1451.  n.  3. 

43.  Perkins  v.   Concord  R.  Co.,  44  N.   H 
223  (1862). 

44.  Grimes  v.  Keene,  52  N.  H.  330   (1872) 
See.   however,   Kierstead   v.    Brown,   23   Neb 
595.  37  N.  W    471    il«88)  ;  Boylan  v    McMil- 
lan, 137  Iowa  142,  114  X.  W.  630   (1908). 


45.  State  v.  Lavin,  80  Iowa  555,  46  X.  W. 
553  ( 1890)  ;  Snow  v.  Batchelder,  supra;  Bart- 
lett  v.  Tarbox,  supra;  2  Chamb.,  Ev.,  §  1452, 
n.  1. 

46.  Akers     v.     Demond,     103     Mass.     31S 
( 1869)  ;  Wason  v.  Burnham,  68  X    H.  53,  44 
Atl.   693    (1896). 

47.  Hartford  Bridge  Co.  v.  Granger,  supra 

48.  Kutcher    v.    Love,    supra.     Subsequent 
admissions  made  independently  of  compromise 
offers  are  competent  beyond  question.     Akers 
v.   Kirke,  91  Ga.  590,  18  S.  E.  366    (1893)  ; 
Cole  v.   Cole,  33  Me.  542    (1852).     An  abso- 
lutely independent  fact,  though  evidenced  by 
statements,   is  competent.     Sasser  v.  Sasser, 
73  Ga.  275   (1884). 

49.  Hose  v.  Rose,  supra;  Patrick  v.  Crowe, 
15  Colo    543,  25  Pac.  985   (1890)  ;  2  Chamb., 
Ev.,   §   1453,   n.   2      As  to  statements  partly 
incompetent,  see  Beaudette  v.  Gagne.  87  Me. 
534,  33   Atl.   23    (1895);    Pelton   v    Schmidt. 
104  Mich   345,  62  X.  W.  552,  53  Am.  St.  Rep. 
462    (1895);    2    Chamb.,    Ev..   §    1454,   n.    2. 
Treaties  for  peace  assisted. —  See  2   Chamb., 
Ev..  §   1455,  and  cases  cited 

50.  2  Chamberlayne,     Evidence,    §§     1456- 
1462. 

51.  Hartford    Bridge   v.   Granger,   4   Conn. 
142    (1822);    Colburn   v.   Groton,   66   N.   H. 


579 


OFFERS  OF  COMPROMISE. 


444 


of  intent.52  If  the  effort  were  to  buy  peace  regardless  of  liability  or,  in  case 
of  a  plaintiff,  irrespective  of  the  amount  actually  due,  evidence  of  the  fact  of  an 
offer,  of  its  terms  or  even  of  any  incidental  concession,53  will,  by  the  operation 
of  the  rule  of  procedure,  be  rejected.54  On  the  other  hand,  where  the  state- 
ment was  made  as  an  admission,  i.e.,  because  believed  to  be  in  accordance  with 
the  facts,  the  declaration  is  admissible  55  and  should  be  given  due  weight. 

Function  of  the  Court. —  The  question  of  intention  or  intent  is  to  be  decided 
by  the  presiding  judge,56  as  a  finding  of  fact57  either  upon  direct58  or  cir- 
cumstantial 59  evidence.  The  judge  is  justified  in  requiring  strong  proof  in 
order  to  rule  that  the  statement  or  offer  is  incompetent.60 

Determining  Factors;  Amount  Suggested. —  Should  the  demand  be  a  liqui- 
dated one,  where  presumably  the  entire  amount  is  due  if  any  part  of  it  is  pay- 
able,61 an  intention  to  compromise,  regardless  of  liability,  will  be  inferred  from 
an  offer  to  accept  or  pay  less  than  the  entire  amount  claimed.02  Per  contra,  the 
announcement  by  a  party  of  a  desire  to  receive  or  pay  the  entire  amount  in- 
volved will  be  regarded  in  the  light  of  an  admission.03 


151,   28   Atl.   !)5    (1889);    2   Chamb.,   Ev.,   §§ 
1456,  1457,  n.  1. 

52.  Finn  v.  New  England  Telephone  &  Tele- 
graph Co.,  101  Me    279,  64  Atl    490   (1906)  ; 
Smith  v    Morrill,  71   X    H.  409,  52  Atl    928 
(1902). 

53.  Jewett  v    Fink,  47  Wis.  446,  2  N.   VV. 
1124    (1879). 

54.  Hartford  Bridge  v    Granger,  supra 

55.  McKinzie   v    Stretch,   53    111.   App.    184 
(1893);   Taylor  v    Bay  City  St.   K.   Co.,  101 
Mich     140,   59   N.   W    447    (1894);    Hurd   v. 
Pendrigh,    2    Hill     (N.    Y.)     502     (1842);    2 
Chamb,  Ev.,  §  1457,  n    5. 

56.  Donley  v   Bailey,  48  Colo  373,  110  Pac 
65    (1910);    Whitney   v.    Cleveland,    13    Ida. 
558.  91    Pac.    176    (1907);    2  Cbamb ,   Ev .,   § 
1458,  n.  1. 

57.  The  action  of  the  court  is  not  review- 
able      Greenfield  v.  Kennet,  69  N.  H.  419,  45 
Atl.   607    (1899). 

58.  West  v.  Smith,  101  U.  S   263,  25  L   ed 
800  (1879). 

The  use  of  the  phrase  "  without  preju- 
dice "  furnishes  direct  evidence  of  an  inten- 
tion to  reserve  from  the  statement  its  qual- 
ity of  an  admission,  either  properly  so  called 
or  as  an  ''admission  by  conduct"  Moly- 
neaux  v  Collier,  13  Ga  406  (1853);  White 
v.  Old  Dominion  S.  S  Co.  102  X.  Y  (JfiO, 
6  X  K  289  (1886):  2  Chamb.  Ev..  §  145S. 
n  3  In  America,  any  phrase  of  a  meaning 
equivalent  to  ''without  prejudice"  may  be 
substituted  \vith  equal  effect  Johnson  v 


Trinity  Church  Soc.,  11  Allen  (Mass  )  123 
(1865).  The  use  of  this  or  any  similar 
phrase  is,  however,  not  essential  Reynolds 
v.  Manning,  .15  Md.  510  (1859). 

In  New  Jersey  direct  evidence  of  an  in- 
tention to  restrict  the  effect  of  the  statement 
as  an  admission  must  be  shown,  in  order  to 
secure  rejection;  or  it  must  appear  that 
the  offer  was  made  as  the  result  of  a  compro- 
mise suggestion  proceeding  from  the  other 
side  Richardson  v.  International  Pottery- 
Co.,  63  X.  J.  L.  248,  43  Atl.  692  (1899). 

The  New  York  rule  is  the  same. — "  Even 
the  offer  of  a  sum  by  way  of  compromise 
is  held  to  be  admissible  unless  stated  to  be 
confidential  or  made  without  prejudice." 
Brice  v.  Bauer,  108  N.  Y.  428,  15  N  E.  695 
(1888). 

59.  Chicago,    etc.,    R.    Co     v.    Roberts,    26 
Colo.  32!),  57   Pac    1076    (1899);   Scheurle  v. 
Husbands,  65  X.  J.  L.  40,  46  Atl   759  (1900)  ; 
2  Chamb.,  Ev  .  §   1458,  n.  4. 

60.  Townsend    v     Merchants'    Ins.    Co.,    36 
X.  Y.  Super    Ct    172,  45  How.  Pr.  501,  aff'd 
56  X.   Y    655    (1873);   Cochran  v    Baker,  34 
Or.  555.  52  Pac.  520.  56  Pac.  641   (1899). 

61.  Scheurle  v   Husbands,  supra;  2  Chamb., 
Ev.  §   1459 

62.  Wayman     v.     Hilliard,     7     Ring      101 
(1830). 

63.  See   Lofts   v.    Hudson,   2   M    &   R.   481 
(  1828)  :  St.  Louis'S.  W.  R   Co.  v.  Smith  (Tex. 
Civ    App.   1903),  77  S.  W.  28. 


445  WITHOUT  PREJUDICE.  §  580 

Time. —  Should  the  offer  have  been  made  at  a  time  when  the  litigant  sug- 
gesting it  knew  that  a  demand  had  been  made  against  him  and  that  he  disputed 
it,64  and  purposed  continuing  to  do  so,  the  inference  that  the  concession  was  by 
way  of  compromise  is  much  stronger  than  that  which  would  have  arisen  had  the 
suggestion  been  made  before  that  time05  or  after  attempts  at  settlement  had 
been  abandoned.  Should  the  parties  be  in  litigation  when  the  offer  was 
tendered/'6  or  should  the  statement  be  made  or  act  done  at  a  time  when  com- 
promise negotiations  are  actually  pending  between  the  parties,67  the  claim  that 
the  offer  was  by  way  of  compromise  would  correspondingly  increase  in  proba- 
tive force. 

Prior  to  Negotiations. —  Where  the  offer  was  made  before  any  controversy 
had  arisen  in  the  matter  6S  or  prior  to  any  time  at  which  it  could  definitely  have 
been  known  whether  any  negotiations  would  be  allowed  in  it,69  the  statement 
in  question  may  well  be  taken  to  have  been  made  because  it  was  true.  It  would 
be  assumed  that  a  declaration  made  under  such  circumstances  was  an  admis- 
sion.70 

Subsequent  to  Negotiations. —  Where  no  negotiations  are  pending  because 
they  have  been  broken  off  71  or  abandoned,  and  the  discussion  is  being  held  about 
something  else,72  the  statement  can  only  be  taken  to  have  been  made  as  an  admis- 
sion. Where  the  person  by  whom  7:i  or  to  whom  74  the  offer  is  made  is  evi- 
dently one  who  has  no  authority  to  adjust  the  matter  in  dispute,  the  same 
result  follows. 

§  580.  [Offers  of  Compromise];  "Without  Prejudice";  English  Practice.75— 
The  rule  adopted  in  England  requires  that,  in  order  to  exclude  an  offer  of 
compromise,  there  must  have  been  some  express  reservation  to  that  effect  made 
by  the  declarant,  at  the  time  his  statement  was  made  or  in  connection  with  it.7" 
The  phrase  customarily  employed  for  the  purpose  is  that  the  declaration  is  to 
be  taken  as  having  been  made  "  without  prejudice."  77  This  expression,78  or 

64.  Tenhet   v    Atlantic  Coast  Line  R.   Co..  227,  44  So.  699    (1907);   Finn.   v.  New  Eng 
82   S.  C.   465,  64  S.  E    232    (1909).  land  Telephone  &  Telegraph  Co,  supra 

65.  American   Ins.  Co    v.   \Valston,   111   111  71.  Smith  v.  Whittier,  95  Cal.  279,  30  Pac. 
App.    133    (1903);    Doncourt   v.   Denton,   115  529     (1892);    Akers    v.    Kirke,    91    Ga.    590 
N.  V    Snpp    1118.  131  App.  Div.  905   (1909);  (1893) 

2  Chamb.,  Ev  ,  §  1460,  n.  2.  72.  Freeman  v.  Gigham.  65  Ga   580  (1880). 

66.  Reynolds     v.     Manning,     15     Md.     510  73.  Ashlock  v.  Linder,  50  111.  169   (1869); 
(1859)  ;  'Cullen  v    Ins.  Co   of  North  America.  Moore  v    H.  Gaus,  etc.,  Mfg.  Co.  113  Mo.  98. 
126  Mo.  App   412,  104  S.  \V.  117   (1907).  20  S    W.  975   (1892)  ;  2  Chamb.,  Ev.,  §  1462. 

67.  Gibbs    v     Johnson,    10    Fed     Cas.    No  n.   4 

5,384   <  I860)  ;  2  Chamb.,  Ev..  §  1460.  u.  4.  74.     Smith  v.  Whittier,  supra. 

68.  Paris    v.    Waddell;    139    Mo     App    28S,  75.  2  Chamberlayne.     Evidence,     §§     1463- 
123   S    W.   79    i  1009)  :    Doncourt   v.   Denton.       1468. 

supra:  2  Chamb..  Ev..  §  1461.  n.  2  76.  Wallace  v   Small,  M   &  M    44fi.  22  E  C. 

69.  U.  S    v    Three  Hundred  and  Ninety  Six       L    562   (1830)  :  2  Chamb..  Ev..  §§  1463,  1464. 
Barrels   Distilled    Spirits.   28    Fed     Cas     No        n.    1 

16.503   (1866)  77-  -Tones  v.  Foxall.   15   Beav.  388    (1852) 

70.  Southern    Rv.   Co    v     Reeder.    152   Ala  78.  Walker  v    Wilsher.   L    R.  23  Q.  B    D. 


§  581  OFFEBS  OF  COMPROMISE,  446 

any  similar  phrase  79  will  be  construed  as  constituting  an  express  reservation 
from,  the  declarant's  statement  or  ofl'er  of  any  probative  quality  as  an  admission. 
The  rule  is  the  same  in  Canada.80 

§  581.  [Offers  of  Compromise];  Reasons  for  the  Rule;  Value  of  Peace.81— 
Prominent  among  the  reasons  which  have  been  regarded  as  justifying  the  rule 
of  procedure  rejecting  concessions  of  liability  made  by  way  of  compromise  8a 
is  the  undoubtedly  correct  proposition  that  it  is  good  public  policy  to  adjust  dif- 
ferences by  mutual  concessions.83  It  has  been  felt  that  the  attainment  of  so 
desirable  an  end  ought  not  to  be  rendered  difficult,  if  not  impossible,  by  knowl- 
edge on  the  part  of  the  conceding  litigant  that,  should  the  negotiations  fail, 
he  may  be  penalized  by  having  his  concessions  used  against  him  on  any  subse- 
quent litigation  as  constituting  his  admissions.84 

335    (1889);  Re  Kiver  Steamer  Co.,  L.  R.  6  82.  Colburn   v.   Groton,  66  N.  H.    151,   28 

Ch.  App.  822  (1871).  Atl.  95    (1889)  ;   Lee  v.  Prudential  Life  Ins. 

79.  Jardine    v.    Sheridan,    2    C.    &    K.    24  Co.,  206  Mass.  440,  92  X.  E.  709   (1910). 
(1846).     See   also  2    Chamb.,  Ev.,    §§    1465,  83.  Harrington  v.  Lincoln,  4  Gray  (Mass.) 
1466,  1467.  563    (1855);    Perkins  v.  Concord   R.  Co.,  44 

80.  Stewart   v.   Muirhead,    29    N.    Pr     273  N.  H.  223  1 1862)  :  2  Chamb.,  Ev.,  §  1469,  n.  2. 
(1890)  ;   Pirie  v.  Wyld,  11  Ont.  422   (1886)  ;  84.  West  v.  Smith,  101  U.  S.  263,  25  L.  ed. 
2  Chamb.,  Ev.,  1468,  n.  1.  809    (1879).     For  a  discussion  of  the  reason 

81.  2  Chamberlayne,    Evidence,    §§     1469-  that  the  jury  may  be  misled,  and  the  value  of 
1471.  the  rule,  see  2  Chamb.,  Ev.,  §§  1470,  1471. 


CHAPTER  XXI. 

CONFESSIONS. 

Confessions,  582. 

Requisites  of  admissibility ,  583. 

Misleading  inducements,  584. 

hope  and  fear;  how  mental  state  is  established 
subjective  considerations,  585. 
objective  considerations ;  hope,  586. 
assumption  of  continuance,  587.  s 

physical  or  mental  discomfort,  588. 

pain,  589. 

threats,  590. 

moral  or  religious,  591. 

who  are  persons  in  authority,  592. 

effect  of  arrest,  593. 

effect  of  suspicion,  594. 

deception,  595. 

illegality,  596. 
Self-incrimination;  history  of  doctrine,  597. 

"  nemo  tenetur  se  ipsum  accusare  " ;  present  rule  stated,  598. 

procedure  and  reason,  599. 

knowledge  and  waiver,  600. 
preliminary  hearings,  601. 
Duress,  602. 

Form  of  confessions,  603. 
Independent  relevancy,  604. 
Introduction  of  confession  into  evidence;  "hearing  on  voir  dire,  605. 

hearing  of  the  jury,  606. 

leaving  question  to  the  jury,  607. 
Probative  for<-c;  informative  considerations,  608. 

judicial  confessions,  609. 

corroboration  required,  610. 

a  question  for  the  jury,  611. 

judicial  views.  612. 

specific  admissions,  613. 

£o  w/iow  extra  judicial  confession  is  made,  614. 
Administrative  detail,  615. 

TTie  evolution  of  reason,  616. 

447 


§   582  CONFESSIONS.  448 

§  582.  Confessions.1 — "  There  is  no  branch  of  the  law  of  evidence  in  such 
inextricable  confusion  as  that  relative  to  confessions."  2  The  general  rule  that 
a  confession,  a  statement  by  one  accused  of  crime  directly  or  by  necessary  in- 
ference admitting  his  guilt,  is  receivable  in  evidence,  provided  it  complies  with 
certain  requirements  of  procedure,3  is  not  questioned  in  any  quarter.4  The 
difficulty  with  regard  to  the  matter  is.  in  large  measure  due  to  the  fact  that  an 
attempt  is  being  made,  in  this  connection,  on  certain  alleged  grounds  of  public 
policy,  rigidly  to  maintain  rules  of  procedure,  as  matters  of  substantive  law, 
which  are  hard  to  sustain  in  point  of  reason.  Just  here  has  been,  as  it  were,  a 
fierce  struggle  in  the  law  of  evidence  between  the  formalism  of  the  past  and  the 
rationalism  of  the  future.  Here,  the  influence  of  formal  though  still  com- 
paratively recent,5  procedure  in  the  law  of  evidence  reaches  its  highest  point,  as 
nowhere  else  in  this  branch  of  the  law,  not  even  in  respect  to  the  hearsay  anom- 
aly °  is  definite  determinate  force  accorded  the  existence  of  certain  facts,  en- 
tirely regardless  of  their  logical  effect.  While  a  certain  procedural  resem- 
blance to  offers  of  compromise  7  is,  as  is  elsewhere  more  fully  noticed  8  distinctly 
observable,  the  rules  governing  confessions  are  nevertheless  essentially  unique 
and  comparatively  unrelated  to  other  regulations  of  procedure.  Procedural 
rules  controlling  confessions  are  in  main  two;  —  one  affirmative,  the  other 
negative.  The  affirmative  rule  may  be  thus  stated:  An  incriminating  state- 
ment,9 directly  suggesting  guilt  of  the  crime  charged,  certain  1"  and  complete  11 
in  itself,  made  by  a  defendant  in  a  criminal  proceeding  12  or  by  some  one  en- 
titled, under  the  rules  of  substantive  law,  to  affect  him  by  declarations,1"  is 
admissible  against  such  a  defendant;  —  provided  that  such  a  declaration  is 
voluntary.14  Each  of  these  requirements  is  one  of  procedure,  and  enforced 

1.  2  Chamberlayne,   Evidence,   §    1472.  ments  of  torture  are  freely  received  without 

2.  State    v.     Paterson,     73    Mo.    t>95,     705  objection.     Pain's  Trial,  10  How.  St.  Tr.  754 
(1881),  per  Sherwood,  C.  J.  (1690)    (Scotland)  ;  long's  Trial,  6  How.  St. 

3.  Steph.     Dig.     "Evidence"     (May's     Ed.  Tr.  25!)    (1664)    <  threatened  with  the  rack ); 
1877),  72.     See  also,  1  Greenl.  Ev.  (12th  Ed.  I  Judicial  Use  of  Torture,  by  A.  Lawrence  Lo- 
§§  219  et  seq.;  2   Hen.  &   Heard  Lead.  Crim.  well,  11  Harv.  L.  Review,  293    (1898).     Con- 
Cas.   (2d  Ed.)   484,  (530;  2  Russ.  Crimes   (8th  fessions  as   evidence.     See  note.   Bender   Ed., 
Ed.)    824;    1    Whart.   Crim.    Law    (17th    Ed.)  103   N.  Y.   587.     Admissibility  of  confessions 
§    683."     U.    S.    v.    Stone,    8    Fed.    254,    262  in  criminal  cases.     See  note.  Bender  Ed.,  121 
(1881),  per  Hammond,  J.  N.  Y.  280.     Admissibility  of  confessions.     See 

4.  People  v.   Hedeff.   110  X.  Y.  Suppl.  750.  note,  Bender  Ed.,  159  N.  Y.  346,  362. 
125  App.  Div.  800   (  I'lOS)  -,   People  v,  Rogers.  6.  §§  837  et  seq. 

192  X.  Y.  331,  85  X.  E.   135    (1908).  7.  §§  574  et  seq. 

5.  Early     views.—  While     the     procedural  8.  §  608. 
rules  relating  to  confessions  are,  at  the  pres-  9.  §  583. 
ent  day,   radical   and  enforced   with  peculiar  10.  §  583. 
stringency,  it  can  scarcely  be  said  that  they  11.  §  583. 
are  of  much  antiquity  in  the  law  of  England.  12.  §  583. 

Early  cases  contain  no  reference  to  any  set-  13.  §§  538  et  seq. 

tied  rule  that  a  confession  influenced  by  hope.  14.  §§  583  et  seq.     Xothing  about  this  rule 

fear  or  duress  is  to  be  rejected.     Incriminat-  can   be   said   to  be   remarkable.     That   which 

ing   statements   extorted   from   the   declarant  calls  for  comment,  not  unmixed  with  surprise 

even  by  the  use  of  the  rack  or  other  instru-  are  the  additional  procedural  rules  of  rejec- 


449  REQUISITES.  §  583 

with  much  stringency.  The  negative  rule  is  to  the  effect  that  no  confession  not 
voluntary  will  be  received  in  evidence.  Strangely  enough,  it  is  apparently 
deemed  an  equivalent  statement  of  the  negative  portion  of  the  rule  to  say  that : 
Any  inducement  operating  on  the  mind  by  way  of  fear  or  hope,  however  slight, 
any  promise  or  threat  whatever,  if  held  out  by  a  person  in  authority  over 
criminal  proceedings  and  relating  to  some  benefit  or  injury  in  connection  with 
such  proceedings,  suffice  to  exclude  a  confession  so  induced.15 

§  583.  [Confessions];  Requisites  of  Admissibility.10 — As  seen  in  connection 
with  the  rule  of  procedure  permitting  the  receipt  of  confessions  of  guilt,17  it 
is  essential  to  the  admissibility  of  such  confession  that  it  should  (a)  have  been 
a  declaration  made  by  a  party  accused  of  the  crime  involved  in  the  proceedings 
or  by  some  one  legally  entitled  to  speak  for  him,  (b)  be  incriminating,  (c) 
certain,  (d)  complete  in  itself  and,  above  all,  (e)  the  voluntary  act  of  the  de- 
clarant. It  may  be  convenient  briefly  to  consider  the  requisites  for  admis- 
sibility in  this  order. 

The  confession  must  in  the  first  place  be  made  by  the  defendant  in  the  case 
on  trial  18  and  the  admission  of  a  third  person  is  not  available  to  the  defendant 
as  a  confession  of  the  former.19 

It  must  also  be  incriminating  in  the  sense  of  admitting  liability  20  and  it  is 
not  enough  that  it  admits  the  overt  act  and  at  the  same  time  sets  up  a  justifica- 
tion.21 This  is  the  distinction  between  a  confession  and  an  admission  as  the 
word  admission  may  be  properly  applied  to  any  admission  of  a  relevant  fact 
while  confession  is  confined  to  an  admission  of  criminal  liability.22 

The  confession  must  be  sufficently  certain  to  identify  the  crime  and  the 
criminal  but  need  not  in  terms  state  the  time  and  place  to  which  it  refers.23 

The  confession  must  also  be  complete  in  itself  and  the  entire  statement  must 
be  put  in  evidence  in  justice  to  the  defendant  as  well  as  to  the  government.24 

tion  which  cluster  as  it  were,  about  this  plain  1061    (1907),  citing  1   Greenleaf  on  Evid.,  § 

fundamental  rule  of  admissibility  and  seem,  at  170. 

times,  practically  to  obstmre  and  even  nullify  21.  Powell   v.    State,    101    Ga.   9,   29   S.   E. 

it.  309    (1897)     (murder):   State  v.  Cadotte,   17 

15.  Bartley  v.  People,  156  111.  234,  40  X.  E.  Mont.    315.    42    Pac.    857     (1895):    Folds    v. 
831   (1895).  -State,  123  Ga.  167.  .~>1  S.  E.  305   (1905)    (ac- 

16.  2  Chamberlayne,    Evidence,     §§     1473-  cident). 

1482.  22.  Oregon. —  State  v.   Porter,   32  Or.   135, 

17.  §  583.  49  Pac.  964   (1897). 

18.  Lowe    v.    State.    125    Ga.   55,    53  S.   E.  23.  Cook  v.  State  (Ga.  1906),  53  S.  E.  104, 
1038    (1906)    (conspiracy):   Campos  v.  State       124  Ga.  653. 

(Tex.  Cr.   App.   1906),   97   S.  W.   100.  24.  Davis  v.  State   (Ala.  1910).  52  So.  939. 

19.  State   v.   Bailey    (Kan.    1906),   87   Pac.  "All  parts  of  the  confession,  inculpatory  or 
189;    State  v.  Jennings    (Or.   1906),   87   Pac.  exculpatory,    should    be    weighed    together." 
524  [denier!  in  89  Pac.  421    (1907)].  State  v.  McDonnell,  32  Vt.  491.  532    (1860). 

20.  Pilgrim  v.  State   (Tex.  Cr.  App.  1910),  Admission   partial. —  A   distinct   admission 
128   S.   W.    128.     "A   confession   in   its   legal  of  guilt  contained  in  a  letter  which  has  been 
sense    means    an    acknowledgment   of    guilt."  torn    is    admissible   in    evidence   as    the    rule 
See  McCann  v.  People,  226  111.  562,  80  N.  E.  that  the  whole  instrument  must  be  read  must 


584 


CONFESSIONS. 


450 


Only  a  voluntary  statement  by  the  accused  is  admissible  25  and  this  means 
that  the  statement  must  be  free  and  uninfluenced  by  inducement,  threat  or 
undue  influence.20 

§  584.  [Confessions] ;  Misleading  Inducements.27 —  In  general,  what  is  meant 
by  saying  that  a  confession  is  "  involuntary  ''  is  that  it  has  been  induced  by 
the  hope  of  receiving  some  beuetit  -s  or  by  the  fear  of  suffering  some  injury  29 
in  connection  with  pending  proceedings  30  which  has  been  held  out  to  the 
declarant  by  a  person  in  authority  31  over  the  course  of  the  investigation.32 

The  well  recognized  misleading  motives  under  the  influence  of  which  pro- 
cedure anticipates  danger  to  judicial  administration  under  certain  circum- 
stances, are  hope  and  fear.  The  risk  run  by  a  tribunal  in  relying  upon  in- 
criminating statements  so  induced  has  found  judicial  expression  of  great 
frequency  and  clearness.  "  It  is  not  because  the  law  is  afraid  of  having  truth 
elicited,"  said  Mr.  Justice  Williams,33  ''  that  these  confessions  are  excluded, 
but  because  the  law  is  jealous  of  not  having  the  truth."  34 

The  degree  of  fear,  assuming  it  to  be  sufficient  to  affect  the  truthfulness  of 
the  statement,'55  is  not  material,  so  far  as  the  exclusion  of  the  statement  is 
concerned,  if  the  fear  has  been  applied  in  connection  with  the  proceedings  by 
some  person  in  authority.36  To  have  the  effect  of  rejecting  a  statement  in- 


be  taken  with  some  qualifications  and  a  party 
may  always  offer  a  distinct  and  severable  por- 
tion of  a  writing  in  evidence  leaving  to  the 
other  party  the  right  to  put  in  the  other 
portions  which  he  claims  qualify  it.  State 
v.  Corpening,  157  X.  C.  621,  73  S.  E.  214, 
38  L.  R.  A.  (N.  S.)  1130  .(1011) 

25.  Sims  v.  State    ( Tla    1!)10),  52  So    198. 
"  A   confession    is   a   voluntary   admission   of 
guilt.''     Ransom    v.    State,    2    Ga.    App.    826, 
59   S.   E     101    (1907);    Hi  ley  v.   State,   1   Ga 
App.  651,  57  S    E.  1031    (1907). 

Confession. —  A  confession  not  shown  to  be 
voluntary  is  not  admissible  even  to  impeach 
the  defendant  when  he  testifies  Jones  v. 
State,  !)7  Xel>.  151.  14!l  NT.  \V.  327.  A  con- 
fession not  shown  to  be  voluntary  is  not  ad- 
missible at  the  trial  of  a  prosecution  for 
perjury  committed  at  the  trial  of  the  crime  to 
which  the  confession  pertained.  Murff  v. 
State  (Tex.  Crim  App.),  172  S  W.  238 
Confession  made  by  a  man  overcome  with 
heat  to  a  sheriff  who  is  taking  care  of  him 
is  voluntary  and  admissible  in  evidence. 
Shelleuberger  v  State,  97  Neb.  498.  150  N 
W.  043,  L.  R.  A.  1915  C  1163  M915) 

26.  A    confession    is    not    admissible    when 
made   by   one   charged    with    murder   who   is 
sick  and  in  fear  of  being  lynched  and  is  ap- 
proached by  a  newspaper  man  who  says  he  is  a 


Spiritualist  and  can  look  into  his  heart  and 
see  the  crime  he  has  committed.  This  is 
more  than  fear  induced  by  a  threat  of  punish- 
ment after  death.  Johnson  v.  State,  107 
Miss  196,  65  So.  218,  51  L.  R.  A.  (N.  S.) 
1183  (1914). 

27.  2  Chamberlayne.    Evidence,     §§     1483- 
1493. 

28.  Com.  v.  Flood,   152  Mass.  529    (1890); 
Colburn  v.  Groton,  66  N.  H.  151  (1889)  ;  Peo- 
ple v    Cassidy.  14  N.  Y.  Suppl.  349   (1891). 

29.  §§  585  et  seq. 

30.  §  590. 

31.  §§  592  et  seq. 

32.  State  v    Brooks,  220  Mo.  74,  119  S.  W. 
353   (1909). 

33.  R.  v.  Mansfield,  14  Cox  Cr.  639  (1881). 

34.  "  The  reason  for  the  rule  excluding  in- 
voluntary   confession    is    not    based    on    the 
thought  that  truth  thus  obtained  would  not 
be   acceptable,   but   because   confessions   thus 
obtained    are    unreliable."     State    v.    Novak, 
109  Iowa  717,  79  N    W.  465   (1899). 

35.  Stephen  v    State,  11  Ga    225    (1852). 

36.  Fear    inspired    by    other    causes    than 
threats  of  those  in  authority  will  not  consti- 
tute a  falsifying  inducement.     Com  v.  Smith, 
119    Mass.    305    (1876).     It   may    constitute 
duress      §§  1558  et  seq 


451 


HOPE  AND  FEAR. 


585,  586 


duced  by  it,  the  fear  in  question  must  Appear  to  have  been  an  alanniiiy  ingredi- 
ent added  to  the  natural  effect  of  the  accusation,37  arrest  for  crime/''*  and 
normal  apprehension  of  punishment.39 

§  585.  Misleading  Inducements;  Hope  and  Fear;  How  Mental  State  is  Estab- 
lished; Subjective  Considerations.4" — To  decide  this  issue  it  is  necessary  to  de- 
termine the  mental  state  of  the  accused.  Such  an  inquiry  will  divide  itself, 
roughly,  into  three  main  lines,  (a)  A  consideration  of  the  resisting-  power  of 
the  declarant's  mind,  (b)  Examination  of  the  kind  and  strength  of  pressure 
brought  to  bear  upon  it.  (c)  What  administrative  or  procedural  assumptions 
may  properly  be  made  as  to  the  continuance  of  any  mental  state  once  shown  to 
exist. 

The  investigation  must  examine  the  mental  capacity  41  of  the  accused  and 
influences  on  children  42  will  be  more  carefully  scanned  than  on  adults  and  so 
of  feeble-minded  persons 43  or  those  made  insane  through  crime 44  or  in- 
toxicated persons  40  or  those  affected  by  sleep  or  wounds  or  pain.40 

§  586.  [Misleading  Inducements];  Objective  Considerations;  Hope.47 — The 
inducement  held  out  to  the  accused  which  will  invalidate  his  confession  may 
be  of  any  nature  so  long  as  material,48  though  vague,40  but  any  mere  sugges- 


37.  Com.  v.  Mitchell,  117  Mass.  431   (1875). 

38.  Com  v.  Smith.  119  Mass.  305  ( 1876). 

39.  Com.  v.  Preeee,  140  Mass.  276.  5  X.  E. 
494    (1885);   People  v.  Thomas,  3   Park.  Cr. 
(X.   Y.)    256    (1855);    Honeycutt  v.  State,  8 
Baxt.    (Tenn .)    371    (1875);    State  v.  Coella, 
3   Wash.   99,   28   Pac    28    (1891). 

40.  2  Chamberlayne,  Evidence,  §  1494 

41.  The  consideration  will  necessarily  affect 
the  weight  of   the   declaration      Williams   v. 
State.   fi9   Ark.   599,    65    S.    W.    103    (1901): 
People   v.    Miller,    135    Cal.    69,    67    Pac.    12 
( 1901 )  ;  Flagg  v.  People,  40  Mich.  706  ( 1879) . 

42.  Hoober  v    State,  81   Ala.   51,  1  So    574 
( 1886)  :  State  v.  Mason,  4  Idaho  543,  43  Pac. 
63    (1895). 

43.  Peck  v.  State   (Ala.   1906).  41  So.  759. 

44.  '•  Public  policy  forbids  that  confessions 
should  be  used  in  evidence  against  the  pris- 
oner which  are  drawn  from  him  by  appliances 
of  this  nature,  brought  to  bear  upon  his  mind 
by  those  who  have  authority  over  him,  and 
when   it   may   be  supposed  bis  mental  agita- 
tion unfits  him  to  resist  their  influence,  how- 
ever slight  they  may  be."     State  v.  York,  37 
X    H.   181.  184   (1858). 

45.  Com.    v.    Howe.    9    C.ray    (Mass.)     110 
(1857). 

In  vino  veritas. —  The  probative  force  of  a 
statement   induced  bv  the  use  of  intoxicants 


is  not  materially  diminished  where  the  only 
effect  observed  is  the  loosening  of  the  tongue 
Clark  v.  State,  8  Humphr  (Tenn.)  671,  676 
( 1848 ) .  See  also,  Jefferds  v.  People  ( Supm 
Ct.  Gen.  T.).  5  Park.  Crim.  (X.  Y .)  522.  549 
(1862).  "Drunken  men  sometimes  reveal 
truths  which  they  conceal  when  sober " 
Shannon  v.  Swanson,  109  111  App.  274,  276 
(1902),  per  Dibell,  J. 

46.  Isler  v  Dewey,  75  N.  C.  466  (1876). 
Effect  of  pain  upon  trustworthiness. —  In 

connection  with  similar  statements  by  a  de- 
clarant who  is,  at  the  time,  in  physical  pain, 
the  effect  of  the  infirmative  consideration  has 
received  judicial  attention.  Thus  the  state- 
ments of  one  suffering  severely  from  the  ef- 
fects of  recent  bodily  injuries  have  received 
scant  attention  from  the  courts  when  offered 
as  admissions  of  his  own  negligence  in  the 
matter  Taylor  v.  General  Ace.  Assur.  Corp., 
208  Pa.  St.  439,  57  Atl.  830  (1904) 

47.  2  Chamberlayne,     Evidence,     §§     1495- 
1502. 

48.  Com    v.   Corcoran,    182   Mass.   465,   65 
X.   E    821    (1903). 

49.  Green  v.   State.   88  Ga.   516.    15   S.   E. 
10.   30   Am.   St.   Rep.    167    (1891);    Gates  v. 
People.  14  Til.  433   (18531  :  Com    v.  Taylor,  5 
Cush.  605    (1850)    (use  his  influence  in  pris- 
oner's favor). 


§§   587,  r>88  CONFESSIONS.  452 

tion  as  to  the  general  desirability  of  confession  is  not  sufficient  to  show  the 
influence  of  hope.50  Among  the  more  common  misleading  inducements  held 
out  are  the  hope  of  averting  or  delaying  punishment 51  or  the  discontinuance  of 
the  prweedings  against  him,52  the  hope  of  pardon.5*  or  the  mitigating  of  the 
punishment  54  or  an  offer  of  a  pecuniary  reward  for  a  confession.55 

§  587.  [Misleading  Inducements] ;  Assumption  of  Continuance.56 —  The  pre- 
siding judge  may  properly  invoke,  in  aid  of  the  procedural  rule,  excluding 
"  involuntary  '•  confessions,  the  allied  administrative  power,  of  judicial  as- 
sumption, frequently  referred  to  as  a  presumption  of  law. 

It  may  accordingly  be  assumed  by  him  that  a  state  of  mental  feeling  in  a 
criminal  defendant  once  established  continues  to  operate,  for  a  reasonable  time, 
unless  and  until  some  change  in  respect  to  it  is  affirmatively  shown  to  have 
taken  place.57  To  prove  this  fact  of  change,  clear  and  convincing  evidence  58 
will  be  required.  Should  it  be  made,  in  any  case,  affirmatively  to  appear  that 
by  reason  of  the  occurrence  of  subsequent  events  the  inducements  no  longer 
continued  to  operate  on  the  mind  of  the  declarant  at  the  time  of  the  making 
of  the  statement,  his  declaration  will  be  received  in  evidence,59  notwithstanding 
the  existence  of  the  previous  inducements. 

§  588.  [Misleading  Inducements] ;  Physical  or  Mental  Discomfort.0" —  Where 
the  judgment  has  simply  been  misled  by  the  desire  to  escape  a  threatened  evil 
state,  physical  or  mental,  the  endurance  of  which  is  regarded  as  a  possible 
alternative  to  confession,  the  declaration  must  be  regarded  as  voluntary  and 
properly  admissible  under  suitable  instructions  from  the  court.  Should  the 
threatened  danger  of  physical  violence  or  mental  anguish  be  so  immediate  and 

50.  Steele  v    State,   83   Ala.   20,  3   So.   547  fess   has    been   held,    when   made    by   one    in 
(1887)  ;  State  v.  Grover,  96  Me.  363,  52  Atl.  authority,  to  exclude  the  confession.     Harvey 
757    (1902)    (no  worse  off  in  case  of  confes-  v.  State    (Miss.    1896),  20  So.   837:   State  v. 
eion)  ;  State  v.  Bradford,  156  Mo  91,  56  S.  W.  Drake,  113  X.  C  624,  626,  18  S.  E.  166  1 1893) 
898   (1900).  55.  State  v.  Wooley,  215  Mo.  620,  115  S.  W. 

51.  State  v.   Wooley,  215  Mo.  620,   115  S.  417   (1908). 

\V.  417    (1908).  The  requirement  has  been  added  that  the 

52.  Austine  v.  People,  51  111.  238  (1869).  reward  must  appear  in  some  affirmative  way, 
A  subsequent  intimation  by  one  in  author-      to  have  influenced,  if  not  induced,  the  confes 

ity,  given  prior  to  the  making  of  the  confes  sion.     State    v.    Wentworth,    37    N     H.    219 

sion,  that  the  proceedings  must  nevertheless  ( 1 858 ) . 

continue  has  been  held  to  nullify  the  mental  56.  2  Chamberlayne.     Evidence.     §§     1503- 

effect  of  the  prior  promise.     Ward  v.  People,  1508. 

3  Hill    (X.  Y)    395    (1842).  57.   People  y    Stewart,  75  Mich.   21.  42  N. 

53.  Beggarly    v     State,    8    Baxt.    520,    526  W.   662    (18S9);   State  v.  Guild,  10  X.  J.  L. 
(1875);  State  v   Carr,  37  Vt    191    (1S64).  163.  IS  Am.  Dec   404   (1828). 

54.  People  v.  Johnson,  41  Cat   453   i!871)  .  58.  McGlothlin  v.   State,  2  Coldw.    (Tenn.) 
State  v.  Jay,   116   Iowa   264.  89   X    W    1070  223    (1865);    Thompson    v.    Com.,    20    Gratt. 
(1902)  :  Com   v.  Curtis,  !>7  Mass.  . "7   i  1S67)  :  ( Va  )    724    (1870). 

State    v     Smith.    72    Miss.    420,    18    So.    4S2  59.   People   v     Markinder.   29    X.    Y    Suppl. 

(189.1).  842.  80  TTun  40   (1894)  ;  State  v.  Gregory,  50 

There  need  be  no  promise.— Hazarding  a  N.   C.   315    (1858). 

mere  surmise  that  it  might  be  better  to  con-  60.  2   Chamberlayne,  Evidence,  §  1509. 


453  PAIX  AND  THKEATS.  §§  589,  590 

pressing  as  fairly  to  overpower  the  will  to  the  making  of  an  indicated  state- 
ment, the  latter  may  properly  be  regarded  as  a  result  of  duress,  not  the  act  of 
the  declarant,  but  rather  that  of  those  applying  force  and  consequently  inad- 
missible. It  will  be  significant,  for  example,  that  the  accused  was  solitary 
and  in  darkness;61  that  he  had  previously  been  placed  in  irons,02  chained,"'5 
or  subjected  to  other  physical  pain.*54  In  short,  any  facts  calculated  to  cause 
physical  pain  or  mental  alarm,  e.g.,  being  bitten  by  dogs  while  defenceless 
against  their  attacks,65  having  one's  head  placed  in  the  noose  of  a  rope,';0 
and  the  like,  must  be  carefully  considered,  both  singly  and  in  combina- 
tion with  other  facts,  in  determining  to  what  extent,  if  any,  the  will  of  the 
declarant  was  controlled  rather  than  misled. 

§  589.  [Misleading  Inducements] ;  Pain.07 —  Prominent  among  considerations 
affecting  the  trustworthiness,  as  "  voluntary,"  of  a  confession,  is  the  actual  or 
prospective  infliction  of  pain.  It  may,  of  course,  happen  that  the  physical 
suffering  is  so  direct  and  overwhelming  in  its  operation  as  to  constrain  the 
will  of  the  declarant  and  amount  to  duress.68  Where,  for  example,  a  master 
is  shown,  in  the  early  cases  to  have  flogged  his  slave  in  order  to  extort  a  con- 
fession of  guilt,69  the  statement  might  well  have  been  regarded  as  obtained  by 
duress. 

§  590.  [Misleading  Inducements] ;  Threat^.70 —  A  threat,  in  and  of  itself,  so 
long  as  its  fulfilment  is  strictly  in  futuro,  can  seldom,  in  case  of  a  mind  of 
ordinary  firmness,  constitute  duress.  A  threat  of  some  injury  to  body  or 
mind  has,  however,  very  naturally,  been  deemed  an  important  factor  to  be  con- 
sidered in  deciding  how  far  the  declaration  made  under  its  influence  is  trust- 
worthy.'1 And  the  same  rule  has  been  held  to  apply  to  a  threat  of  mental 
suffering.72  A?  a  matter  of  authority,  it  is  held  that  this  powerful  induce- 

61.  State  v    McCullum.    18  Wash.   394,   51  71.  §  1,  Beckman  v.  State.  100  Ala.  15,  17. 
Pac.    1044    (ISO?  I.                                                          14  So.  859   (1893)  :  Joe  v    State,  38  Ala.  422 

62.  U    S.  v   Xardello,  4  Mackey  (D.  C  )  503       (1863). 

(1886)  72.  State  v    Brittain,  117  X.  C.  783.  23  S. 

63.  Young  v.    State,   68   Ala    569    (1881):  E.  433  (1895)    t  by  husband  to  abandon  wife) . 
State  v    George,  50  X.  C    233   (1858).  A   threat  to   put   the  accused   in   the   "dark 

64.  Ammons  v.  State.  80  Miss.  592.  32  So.  room  "  of  the  jail  has  been  regarded  as  rea- 
9    (1902)    (use  of  "sweat  box" — room  eight  sonablv   calculated  to  induce  a   false  accusa- 
feet    by    six    feet);    State    v.    McCullum,    IS  tion  and  the  statement  has  accordingly  been 
Wash.  394.  51  Pac.  1044   (1897)    (dark  cell).  rejected.     People    v.    Kankin.    2    Wheel.    Cr. 

65.  Simon  v.  State.  37  Miss    288   (1859).  i  X.  Y  )   467    .1807). 

66.  State  v.  Young,  52  La.  Ann   478.  27  So.  The   question   of   admissibility  is   largely 
50   (1900K  one  of  degree. —  Thus  the  threat  of  a  medi- 

67.  2  Chamherlayne,  Evidence.  §   1510.  cal  man  to  examine  the  body  of  a  female  de- 

68.  §§  602  et  seg.  fendant    accused    of    concealing    a    new    born 

69.  Brister    v.     State,     26     Ala.     107,     129  child  is  not  deemed  a  threat  invalidating  her 
(1855):    Van   Buren   v.    State.   24    Miss.   512  confession.     Cain's   Case,    1    Crawf.    &    D    37 
(1852)  :  Hector  v.  State.  2  Mo    166  (1829).  .  1839).     At  the  same  time  the  tbreat  made 

70.  2  Chamberlayne,     Evidence,     §§     1511-  by  a  constable  to  search  the  house  unless  in- 
1515  formed  of  the  whereabouts  of  the  child  has 


§  591  CONFESSIONS.  454 

ment  to  confession  will  not  invalidate  the  statement  unless,  under  all  the  cir- 
cumstances, it  may  reasonably  be  inferred  that  it  undermined  the  nerve  and 
judgment  of  the  declarant  to  an  extent  which  has  led  him  to  misrepresent  the 
truth.73 

Thus  the  confession  may  be  invalidated  by  a  threat  of  punishment  for  the 
crime  unless  confession  be  made  74  or  by  the  use  of  firearms  in  a  threatening 
way.75  The  confession  is  not  however  affected  by  the  use  of  threats  not  con- 
nected with  the  fate  of  the  accused  in  the  pending  proceedings  70  as  connected 
with  the  treatment  of  the  accused  during  the  trial  7~  when  concerning  independ- 
ent matters  not  connected  with  the  trial  at  all.'8 

Threats  made  after  the  confession  can  have  no  effect  on  it  and  do  not  in- 
validate it.79 

§  591.  [Misleading  Inducements] ;  Moral  or  Religious.80 —  Proof  that  an  in- 
criminating statement  was  made  by  one  accused  of  crime  under  the  influence 
of  a  moral  or  religious  inducement  to  make  a  statement,  is  in  reality  a  guar- 
anty of  its  truth,  rather  than  any  real  impairment  of  its  probative  force.81 
Should  the  sole  inducement  for  the  confession  be  a  desire  by  the  declarant  to 
follow  the  precepts  of  moral  obligation,  or  to  gain  a  spiritual  advancement  82 
as  by  obliging  a  third  person,83  the  existence  of  such  an  inducement  does  not 
affect  the  validity  of  the  confession.84 

There  is  much  conflict  in  the  cases  as  to  whether  a  mere  exhortation  or 
suggestion  to  tell  the  truth  contains  such  an  implied  threat  as  to  make  the  con- 
been  held  to  exclude  the  statement  of  the  N.  C.  491  (1876);  Rex  v.  Lloyd,  6  C.  &  P. 
mother  made  in  consequence  of  the  officer's  393,  25  E.  C.  L.  454  (1834)  ;  Hunt  v.  State, 
announcement.  Cain's  Case,  1  Crawf.  &  D.  135  Ala.  1,  33  So.  329  (1902). 
37  (1839).  78.  Com  v.  Howe,  2  Allen  (Mass.)  159 

73.  State  v.  Freeman,  12  Ind.  100   (1859);        (1861). 

Maxwell   v.  State    (Miss.    1906),  40  So.   615  79.  Kollenberger  v.  People,  9  Colo.  233.  11 

("  might  get  his  neck  broken  ").  Pac.     101      (1886);     Simpson     v.     State,     4 

It  is  necessary  that  the  threats  or  promises  Humphr    (Tenn.)   456   (1844);  Geimsinger  v. 

should    be   "such    as   to   alTord   a   reasonable  State    (Tex.   Cr    App.    1901),  69   S.   W.  583; 

presumption    that    the    defendant's    answers  State  v    Jenkins.  2  Tyler    (Vt.)    377    il803). 

were  influenced."     Com.  v.  Myers,   160  Mass.  80.  2    Chamberlayne,    Evidence,    §§     1516- 

530  (1894).  1520. 

74.  State  v.    Albert,   50   La.    Ann.   481,   23  81.  Com.   v    Drake,    15   Mass     161     (1818) 
So    609    (1898)    (sheriff)  (confession  to  fellow  church  members) . 

Great  excitement  on  the  part  of  the  ac-  82.  State  v    Potter,  18  Conn.   178    (1846); 

cused  when  arrested  is  no  ground  for  exclud-  State  v.  Harman,  3  Harr    i  Del  )  567   (1842)  -. 

ing  a  confession      People   v.   (  okahnour,   120  1?    v.  Sloeman,  6  Cox  Cr    245   (1853)    (avoid- 

Cal.  253.  .V2  Pac.  585    (1898);   Balls  v.  State  ing    sin):     K.    v.    Hewett,    Carr.    &    M.    534 

(Tex.  Cr    App.  1897),  40  S.  W.  801.  (1*42)    i obtaining  forgiveness) 

75.  State    v.    Albert,   50   La     Ann.    481,   23  83    Shifflet's    Case.    14    Hratt.    665    (1858) 
So    60!)    i  IS9S)    (sheriff).  (relieving  mother  of  suspicion)  ;  R.  v.  Hodg 

76.  State    v.    CJrant,    22    Me.    174     (1842)  son.   1   Lew    Cr.  C.   103    (1827)    (mistress) 
(escape  of  brother)  84.  Com.   v.   Xott.    13.r>   Mass.   269    (1883): 

77    R.  v.  Lloyd,  6  C.  &    P   303  (1834)    (al-       People  v    Kennedy,  159  N.  Y.  346,  54  N.  E, 
lowing   prisoner   to   see   his   wife):    State   v.       51   (1899). 
Tatro,  50  Vt.  483  (1878)  ;  State  v.  Cruse,  74 


455  PERSONS  IN  AUTIIOKITY.  §  5'J^ 

fession  inadmissible.  These  all  depend  on  the  facts  of  each  case.  The  state- 
ment to  one  accused  of  crime  that  he  would  better  tell  the  truth  may  85  or  may 
not  86  be  a  threat  depending  on  the  circumstances  under  which  it  is  uttered. 
The  same  considerations  apply  to  a  statement  that  the  accused  "  had  better 
confess."  8T 

Fear  of  Death. —  The  fear  of  impending  death  has  no  tendency  to  impair 
the  trustworthiness  of  a  confession.88 

§  592.  [Misleading  Inducements] ;  Who  are  "  Persons  in  Authority." 89 — 
Persons  in  authority,4*0  within  the  meaning  of  the  procedural  rule  now  under 
consideration,  are  such  as  are  legally  entitled  to  control  the  liberty  of  the  ac- 
cused, to  decide  as  to  what  shall  be  done  with  the  defendant  or,  in  other  re- 
spects, to  direct  the  course  of  the  criminal  proceedings.91  Authority  in  this 
connection  may  be  delegated  expressly  or  by  implication.92  The  term  u  person 
in  authority  "  may  therefore,  extend,  so  far  as  to  designate  any  one  who  acts 
in  the  presence  of  a  person  clothed  with  legal  authority,  under  color  of  his 
power  in  the  matter,  without  contradiction  or  rebuke  from  the  latter. <<(J  The 
procedural  rule  under  examination  goes  so  far  as  to  provide  that  when  a  con- 
fession has  been  made  by  one  to  whom  threats  or  promises  have  been  addressed 
by  such  a  person  in  authority  that  it  will  be  judicially  assumed,  in  the  absence 
of  evidence  to  the  contrary,  that  the  confession  was  made  in  pursuance  of  the 
inducement.94  It  is  not  sufficient  that  the  person  extending  a  misleading  in- 
ducement should  have  been  believed,  reasonably  and  necessarily,  to  be  a  person 
in  authority.  He  must,  actually  and  legally,  have  been  a  person  in  authority. 

The  mere  fact  that  the  person  who  induces  the  confession  is  an  officer  is  not 
enough  to  bar  it ;  he  must  be  connected  with  the  prosecution  and  have  authority 
by  virtue  of  that  relation.95  The  assent  of  the  prosecuting  officer  to  the  in- 

85.  People  v    Silvers,   6  Cal    App    69,  92          90.  State  v   Spaugh,  200  Mo.  571,  98  S.  W. 
Pac.  506    (1907).     See  also,  Biscoe  v    State.      55   (1906). 

67  Md.  6   (1887)  ;  Com.  v.  Myers,  160  Mass.  91.  R.  v    Stacey,  14  Q.  B.  789,  14  Jur.  549 

530    (1894);   Com.   v.   Preeee.   140  Mass    277,  (1850). 

278,  5  X.  E.  494    (1885)  ;  Com.  v.  Xott,  135  92.  R.  v    Garner,  2  C.  &  M.  920.  3  Cox.  C. 

Mass.  269   (18831  C.   175,  1  Den.  C.  C    320,   12  Jur.  944,  18  L. 

86.  \ew   York.—  People  v.   Randazzio,   194  J.  M.  C    1,  3  New  Sess.  Cas.  329,  F   &  M.  7, 
N.  Y    147,  87  X.  E.  112   (1909).  61  E    C    L.  920   (1848). 

87.  Statement  admitted. —  State  v.  Vey  (S.  93.  Morehead  v    State,  9  Humphr    (Tenn.) 
D.  1908),  114  X.  \V.  719.  635    (1849);    R.   v.   Millen,   3  Cox  C.   C.   507 

Statement   excluded.— State  v    Brockman,  (1849);    R.   v    Laugher.   2   C.   &    K    225,   2 

46  Mo.  569    (1870);   R.  v.  Coley,  10  Cox  Cr.  Cox  C    C.  134.  61   E    C    L.  225   (1846).     And 

536     (186S)     (constal)le^  :    Mitchell    v.    State  see  Johnson  v.  State.  76  Ga    76    (1885K 

(Miss.  1898),  24  So   312:  People  v   Ward,  15  94.  Green  v.  State.  8«  Ga.  f>16.  15  S    E.  10, 

Wend.   (X.  Y  )  231    (1836T  30  Am    St.  Rep    167    '1891);  Com.  v.  Myers, 

88.  State   v.    Gorham,   67   Vt.    365    (1894)  160  Ma««    .-,30.  36  X    E.  48   dS«>4) 

(effects  of  poison).  95.  Beggarly  v.  State,  8  Baxt.  520  (1875)  ; 

89.2    Chamberlayne,    Evidence,    §§    1521-      Com.  v.  Smith,  10  Gratt.    (A)    734    <1853)  ; 

1529  I'.  S    v    Stone,  8  Fed.  Rep.  254,  262    (1881), 

per  Hammond,  J  ;   R    v.  Moore,  2  Den.  522, 


593 


CONFESSIONS. 


450 


ducements  may  be  implied,96  as  where  made  in  his  presence  97  or  where  he 
assents  to  the  presence  of  the  person  who  makes  the  threats  or  other  induce- 
ment in  the  prisoner's  cell  98  at  an  unusual  time.99  However  the  mere  fact 
that  the  statement  was  secured  by  the  public  prosecutor  is  not  of  itself  enough 
to  make  it  incompetent.1  Persons  in  authority  include  the  committing  magis- 
trate 2  but  not  in  most  jurisdictions  the  injured  party  or  private  prosecutor.3 
Bystanders 4  or  friends 5  or  fellow-prisoners 6  are  not  persons  in  authority 
though  their  statements  may  serve  to  disqualify  when  made  in  the  presence 
of  one  in  authority  or  by  his  implied  assent.7 

§  593.  [Misleading  Inducements] ;  Effect  of  Arrest.8 —  The  mere  fact  that  the 
incriminating  statement  is  made  while  the  declarant  is  under  arrest,9  or  is  in 
the  hand  of  the  sheriff  10  or  police  officer  n  is  not,  of  necessity,  sufficient  to 
exclude  his  statement.  Even  should  the  restraint  imposed  upon  the  declarant 
go  so  far  that  he  is  not  only  actually  in  prison,12  but  is  also  tied  hand  and 


96.  State  v.  Vaigneur,  5  Rich.  (S.  C.)   391, 
400  (1852). 

97.  State  v.  Sherman  (Mont.  1907),  90  Pac. 
981. 

98.  Johnson   v.   State,   61    Ga.   305    (1878) 
(confession  at  jail). 

99.  "  None  of  these  persons  was  the  officer 
in  charge;  but  their  admission  to  the  cell,  at 
such  an  unreasonable  hour  carried  with  it  an 
implication   of   the   officer's   consent   to   their 
mission,  and  respondent  could  scarcely  fail  to 
be  impressed  that  their  assurances  were  made 
with  full  authority."     People  v.  Wolcott,  51 
Mich.  612   (1883). 

1.  State  v.  Stibbens,  188  Mo.  387,  87  S.  W. 
460   (1905). 

2.  Austine  v.   People.   51    111.   236    (1869):' 
U.    S.    v.    Cooper,    25    Fed.    Cas.    Xo.    14,8(54 
(1857)  ;   R.  v.  Clewes,  4  C.  &  P.  221,   19  E. 
C.  L.  485   (1830). 

3.  People  v.    Piner    (Cal.   App.    1909).   10.1 
Pac.   780;    Ward  v.   People.   3   Hill    ( NT.   Y.) 
395    (1842);    1    Whart.    ('rim.    L.    (7th    ed.). 
§§  092,  680. 

Whatever  the  authority  of  the  injured 
party  to  promise  immunity  to  the  accused,  a 
subsequent  retraction  by  the  arresting  officer 
of  such  a  promise  renders  the  declarant's 
confession  thereafter  competent.  \Yard  v. 
People.  3  11  ill  ( X.  Y.)  395  (1842). 

4.  State  v.  Darnell,  1  Houst.  Cr.  C.    (Del.) 
322     11870);    R.    v.    Gibbons.    1    C.    &    P.    97 
(1823). 

5.  State  v.   Potter,    18   Conn.    178    (1864): 
State   v.    Caldwell,    50   La.    Ann'.   66fi.   23    So. 
869     (1898);     State    v.    Grant,    22    Me.    171 


(1842)  ;  State  v.  Garrick,  16  Nev.  128  (1881) 
( bondsmen ) . 

6.  R.  v.  Shaw,  6  C.  &  P.  372   (1823).     See, 
contra,  Freeman  v.  Brewster    (Ga.   1894),  21 
S.  E.   165. 

7.  R.   v.  Millen,  3  Cox  Cr.  C.  507    (1849). 
But  see,  contra,  R.  v.  Parker,  8  Cox  Cr.  465 
(1861).     Inducements    offered    by    civilians, 
see  note,  Bender  ed.,  195  X.  Y.  224. 

8.  2     Chamberlayne,     Evidence,     §§     1530- 
1536. 

9.  Com.  v.  Devaney,  182'  Mass.  33,  64  X.  E. 
402   (1902)  ;  People  v.  Egnor,  175  X.  Y.  419, 
67  X.  E.  906    (1903);   State  v.  McDaniel,  39 
Or.   161,  65  Pac.  520   (1901). 

10.  Sands   v.    State,    80   Ala.   201     (1885); 
Republic    v.     Hang    Chong,     10    Hawaii    94 
(1895)  ;  Spiers  v.  State   (Texas  Cr.  App.),  69 
S.  W.  533   (1902). 

11.  R.  v.  Cheverton,  2  F.  &  F.  833    (1862). 
Individual  judges  have  even  doubted  the  cred- 
ibility of  confessions  testified  to  by  police  of- 
ficers in  cases  where  sucb  evidence  was  neces- 
sary to  warrant  a  conviction.     R.  v.  Thomp- 
son, 13  Cox  Cr.  182   (1876),  per  Cave.  J.     See 
also.  Lambe's  Case,  2  Leach  Cr.  L.    (3d  ed.) 
552   (1791),  per  Grose,  J. 

12.  Calif  orni-a. —  People  v.  Siemson,  95  Pac. 
863   I  1908). 

Florida.—  Green  v.  State.  40  Fla.  191,  23 
So.  851  (1898). 

Ceorf/ln.— Hilhurn  v.  State,  121  Ga.  344,  49 
S.  E.  318  (1904)  (a  nepro  in  a  calaboose  sur- 
rounded by  white  men). 

Indiana. —  State  v.  Laughlin,  84  N.  E.  756 
(1908). 


457 


ARREST. 


§  593 


foot,13  handcuffed,14  chained,15  placed  in  the  stocks  16  or  otherwise  subjected 
to  physical  discomfort  no  necessary  rejection  of  the  declaration  is  involved. 
That  the  prisoner  is  laboring,  at  the  time  of  making  the  statement,  under 
strong  excitement  J '  is  a  matter  of  little  importance.  Xor  is  it  of  consequence 
that  in  conversation  with  the  accused  his  guilt  was  assumed  by  all  persons 
present.18  The  confession  may  still  be  voluntary  where  the  mind  or  will  of 
the  accused  is  not  forced;  as  in  duress,  to  the  making  of  any  particular  state- 
ment,19 or  where,  although  apparently  induced  by  one  of  the  parties  who  con- 
ducted the  prisoner  to  gaol,  the  acts  were  calculated  to  excite,  not  fear  of  tem- 
poral punishment,  but  horror  at  the  recollection  of  the  crime.20 

The  circumstance  that  the  accused  is  under  arrest  is  however  to  be  consid- 
ered in  deciding  whether  the  confession  was  voluntary  as  the  arrest  may  well 
have  the  effect  of  cowing  the  accused21  even  where  the  arrest  is  invalid,22  al- 
though there  is  some  authority  for  rejecting  all  confessions  made  by  a  person 
under  arrest,23  and  the  statutes  frequently  provide  that  the  officer  must  warn 
the  accused  of  his  rights  before  questioning  him.24  This  warning  should 


Louisiana. —  State  v.  Chambers,  45  La.  Ann. 
36,  37,  11  So.  944  (1893). 

Massachusetts. — Com.  v.  Cuffee,  108  Mass. 
287  (1871).  Fact  that  one  was  under  arrest 
outside  the  state  without  extradition  papers 
does  not  render  confession  inadmissible,  see 
note,  Bender  ed.,  18  X.  Y.  9. 

13.  Franklin   v.   State,   28   Ala.  9    (1856); 
Austin  v.  State,  14  Ark.  555   (1854)  ;  State  v. 
Patterson,    73    Mo.    695     (1881);     State    v. 
Rogers,  112  X.  C.  874   (1893). 

14.  Dunmore  v.  State   (Miss.  1905),  39  So. 
69;   Sparf  v.  U.  S.,  156  U.  S.  51    (1895). 

15.  State  v.   Whitfield,   109  X.  C.  876,   13 
S.  E.  726   (1891). 

16.  State  v.  Xelson,  3  La.  Ann.  497  (1848). 

17.  State  v.  Pamelia,   122  La.'  207,  47   So. 
508   (1908). 

18.  State   v.   Turner,    122   La,   371,   47    So. 
685   (1908). 

19.  State  v.  Auguste,  50  La.  Ann.  488,  23 
So.    612     (1898).     But    should    this    physical 
discomfort   amount  to  duress,  the  confession 
so  obtained  will  be  rejected.     Hoober  v.  State, 
81  Ala.  51,  1  So.  574   (1886). 

20.  R.  v.  Gibney,  Jebb.  Cr.  C.  15   (1822). 

21.  Hendrickson    v.    People,    10    X.    Y.    33 
(1854).     See  also,  Wheater's  Case,  2  Moody 
Cr.   C.   4o,  2  Lew.  Cr.  C.   157    (1838).     This 
important  line  of  reasoning  is  excellently  ex- 
pressed in  a  dissenting  opinion  rendered  in  an 
Irish   case:     "It  is  manifest  to  every   one's 
experience   that   from   the   moment   a   person 
feels  himself  in  custody  on  a  criminal  charge, 


his  mental  condition  undergoes  a  very  re- 
markable change,  and  he  naturally  becomes 
much  more  accessible  to  every  influence  that 
addresses  itself  either  to  his  hopes  or  fears." 
R.  v.  Johnston,  15  Ir.  C.  L.,  60,  83  (1864), 
per  Hayes,  J. 

Minors  under  arrest. —  For  much  the  same 
reason  and  in  an  especial  degree  care  will  be 
taken  in  giving  due  weight  to  this  intensi- 
fied amenability  to  suggestion  in  case  of  con- 
fessions made  by  minors,  while  under  arrest. 
Burton  v.  State,  107  Ala.  108,  18  So.  284 
(1895)  (boy  of  14);  Com.  v.  Preece,  140 
Mass.  270,  5  X.  E.  494  (1885). 

22.  California. —  People  v.  Remirez,  56  Cal. 
533  (1880). 

Iowa.—  State  v.  Wescott,  104  X.  W.  341 
(1905). 

23.  Layton  v.  State    (Tex.  Cr.  App.  1908), 
107  S.  W.  819.     If,  however,  the  declarant  is 
not  aware  of  being  under  restraint,  no  reason 
exists   for  excluding  his   statement.     Connell 
v.  State  (Tex.  Cr.  1903),  75  S.  W.  512. 

24.  Com.  v.  Willis,  223  Pa.  576,  72  All.  857 
(1909);     Yancy    v.    State     (Tex.    Cr.    App. 
1903),  76  S.  W.  571.     An  interval  of  six  or 
seven  hours  may  not  render  a  warning  inoper- 
ative  in    securing   admissibility.     Johnson    v. 
State   (Tex.  Cr.  App.  1905),  84  S.  W.  824. 

.A'eic  York. —  Balbo  v.  People,  80  X.  Y.  484 
(1880). 

England. —  Rex  v.  Thornton,  1  Moody  C.  C. 
27  (1824).  Arrest  in  another  state  without 
a  warrant  does  not  exclude  a  confession  ob- 


§§  594,  595  CONFESSIONS.  458 

usually  take  the  form  of  telling  the  accused  that  he  will  gain  nothing  by  con- 
fessing and  that  what  he  says  will  be  used  against  him.-0 

§  594.  [Misleading  Inducements] ;  Effect  of  Suspicion.20 —  If  the  fact  of  a 
present  arrest  is  not  sufficient  to  exclude  an  incriminating  statement,  a  fortiori, 
a  mere  suspicion  of  having  committed  the  offense  does  not  warrant  its  exclu- 
sion.1'7 It  follows  naturally,  moreover,  that  the  statutory  warning  or  caution 
as  to  the  effect  of  incriminating  statements  which  is  required  as  a  preliminary 
to  the  admissibility  of  confessions  made  by  persons  under  arrest  28  does  not 
apply  to  those  who  are  merely  suspected  of  having  committed  the  crime  in 
question.2" 

§  595.  [Misleading  Inducements] ;  Deception.30 —  The  rule  of  procedure  which 
rejects  so  called  vk  involuntary  "  confessions  induced  by  threats  or  promises 
by  those  in  authority  is  based  entirely  upon  an  assumed  ground  of  public  policy. 
In  reality,  like  other  rules  of  procedure,  it  is  practically  an  instance  of  sub- 
stantive law  controlling  the  normal  exercise  of  the  function  of  judicial  admin- 
ist ration.31  As  at  present  conducted  it  proceeds  upon  no  sense  of  fairness  to 
the  prisoner  and  even,  as  has  been  suggested,32  frequently  operates  against  him 
by  substituting  private,  irresponsible  investigation  for  responsible  official  in- 
quiry/" The  rule  assumes  that  those  in  authority  over  legal  criminal  proceed- 
ings ought,  in  the  public  interest,  to  refrain  from  placing  pressure  upon  the 
free  will  of  their  prisoners.  What  injury  he  may  suffer  at  the  hands  of  pri- 
vate persons  is  none  of  its  concern.  So  long  as  the  accused  is  not  influenced  by 
a  person  in  authority  in  certain  specified  ways  he  may  be  deceived,  'flattered, 
wheedled,  tricked,  betrayed  into  a  perfectly  admissible  confession.34 

Any  impairment  of  logical  force  to  which  the  circumstances  give  rise  may 
properly  be  brought  to  the  attention  of  the  jury.  Should  the  court  feel  that 
the  probative  force  of  the  statement  has  been  reduced  by  the  circumstances 
under  which  it  was  made  below  the  point  at  which  the  jury  could  rationally 
act  on  it,  the  presiding  judge  is  justified  if  not  required,  to  reject  the  evidence. 
But  this  has  no  connection  with  the  rule  of  procedure  under  examination. 
The  historical  development  of  the  rule  of  procedure  at  a  time  in  English  his- 

tained  during  its  continuance.     Balho  v.  Peo-  N.  E.  121    (1896);   Boyett  v.  State,  26  Tex. 

pie,  80  X.  Y.  484   (1880).  App    689,  9  S   W   275   (1886). 

25.  State  v.  Church,  199  Mo.  605,  98  S.  W.  30.  2  Chamberlayne,  Evidence,  §  1538. 
16   (  1906)  ;  Com    v.  Johnson,  217  Pa.  St.  77,  31.  §§  72  et  seq. 

tifi  Atl    233    (1907);   Salinas  v.  State    (Tex.  32.  §  592. 

IT.  App.  1907),  102  S.  VV    116;  Henderson  v.  33.  "  But  for  the  very  reason  that  those  in 

State  (Tex   Cr.  App.  1906),  95  S   W    131.  authority  have  no  right  to  require  a  disclos 

26.  2  Chamberlayne,  Evidence,  §  1537.  ure,  those  without  authority  feel  justified  in 

27.  People  v.   Kief,   58   Hun    (X    Y. )    337.  seeking   to   worm    it   out   by    threats,   by   ill 
II    \     Y.   Suppl.   926,    12   N.   Y.  Suppl.    896  treatment,    by    fraud,    by   holding    out    false 
<1S90).  hopes,   by   putting   forward   false   pretences1' 

28.  §  593.  Baldwin,  Mod.  Pol.  Inst.,  pp.  125  &   126. 

29.  Com.   v.   Robinson,    165   Mass.   426,  43  34.  Rex    v.    White,    18    Ont.    L.    Rep.    640 

(1909). 


459  INDUCEMENTS;  ILLEGALITY.  §§  596,  597 

tory  when  a  large  proportion  of  the  population  was  in  revolt  against  government 
and  urgently  needed  the  privilege  of  silence  for  its  protection  is  shown  in  this 
significant  circumstance  that  only  as  against  authority,  judicial  or  official,  is 
the  keen  sense  of  tenderness  for  good  faith  to  the  prisoner  in  the  slightest 
degree  manifested. 

The  confession  obtained  by  one  not  in  authority  may  have  been  induced  by 
a  promise  of  secrecy  3r>  or  by  treachery  3ti  or  by  impersonating  another.37  It 
may  be  obtained  by  any  sort  of  unfair  treatment  38  as  by  an  eavesdropper  3S 
or  by  assuming  the  guilt  of  the  accused  40  even  by  a  person  in  authority  where 
no  hope  or  fear  is  held  out. 

§  596.  [Misleading  Inducements] ;  Illegality.41 —  The  rejection  of  a  confes- 
sion, if  in  itself  reliable  and  trustworthy,  merely  because  obtained  by  means  of 
an  illegal  violation  of  the  prisoner's  privilege  against  compulsory  self-iucrimi- 
nation  is  entirely  without  support  in  legal  analogy.42  The  confession,  viewed 
as  extorted  by  an  act  of  duress,  stands  in  a  different  position.  It  is  not  the 
act  of  the  declarant.  Accordingly,  he  is  not  responsible  for  it.43 

§  597.  Self -incrimination ;  History  of  Doctrine.44 — The  modern  rule  that  the 
accused  cannot  be  forced  to  testify  against  himself  was  not  a  part  of  the  civil 
or  Roman  Law  or  even  of  the  early  English  common  law  under  all  of  which 
torture  was  freely  practiced.  But  when  the  Stuarts  came  to  the  English 
throne  a  long  and  severe  contest  against  the  Crown  arose  which  largely  cen- 
tered in  the  courts.  Here  the  power  of  the  Crown  was  represented  by  the 
judge  appointed  by  the  King  and  the  popular  cause  was  upheld  by  magnifying 
the  power  of  the  jury.  Many  of  the  trials  of  most  importance  were  political 
prosecutions  in  which  the  popular  side  was  concerned  not  with  eliciting  the 
truth  but  in  suppressing  it  and  the  lawyers  opposing  the  Crown  gradually 

35.  State  v.  Novak,   109  Iowa  717,  79  X.  40.  Carroll  v.   State,  23   Ala.   38    (1853); 
W.  465   (1899).  People  v.  McGloin,  91  N.  Y.  245  (1883)  ;  Mc- 

36.  Sanders  v.  State,  113  Ga.  267,  38  S.  E.  Clain    v.   Com.,    110   Pa.   St.   269,    1    Atl.    45 
841   (1901)    (opening  prisoner's  letter)  ;  Com.  (1885)  ;  K.  v.  Vernon,  12  Cox  Cr.  153  (1872). 
v.  Goodwin,  186  Pa.  218,  40  Atl.  412   (1898)  41.  2  Chamberlayne,  Evidence,  §  1539. 
(retaining    prisoner's    letter:    setting    eaves-  42.  People    v.    McMahon,     15    N.    Y.    386 
droppers  to  hear  a  private  interview).  (1857).     "The  fact  that  the  arrest  was  ille- 

37.  Com.  v.  Flood,  152  Mass.  529,  25  N.  E.  gal,  has  no  relevancy,  if  the  confession  was 
971     (1890)     (unite    in    planning   a    crime);  voluntary."     Balbo  v.   People,   80   N.   Y.   484 
Price  v.  State,  18  Ohio  St.  418    (1868)    (con-  (1880). 

fession  of  accomplice)  :    Fife  v.  Com.,  29  Pa.  43.  A  conviction  for  illegally  transporting 

435   (1857)    (accomplice  confessed) .  liquor    will    l>e    set   aside    where   it    was    ob- 

38.  Telling  a  witness  who  is  confessing  to  tained  by  illegally  searching  the  person  of  the 
having  shot  the  deceased  that  he  had  missed  defendant  and  taking  from  him  forcibly  the 
him  is  not  such  inducement  as  makes  the  con-  key  to  his  trunk  and  opening  it  and  taking 
fession    inadmissible.     Lindsay    v.    State,    66  from  it  the  liquor  which  he  was  charged  with 
Fla.   341,   63   So.   832,   50  L.  R.   A.    (N.    S.)  transporting.     Blacksburg  v.  Beam,  104  S.  C. 
1077   (1913).  14«.  88  S.  E.  441,  L.  R.  A.  1916  E  714  (1916) 

39.  Woolfolk  v  State,  85  Ga.  69,  99  (1890)  :  and  note  citing  cases  contra 

Com.  v  Goodwin,  186  Pa.  218,  40  Atl.  412  44.  2  Chamberlayne,  Evidence,  §§  1540- 
(1898).  1544. 


§§  598-600     v  CONFESSIONS.  460 

established  the  doctrine  that  no  accused  person  could  be  forced  to  testify 
against  himself.  This  principle  seems  not  to  be  of  any  aid  whatever  in  the 
procuring  of  justice  but  was  early  adopted  in  this  country  as  a  protection 
against  the  fancied  danger  of  unjust  prosecutions  by  appointees  of  the  King. 
It  seems  to  have  no  place  in  a  democracy  but  it  is  still  held  in  the  highest  re- 
gard as  one  of  the  rights  of  the  people. 

§  598.  [Self-incrimination;  "Nemo  tenetur  seipsum  accusare  "]  Present  Rule 
Stated.45 —  Under  this  motto,  or  maxim,  a  witness  may  decline,  in  any  pro- 
ceeding, civil  or  criminal,  to  answer  a  question  which  tends  either  directly  to 
criminate  him  or  which  may  indirectly  produce  such  an  effect.40  Certain  con- 
ditions are  however  to  be  noted.  For  example,  the  danger  apprehended  by 
the  witness  must  be  real  and  not  fanciful.47  The  answer  must  expose  the 
speaker  to  a  criminal  prosecution  rather  than  simply  establish  a  civil  liability. 

§  599.  [Self-incrimination] ;  Procedure  and  Reason.48 —  Little  but  confusion 
can  result  from  attempting  to  assign  a  purely  logical  basis  for  the  procedural 
rule  which  rejects  as  involuntary  confessions  obtained  in  violation  of  the 
privilege  against  self-incrimination  or  of  the  extension  of  the  principle  of  the 
privelege  into  cases  involving  the  use  of  misleading  inducements  by  persons 
in  authority. 

It  would  seem  fair  to  conclude  that  where  the  confession  is  judicial,  i.e.,  is 
made  by  the  accused  in  court,  that  the  whole  matter  of  rejection  is  nothing 
with  which  confession,  as  a  matter  of  evidence,  has  primarily  anything  what- 
ever to  do.  It  is  determined  simply  by  the  procedural  rules  framed  by  the 
substantive  law  as  to  the  matter  of  compulsory  self-incrimination  under  legal 
process.  Where  a  confession  has  been  reached  by  compulsion  which  does  not 
amount  to  duress,  and  the  declarant  enjoys  no  procedural  -  privilege  against 
self-incrimination,  the  admissibility  of  the  statement  is  practically  unques- 
tioned. 

§  600.   [Self-incrimination] ;  Knowledge  and  Waiver.49 —  There  is  much  con- 

45.  2  Chamhcrlayne  Evidence,   §   1544a.  right  to  prescribe  the  evidence  which  shall  be 

46.  Adams  v.  Lloyd,  3  H.  &  N.  362  (1858)  ;  received  and  the  effect  of  that  evidence  and 
Fisher  v.  Ronalds,   12  C.  B.  762    (1852),  per  that  this  is  not  forcing  the  defendant  to  tes- 
Pollock,  C.   B.;    R.  v.  Garbett,   1   Den.   C.  C.  tify  against  himself.     People  v.  Mallon,  222 
236  (1847).  N.  Y.  456    (1018). 

47.  Reg.  v.  Boyes,  1  B.  &  S.  311,  330  (1861).          Taking  Finger  Prints. —  It  is  not  error  to 
Privilege  from  giving  self-incriminating  tes-  admit  evidence  of  finger  prints  of  the  defend- 
timony,  see  note,  Bender  ed.,  143  N.  Y.  233  ant  obtained  by  asking  him  to  sign  his  name 

Failure   to   Produce   Books. —  A   statute  is  where   an   expert   in   the   subject   testifies   to 

constitutional  which  provides  that  in  a  prose-  their  effect.     The  law  must  recognize  modern 

cution    for    obtaining    credit   by    false    state-  scientific    inventions.     The    defendant    signed 

ments  of  ability  to  pay  the  complaining  party  his  name  voluntarily.     State  v.  Cerciello,  86 

may   demand   the   right   to   examine   the   de-  N.  J.  L.  309,  90  Atl.  1112,  52  L.  R.  A.    (N. 

fendant's   books   and   his   refusal   to   produce  S.)    1010   (1914). 

them   shall   raise   an   inference   against   him.  48.  2  Chamberlayne,  Evidence,  §  1545. 

The  court  holds  that  the  legislature  has  the  49.  2  Chamberlayne,  Evidence,  §  1546. 


461  SELF-INCKIMINATIOX.  §  601 

flict  among  the  authorities  as  to  when  the  privilege  of  silence  is  waived.  To 
courts  impressed  with  the  desirability  of  fostering  the  privilege  to  conceal  self- 
incriminating  facts  it  has  seemed  proper  to  require  affirmative  proof  from  the 
proponent  of  the  evidence  to  the  effect  that  the  incriminating  statement  was 
voluntarily  made  after  actual  knowledge  of  the  privilege.50  By  tribunals  which 
regard  the  discovery  of  truth  as  the  main  objective  in  legal  proceedings  and 
any  impediment  to  that  end  as  in  the  nature  of  a  public  menace,  the  burden  of 
evidence  is  placed  upon  him  who  opposes  the  reception  of  a  confession  so  in- 
duced. The  declarant,  as  a  witness  is  assumed  to  have  been  aware  of  his 
right  to  decline  to  answer  an  incriminating  question  on  the  ground  of  privilege. 
If,  therefore,  he  has  answered  without  claiming  his  right  to  silence,  he  has 
waived  it  and  the  statement  is  voluntary.51 

Where  the  accused  takes  the  stand  voluntarily  in  his  own  behalf  he  may 
not  stop  short  in  his  testimony  by  omitting  and  failing  to  explain  incriminating 
circumstances  and  events  already  in  evidence  in  which  he  participated  and 
concerning  which  he  is  fully  informed  without  subjecting  his  silence  to  the 
inferences  to  be  naturally  drawn  from  it.52 

§  601.  [Self-incrimination] ;  Preliminary  Hearings.53 —  The  difficulty  of  de- 
ciding whether  the  statement  of  one  subsequently  accused  of  crime  given  as  a 
witness  on  a  preliminary  hearing  is  admissible  under  the  present  rule  of  pro- 
cedure becomes  not  a  little  complicated  by  the  anomalous  position  in  which  the 
witness  frequently  finds  himself.  Formal  criminal  proceedings  have  not  as 
yet  taken  final  shape.  Xo  procedural  rights  are  clearly  defined.  Apart  from 
any  violation  of  the  procedural  rules  against  self-incrimination,  little  reason  is 
furnished  why  the  confessions  or  criminal  admissions  of  one  testifying  as  a 
witness  before  a  committing  magistrate  54  should  not  be  received  as  a  matter 
of  course.  The  same  rule  applies  to  hearings  before  commissioners  in  bank- 
ruptcy ;  55  or  to  those  held  by  more  casual  bodies  exercising  judicial  functions, 
e.g.,  investigating  committees  of  the  legislature  or  some  branch  of  a  munici- 
pality.56 

A  volunteer  statement  at  a  preliminary  hearing  may  be  properly  received  ;> 

50.  Kelly    v.    State,    72    Ala.    244    (1882):  53.  2    Chamberlayne.    Evidence,    §§     1547- 
Jackson  v.  State,  56  Miss.  312   (1879).  1557. 

51.  People  v.  Taylor,  59  Cal.  650    (1881)  :  54.  State  v.  Branham,  13  S.  C.  389  (1879)  : 
State  v.  Vai°rneur,  5  Rich.  L.  403   (1852).  State  v.  Washing.  36  Wash.  485.  78  Pac.  101!> 

52.  Caminetti   v.  United  States.  242  U.   S.  (1904). 

470,  61  L.  ed.  442,  37   Sup.  Ct.  Rep.   192,  L.  55.  Judd    v.    Gibbs,    3    Gray    (Mass.)    539. 

R.  A.  1917  F  (1917).  543    (1855).     See   also,    Faunce   v.   Gray,   21 

Effect   of   Summons. —  Evidence   is   not  in-  Pick.  245  (1838). 

voluntary  simply  because  a  defendant  is  sum-  56.  Com.  v.  Hunton,  168  Mass.  130,  46  X. 

moned    into    court    to    testify    where    he    an-  E.  404   (1897). 

swers  the  questions  put  to  him  without  ob-  57.  Evidence  jriven  voluntarily  in  an  earlier 

jection.     Choate    v.    State,     12    Okla.    Crim.  action,   stands   in   the   same   position   and   is 

Rep.  560,  160  Pac.  34,  L.  R.  A.  1917  A  1287  equally    competent.     Ferrell    v.    State    (Fla. 

(1916).  1903),  34  So.  220. 


602 


CONFESSIONS.  „ 


462 


whether  made  under  oath  or  not  58  and  even  though  the  declarant  was  not 
warned  of  his  rights  59  or  made  aware  that  he  was  suspected  of  the  crime  60 
and  even  though  the  witness  is  forced  by  summons  to  be  present  and  is  put 
on  oath.01  These  principles  apply  to  coroner's  inquests02  even  where  the 
witness  is  present  under  compulsion  and  is  put  under  oath,63  and  the  same  rule 
prevails  couceiruing  fire  inquests,"4  former  trials05  or  hearings  before  the 
grand  jury,00  though  if  he  has  been  forced  to  testify  his  statement  is  not  ad- 
missible.0 ' 

§  602.  Duress.68 —  A  confession,  when  duress  °9  has  been  applied  to  the 
declarant,  becomes  absolutely  "  involuntary.''  It  is,  therefore,  inadmissible  in 
evidence  from  the  standpoint  either  of  procedure  or  from  that  of  reason.70 


58.  People   v.    VVeiger,    100   Cal.   352,   357, 
34    Pac.    826    (1893);    Jackson   v.    State,    3!) 
Ohio  St.  37,  39   (1883)  ;  State  v.  Hatcher,  29 
Or.  309,  44  Pac.  584    (1896). 

I'nited  States.—  Wilson  v.  U.  S.,  162  U.  S. 
613,  16  Sup.  Ct.  895  (1896). 

59.  State  v.  Conrad,  95  N.  C.  666   (1886). 
The  contrary  has  been  held. 

A  witness  must  be  cautioned  where  the 
statute  expressly  so  requires.  State  v.  Spier, 
86  X.  C.  600  (1882)  ;  State  v.  Needham,  78 
N.  C.  474  (1878). 

60.  Com.    v.    Sego,    125    Mass.    210,    213; 
Com.  v.  Myers,   160  Mass.  530,  532    (1894), 
per  Morton,  J.     Where,  however,  he  has  been 
formally  accused  there  is  authority  that  the 
evidence     is     not     admissible.     Woolfolk     v. 
State,    81    Ga.    564,    8    S.    E.    724     (1889); 
Treachout    v.    People,    41    N.    Y.    7     (1869); 
Dickerson  v.  State,  48  Wis.  288  (1879). 

61.  Henderson  v.  State,  95  Ga.  326,  22  S.  E. 
537    (1895);    State   v.   Briggs,   68   Iowa  416, 
424,  27  X.  W.  358   (1886)    (plea  of  guilty)  ; 
State  v.  Bowe,  61  Me.  174    (1873)    (plea  of 
guilty);   People  v.  Butler,  111  Mich.  483,  69 
N.  W.  734  (1897). 

Com.  v.  Clark,  130  Pa.  St.  641,  650,  18  Atl. 
988  (1890);  Hardy  v.  U.  S.,  186  U.  S.  224, 
22  Sup.  Ct  889  (1902).  There  is,  however, 
strong  authority  to  the  contrary.  State  v. 
Parker,  132  X.  C.  1014,  43  S.  E.  830  (1903)  ; 
State  v.  Andrews,  35  Or  388,  58  Pac.  765 
(1899);  State  v.  Welch,  34  W.  Va.  690,  15 
S.  E.  419  (1892). 

62.  State  v.   Van  Tassel,   103   Iowa   6,   72 
N.  W.  497  (1897).     See  also  Daniels  v.  State, 
57  Fla.  1,  48  South  747   (1909)  ;  70  L.  R.  A. 
33:     Admissibility    on    trial    for   murder    of 
testimony  of  accused  at  coroner's  inquest. 

63.  Snyder  v.   State,  59  Ind.   105    (1877); 


State  v.  Gilman,  51  Me.  206  (1862)  ;  People 
v.  Mondon,  103  X.  Y.  213,  8  X.  E.  496  ( 1886)  ; 
Williams  v.  Com.,  29  Pa.  St.  102,  105 
(1857). 

64.  Com.  v.  Bradford,  126  Mass.  42  (1878)  ; 
Com.  v.  King,  8  Gray  503    (1857);   Com.  v. 
Wesley,  166  Mass.  248,  44  X.  E.  228   (1896). 

65.  Com      v.     Reynolds,     122     Mass.     455 
(1877);   McMasters  v.   State,  83  Miss.   1,  35 
So.    302     (1903)      (stenographer's    minutes); 
Carr  v.  Griffin,  44  X.  H.  510  ( 1863)  ;  Com.  v. 
Reynolds,  122  Mass.  455   (1877);  McMasters 
v.  State  (Miss.  1903),  35  So.  302. 

66.  People  v.  Sexton,  132  Cal.  37,  64  Pac. 
107   (1901)  ;  State  v.  Robinson,  32  Or   43,  48 
Pac.   357    (1897);    State  v.    Campbell    (Kan. 
1906),    85    Pac.    784;    State    v.    Carroll,    85 
Iowa  1,  51  X.  W.  1159  (1892). 

67.  State  v.  Clifford,  86  Iowa  550.  53  X.  WT. 
299,  41   Am.  St.  Rep.  518    (1892);   People  v. 
Lauder,  82  Mich.   109,  46  X.  W.  956    (1890). 
Admissions  of  guilt  made  at  the  trial  of  an- 
other may  be  admitted  in  evidence     People  v. 
Mitchell,   94  Cal.  550,  29  Pac.    1106    (1892). 

New  York. —  People  v.  Burt,  64  X.  Y.  Suppl. 
417,  51  App.  Div.  106,  15  X.  Y.  Cr.  43 
(1900),  though  if  compelled  to  speak  they  are 
involuntary  and  incompetent ;  Shoeffler  v. 
State,  3  Wis.  823  (1854);  State  v.  Clifford. 
86  Iowa  550  (1892)  (prisoner). 

68.  2    Chamberlayne.    Evidence,    §§     1558- 
1563 

69.  Phillips  v.  Henry.   160  Pa    St.  24,  25, 
28   Atl.   477,   40   Am.   St.   Rep.    706    (1894)  : 
Wolff  v.  Bluhm,  95  Wis.  257,  259,  70  X.  W. 
73,  60' Am.  St.  Rep.  115  (1897). 

70.  People  v.   Montano    (Cal    App.    1908), 
98    Pac.    871;    People    v.    Perez    (Cal.    App. 
1908).  98  Pac.  870;  State  v.  Carrick,  16  Xev. 
120  (1881). 


463 


FORM. 


§  603 


The  duress  may  be  mental,  as  by  the  use  of  threats,71  or  physical,  by  the 
infliction  of  physical  pain  ~'~  or  by  the  threat  or  infliction  of  injury  on  a  person 
in  the  hands  of  a  mob.73 

§  603.  Form  of  Confessions.74 —  The  form  in  which  a  confession  is  presented 
to  a  tribunal  is  immaterial  upon  the  question  of  its  admissibility  in  evidence. 

The  conduct  of  the  accused  is  always  admissible  in  evidence  against  him  75 
and  the  rules  excluding  confessions  deemed  involuntary  as  influenced  by  hope 
or  fear  do  not  apply  to  evidence  of  conduct.70  The  admission  may  take  the 
forir  of  silence  when  an  innocent  man  would  naturally  speak,  as  when  charged 
with  the  crime.77  A  judicial Ts  confession  as  by  a  plea  of  guilty  T!)  made  vol- 


71.  Hazelrigg  v.  Donaldson,  2  Mete.   (Ky.) 
445,  447    (185!));   State  v.   Wooley,  215  Mo 
620,    115   S.   W.   417    (1!)08);    State   v.   Rose 
lair    (Or.  15)10),  109  Pac.  865.     A  confession 
is  not  competent  when  made  as  the  result  of 
a  long  third  degree,  the  assumption  of  a  domi- 
nating and   browbeating  attitude   of   the   of- 
ficers toward  the  defendant  and  the  employ- 
ment of  deceptions,  threats  and  intimidations 
emphasized  with  coarse  profanity.     People  v 
Borello,    161    Cal.   367,    119   Pac.   500,   37   L. 
R.  A.   (N.  S.)   434   (1911). 

72.  Johnson  v.  State  (Tex.  Cr.  App.  1906). 
97    S.    W.    312;    Joe   v.    State,    38    Ala.    422 
(1863);    Jackson    v.    State    (Tex.    Cr.    App. 
1906),  97  S.  W.  312. 

73.  Trwin  v.  State,  54  Ga.  39   (1875)  :  Mil- 
ler v.    People,  39   111.   457    (1866);    State  v. 
Drake,  82   N.   C.  593    (1880). 

74.  -2    Chamberlayne,    Evidence,    §§     1564- 
1574. 

75.  Beery    v.    U.    S.,    2    Colo.    186    (1873) 
(identifying  stolen  goods)  :   Duffy  v.   People. 
26  N.  Y.  588   (1863)    (offer  to  compromise  a 
larceny ) . 

76.  Michaels  v.  People.  208  111.  603,  70  X. 
E.  747    (1904).     See  §§  1475,  1476;  State  v. 
Keeland,  39  Mont.  506,  104  Pac.  513   (1909) 
(attempts  to  bribe  officer). 

77.  Com.     v.     Trefethen,     157     Mass.     180 
(1892);    Kelley    v.    People,    55    N.    Y.    565 
(1874)  ;  Sparf  v.  U.  S.,  156  U.  S.  51    (1895). 
Where  a  husband  and  wife  are  together  in- 
dicted for  murder  and  the  wife  charges  that 
the  husband  forced  her  to  commit  the  crime 
his  failure  to  contradict  her  cannot  be  con- 
strued as  an  admission  against  him  and  is  not 
admissible  for  that  purpose.     The  court  re- 
marks   that   the   wise   husband   attempts   to 
soothe   and   placate  his  irate   spouse  rather 
than    to    question    her    statements,    however 
wide  of  the  truth  they  may  be,  and  the  rule 


should  be  made  for  the  average  man  and  not 
for  the  few  brave  or  .foolheardy  ones.  Hi  ley 
v.  State,  107  Miss.  600,  65  So.  882,  L.  R.  A. 
1915  A  1041  (1914).  The  mere  silence  of 
one  accused  of  crime  and  his  failure  to  deny 
charges  made  against  him  in  his  presence  are 
not  to  be  construed  as  admissions  made  by 
him  as  this  contravenes  the  rule  against  self- 
crimination.  Ellis  v.  State,  8  Okla.  Crim 
Rep.  522,  128  Pac.  105)5,  43  L.  R.  A.  (N.  S.) 
811  (1913).  "\Vhilethischaracterofproof 
is  often  entitled  to  but  little  weight,  there  is 
no  rule  justifying  its  entire  exclusion.  Its 
value  is  to  be  determined  by  all  the  circum- 
stances, of  which  the  jury  are  the  peculiar 
judges.  One  person  may  be  so  confused  or 
embarrassed,  so  completely  taken  by  surprise 
by  the  unexpected  and  sudden  arrest  and 
charge,  as,  though  ever  so  innocent,  to  act  in 
a  manner  strongly  indicative  of  guilt.  And 
yet,  another  man,  cool  and  self-possessed,  may 
be  able  at  once  to  command  the  entire  situa- 
tion, and  though  the  most  hardened  villain, 
disarm  suspicion  and  impress  those  around 
with  his  innocence.  All  these  and  other  cir- 
cumstances are  to  be  considered.  But  the  fact 
that  he  was  charged  and  made  no  reply  or 
denial,  may  properly  be  shown,  the  effect 
thereof  being  left  to  the  jury."  Wharton, 
345,  note  6. 

78.  The   distinction    between    judicial    and 
extra-judicial    confessions    is   well    stated   by 
the  court  in  State  v.  Gorman,  54  Mo  526. 

79.  State   v.    Branner.    149    X.   C.    559,   63 
S.  E.  169   (1908).     There  is  authority  that  a 
plea  of  guilty  afterwards  withdrawn  may  be 
put    in    evidence    although    it    was    entered 
through  a  misunderstanding  between  counsel. 
State  v.  Carta,  90  Conn.  79.  96  Atl.  411,  L. 
R.  A.  1916  E  634   (1916),  and  note  showing 
that  the  weight  of  authority  is  to  the  con- 
trary. 


§§  604,  605  CONFESSIONS.-  464 

untarily  or  by  testimony  in  court80  may  be  received  and  the  confession  may 
also  be  extra-judicial,  outside  of  court  proceedings.  The  confession  may  be 
oral  in  any  form  as  by  question  and  answer,81  or  it  may  be  written  either  by 
him  or  by  another  and  signed  by  him.*2  Where  it  is  written  it  must  be  in- 
troduced as  the  best  evidence.83  So  letters  84  or  other  documents  may  be  used 
as  admissions. 

§  604.  Independent  Relevancy.85 —  The  statement  of  the  defendant  in  a 
criminal  prosecution,  like  any  other  declaration,  may,  without  conflicting  with 
the  procedural  rules  regulating  confessions,  be  used  in  evidence  as  leading  to 
other  inferences  than  that  the  fact  is  as  stated.  The  assertion  may  be  relevant 
independent  of  its  truth  or  falsity.  For  example,  a  confession  rejected  as 
evidence  of  that  which  it  asserts  because  "  involuntary,"  may  still  be  received 
as  constituting  a  contradictory  statement.86  Thus,  should  a  defendant  sign 
his  name  to  a  paper  on  file  in  the  cause  87  the  prosecution  is  at  perfect  liberty 
to  use  the  signature  as  a  specimen  of  his  handwriting,  though  it  might  not  be 
available  as  a  confession. 

§  605.  Introduction  of  Confession  in  the  Evidence;  Hearing  on  Voir  Dire.88 — 
Under  the  earlier  English  procedure  which  has  been  followed  and  still  prevails 
in  a  majority  of  American  courts  89  the  burden  of  evidence  is  upon  the  prose- 
cution to  satisfy  the  court  upon  tender  of  the  confession  in  evidence  that  it 
was  voluntarily  given ;  to  the  extent,  at  least,  of  showing  that  no  threats,  prom- 
ises or  other  misleading  inducements  were  held  out  to  the  declarant  by  the 
person  to  whom  the  confession  was  made. 

The  court  may  at  this  stage  of  the  proceedings  hear  at  length  both  the 
prosecution  and  the  defendant 90  to  determine  whether  the  confession  was 
really  voluntary.91  The  defendant  may  not  only  show  that  the  confession  was 
not  voluntary  but  may  also  prove  that  he  never  made  it  92  and  the  prosecution 

80.  State  v.   Sorter,  52  Kan.  531,  34  Pac.          86.  Com.   v.    Tolliver,    119   Mass.    312,    315 
1036   (1893).     "  The  statements  made  by  the       (1876). 

defendant  while  testifying  at  a  former  trial  87.  Hunt  v.  State,  33  Tex.  Cr.  252,  26  S. 

were  competent,  either  as  admissions  or  for  W.  206    (1894)    (application  for  bail). 

the  purpose  of  contradicting  him.     They  were  88.  2    Chamberlayne,    Evidence,    §§     1576- 

voluntary   statements,   in   regard   to  his   con-  1586. 

nection  with  the  transaction,  and  it  is  imma-  89.  People  v.  Castro,  125  Cal.  521,  58  Pac 

terial  where  or  when  they  were  made."     Com.  133   (1899). 

v.  Reynolds,  122  Mass.  454  (1877)  United  States.—  Hopt  v.  Utah,  110  U.   S. 

81.  State   v.    Peterson,    110    Iowa    647,    82  587,  4  Sup.  202   (1883). 

N.  W.  329   (1900).  90.  Zuckerman  v.   People,  213  111.   114,   72 

82.  State  v.   Berberick,  38  Mont.   423,   100       N.  E.  741    (1904). 

Pac.  209   (1909)  91.  State  v.  Williams  (N"ev.  1909),  102  Pac 

83.  Cicero    v.    State,    54   Ga     156    (1875);       974. 

Wright  v.  State,  50  Miss.  332   (1874).  92.  Jaynes  v.  People.  44  Colo    535,  99  Pac. 

84.  Oakley   v.    State,    135   Ala.    15,   33  So       325    (1909);  Com.  v.  Howe,  9  Gray    (Mass.) 
23  (1902).  110    (1857):   People  v.  Fox,  3  N.  Y.  Suppl. 

85.  2  Chamberlayne,  Evidence,  §  1575.  359   (1888). 


465  PROVINCE  OF  JUEY.  §§  606-608 

may  impeach  the  evidence  of  the  defendant.93     The  question  may  in  the  first 
instance  be  decided  by  the  judge  in  many  jurisdictions.94 

§  606.  [Introduction  of  Confession  into  Evidence] ;  Hearing  of  the  Jury.y5 — 
Where  a  confession  of  guilt  is  offered,  the  jury,  as  a  rule,  are  required  to  retire 
from  the  court  room,  while  the  facts  regarding  the  voluntary  nature  of  the  pris- 
oner's statement  are  considered  by  the  court  and  its  admissibility  argued  by 
counsel  on  fair  dire.'M  In  the  absence  of  statutory  regulation  to  the  contrary, 
making  the  matter  one  of  substantive  or  procedural  law,  the  question  as  to 
whether,  and,  if  so,  how  far,  witnesses  bearing  upon  the  voluntary  nature  of 
the  confession  shall  be  examined  in  the  presence  of  the  jury,  is  largely  one  of 
administration.97 

§  607.  [Introduction  of  Confession  into  Evidence] ;  Leaving  Question  to  the 
Jury.98 — As  the  jury  has  in  the  last  instance  to  decide  the  truth  and  effect  of 
evidence  as  to  a  confession  many  courts  have  turned  over  to  them  at  once  the 
hearing  of  all  testimony  concerning  it.99  It  then  becomes  the  duty  of  the  jury 
to  determine  whether  it  is  voluntary  l  and  if  so  whether  the  evidence  as  to  it 
is  to  be  believed.2 

§  608.  Probative  Force ;  Infirmative  Considerations.3 —  From  the  standpoint 
of  reason  a  confession  may  be  subject  to  grave  infirmative  considerations, 
among  others  that  it  is  extremely  improbable  that  a  person  should  accuse 
himself  of  a  serious  crime.4  It  may  have  been  made  from  some  false  hope  of 
benefit  or  fear  of  injury  and  still  be  false.5  The  mind  of  the  criminal  may  be 
excited  or  diseased  G  or  morbid.  The  confession  may  be  in  the  nature  of  an 
offer  of  compromise  to  the  prosecution.7 

93.  State  v.  Staley,  14  Minn.  105    (1867);  98.  2    Chamberlayne,    Evidence,    §§     1588, 
Sampson  v.  State,  54  Ala.  241   (1875);  State       1590 

v.  Peter,   14  La.  Ann.  521    (1859).     See  also,  99.  Roesel   v.    State,   62    N.   J.   L.    216,   41 

Com    v.  Culver,  126  Mass.  464   (1879).  Atl    408    (1898);    Burdge   v.   State,   53  Ohio 

94.  Strickland    v.    State     (Ala.    1907),    44       St.  512,  42  N.  E.  594  ( 1896) . 

So.  90.  1-  Cain  v.  State,  18  Tex.  387   (1857)  ;  Com. 

Practical   Suggestions. —  The   witness   who  v.  Culver,  126  Mass.  464   (1879). 

is  to  testify   to  a  confession  should   be  first  2.  Burton   v.   State,    107   Ala.1  108,    18   So. 

asked  to  detail  the  circumstances  under  which  285    ( 1895) 

it   was   obtained,    showing   that    no   force   or  3.  2     Chamberlayne,     Evidence,     §§     1591- 

inducement  was   used   and   telling  just  what  1593. 

was    said    to   the   declarant    and    showing    if  4.  State  v.  Porter,  32  Or.  135,  49  Pac.  964 

possible   that    he   was    cautioned    that   what-  (1897). 

ever  he  said  might  be  used  against  him  and  5.  Bullock   v.    State,   65   N.   J.   L.    557,   47 

that  he  need  not  answer  if  he  did  not  wish  Atl.  62    (1900)  ;  People  v.  McGloin,  91  N.  Y. 

to  do  so.  246    (1883). 

95.  2  Chamberlayne.  Evidence,  §  15S7.  6.  The    drunken    condition    of    an    accused 

96.  State  v.  Gruff.  6S  X.  J    L.  287.  53  Atl.  when  making  a  confession  unless  such  drunk - 
88   (1902)  :  Kirk  v.  Terr.,  10  Okl.  46,  60  Pac.  enness  goes  to  the  extent  of  mania  does  not 
797    (1900).  affect   the  admissibility   in   evidence   of   such 

97.  State  v.  Barker  (Wash.  1910),  106  Pac.  confession  but  may  affect  its  weight  and  credi- 
133.  bility  with  the  jury.     Lindsay  v.   State,  66 


§§   609,  610  CONFESSIONS.  466 

§  609.  [Probative  Force] ;  Judicial  Confessions.8 —  No  confession,  as  a  sub- 
stitute for  evidence,  is  conclusive.  The  confessing  party  is  not  concluded  even 
by  a  judicial  statement,  final  as  this  may  be,  in  a  procedural  sense,  for  the 
purposes  of  the  case  itself.  The  defendant  who  has  pleaded  guilty  in  a  crim- 
inal case  may  seek  to  minimize  or  control  the  effect  of  his  statement  should 
it  be  offered  against  him  on  another  occasion.  He  may,  for  example,  show  on 
such  an  occasion  that  he  did  not  then  know  the  nature  of  the  charge  against 
him  to  which  he  was  pleading,  or  did  not  suppose  the  plea  would  be  used  as  a 
confession.  It  is  open  to  him  to  contend  that  he  is,  in  point  of  fact,  not  guilty 
of  the  offense  claimed  although  he  has  pleaded  guilty  to  it  at  another  time.9 

§  610.  [Probative  Force] ;  Corroboration  required.10 —  It  has  frequently  been 
provided,  in  pursuance  of  the  idea  that  it  is  a  proper  function  of  substantive 
law  to  control  the  operations  of  the  reasoning  faculty,  that  a  jury  should  not 
act  upon  the  mere  confession  of  the  accused,  however  voluntary.  To  create  a 
prima  facie  case,  the  confession  must  be  corroborated,11  unless  it  is  a  judicial 
confession  as  by  plea  of  guilty  in  open  court.12  Corroboration  may  constitute 
any  circumstance  tending  to  render  the  confession  more  probable  ia  but  the 
corroborating  fact  need  not  be  connected  either  with  the  accused  or  the  con- 
fession and  need  not  be  established  beyond  a  reasonable  doubt.14  The  rule  as 
to  corroboratiou  is  not  a  rule  of  evidence  but  is  a  rule  of  procedure.  The 
fact  that  a  crime  has  been  committed,  or  the  corpus  delicti,  must  be  proved  but 
evidence  of  it  need  not  precede  the  confession.15  In  many  jurisdictions  the 

Fla.  341,  63  So.  832,  50  L.  R.  A.  (X.  S.)  1077  112  (1909)  ;  West  v.  State,  6  Ga.  App.  105, 
(1913).  Where  the  defendant  has  confessed  64  S.  E.  130  (1909).  In  an  action  for  divorce 
to  the  crime  charged  and  his. mental  capacity  on  the  ground  of  adultery  where  the  libel- 
is  in  question  it  is  proper  to  show  that  he  lant  testifies  to  the  adultery  and  there  is 
had  previously  made  a  false  confession  to  evidence  of  a  confession  made  by  the  libellee 
having  committed  another  crime  of  which  he  this  is  insufficient  under  the  rule  that  the 
was  not  guilty,  to  show  his  mental  condition.  uncorroborated  testimony  of  one  of  the  partie-t 
Shellenberger  v.  State,  97  Xeb.  498,  150  N.  is  not  enough  to  obtain  a  divorce.  Garrett 
W.  643,  L.  R.  A.  1915  C  1163  (1915).  v.  Garrett,  86  X.  J.  Eq.  29.3,  98  Atl.  848. 

7.  Austine    v.     People,    51     111.     236,     240  Conviction  on   accomplice's   testimony  —  who 
(1869).  is  accomplice,  see  note,  Bender  ed.,  26  X.  Y. 

A  threat  to  bring  a  civil  action  may  ren-  523. 

der  a  confession  of  crime  so  unreliable  and  12.  People  v.  Bennett,  37  X\  Y.  117  (1867)  : 

untrustworthy   as   to   be   irrelevant,   for   pre-  State  v.  Cowan,  29  X.  C.  239  (1847). 

cisely  the  same  reasons  that  an  offer  of  com-  13.  Com.   v.   Killion    (Mass.    1907),   80   N. 

promise  is  irrelevant.     Cropper  v.  U.  S.,  Morr.  E.  222;   State  v.  Guila,   10  X.  J.   L.   163,   IS 

(Iowa)    259    (1843).  Am.  Dec.  404   (1828). 

8.  2  Chamberlayne,  Evidence,  §  1594.  14.  Evidence  in  Corroboration  of  a  confes- 

9.  Murmutt  v.  State  (Tex.  Cr.  App.  1902),       sion    is   sufficient,   if   it   tends   materially   to 
67   S.  W.  508.     Riafht  to  impeach  or  contra-       connect    accused    with    the    crime,    and    need 
diet,  see  note.  Bender  ed.,  187  X.  Y.  300.  not     show     the     fact     beyond     a     reasonable 

10.  2    Chamberlayne,    Evidence.    §§    1595-  doubt.     Douglas    v.    State,    6    Ga.    App.    157, 
1601.  64  S.  E.  490   (1909). 

11.  Hubbard  v.  State  (Ark.  1905),  91  S.  W.  15.  Anthony  v.  State    (Fla.   1902),  32  So. 
11;  Wilson  v.  State,  6  Ga.  App.  16,  64  S.  E.  818. 


467  WEIGHT.  §§  611,  612 

corpus  delicti  nmst  be  established  by  evidence  independent  of  the  confession 
itself  16  but  circumstantial  evidence  of  the  carpus  delicti  is  sufficient.17 

§  611.  [Probative  Force];  A  Question  for  the  Jury.1* — A  finding  by  the 
judge  presiding  at  the  trial  to  the  effect  that  a  confession  is  admissible,  re- 
ceives the  statement  as  evidence  in  the  case.  He  informs  the  jury  that  they 
may  properly  consider  the  probative  force,  if  any,  furnished  by  the  confession. 
This  ruling  attaches  no  element  of  definite  credibility.  What  probative  force 
the  confession  is  to  have  in  the  minds  of  the  jury  is  for  them  to  determine.19 
The  same  facts  which  have  failed  to  convince  the  judge  that  the  confession 
should  be  excluded  as  "  involuntary  "  under  the  rule  of  procedure  or  irrelevant 
in  point  of  reason  to  the  existence  of  the  facts  which  it  asseots  20  may  suffice  to 
remove  from  it,  when  admitted,  all  probative  force.21  The  defendant  has 
therefore  the  right  to  introduce  evidence  of  such  facts  22  and  comment  upon 
them  in  argument.23  The  voluntary  nature  of  a  confession  need  not  be  estab- 
lished beyond  a  reasonable  doubt  but  any  doubt  arising  in  the  minds  of  the  jury 
as  to  the  probable  effect  upon  the  veracity  of  the  declarant  of  inducements  held 
out  to  him  may  be  considered  by  them,  with  all  other  facts,  in  deciding  whether 
there  remains  in  their  minds,  as  the  resultant  of  the  whole  case,  a  reasonable 
doubt  as  to  the  guilt  of  the  accused.24 

§  612.  [Probative  Force] ;  Judicial  Views.25 —  Judges  are  by  no  means  agreed 
as  to  the  juridical  value  of  confessions.  Courts  have  treated  them  as  a  class, 
a  species  of  evidence,  about  which,  as  a  whole,  it  was  safe  to  dogmatize. 

16.  Richardson   v.   State,   80  Miss.   115,   31  18.  2    Chamberlayne,    Evidence,    §§     1602- 
So.  544   (1902).     Until  there  is  some  evidence       1604. 

of  the  corpus  delicti  there  is  no  foundation  19.  State   v.    Adams    (Dl.    1906),    65    Atl. 

for    the    receipt    of    evidence    of    confessions.  510:  Herndon  v.  State  (Tex.  Cr.  App.  1907), 

State  v.  Brown,   103  S.  C.  437,  88  S.  E.  21,  99    S.   W.    558.     The  jurors,   being   the   con- 

L.   R.    A.    1916   D   1295    (1916).     The   corpus  elusive  judges  of  the  credibility  of  witnesses 

delicti  must  be  proved  outside  of  the  defend-  and   the   weight   to   be   given   to   their   testi- 

ant's    admissions    and    for    this    purpose    to  mony,  may  believe  or  disbelieve  any  portion 

prove  embezzlement  by  a  guardian  it  is  not  of  a  confession.     Herndon  v.  State   (Tex.  Cr. 

enough  to  show  the  appointment  of  the  guard-  App.  ( 1907  ) ,  1)9  S.  W.  658.     See  also,  State  v. 

ian  and  his  receipt  of  the  funds  and  his  ad-  Russo  (Del.  0.  &  T.  1910),  77  Atl.  743. 

mission  that  lie  did  not  have  them,  but  the  20.  §§  605  et  seq. 

court  indicates  that  a  demand  and  failure  to  21.  State  v.   Von   Kutzleben    (Iowa   1907), 

produce   them   might   be   enough.     Choate   v.  113  X.  W.  484. 

State,  12  Okla.  Crim.  Rep.  560,  160  Pac.  34,  22.  Miller  v.  State,  94  Ga.  1    (1894);  Wil- 

L.  R.  A.  1917  A  1287   (1916).  liams  v.  State,  72  Miss.  117   (1894). 

17.  Davis  v.  State  (Ala.  1904).  37  So.  676:  23.  The  result  is  the  same  where  the  Ian- 
State  v.  Banusik    (X.  J.  1906),  64  Atl.  994;  guage  of  the  declarant  admits  of  more  than  a 
State  v.   Rogoway    (Or.   1904).   78   Pac.   987.  single   meaning.     State   v.    Taylor,   54    S.    C. 
Evidence    of   an    extra-judicial    confession    is  174,  32  S.  E.  149    (1898);   Eckert  v.  State,  9 
circumstantial  within  the  meanine  of  a  stat-  Tex.  App.  105   (1880)    ("shot  after"). 

ute  providing  that  no  person  shall  suffer  the  24.  Williams  v.  State,  72  Miss.  117,  16  So. 

death    penalty     on     circumstantial     evidence  296    (1894). 

alone.     Damas  v.  People.  Colo.    (1917),   163  25.  2    Chamberlayne,    Evidence,    §§    1605- 

Pac.  289,  L.  R.  A.  1917  D  591.  1608. 


§§  613,  614  CONFESSIONS.  468 

Upon  the  one  hand,  the  claim  has  been  freely  and  enthusiastically  made,  by 
those  who  must  have  assumed  that  all  confessions  were  the  reasoned  and 
deliberate  act  of  the  person  accused,  that  such  statements  are  of  the  first  rank 
in  probative  force  26  and,  therefore,  entitled  to  the  most  marked  consideration.27 
To  other  courts,  regarding  the  various  infirmative  considerations  attending 
their  use,  confessions  have  presented  an  entirely  different  forensic  aspect. 
They  are,  it  is  said,  to  be  cautiously  received,2**  always  distrusted  2!>  and  never 
accredited  with  much  probative  force.30  There  are,  for  example,  many  cases 
known  where  persons  have  confessed  to  crimes  they  did  not  commit  or  as  in  the 
case  of  the  witchcraft  delusion  to  crimes  which  could  not  have  been  committed 
by  anyone.  The  general  rule  is  that  each  confession  should  be  weighed  by 
its  own  circumstances.31 

§  613.  Specific  Admissions.32 —  However  the  fact  that  the  confession  itself 
as  a  confession  is  excluded  as  being  involuntary  will  not  bar  out  evidence  of 
independent  facts  contained  in  it  which  are  relevant  to  the  issue  as  admis- 
sions.33 For  example,  if  the  accused  states  that  the  stolen  goods  34  or  the 
body  of  the  deceased  35  will  be  found  at  a  certain  place  evidence  of  this  state- 
ment and  that  investigation  showed  it  to  be  true  is  admissible  against  the 
defendant. 

§  614.  To  Whom  Extra  judicial  Confession  is  Made.1"—  An  extra-judicial  con- 
fession may  properly  be  made  to  any  person,37  or  collection  or  body  of  persons.38 
It  is  not  even  necessary  that  the  statement  should  have  been  addressed  to  any 
definite  individual.  It  may  have  taken  the  form  of  a  prayer.30  The  great 
majority  of  confessions  of  guilt  are  naturally  received  by  persons  in  authority, 
upon  the  arrest  of  the  accused  or  while  he  is  in  custody.40  Though  it  is  in 
connection  with  confessions  so  made  that  the  voluntary  character  of  the  state- 
ment is  most  carefully  scrutinized,41  no  reason  exists  why  the  officer  should 

26.  Basye   v.   State,   45    Neb.   261    (1895);  32.  2    Chamberlayne,    Evidence,    §§     1609- 
Hopt  v.  Utah,  110  U.  S.  584,  4  Sup.  Ct.  202       1614. 

( 1883) .  33.  State  v.  Red,  53  Iowa  69   ( 1880) . 

27.  State  v.  Brown,  48  Iowa  382   (1878).  34.  Johnson  v.  State,  119  Ga.  257,  45  S.  E. 

28.  Daniels  v    State,  57  Fla.  1,  48  So.  747      960    (1903). 

(1909);    Marshall   v.   State,   32   Fla.  462,   14  35.  Gregg  v.  State.  106  Ala.  44.  17  So.  321 

So.  92    (1893);   Coney  v.  State,  90  Ga.   140.  (1894)     (child):    Lowe   v.    State,    88   Ala.    8 

15  S.  E.  746   (1892)  ;  People  v.  Borgetto,  99  (1889)  ;  State  v.  Motley,  7  Rich.  (S.  C.)  327 

Mich.  336,  58  N.  W.  328   (1894)  (1854). 

29.  State    v.    Fields,     Peck     (Tenn.),     140  36.  2  Chamberlayne,  Evidence,  §  1615. 
(1823)  ;   State  v.  McDonnell,  32  Vt.  491,  532  37.  Speer  v.  State.  4  Tex.  App.  474  (1878). 
(I860).  38.  Com.   v.   Drake,    15   Mass.    161    (1818) 

30.  Keithler  v.  State,  10  Sm.  &  M.   (Miss.)  (church  members). 

192  (1848)  ;  People  v.  Jones,  2  Edw.  Sel.  Cas.  39.  Woolfolk  v.  State,  85  Ga.  69,  11  S.  E. 

(N.  Y.)   86   (1849).  814   (1890). 

31.  Hank  v.  State,  148  Ind.  238,  46  N.  E.  40.  State  v.  Simon,  15  La.  Ann.  568  (1860). 
127,  47  N.  E.  465  (1897).  41.  State  v.  Dodson,  14  S.  C.  628   (1880)  ; 

§§  593  et  seq. 


469  ADMINISTRATION.  §§  615,  616 

not  testify  as  to  what  has  been  said  to  him.  The  prosecuting  attorney,42 
committing  magistrate  43  or  even  the  trial  judge  44  are  equally  competent  as 
witnesses  to  the  making  of  a  voluntary  confession  by  one  accused  of  crime. 

§  615.  Administrative  Detail.45 —  As  a  rule,  judicial  administration  imposes 
no  limit  to  the  number  of  confessions  which  may  be  received.  Where  a  de- 
fendant makes  a  confession  on  more  than  one  occasion,  each  confession  may  be 
separately  proved.40  The  scope,  moreover,  which  a  confession  may  cover  is 
by  no  means  rigidly  limited  to  the  res  gestce  of  the  crime  under  investigation. 
Jt  is  no  objection  to  a  confession  that  it  relates  also  to  the  commission  of  other 
crimes.47  Xor  is  the  order  of  proof  other  than  elastic.  A  confession,  for 
example,  may  be  introduced  at  the  stage  of  rebuttal.48 

§  616.  The  Evolution  of  Reason.49 —  To  a  certain  extent,  the  history  of  the 
evolution  of  the  law  of  confessions  is  that  of  most  rules  in  the  law  of  evidence. 
As  is  said  elsewhere,50  the  early  history  of  that  law  from  the  time  when  the 
jurors  ceased  to  be  witnesses  51  down  to  the  close  of  the  sixteenth  century  was 
largely,  though  decreasingly,  one  of  administration.  The  judge  was  accorded 
a  wide  discretion,  as  part  of  the  executive  of  the  crown  for  the  promotion  of 
justice  in  advising  jurors  as  to  what  they  might  safely  use  as  evidence  in 
course  of  a  trial.  There  were  practically  no  rules,  certainly  none  having  the 
force  of  law.52  At  most,  the  action  of  the  judges  in  this  respect  was  deter- 
mined by  the  custom,  or  practice  of  the  various  circuits  of  the  king's  courts. 
The  effort  was  to  administer  the  customs  of  the  realm  or  other  provisions  hav- 
ing the  force  of  law  with  legal  reason,  as  that  term  was  then  understood,  for 
the  attainment  of  substantial  though,  of  course,  conventionalized,  justice. 

In  respect  to  confessions,  the  term  being  then  restricted  to  judicial  confes- 
sions by  way  of  pleas  of  guilty,53  the  administration  of  humane  judges  was  to 
make  sure  that  the  prisoner  really  meant  what  he  said  in  pleading  guilty  and 
was  fully  aware  of  the  consequences  of  his  act.  In  view  of  the  severity  of 

42.  Walker  v.  State,  136  Ind.  663,  36  X.  E.          49.  2    Chamberlayne,    Evidence,    §§    1617, 
356    (1893);   People  v.  Howes,  81  Mich.  396,       1618. 

45   X.   W.   961    (1890);    State  v.   Chisenhall.  50.  §   120. 

106  X.  C.  676,  11  S.  E.  518   (1890).  51.  §   120. 

43.  State     v.     McLaughlin,     44     Iowa     82  52.  "  These  defects  in  the  system  of  trial  in 
(1876)  ;    State   v.    Monie,    26    La.    Ann.    513  the  seventeenth  century.  I  own,  strike  me  as 
(1874):   Wolf  v.  Com.,  30  Gratt.    (Va.)    833  being  almost  less   important   fhan  the  utter 
(1878).  absence  which  the  trials  show  of  any  concep- 

44.  State  v.  Chambers.  45  La.  Ann.  36.  11  tion  of  the  true  nature  of  judicial  evidence  on 
So.  944   (1893).  the  part  of  the  judges,  the  counsel  and  the 

45.  2  Chamberlayne,  Evidence.  §  1616.  prisoners.     The   subject   is   even   now   imper- 

46.  Lowe   v.    State,    125   Ga.   55,   53    S.   E.  fectly  understood,  but  at  that  time  the  study 
1038   (1906).  of  the  subject  had  not  begun.     I  do  not  think 

47.  State  v.  Dalton   (Wash.  1906),  86  Pac.  any   writer   of   the   seventeenth   century  has 
590.  anything    of    importance    to    say    about    it." 

48.  Ince  v.  State  (Ark.  1906),  93  S.  W.  65.  Stephen,  Hist.  Crim.  Law,  p.  399. 

'  53.  §  603. 


§  616 


CONFESSIONS. 


470 


the  penal  code  then  in  force,  the  disproportionate  punishment  frequently 
awarded  for  comparatively  unimportant  offences  and  the  disabilities  under 
which  the  act-used  labored,  it  seemed  but  just  that  before  the  judge  should 
allow  a  prisoner,  undefended  by  counsel,  without  the  aid  of  witnesses,  and 
hurriedly  tried,  often  with  almost  indecent  haste,  to  foreclose  his  last  chance  of 
escape  by  plea  of  guilty,  he  should  make  sure  that  the  act  was  a  deliberate  one 
made  with  full  knowledge  of  its  consequences. 

The  political  conditions  of  the  sixteenth  century  54  resulted  in  the  crystal- 
lization of  these  tendencies  into  rules  of  law  which  resulted  in  many  cases  in 
gross  miscarriage  of  justice.55  Our  courts  have  followed  these  vicious  prece- 
dents 56  but  the  modern  tendency  is  to  break  away  from  these  strict  rules  and 
to  regard  confessions  on  the  merits  of  each  case.57 


54.  See  ante,  §  582.  Social  conditions  in 
the  England  of  that  time  were  such  as  might 
well  ground  a  contention  that  any  induce- 
ment, nowever  slight,  held  out  to  a  prisoner 
to  induce  him  to  confess  would  tend  to  lead 
him  to  criminate  himself,  even  falsely.  R.  v. 
Baldry,  2  Den.  Cr.  C.  445  (1852). 


55.  Bram  v.  U.  S.,  168  U.  S.  532,  18  Sup. 
183   (1897). 

56.  State  v.  Edwards,   126  N.  C.   1051,  35 
S.  E.  540  (1900). 

57.  State  v.  Grover,   96  Me.  363,  52  Atl. 
757  (1902). 


CHAPTER  XXII. 

FORMER  EVIDENCE. 

Former  evidence,  617. 

Administrative  attitude  of  the  court.  618. 

Adequate  necessity,  619. 

absence  from  jurisdiction,  620. 

claim  of  privilege  against  self-incrimination,  621. 

death,  622. 

imprisonment,  623. 

inability  to  find,  624. 

infamy,  625. 

interest,  626. 

mental  incapacity,  627. 

official  duty,  628. 

physical  incapacity,  629. 
Former  trial,  630. 
JTie  hearsay  rule,  631. 
Identity  of  the  issue,  632. 
Identity  of  the  parties,  633. 
Scope  of  proof ;  extension,  634. 

intension;  precision  in  recollection,  635. 
Media  of  proof ;  official  documents,  636. 

unofficial  documents;  memoranda,  637. 
stenographers,  638. 

witnesses;  independent  relevancy,  639. 

§  617.  Former  Evidence.1 —  A  final  branch  or  topic  in  the  law  of  evidence 
which  continues  to  exhibit  in  a  marked  though  waning  degree  the  power  of  the 
procedural  or  substantive  law  is  that  which  permits  a  proponent  to  submit  to 
the  tribunal,  under  certain  circumstances,  the  evidence  given  by  a  witness  at  a 
former  trial.  The  prevailing  rule  upon  this  subject  may  be  stated  a?  follows. 
Whenever  it  shall  be  made  to  appear  to  the  reasonable  satisfaction  of  the  trial 
judge  that  a  suitable  administrative  necessity  for  so  doing  exists,  the  pr  - 
ponent  of  relevant  facts  covered  by  the  testimony  of  a  witness  upon  a  former 
trial  may  be  permitted  to  give  in  evidence,  as  proof  of  the  facts  therein  as- 
serted, the  report,  verified  under  oath,  of  a  duly  qualified  witness  who  heard 
the  original  testimony :  —  provided  that  the  issue  is  substantially  the  same  in 

1.  2  Chamberlayne,  Evidence,  §  1619. 

471 


§§  618,  619  FORMER  EVIDENCE.  472 

the  two  actions,  that  a  party  against  whom  the  evidence  is  offered  or  some 
one  identified  with  him  in  legal  interest  cross-examined  the  witness  upon  the 
former  occasion  concerning  the  topic  on  which  his  evidence  is  now  offered,  or, 
at  least,  was  afforded  a  reasonable  opportunity  for  doing  so,  and  that  the  re- 
porting witness  should  be  able  Jo  state  the  testimony  with  satisfactory  fullness. 
As  these  procedural  requirements  are  insisted  upon  by  the  courts  with  consid- 
erable, though  relaxing,  strictness,  it  would  appear  desirable  to  consider  them 
separately  and,  so  far  as  practicable,  in  this  order. 

§  618.  Administrative  Attitude  of  the  Court.2 —  In  the  absence  of  primary 
evidence  3  secondary  evidence  may  be  introduced  by  the  testimony  of  a  wit- 
ness at  a  former  trial  4  if  relevant.5  The  opponent  has  the  same  rights  to 
object  to  it  as  if  the  witness  were  on  the  stand  6  and  he  may  impeach  the  witness 
by  proving  that  he  has  contradicted  himself '  or  in  other  ways. 

§  619.  Adequate  Necessity.8 —  In  order  that  a  party  should  be  able  to  intro- 
duce evidence  taken  at  a  former  trial,  the  judge  will  require  that  he  establish 
the  necessity  9  for  resorting  to  it.10  It  is  only  required  that  the  necessity 
should  be  established  so  far  as  relates  to  the  particular  witness.  It  is  not 
essential  that  the  proponent  also  show  that  he  can  prove  the  fact  itself  in  no 
other  way.11  The 'evidence  being,  in  its  nature,  secondary,  i.e.,  inferior  in  a 
probative  point  of  view,  less  decisive  and  convincing  than  the  face  to  face  testi- 
mony of  the  witness  himself,12  the  party  tendering  the  less  probative  proof 
must  show  to  the  reasonable  satisfaction  of  the  judge  presiding  at  the  trial 
that  it  is  impossible  for  him  to  procure  the  attendance  of  the  witness  himself.13 
This  may  be  for  one  of  several  reasons.  The  witness  may  be  dead,  insane, 
sick  or  absent  from  the  jurisdiction.  The  former  witness  may  now  refuse  to 

2.  2     Chamberlayne,     Evidence,     §§     1620-  trative  consideration.     Crary  v.  Sprague,   12 
1623  Wend.    (X.  Y.)   41,  27  Am.  Dec.  110  (1834); 

3.  Doncaster  v.  Day,  3  Taunt.  262,  12  Rev.  Petrie  v.  Columbia,  etc.,  R.  Co.,  29  S.  C.  303, 
Rep.  650  (1810).  317,  7  S.  E.  515  (1888). 

4.  Limitations  on  scope  of  rule. —  The  rule  7.  Sharp   v.   Hicks,   94   Ga.   624,   21    S.   E. 
does  not  apply  in  any  connection  where  the  208   (1894). 

object  of  the  tender  of  evidence  is  merely  to  8.  2  Chamberlayne,  Evidence,  §  1624. 

enow  that  the  statement  was  made,  not  that  9.  Lyttle  v.  Denny,  222  Pa.  395,  20  L.  R.  A. 

it   was    true.     People   v.    Lem    You,    97    Cal.  (X.   S.)    1027,   71    Atl.   841    (1909)     (deposi- 

224,  226,  32  Pac.  11    (1893)    (perjury).     The  tion).     "The  admissibility  of  this  species  of 

parties  may  be  different,  in  such  a  case  and  evidence   depends   upon   the  necessity   of  the 

the    issues    dissimilar,    while    the    statements  case."     U.    S.   v.   Macomb,   26   Fed.   Cas.   No. 

may  still  be  admissible.     Kutzmeyer  v.  Ennis,  15,702,  p.   1134,  5  McLean  286,  292    (1851), 

27  X.  J.  L.  371    (1859).  per  Drummond,  D.  J. 

5.  Williams  v.  Smith,  29  R.  I.  562,  72  Atl.  10.  Wells  v.  Ins.  Co.,  187  Pa.  166,  40  Atl. 
1093  (1909)    (deposition).  802   (1898). 

6.  Crary  v.  Sprague,  12  Wend.   (X.  Y.)  41,  11.  Thurmond  v.  Trammell,  28  Tex.  371,  91 
27  Am.  Dec.  110    (1834).  Am.  Dec.  321    (1866)  ;'  Wright  v.  Doe,  1  A.  & 

The  effect,  by  way  of  waiver,  of  failing  to  E.  3,  28  E.  C.  L.  28   (1834). 

object  at  a   former   trial  when  the  difficulty  12.  Goodlett  v.  Kelly,  74  Ala.  213    (1883). 

now,    perhaps,    beyond    redress,    might    have  13.  Carr   v.    Am.    Loco.    Co.,    70    Atl.    196 

been  cured  will,  however,  receive  due  ad  minis-  (1908). 


473  NECESSITY.  §  620 

testify  on  the  ground  of  self-incrimination.  He  may  claim  some  other  priv- 
ilege of  silence,  and  so  on. 

E  converse,  should  the  witness  himself  be  present  in  court,  he  must  be  called, 
in  the  first  instance,  by  the  party  who  relies  on  his  evidence.14  For  purpose 
of  corroboration  or  impeachment,15  as  constituting  an  admission,16  or  the  like, 
the  former  evidence  is  obviously  competent,  although  the  declarant  be  avail- 
able as  a  witness  17  or,  indeed,  have  testified  as  one. 

Failure  to  summon. —  Should  the  proponent  have  failed  to  subpoena  a  wit- 
ness but  have  relied  upon  his  promise  to  be  present  and  testify,  no  ground  is 
furnished  for  admitting  the  former  testimony  of  a  witness,  should  the  latter 
fail  to  appear  and  testify  as  agreed.18 

§  620.  [Adequate  Necessity] ;  Absence  from  Jurisdiction.19 —  Absence  of  a 
witness  from  the  jurisdiction  of  the  forum,  if  permanent,  and  such  as  to  pre- 
vent the  effectual  service  of  compulsory  process  upon  him  may  be  a  sufficient 
justification  for  failure  to  produce  the  person  in  question  as  a  witness.20  This 
is  equally  true  whether  the  evidence  of  the  absent  witness  be  desired  in  a 
civil 21  or  criminal 22  proceeding.  Absence  in  a  foreign  country,23  sister 
state,24  or  territory  will  furnish  a  sufficient  administrative  reason  for  receiving 
former  testimony.  Even  preparation  for  immediate  departure  from  the  juris- 
diction of  the  forum,  e.g.,  presence  on  ship  ready  to  sail,25  "  starting  to 
move,"  26  has  been  regarded  as  sufficient  "  absence  "  within  the  rule. 

If  a  party  procures  the  absence  of  one  of  his  opponent's  witnesses  the  latter 
may  introduce  his  former  testimony.2'  In  many  cases  the  party  has  been  re- 
quired to  show  in  addition  that  it  is  impossible  to  take  the  deposition  of  the 
absent  witness.28  Temporary  absence  is  treated  like  permanent  absence  as  it 

14.  State  v.  Coleman,   199  Mo.   112,  97   S.  dence  of  a  witness  who  testified  in  a  previ- 
W.  574   (1906).  ous   trial    and   was   cross-examined   when   he 

15.  Bess  v.  Commonwealth,  26  Ky.  L.  Rep.  has  disappeared  and  cannot  be  found  where 
839,  82  S.  W.  576   (1904).  there  is  no  evidence  of  collusion  in  keeping 

16.  Lush  v.  Incorporated  Town  of  Parkers-  him  away  by  the  state  as  otherwise  the  de- 
burg.  127  Iowa  701,  104  N.  W.  336   (1905).  fence    could    prevent    prosecution    simply    by 

17.  Dambmann  v.  Metrop.  St.  Ry.  Co.,  106  taking  witnesses  out  of  the  jurisdiction.     Ed- 
X.  V.  Suppl.  22J,  55  Misc.  60   (1907).  wards  v.  State.  9  Okla.  Crim.  Rep.  306,   131 

18.  Chicago,  M.  &   St.   P.  Ry.  Co.  v.  New-  Pac.  956,  44  L.  R.  A.    (X.  S.)    701    (1913). 
some.  174  Fed.  394,  98  C.  C.  A.  1    (1909).  21.  Reynolds  v.  Powers.  96  Ky.  481,  29  S. 

19.  2    Clianiberlayne,    Evidence,    §§    1625-  W.  299.  17  Ky.  L.  Rep.  1059   (1895). 

1631.  22.  State  v.  Simmons,  98  Pac.  277    (1908). 

20.  Dolph  v.  Lake  Shore  &  M.  S.  Ry.  Co..  23.  People  v.  Buckley.  143  Cal.  375,  77  Pac. 
149    Mich.    27S,    112    X.    W.    981,    14    Detroit       169   i!904). 

Leg.   X.   426    (1907).     Evidence   that   a    wit  24.  Long  v.  Davis,  18  Ala.  801,  803  (1851). 

ness  has  moved  to  another  state  and  a  sub-  25.   Fonsick  v.  Agar,  6  Esp.  92   (1806). 

poena  is  issued  for  him  and  returned  show  26.  McCutchen  v.  McCutchen.  9  Port.  650, 

ing  that  the  sheriff  cannot  find  him  is  suffi-  654   (1839). 

cient  to  authorize  the  admission  of  a  copy  of  27.  Williams  v.  State,  19  Ga.  402    (1856)  : 

his   evidence   at   the   former   trial.     Henry  v.  Stout   v.  Cook.  47  Til.  530    (1868):    State  v. 

State.  7  Okla.  Crim.  Rep.  715.  136  Pac.  982,  Houser,    26    Mo.    431     (1858):    Kirchner    v. 

52  L.  R.  A.   (X.  S.)    113    (1913).     In  a  crim-  Laughlin.  5  X.  M.  365,  23  Pac.  175   (1890). 

inal  case  the   state  may   introduce  the  evi-  28.  Southern   Car   &    Foundry   Co.  v.  Jen- 


§§  621-623  FORMER  EVIDENCE.  474 

has  the  same  effect  on  the  party  who  needs  to  use  the  witness  29  and  even  the 
temporary  return  of  the  witness  to  the  jurisdiction  where  the  evidence  is  not 
available  does  not  prevent  the  use  of  his  former  evidence.30 

§  621.  [Adequate  Necessity] ;  Claim  of  Privilege  Against  Self-Incrimination.31 
—  When  a  witness  who  has  once  testitied  to  a  fact  without  objection,  maintains 
with  success,  on  a  second  trial,  that  the  giving  of  similar  testimony  on  the 
pending  trial  would  tend  to  incriminate  him,  and,  therefore,  cannot  be  com- 
pelled to  answer,  he  is  practically  as  unavailable  to  a  proponent  as  if  he  were 
dead  or  absent  from  the  jurisdiction.  But  if  the  present  statement  would 
incriminate  the  witness,  the  introduction  of  his  former  declaration  would  be 
equally  effective  to  that  end.  The  former  testimony  has  on  this  ground  been 
rejected.32 

§  622.  [Adequate  Necessity] ;  Death.33 —  The  most  conclusive  necessity 
which  the  proponent  of  the  secondary  evidence  given  at  a  former  trial  can  urge 
in  asking  to  be  allowed  to  introduce  secondary  evidence  is  that  the  witness  has 
since  deceased.  Under  the  earlier  law  this  was  the  sole  cause  which  sufficed 
to  excuse  the  party  from  producing  the  original  witness.34  ^o  question  has 
arisen  in  civil  cases  as  to  the  validity  of  this  reason  for  failing  to  produce  the 
witness  himself  and  receiving  the  secondary  evidence  of  his  former  testimony.35 
Proof  of  the  death  of  the  original  witness  is  sufficient,  other  conditions  being 
satisfied,  to  admit  evidence  of  his  former  testimony. 

The  fact  of  death  must,  however,  be  affirmatively  established  to  the  satisfac- 
tion of  the  presiding  judge,  by  clear,  positive  and  convincing  testimony.36  The 
validity  of  death  as  a  ground  for  receiving  secondary  evidence  of  the  testimony 
of  a  witness  is  not,  however,  confined  to  civil  actions.  The  same  rule  has  been 
invoked  in  criminal  prosecutions,37  although  there  is  some  slight  authority  to 
the  contrary.38 

§  623.  [Adequate  Necessity] ;  Imprisonment."59 —  Except  in  so  far  as  other- 
wise regulated  by  statute  40  the  fact  that  the  former  witness  is  now  in  prison 

nings,    136    Ala.    247,    34    So.    1002    (1903);  34.  Le    Baron    v.    Crombie,    14    Mass.    234 

Harbison  &  Walker  Co.,  Southern  Department  (1817)  ;  Crary  v.  Sprague,  12  Wend.  (X.  Y. ) 

v.  White   (Ky.   1908),  114  S.  W.  250;  People  41,  27  Am.  Dec.  110   (1834). 

v.  Long,  44  Mich.  296,  6  X.  W   673   (1880)  35.  Detroit  Baseball   Club  v.   Preston  Xat. 

29.  Watrous  v.  Cunningham,  71  Cal.  30,  11  Bank,   113  Mich.  470,  71    X.  W.  833    <1897) 
Pac.  811   (1886)  ;  Monroe  Bank  v.  Gifford,  70  36.  Johnson  v.  Com.,  70  S.  W.  44,  24  Ky. 
Iowa  300,  44  X.  W.  558    (1890);   Wright  v.  L.  Rep.  842   (1902). 

Cumpsty,  41  Pa.  St.  102    (1861).  37.  State  v.  Herlihy,   102  Me.  310,  06  Atl. 

30.  Hobbs  v.   State    (Tex.  Cr.  App.   1909).      643  (1906). 

117   S.   W.   811;    Fonsick  v.  Aga,   6   Esp.   92  38.  Finn.    v.     Com.,    5    Rand.     (Va.)     701 

H806).  (1827);   Brogg  v.  Com.,  10  Gratt.   (Va.)   722 

31.  2  Chamberlayne,  Evidence,  §  1632.  (1853)  ;   U.  S.  v.  Sterland,  27  Fed.  Cas.  Xo. 

32.  Hayward    v.    Barron,    38    X.    H.    366  16.387    (1858). 

(1859).  39.  9  Chamberlayne,  Evidence.  §  1635. 

33.  2    Chamberlayne,    Evidence,    §§     1633,          40.  People    v.    Putnam,    129    Cal.    258,    61 

Pac.  961   (1900). 


475  NECESSITY.  §§  624—626 

does  not,  in  and  of  itself,  suffice  to  admit  his  original  testimony.  The  prisoner 
is  not,  in  intendment  of  law,  beyond  the  reach  of  process  and  by  taking  proper 
steps  the  proponent  may  procure  his  deposition  or  even  compel  his  personal 
attendance  as  a  witness  in  court.41  Additional  facts  may,  however,  cause  the 
trial  judge  to  admit  the  secondary  evidence.  This  may  happen,  for  example, 
where  the  prisoner  contumaciously  refuses  to  testify  and  his  punishment,  im- 
posed for  prior  offences,  is  already  so  great  that  it  is  legally  impossible  to  add 
to  it.42 

§  624.  [Adequate  Necessity];  Inability  to  Find.43 — A  clear  administrative 
necessity  for  receiving  the  secondary  evidence  may  be  furnished  where  the 
proponent,  after  the  exercise  of  due  diligence,  finds  himself  entirely  without 
knowledge,  or  the  means  of  acquiring  it,  as  to  the  present  whereabouts  of  the 
former  witness.  The  administrative  necessity  is  complete  and  the  former 
evidence  is  properly  received.44  "  If  the  party  cannot  find  a  witness,  then  he 
is,  as  it  were,  dead  unto  him."  45  One  condition  judicial  administration  im- 
poses upon  the  proponent,  in  this  connection.  It  is  not  sufficient  for  him  to 
show  simply  that  he  is  ignorant  as  to  where  the  witness  is.  He  must  go  fur- 
ther and  prove  affirmatively  to  the  court  that  he  has  used  due  diligence.46 

§  625.  [Adequate  Necessity];  Infamy.47 — Should  a  witness  who  has  once 
testified  since  become  disqualified  by  reason  of  infamy,  e.g.,  by  conviction  on  a 
charge  of  felony,  he  is  equally  unavailable  to  the  proponent  as  a  witness  as  if 
he  were  dead,  and  his  former  testimony  should,  therefore,  in  point  of  prin- 
ciple, be  admitted,  were  the  matter  to  be  decided  entirely  by  the  right  of  the 
proponent  to  prove  his  case.48  However,  the  rule  is  settled  that  the  former 
statements  of  a  convicted  person  are  inadmissible,  should  he  have  been  ren- 
dered infamous.49  The  suspicion  cast  upon  the  credibility  of  the  former  tes- 
timony by  reason  of  the  subsequent  conviction,  has  not  escaped  notice. 

§  626.  [Adequate  Necessity] ;  Interest.50 —  A  much  more  satisfactory  admin- 
istrative rule  and  one  more  in  accordance  with  the  modern  trend  of  the  law 
of  evidence,  has  been  adopted  in  jurisdictions  which  still  retain  rules  disquali- 

41.  State  v.  Comvay.  56  Kan.  682,  44  Pac.  46.  State  v.  Riddle.  179  Mo.  287,  78  S.  W. 
627    (1896).                                                                     606     (1904);    State    v     Evans.    65    Mo.    574 

42.  Swit/er    v.    Boulton,   2    Grant    Ch.    693       (1877). 

(1851).  47.  2  Chamberlayne,  Evidence.  §  1640. 

43.  2    Chamberlayne,    Evidence,    §§    1636-  48.  State  v.  Valentine,  7  Ired.   (X.  C.)  225, 
1639.  227   (1847)  :  §§  334  et  seq. 

44.  Maloney  v.   State    (Ark.   1909),   121   S.  49.  Redd  v.   State,   65   Ark.   475.  47   S.   W. 
W    728:   Boyd  v.  St.  Louis  S.  W.  Ry.  Co.  of  119    (1898)  :   State  v.  Conway,  56  Kan.  682, 
Texas    (Tex.  1908),  108  S.  W.  813   [reversed.  44  Pac.  627    (1896):  LeBaron  v.  Crombie,  14 
St.   Louis   S.   \Y.   Ry.   Co.   of  Texas   v.    Boyd  Mass.  235   (1817);  Webster  v.  Mann,  56  Tex. 
(Tex.  Civ.  App.  1907),  105  S.  W.  519].  119   (1882). 

45.  Anon.,  Godbolt.  326   ( 1623 ),  per  Cham-  50.2    Chamberlayne,    Evidence,    §§    1641- 
berlain  and  Dodderidge,  JJ.  1643. 


§  627  FORMER  EVIDENCE.  476 

fying  witnesses  on  the  ground  of  interest  in  the  result  when  one  who  has  testi- 
fied on  a  former  trial  has  become  thus  disqualified.  From  the  standpoint  of 
the  party  who  would  otherwise  again  offer  the  original  witness,  the  bar  of  legal 
disqualification  is  as  insuperable  as  would  be  that  of  death  or  absence  from 
the  jurisdiction.51  Under  such  circumstances,  former  evidence  has  been  held 
to  become  admissible.52 

Under  the  rule  that  prevails  in  some  states  that  where  one  party  to  a  pend- 
ing controversy  dies  the  surviving  litigant  will  not  be  allowed  to  testify  against 
the  estate  of  the  former  the  former  testimony  of  the  person  who  is  no  longer 
permitted  to  testify  is  received.53  Even  at  common  law  the  defendant  in  an 
action  for  malicious  persecution  could  show  his  testimony  supporting  the 
criminal  charge  he  made.54 

§  627.  [Adequate  Necessity] ;  Mental  Incapacity.55 —  Circumstances  may  ex- 
ist, under  which,  though  the  witness  be  alive,  within  the  jurisdiction,  even 
actually  present  in  court  5G  and  subject  to  no  legal  disqualification ;  and  yet  a 
sufficient  administrative  necessity  may  unquestionably  be  presented  for  re- 
ceiving secondary  evidence  of  his  former  testimony.  Prominent  among  such 
circumstances  may  be  certain  conditions  of  mind  or  body.  The  proponent,  for 
example,  may  be  prevented  from  putting  his  witness  on  the  stand  by  reason  of 
some  mental  incapacity  on  the  part  of  the  latter.  Thus,  insanity,  either  in 
civil 57  or  criminal  proceedings 5S  and  whether  hopelessly  chronic  or  tem- 
porary 59  may,  if  it  has  arisen  since  the  former  evidence  was  given,60  excuse 
the  actual  production  of  the  witness.  The  same  rule  will  be  applied  should 

51.  "He  (the  witness)  was  disabled  to  give  full    opportunity    for    cross-examination    had 
evidence  by  the  act  of  God,  so  that  it  was  in  been   given.     New  v.   Smith,  94   Kan.   6,   145 
effect,  the  same  thing  as  if  he  were  dead."  Pac.  880,  L.  R.  A.  1915  F  771   (1915). 
Tilly's  Case,  1  Salk.  286   (1703),  per  Trevor,  54.  Kansas  &  Texas  Coal  Co.  v.  Galloway 
C.  J.,  dissentiente.  (Ark.  1903),  74  S.  YV.  521. 

Marriage. —  Former  testimony  at  a  previous  55.  2  Chamberlayne,  Evidence,  §  1644. 

trial  of  one  who  has  since  then  married  the  56.   Rothrock   v.   Gallaher,   91    Pa.    St.    108 

defendant   is   not  admissible   as   against   the  1879). 

defendant  in  a  manslaughter  case.     Langh'am  57.  Stout  v.   Cook.   47   Til.   530    (1868). 

v.  State.  12  Ala.  App.  40,  08  So.  504.  \ew  Jersey.—  Berney  v.  Mitchell,  34  X.  J. 

52.  Smithpeters  v.  Griffin,  10  B.  Mon.  (Ky.)  L.  337    ( 1870). 

259   (1850).  Pennsylvania.—  Emig  v.   Diehl,   76  Pa.   St 

53.  Morehouse  v.   Morehouse,   41   Hun    (X        359,373   (1874). 

Y.)     146     (1886)      (statute);     Walbridge    v.  58.  Lucas  v.  State.  96  Ala.  51.   11   So.  216 

Knipper,  9(5   Pa    St.  48    (1880);   Lee  v.  Hill,  (1892)  ;   State  v.  Wheat.  Ill   La.  860,  35  So. 

87  Va.   497,   12  S.   E.   1052,  24  Am    St.  Rep.  955   (1903). 

066    (1891).     See   also,    Bowie   v.    Hume,    13  59.  R.  v.  Marshall.  Car.  &,  M.   147    (1841). 

App.  Cas     (D.  C.)    286    (1898).     But   see,  to  It  has,  however,   been   held   that   the   former 

the   contrary    effect.    Barker   v.    Hebbard.    81  evidence  of  the  witness  is  not  admitted  though 

Mich    267,  45  X.   \V.   964    (1890):    Moore  v  he  is  temporarily  insane.     State  v.  Canny,  158 

Palmer,    14   Wash.    134.   44   Pac.    142    (1896)  Mass.  210    (1893). 

\\bere  a  witness  is  precluded  from  testifying  60.  Thompson  v.  State.  106  Ala.  07,  17  So. 

lo   transactions  with   a  deceased   person,   his  512   (1895):  Howard  v   Patrick,  38  Mich.  799 

testimony  at  a  former  trial  when  the  other  (1878);    Whitaker   v.   Marsh,   62   X.   H.   478 

party  was  alive  may  be  put  in  evidence  as  (1883). 


477  NECESSITY.  §§  028,  02  U 

the  memory  of  the  witness 61  or  his  other  mental  faculties  have  become  so 
greatly  impaired  by  reason  of  old  age G2  or  other  cause  as  to  make  it  impossible 
for  him  to  testify  with  advantage  to  the  cause  of  justice. 

§  628.  [Adequate  Necessity] ;  Official  Duty.03 —  Inability  on  the  part  of  a 
witness  to  attend  a  trial  owing  to  the  requirements  of  official  64  duty,  will 
usually  be  deemed  sufficient  administrative  warrant  for  receiving  the  secondary 
evidence  of  his  former  testimony.  The  validity  of  the  excuse  rests  with  the 
trial  court. 

§  629.  [Adequate  Necessity] ;  Physical  Incapacity .«5 —  While  the  mental 
powers  of  a  witness  may  be  adequate  to  the  task  of  testifying,  his  bodily  health 
may  be  so  greatly  impaired  as  to  make  the  effort  to  testify  dangerous  to  life  or 
impossible  of  accomplishment.  A  witness  may  be  so  sick  °6  by  reason  of  an 
acute67  or  chronic  t:s  disease;  may  be  so  enfeebled  by  old  age69  or  completely 
prostrated  by  great  bodily  infirmity  7"  apart  from  old  age  or  any  definite  dis- 
ease, as  actually  to  be,  at  the  time  of  trial,  physically  unable  to  attend  and  tes- 
tify.71 Such  a  situation  will  justify  the  presiding  judge  in  admitting  second- 
ary evidence  of  the  former  testimony  of  the  witness;  —  if,  indeed,  it  does  not 
require  him  to  adopt  this  course. 

The  same  result  follows  where  the  witness  loses  his  voice  T2  or  hearing  73  or 
eye-sight.74  Fear  of  abuse  of  this  privilege  has  caused  its  rejection  however 

61.  Central  K.  &  B.  Co.  v.  Murray,  97  Ga.  (recent  childbirth);    Reg.   v.   Wilshaw,   C.  & 
326,  22  S.  E.  972   (1895)    (old  age).  M.  145,  41  E.  C.  L.  84   (1841). 

62.  Central  R.,  etc.,  Co.  v.  Murray,  97  Ga.  71.  State   v.   Granville,   34   La.    Ann.    1088 
326,  22  S.  E.  972  (1895);  Whitaker  v.  Marsh,  (1882)     ("lying  sick   in  hospital");   Rogers 
62   X.  H.   477    (1883);   Thornton  v.   Britton,  v.  Raborg,  2  G.  &  J.  60   (1829) 

144  Pa.  St    120,  131.  22  Atl.  1048   (1891).  Michigan.—  Howard    v.    Patrick,    38    Mich. 

63.  2  Chamberlayne,  Evidence,  §   1645.  795,  799   (1878). 

64.  Xoble  v.  Martin,  7  Mart.   (X.  S.)    [La.]  -Veir  Jersey.—  Berney  v.  Mitchell,  34  X.  J. 
282     (1828)     (deputy    sheriff);    Mushrow    v.  L.  341   (1870) 

Graham,   1   Hayw.    (X.  C.)    361    (1796)    (col-  Pennsylvania.—  Perrin    v.    Wells,    155    Pa. 

lector  of  customs).  299,   300,  26  Atl.  543    (1893)     (too  ill  to  be 

65.  2    Chamberlayne,    Evidence,    §§    1646-      present). 

1651.  72.  R.  v.  Cockburn,  7  Cox  Cr.  265    (1857). 

66.  Berney    v.    Mitchell,    34    X.    J.    L.    337  23.   R.  v.  Cockburn,  7  Cox  Cr.  265    (1857). 
(1870).  74.  Houston   v.    Blythe.   60   Tex.   506,   509, 

67.  Chase  v:   Springe-ale  Mills  Co.,   75  Me.  512    (1883)     (aged);    Kinsman   v.   Crooke,   2 
156   (1883)    (typhoid  fever  delirium1).  Ld.  Raym.   1166    (1705). 

A    merely    temporary    illness    is,   however,  75.  Chicago,  etc.,  R.  Co.  v.  Mayer,  91  111. 

not  an  excuse.     Siefert  v.  Siefert,   123  Mich.  App.   372    (1899):   Doe  v.  Evans,  3  C.  &   P. 

664.  82  X   \V.  511   (1900).  221    (1827),  Vaughan,  B. 

68.  Miller  v.  Russell.  7  Mart,   i  X.  S.}   [La.]  Physical  sickness  at  the  time  of  trial  will 
266    (1828)    (''laboring  with  disease").  not  justify  receipt  of  the  evidence,  though  it 

69.  Willeford  v.   Bailey.   132  X    C.  402,  43  is  such  as  absolutely  to  prevent  attendance. 
S.    E.    928     (1903)      (deposition;     unable    to  Com.   v.   McKenna.    1.18  Mass.   207,   33   X.   E. 
talk)  :  Johnson  v.  Sargent,  42  Vt.  195   (I860)  389    (1893)  :   State  v.  Staples,  47  X.  H.   113, 

(deposition).  119,  90  Am.  Dec.  565   (1866). 

70.  R.   v.  Harney,   4   Cox   Cr.   441    (1850) 


§§   630,  631  FOKMER  EVIDENCE.  478 

in  some  cases,  both  civil 75  and  criminal Tc  and  wherever  possible  the  deposition 
of  the  witness  will  be  preferred  to  his  former  testimony.77 

§  630.  "Former  Trial." 78—  Where  the  more  important  conditions  of  ad- 
missibility  are  met,  a  broad  administrative  liberality  is  exercised  in  determin- 
ing what  shall  be  deemed  to  constitute  a  "  former  trial."  79  "  It  is  sufficient 
if  the  point  was  investigated  in  a  judicial  proceeding  of  any  kind,  wherein  the 
party  to  be  affected  by  such  testimony  had  the  right  of  cross-examination."  80 
In  order  that  former  testimony  may  be  provable,  it  must  have  been  taken  in  the 
course  of  some  judicial  proceeding  in  a  competent  tribunal,  the  character  of 
the  latter  being  immaterial,  so  long  as  it  is  judicial  in  character.81  Whether 
the  earlier  hearings  were  preliminary  or  final,82  a  former  trial  of  the  same 
case,8a  or  an  entirely  independent  proceeding,  whether  one  or  both  hearings 
were  formal  or  informal,  are  matters  not  regarded  as  of  the  least  importance. 
Evidence  taken  in  equity  may  be  used  on  a  trial  at  law.84 

The  prior  proceedings  may  have  never  been  completed 85  or  may  have 
been  in  an  inferior  court  86  or  may  have  been  in  a  court  lacking  jurisdiction  87 
or  in  preliminary  proceedings.88 

§  631.  The  Hearsay  Rule.89 —  The  reception  of  secondary  proof  of  evidence 
given  at  a  former  trial  is  not  an  exception  to  the  rule  excluding  hearsay.  In 
fact,  it  lies  entirely  outside  the  scope  of  the  hearsay  rule  and  is  not  affected 
by  the  mischiefs  against  which  the  great  exclusionary  rule,  rejecting  unsworn 
statements  in  their  assertive  capacity,  was  intended  to  provide.  The  pro- 
cedural rules,  the  rules  of  substantive  law  relating  to  procedure,  against  which 
the  evidence  of  an  unsworn  statement  when  used  as  hearsay  apparently  of- 
fends are  two.  A  party  litigant  is  entitled  to  insist  that  all  evidence  intro- 

78.  Com.  v.  McKenna,  158  Mass.  207,  210,  82.  §   1655. 

33   X.   E.   389    (1893);    State  v.   Staples,  47  83.  Clealand  v.  Huey,  18  Ala.  343   (1850); 

N.  H.  113   (1866)  ;  People  v.  Newman,  5  Hill  People  v    Devlne,  46  Cal.  46    (1873)  ;   Orr  v. 

(N.    Y.)    295    (1843).     See   also,    McLain   v.  Hadley,  36  X.  H.  575   (1858). 

Com.,  99  Pa.  St.  97   (1881).  84.  Rogers  v.   Rogers    (Del.   1907),  66  Atl. 

77.  Berney    v.    Mitchell,    34    N.    J.    L.    341  374. 

(1870).  85.  Taft  v.  Little,  79  N.  Y.  Suppl.  507,  78 

78.  2    C'hamberlayne,    Evidence,    §§    1652-  App.  Div.  74   (1903);  Lawson  v    Jones.  1   X. 
1655.  Y.  Civ.  Proc.  247.  f>l   How.  Pr.    (X.  Y.)    424 

79.  Jackson  v.  Crilly,  16  Colo.  103,  26  Pac.  (1881),  disagreement:    Hutchings  v.  Corgan, 
331     (1891);    Orr    v.    Hadley,   36   X.    H.   575  59  111.  70  ( 1871 ):  Hocker  v.  Jamison.  2  Watts 
(1858);    Young  v.  Valentine,   177  X.  Y.  347,  &  S     (Pa.)   438    (1841).  non-suit. 

69  X.   E.  643   [affirming  79  X.  Y    Suppl.  530  86.  fJannon  v.  Stevens,  13  Kan.  447  (1874)  ; 

(1904)].  Cumberland  Coal,  etc.,  Co.  v.  Jeffries,  27  Md. 

80.  Orr  v.  Hadley,  36  X.  H.  575.  580  i  1858) .       526   (  1867) . 

per    Eastman,   J.     A   hearing   before   a    com-  87.  Jerome  v.  Bolim.  21   Colo    322.  40  Pac. 

mittee  of  the  United  State  senate  is  not  re-  570    (1S95).     See  also,  McAdams  v.  Stilwell, 

garded  as  a  judicial  proceeding  in   this  con  13  Pa.  St.  90   (1850) 

nection.     In  re  Hilton's  Petition  (Utah  1905).  88.  Com.  v.  Lenousky,  206  Pa.  St.  277,  55 

81  Pac.  83.  Atl    977   (1903). 

81.  Putnal  v.  State  (Fla.  1908),  47  So.  864.  89.  2  Chamberlayne,  Evidence,  §  1656. 


479  IDENTITY.  §§  632,  633 

duced  against  him  shall  be  given  (a)  under  oath  and  (b)  received  subject  to 
cross-examination.  Neither  of  these  procedural  rights  is  infringed  by  the 
admission  of  the  former  testimony  of  an  unavailable  witness,  when  the  recep- 
tion is  conditioned  as  above  stated.  The  right  of  confrontation,90  which  is 
frequently  conferred  by  statute  on  the  accused,  and  the  right  of  cross-examina- 
tion are  not  affected  by  the  reception  of  former  evidence  where  there  was  full 
opportunity  for  cross-examination  and  it  was  conducted  by  anyone  who  was 
privy  to  the  accused  and  where  it  would  have  been  natural  for  the  cross-exam- 
ination to  have  covered  the  facts  now  offered  on  account  of  identity  of  issues.91 

§  632.  Identity  of  Issue.92 —  It  is  incumbent  upon  the  party  offering  the 
secondary  evidence  93  to  show,  in  an  affirmative  manner,  to  the  satisfaction  of 
the  judge,94  either  by  the  evidence  of  witnesses  or  by  production  of  the  record 
of  the  former  suit,95  that  the  issues  in  the  two  cases  are  identical.90  In  most 
cases,  it  will  be  sufficient  to  show  that  they  are  so  similar  as  to  render  it  prob- 
able that  the  party  or  his  privy  had  a  fair  opportunity  for  cross-examination  as 
to  the  facts  offered  on  the  subsequent  hearing.97  This  is  the  essential  point, 
to  which  the  attention  of  the  court  is  directed.  The  mere  opportunity  to  cross- 
examine  98  even  though  waived  "  is  enough.  The  issues  must,  however,  be 
the  same  l  although  they  arise  in  different  forms  of  actions  2  and  the  position 
of  the  parties  on  the  record  may  be  even  reversed  3  or  in  a  criminal  case  the 
evidence  may  have  been  offered  in  different  indictments.4 

§  633.  Identity  of  the  Parties.5 —  It  is  incumbent  upon  the  proponent  of  evi- 
dence of  a  witness  given  at  a  former  hearing  to  satisfy  the  court  that  the  party 
against  whom  the  testimony  is  now  offered  was  present  on  the  earlier  occasion, 

90.  State   v.    Walton,   99   Pac.   431    (1909)  99.  Bradley  v.  Mirick,  91  N.  Y.  293  (1883); 
[rehearing  denied.  101  Pac.  389].                             Cazenove  v.  Vaughan,   1   M.  &  S.  4,   14  Rev. 

91.  Fender  v.   Ramsey  &  Phillips,  131  Ga.       Rep.  377  (1813). 

440,  62   S.  E.  527    (1908),  ex  parte  affidavit  1.  Marshall  v.  Hancock,  80  Cal.  82,  22  Pac. 

rejected.  61    (1889).     It  is  not  enough  that  the  same 

92.  2    Chamberlayne,    Evidence,    §§    1660-       fact  is  in  issue  in  both  cases. 

1667  2.  Mabe  v.  Mabe,   122  X.  C.  552,  29  S.  E. 

93.  Bryant  v.  Owen,  2   Stew.  &  P.    (Ala.)  (1898)      (ejectment    and    contract    on    notes 
134  (1832)  :  Marshall  v.  Hancock,  80  Cal.  82,  given  for  the  purchase  money  of  the  land). 
22  Pac   61    (1880)  ;  Mitchell  v.  State,  71  Ga  The  former  testimony  of  a  witness  may  be 
128    (1883):    Neff  v.   Smith.  91   Iowa  87,  58  introduced  in   evidence  in  a   civil   action  for 
X.  \V.  1072  (1894).  the  same  injury  as  the  criminal  proceeding  in 

94.  Chase  v.    Rpringvale  Mills  Co.,   75  Me.  which  the  testimony  was  given.     Ray  v.  Hen- 
156    (1883).  derson,  44  Okla.  174,  144  Pac.  175. 

95.  Ephraims  v    Murdock,  7  Blackf.   (Tnd.)  3.  Morgan  v.  Xk-holl.  L.  R.  2  C.  P    117,  12 
10    (1843)  :   Kutzmeyer  v.  Ennis,  27  X.  J.  L.  Jur.  X.   S.  963.   36  L.  J.  C    P.  86,   15  L.  T. 
371    (1859).     See  also,  Tritcli  v.  Perry   (Colo.  Rep    X.  S.  184.  15  Wkly.  Rep.   (1866). 
1910),  108  Pac.  981.  4.  Reynolds  v.  U.   S.,  98  U.   S.   145,  25  L. 

96.  Watson    v.    R.    Co.,    76    Minn.    358.    70  ed.  244    (1878). 

X'.  W.  308    (1899)    (amended  declaration).  5.  2     Chamberlayne,     Evidence,     §§     1668- 

97.  Simmons  v.  State,  129  Ala.  41,  29  So.       1675. 

929  (1900).  98.  In  re  Durant,  80  Conn.  140,  67  Atl.  497 

(1907). 


§   634  FORMER  EVIDENCE.  480 

either  personally,  or  through  some  one,  who,  under  the  rules  of  substantive 
law,  was  entitled  to  represent  him,  in  this  particular  connection.  If  this 
condition  is  complied  with  the  secondary  evidence,  so  far  as  identity  of  parties 
is  concerned,  is  admissible,  provided  that  when  the  present  party  was  repre- 
sented by  another  at  the  former  trial,  the  latter  should  have  had  an  adequate 
motive  effectively  to  present  to  the  court  the  interest  which  the  party  himself 
now  holds.0 

In  proceedings  in  rem  the  court  may  treat  as  a  party  one  who  might  have 
taken  that  status  in  the  proceedings.7  The  former  action  may  have  been 
between  privies.8  Agency  is  not  privity,9  but  the  presence  of  a  nominal  party 
on  the  record  does  not  alter  the  situation.10  Privity  may  be  by  blood  u  or  by 
estate  12  or  by  representation.13 

§  634.  Scope  of  Proof;  Extension.14 — Before  admitting  the  secondary  evi- 
dence of  what  was  stated  at  a  former  trial,  the  court  will,  as  a  matter  of  sound 
administration,  require  satisfactory  proof  or  assurances  by  counsel,  that  the 
witnesses  or  documents  by  which  it  is  proposed  to  establish  the  former  testimony 
cover  it,  both  as  to  extension  and  intension,  with  the  fullness  and  precision 
called  for  in  that  jurisdiction,  by  the  rules  of  practice  or  substantive  law  re- 
lating to  procedure  which  prevail  there.  As  to  what  the  report  of  the  former 
testimony  shall  be  required  to  cover,  by  way  of  extension,  substantial  unani- 
mity exists  among  the  courts  of  England  and  America.  With  the  particu- 

6.  Stewart  v.  Register,  108  X.  C.-588,  591,  11.  Atlanta  &  W.  P.  R.  Co.  v.  Venable,  67 
13   8.   E.   234    (1891);    Bryan   v.   Malloy,   90  Ga.  697,  699   (1881)    (first  suit,  mother  suing 
N.  C.  508,  510   (1884).  for  injuries;   child  suing  for  her  death  from 

7.  Llanover   v.   Homfray,   L.   R.    19   Ch.   D.  same   injuries;    admitted);    Parsons    v.    Par- 
224     (1880);     In    re    Wiltsey's    Will     (Iowa  aons,  45  Mo.  265   (1870). 

1906),  109  N.  W.  776.  12.  Shaw    v.    New    York    Elevated    R.    Co., 

8.  Fredericks  v.  Judah,  73  Cal.  604,  15  Pac.  187  N.  Y.  186,  79  N.  E.  984  (1907)   [judgment 
305  (1887).  affirmed.  96  X.  Y.  Suppl.  1145,  110  App.  Div. 

9.  Goodrich    v.    Hanson,    33    111.    498,    508  892    (1905)]. 

(1864);  Domville  v.  Ferguson,   17   N.  Br.  40  13.  Fredericks  v.  Judah,  73  Cal    604,  608, 

(1877).  15  Pac.  305   (1887)    (executrix  and  heir:  ad- 

10.  Holmes   v.   Boydston,    1    Neb.    346.   354  mitted).     The  testimony  of  a  witness  for  the 
(1870);   Salmer  v.  Lathrop,  10  S.  D.  216,  72  defendant   in   an   action   by   a   father   in   the 
N.  W.  570    (1897);   Wright  v.  Tatham,  1  A.  name  of  a  minor  child  for  her  injury  is  ad- 
&  E.  3    (1834).  missible  in  a  later  action  by  the  father  after 

Should  the  new  party  possess  a  substan-  the  death  of  the  witness  for  damages  for  in- 

tial  interest,  the  former  evidence  may  still  be  juries   to   himself   growing   out   of   the   same 

competent  against   the  newcomer   should   the  injury  as  the  issues  were  th'e  same,  and  the 

latter  stand  in  some  relation  of  privity  to  an  father  had  the  full  management  of  the   tfrst 

original    party.     Goodlett    v.    Kelly,    74    Ala.  suit    and    employed    the    same    counsel    who 

219    (1883).     Otherwise,    where   new   parties  cross-examined  the  witness  at  length.     Lyon 

having   substantial   rights   are   added    in    the  v.    Rhode    Island   Co.,   3S   R.    I.   252.   94   Atl. 

subsequent    suit,    the    former   evidence    is    ex-  893,  L.  R.   A.   1916  A  983    (191.1). 
eluded.     Brown    v.    Zachary.    102    Towa    433.  14.  2    Chamberlayne,    Evidence,    §§    1676- 

71  N.  W.  413  (1897)  :  Kerr  v.  Gibson.  8  Bush  1680. 
129    (1871)     (evidence   excluded    as    to    new 
party). 


481  SCOPE.  §§  635,  636 

larity,  or  intension,  called  for  in  that  jurisdiction,  the  witness  must  be  able 
to  report  the  entire  examination  of  the  original  witness,15  both  upon  direct 
and  at  th-  state  of  cross-examination,16  so  far  as  relates  to  the  facts  or  proposi- 
tions for  which  the  secondary  evidence  is  being  offered.17  It  follows  that 
where  the  reporting  witness,  on  account  of  deafness,18  or  other  sufficient  cause 
cannot  well  be  sure  that  he  heard  all  that  was  said  by  the  original  witness,  his 
testimony  is  to  be  rejected.  If  part  of  the  former  evidence  is  admitted,  the 
whole  is  competent  in  accordance  with  the  canon  of  completeness.19 

The  witness  need  not  however  state  at  just  what  stage  of  the  proceedings  the 
testimony  was  given  20  and  may  even  forget  immaterial  portions  of  the  testi- 
mony.21 This  evidence  may  be  supplemented  by  the  opposing  side.22  Where 
the  evidence  is  introduced  solely  to  show  an  admission  23  or  to  contradict  the 
the  witness  24  only  the  fact  relied  on  need  be  given. 

§  635.  Scope  of  Proof;  Intension;  Precision  in  Recollection.25 — When  the  rule 
permitting  the  introduction  of  former  testimony  was  first  promulgated  the 
court  required  that  the  exact  language  of  the  witness  should  be  repeated  26  but 
the  impossibility  of  satisfying  this  requirement  in  most  cases  resulted  in  re- 
laxing this  strict  requirement  and  in  some  courts  only  the  essential  words  need 
be  repeated  27  and  in  others  only  the  substance  of  the  former  evidence  need  be 
given  28  and  in  some  jurisdictions  merely  the  effect  of  the  former  evidence  is 
enough.29  In  all  cases  the  burden  of  satisfying  the  court  that  the  witness  can 
satisfy  the  requirements  is  upon  the  party  offering  him.30 

§  636.  [Media  of  Proof] ;  Official  Documents.31 —  Except  where  otherwise  ex- 
pressly provided,  each  medium  of  proof,  i.e.,  by  documents  or  witnesses,  as  a 

15.  Buie  v.  Carver,  73  X.  C.  264  (1875).  552    (1891);    Bryson    v.    Hamilton,    X.    Br., 

16.  Denson  v.  Benson,   111   Ga.   809,  35   S.  Stevens  Dig.   1880,  p.  619    (1873).     See  also, 
E.  680   (1900)  ;  Puryear  v.  State,  63  Ga.  692  State  v.  Ripey  (Mo.  1910),  129  S.  W.  646. 
(1879)  ;  Aulger  v.  Smith.  34  Til.  534  (1864).  25.  2  Chamberlayne,    Evidence,    §§     1681- 

17.  Schearer  v.  Harber,  36  Tnd.  536  ( 1871)  ;  1687. 

Weeks  v.   McXulty,   101   Tenn.  495,  48  S.  W.  26.  Ephraims    v.    Murdock,    7    Blackf.    10 

809    (1898)  ;   Johnson  v.  Powers,  40  Vt.  611  (1843).     But  see  Homer  v.  Williams,  23  Ind. 

(1868).  37   (1864)    (overruling  early  law) . 

18.  Buie  v.  Carver,  73  X.  C.  264   (1875).  27.  Earl  v.  Tupper,  45  Vt.  275   (1873). 

19.  Aulger  v.  Smith,  34  111.  534  (1864).  28.  Central  of  Georgia  Ry.  Co.  v.  Carleton 

20.  Pratt   v     State    (Tex.   Cr.   App.    1908),  (Ala.  1909),  51  So.  27;  State  v.  Herlihy,  102 
109  S.  W.  138.  Me    310,  66  Atl.  643   (1906)  ;  Keim  v.  City  of 

21.  Helper   v.    Bank,   97    Pa.    St.   420,   424  Reading,  32  Pa.  Sup.  Ct.  613   (1907). 
(1881).  29.  Garrott  v.  Johnson.  11  Gill  &  J.   (Md.) 

22.  Burnett  v    State,  87  Ga.  622,  13  R.  E.  173,  35  Am.  Dec.  272  [distinguished  in  Black 
552    (1891);    Weeks   v.   McXulty.    101    Tenn.  v.  Woodrow,  39  Md.  194]    (1840);   Helper  v. 
495,  48  S.  W.  809,  70  Am.  St.  Rep.  693,  43  L.  Mt.  Carmel  Sav.  Bank,  97  Pa.  St.  420,  39  Am. 
R.   A.   185    (1898).  Rep.    813     (1881);     Kendrick    v.    State,    10 

23.  State  v.   Sortor,  52  Kan.  531,  540,  34  Humphr.  (Tenn.)  479  (1850). 

Pac.  1036   (1893).  30.  Emery  v.  Eowler,  39  Me.  326,  63  Am. 

Zibell  v.  Grand  Rapids,   129  Mich.  659,  89  Dec.  627   (1855). 

N.  W.  563   (1902).  31.  2  Chamberlayne,    Evidence,    §§     1688- 

24.  Burnett  v.  State,  87  Ga.  622,  13  S.  E.  1695. 


§  637  FORMER  EVIDENCE.  482 

rule,  is  equally  competent,  provided  it  comply  with  the  prescribed  conditions. 
To  this  course  of  administrative  dealing  with  proof  of  former  evidence,  the 
courts  have,  in  practical  application,  apparently  established  a  single  exception. 
In  cases  where  the  regularity  and  disinterestedness  of  official  business  enter 
into  the  consideration  of  the  course  to  be  pursued,  a  not  unnatural  inclination 
to  give  special  force  to  these  circumstances  is  observable.  Even  where  the  act 
is  not  done  in  obedience  to  an  official  duty,  the  same  action  is  frequently  taken 
by  the  courts.  In  pursuance  of  this  administrative  principle,  it  has  been  held 
that  statements  reduced  to  writing  by  one  under  an  official  duty  so  to  do  are  to 
be  preferred  to  oral  testimony,  as  constituting  a  higher  grade  of  proof,  either 
in  case  of  the  former  testimony  of  a  party,32  or  that  of  a  witness.33 

Depositions  prepared  under  the  requirement  of  positive  law  are  often  ad- 
mitted as  evidence  per  se  as  in  case  of  transcripts  of  the  evidence  by  the  judge 
himself.34  The  same  consideration  applies  to  certain  court  papers  as  an  agreed 
statement  of  facts  35  but  a  bill  of  exceptions  is  usually  regarded  as  too  biased 
to  be  received.30  Even  briefs  of  evidence  have  been  admitted  for  this  pur- 
pose 37  and  may  in  any  event  be  used  as  admissions  against  the  party  who 
signed  them.38  A  record  made  by  an  official  under  no  duty  to  make  it  is  not 
admissible  as  an  official  record.39  Under  the  majority  view  the  official  record 
is  not  conclusive.40 

§  637.  [Media  of  Proof] ;  Unofficial  Documents ;  Memoranda.41 —  Some  doubt 
has  been  expressed  as  to  the  propriety  of  permitting  former  evidence  to  be 
proved  by  memoranda  which  create  no  present  recollection  as  to  the  evidence 
itself  on  the  part  of  the  reporting  witness,  i.e.,  where  his  present  power  of 
statement  is  confined  to  identifying  the  memoranda  as  those  which  he  made  on 
a  former  occasion  and  then  knew  to  be  accurate.42  Certain  courts  decline  to 
receive  memoranda  only  identified  and  authenticated  to  this  extent  as  proof  of 
the  statements  of  the  original  witness.43  The  greater  weight  of  authority, 
however,  repudiates  any  distinction  between  the  admissibility  of  contempora- 

32.  Leggett  v.  State,  07  Ga.  426,  24  S.  E.  Houston,  etc.,  R.  Co.  v.  Smith  (Tex   Civ.  App. 
165  (1896).  (1899),  51  S.  W.  506. 

33.  People  v.  Hinehman,  75  Mich.  587,  589,  39.  C.rimsinger    v.    State    (Tex.    1902),    69 
42  N.  W.  1006   (1889).  S.  W    58,3.     The  contrary  has,  however,  been 

34.  Bennett  v.  State,  84  Ark.  97,  104  S.  W.  held  in  South  Carolina.     State  v.  Branham, 
928   (1907).  13  C.  389,  396    (1879). 

35.  Smith  v.  State,  28  Ga.   19,  23    (1859)  40.  People   v.   Curtis,   50   Cal.    95    (1875): 

36.  Breitenwischer    v.    Clough.    116    Mich.  State  v.  Hull,  26  Iowa  293,  297   (1868).     See 
340,  74  N.  W.  507    (1898).  also,  Poe  v   State  (Ark.  1910),  129  S.  W.  292. 

37.  Owen  v.  Palmour,  111  Ga.  885,  36  S.  E.  41.  2  Cliamberlayne,     Evidence,     §§     1696- 
969   (1900).     Hut  see  Sloan  v.  Somers,  20  N.  1701. 

J.  L   66  (1S43).  42.  Best      on      Ev.       (Chamberlayne's      3d 

38.  Lathrop   v.    Adkisson,    87    Ga.    339.    13       Amer.  ed),  pp    218,  219. 

S.  E.  517    (1891);   Dwyer  v    Bassett,  1  Tex.  43.  Yancey  v.   Stone.   9   Rich.   Eq.    (S.   C.) 

Civ.  App.  513,  21  S.  W.  621  (1892).     But  see,       429  (1857)  :  U.  S.  v.  Woods,  2S  Fed.  Cas.  No. 

16,756.    3    Wash     440    (1818). 


483  MEDIA  OF  PKOOF.  §  638 

neous  memoranda  in  this  way  and  their  similar  use  in  other  connections.  The 
practice,  therefore,  is  to  receive  memoranda  in  these  courts,  although  no  one 
testifies  to  a  present  knowledge  of  the  fact  that  the  original  witness  made  these 
precise  statements,  except  so  far  as  such  a  declaration  on  the  part  of  the  re- 
porting witness  may  be  implied  from  the  assertion  that  he  made  the  memo- 
randa at  the  time  and  then  knew  them  to  be  accurate.44 

The  memoranda  themselves  must  be  produced  as  the  "  best  evidence."  45 
Xotes  taken  by  attorneys  should  be  receivel  with  caution  46  as  taken  in  haste 
and  apt  to  be  incomplete  and  even  notes  of  the  presiding  judge  are  not  evi- 
dence per  se  but  must  be  proved  by  his  oath.47 

§  638.  [Media  of  Proof;  Unofficial  Documents;  Memoranda];  Stenographers.48 
—  Great  as  is  the  advantage  over  other  methods,  in  point  of  accuracy  and  full- 
ness, presented  by  stenographic  transcripts  of  the  former  testimony  of  wit- 
nesses, judicial  appreciation  does  not  reach  the  point  of  constituting  it  into  a 
separate  class  or  grade  of  secondary  evidence.  It  is  not,  in  any  sense  <k  best 
evidence."  49  If  it  appear  that  such  a  transcript  of  the  evidence  has  been 
made,  its  production  will  not,  as  a  rule.50  be  required  nor  need  its  absence  be 
explained  as  a  preliminary  to  receiving  oral  testimony.  It  may  be  said,  gen- 
erally, that  a  stenographic  report  of  testimony  given  on  a  former  trial  is  ad- 
missible, when  a  proper  basis  therefor  is  laid.51  An  essential  condition  upon 
the  admissibility  of  the  transcript  of  an  unofficial  stenographer  is  that  it 
should  affirmatively  be  made  to  appear  that  the  notes  taken  by  the  stenographer 
were  a  faithful  copy,  in  phonetic  character,  of  the  evidence  actually  given  and 
that  52  the  longhand  transcription,  if  any,  faithfully  reproduces  the  notes.53 

The  evidence  of  an  official  stenographer  has  no  advantage  and  is  not  evi- 

44.  Luetgert  v.  Volker.   153  111.  385.  30  X  47.  Mineral   Point  R.  Co.   v.  Keep,  22   111. 
E.    113     (1894);    Moore    v.    Moore,    39    Iowa       9,  74  Am.  Dec.  124  ( 1859)  ;  Com.  v.  Ryan,  134 
461    (1874).                                                                  Mass.    223,    225     (1883):    Peorle    v.    Corey, 

Amor  v.  Stoekele.  76  Minn.  180,  78  X.  W.       157  X.  Y.  332,  51  N.  E.   1024    (1898). 
1046    (1899).  48.  2  Chamberlayne,     Evidence,     §§     1702- 

45.  Sanford  v.   State    (Ala.   1905),   39  So.       1705. 

370.  49.  Golden   Georgia   v.   McManus,    113   Ga. 

46.  "It  is  no  part  of  the  counsel's  duty  to      982,  39  S.  E.  476  (1901). 

take  down  the  whole  testimony  of  a  witness.  50.  Brown    v.    State.    76   Ga.    626    (1886); 

and  in  most  cases  it  would  be  impracticable  Hinshaw   v.    State,    147   Ind     334.   47    X.    E. 

for  him  to  do  so;  generally  he  does  no  more  157     (1897)  :     State    v.    McDonald.    65    Me. 

than  note  down  those  parts  of  the  testimony  467    (1876).     See  also.  State  v.  Dean    (Iowa 

which  appear  to  him  to  be  ma*»-ial.  or  most  1910),   126  X.   \V.   602. 

worthy  to  be  noted  or  tending  to  support  his  51.  Iowa   Life   Ins.  Co.  v.  Haughton    (Ind. 

own  side  of  the  case:  and  to  admit  the  notes  App    IflOS).  8"5  X.  E    127. 

thus  taken   to  be  read  in   evidence,  as  proof  52.  State  v.   Kendig    (Iowa    1907).   110  X. 

of  the  testimony  which  had  been  given,  would  W.    463;    Morawit/   v.   State    (Tex.   Cr.   App. 

be  a  very  unsafe  practice:  and  we  do  not  find  1906).  91  S.  W.  227 

it  sanctioned  by  any  decided  case."     Waters  53.  Degg  v.  State    (Ala.  1907).  43  So.  484. 

v.    Waters.    35    Md.    531,    539     (1872);    per  See   also.   Wiener   v    Zweib    (Tex.   Civ.   App. 

Bartol,  C.  J.  1910),  128  S.  W.  699. 


§  639  FORMER  EVIDENCE.  484 

dence  per  se  54  except  so  far  as  it  has  been  made  so  by  statute 55  in  many 
states. 

§  639.  [Media  of  Proof];  Witnesses;  Independent  Memory.00 — Until  the 
enactment  of  statutes  authorizing  the  appointment  of  official  court  stenographers, 
the  machinery  of  a  trial  under  the  English  system  of  judicial  procedure  in- 
cluded no  person  designated  and  bound  to  report  the  evidence  as  it  was  sub- 
mitted. Anyone  who  originally  heard  the  evidence  and  can  testify  as  to  it,  to 
the  extent  and  with  the  intension  required  by  law,  at  all  times  has  been  com- 
petent as  a  witness. r>7  The  speaker  may  be  the  judge  who  presided  at  the 
former  trial.58  Such  a  person  may  testify  either  from  an  unaided  memory, 
or  from  a  recollection  refreshed  by  the  use  of  suitable  memoranda.59  It  is 
merely  the  usual  privilege  of  a  witness00  which  enables  a  person  who  has 
taken  contemporaneous  notes  of  the  former  evidence  to  refresh  his  memory 
by  the  aid  of  these  notes  when  testifying  with  regard  to  his  evidence  on  a 
former  occasion.61  The  competency  of  the  evidence  is  not  impaired  by  the 
fact  that  the  witness  has  no  independent  recollection,  i.e.,  that  he  only  remem- 
bers the  evidence  in  connection  with  his  notes,  as  his  memory  is  refreshed  by 
them.62 

54.  Smith  v.  Hine,  179  Pa.  St.  203,  36  Atl.  accuracy;    or    the    former    evidence    may    be 
222   (1897).  proved  by  any  person  who  will   swear  from 

55.  Temple  v.  Phelps,  193  Mass.  297,  79  N.  his  memory  to  its  having  been  given."     Don- 
E.  482   (1907).  caster  v.  Day,  3  Taunt.  262   (1810)  per  Mans- 

56.  2  Chamberlayne,    Evidence,    §§     1706-  field,  C    J. 

1708.  60.   Best      on      Ev.       ( Chamberlayne's      3d 

57.  State   v.    Mushrush,    97    Iowa   444,    66      Amer.  ed.),  p.  218. 

N.  W.  746  ( 1896)    (jury  man).       .  61.  Costigan  v.  Lunt,  127  Mass.  354  i  1879). 

58.  Freeman   v.    Com.,    103    S.    W     274,   31  62.  Van  Bnren  v.  Cockburn,  14  Barb.    (N. 
Ky.  L.  Rep.  639  (1907).  Y.)    118    (1852);    Dowd   v.    State    (Tex.   Cr. 

59.  "What  a  witness  has  sworn  .  .  .  mav  App.  1908)    108  S.  W.  389;  Reg.  v.  Plummer, 
be  given  in  evidence  either  from  the  judge's  1    C.  &  K.  600.  8  Jur.  921,  47    K.  C.   L.  600 
notes,   or   from   notes   that   have   been   taken  ( 1844)  ;  Reg.  v.  Child,  5  Cox  C.  C.  197  (1851). 
by  any  other  person  who  will  swear        their 


CHAPTER  XXIII. 

RELEVANCY. 

Relevancy,  640. 
Stephens  definition,  641. 
Stephen's  definition  considered,  642. 

§  640.  Relevancy.1 —  It  is  in  terms  of  relevancy,  rather  than  in  those  of  rea- 
soning that  the  underlying  rule  of  the  English  law  of  evidence  is  commonly 
stated.2  All  facts  which  are  relevant  will  be  received  in  evidence.3  Facts 
which  are  not  relevant  are  excluded.4  All  facts  having  rational  probative  value 
are  admissible  unless  some  specific  rule  forbids.5  The  law  of  evidence  is  one 
of  exclusion.  Xothing  could  apparently  be  more  precise. 

Meaning  of  Terms. —  It  may  be  said  that  the  main  lines  of  mental  operation 
on  the  part  of  the  court  during  the  trial  at  law,  though  probably  in  a  state 
of  constant  flux,  are  practically  three,  proving,  measuring  and  weighing,  and 
it  will  be  found  that  the  facts  admitted  in  evidence  are  received  in  aid  of 
these  several  processes  for  the  reason  that  they  respectively  possess,  from  this 
relationship  to  the  act  of  reasoning  a  relevancy  which  is  (1)  probative,  (2) 


1.  3  Chamberlayne,     Evidence,     §§     1711- 
1716. 

2.  Relation  between  relevancy  and  reason- 
ing.—  Adopting  the  nomenclature  of  the  pres- 
ent treatise,  facts  rationally  adapted  to  as- 
sist in  the  process  of  proving  are  spoken  of 
as  probatively  relevant.     Those  logically  tend- 
ing to  assist  in  the  process  of  weighing  res 
gestae  and  other  facts  in  the  probative  scales 
are  said  to  be  deliberatively  relevant.     Facts 
which    reasonably    assist    the   mental    act    of 
measxiring  these   facts  by   some   standard   of 
fact  or  law  are  designated  as  being  constitu- 
ently  relevant.     See  General  Nature  of  Proof: 
Judicial    Reasoning    in    General.     3    Chamb., 
Ev.,   §§   1709.    1710.    ITlOa. 

3.  Riverside   Water   Co.   v.   Gacre.    108   Cal. 
240.   41   Pac.  299    M895)  :    Payson  v.  Village 
of  Milan.   144  111.  App.   204    (1908):   Mosby 
v.  McKee.  etc.,  Commission  Co.,  91  Mo    App. 

(1902):  O'Horo  v.  Kelsey.  70  X.  Y.  Supp. 
14,  60  App.  Div.  604  (1901)  :  Findlay  Brewing 
Co.  v.  Bauer.  50  Ohio  St.  560.  35  X.  E.  55 

(1893)  :  Atkins  v.  Payne.  190  Pa.  5.  41  Atl. 
378  (1899):  Xelson  v.  U.  S.,  201  U.  S.  92, 


26  S.  Ct.  358,  50  L.  ed.  673  ( 1906)  :  3  Chamb., 
Ev.,  §  1711,  n.  2.  Evidence  will  be  received 
if  relevant  upon  any  issue  of  the  case.  Rea- 
gan v.  Manchester  St.  Ry.  Co.,  72  X.  H.  298, 
56  Atl.  314  (1903). 

4.  Brownlee    v.    Reiner,    147    Cal.    641,    82 
Pac.    324    (1905):    Hannan   v.    Anderson,    15 
Colo.  App.  433,  62  Pac.  961   (1900)  :  Darnall 
v.   Georgia  Ry.   &   Electric  Co.,    134  Ga.   656 
(1910)  ;  City  of  Marengo  v.  Eichler,  245  111. 
47,  91  X.  E.  758    (1910)  :  demons  Electrical 
Mfg.  Co.  v    Walton,  206  Mass.  215,  92  X.  E. 
459    (1910);    State  v.   Wilson.   223   Mo.    173, 
122  S.  W.  701    (1909):  People  v.  Cahill.  188 
X   Y.  489,  81  X.  E.  453   (1907)  -.   Indian  Land 
&  Trust  Co.  v.  Clement.  22  Okl.  40,  109  Pac. 
1089    (1908):    State  v.   Clem.  49  Wash.  273, 
94  Pac.  1079    (1908):   3  Chamb..  Ev..  §  1711, 
n.    3.     A    partv    is    not    at    liberty    to    offer 
pvidenop  in  ono  <•;>-<>  on  the  ground  that  it  will 
be  relevant  in  another.     In  re  Shawmut  Min. 
Co..   87  X.   Y.   Supp.   1059.  94  App.  Div.   156 
(1904). 

5.  Kirchner  v.   Smith,  61  W.  Va.  434,  58 
S.  E.  614  (1907). 


485 


§  641  RELEVANCY.  486 

• 

constituent  and  (3)  deliberative.6  To  the  quality  which  enables  the  existence 
of  one  fact  to  prove  the  reality  of  another  the  term,  probative  relevancy  may 
properly  be  applied.7  The  characteristic  quality  of  a  fact  or  set  of  facts  which 
enable  them,  with  or  without  others,  to  constitute  a  fulfillment  of  the  conditions 
imposed  by  a  given  rule,  term  or  definition,  may,  with  apparent  propriety,  be 
called  constituent  relevancy.8  Facts  logically  tending  to  assist  in  the  process  of 
weighing  res  gestae  and  other  facts,  by  the  use  of  reason,  have  been  denominated 
deliberative  and  their  ability  to  assist  the  judgment  of  the  jury  may  properly 
be  spoken  of  as  deliberative  relevancy.9 

Underlying  Conception. — "  Relevancy,"  10  and  "  relevant,"  n  reveal  their 
essential  meaning  in  the  primary  and  derivative  significance  stated  in  the  dic- 
tionary and  judicial  definitions.  The  primary  conception  of  the  term 
"  relevant "  is  at  once  seen  to  be  that  of  upholding,  sustaining  an  effort  of  some 
kind ;  and,  in  connection  with  the  use  of  reasoning,  logical  or  legal,  of  advancing 
or  furthering  an  intellectual  effort  of  some  sort.  Where  the  proposition  urged 
is  controverted,  that  may  be  said  to  be  relevant  which  supports,  or  tends  to 
prove  or  disprove  the  truth  of,  either  of  these  contentions.12 

§  641.  Stephen's  Definition.13 —  In  the  first  edition  of  his  Digest  of  Evidence, 
Stephen  adopts  from  his  Introduction  to  the  Indian  Evidence  Act  14  an  excel- 
lent, if  not  unexceptionable  definition  of  relevancy,  frequently  quoted  with 
approval.15  "  Facts,"  he  says,  "  whether  in  issue  or  not,  are  relevant  to  each 

6.  3   Chamb.,  Ev.,  §  1711a.  evidence    any    circumstances    which    tend    to 

7.  3  Chamb.,  Ev.,  §  1712.  make  the  proposition  at  issue  more  or  less  im- 

8.  3  Chamb.,  Ev.,  §  1713.  probable.     Whart.  Ev  ,  §§  20,  21;   3  Chamb., 

9.  3  Chamb.,  Ev.,  §  1714.  Ev.,  §  1715,  n.  1. 

10.  See  definitions,  Cent.  Diet.     Other  defi-  11.  See    definitions,    Cent.    Diet.     Further 
nitions. —  Evidence  which  tends  to  establish  definitions. —  The  meaning  of  the  word  rele- 
any  part   of  plaintiff's  case  or  dispute  any  vant,  as  applied  to  testimony,  is  that  it  di- 
defense  thereto  is  admissible  as  against  the  rectly    touches    upon    the    issue    which    the 
objection    that    it    is    irrelevant.     Tifton,    T.  parties  have  made  in  their  pleadings,  so  as 
&  (J.   Hy.  Co    v.  Butler,  4  Ga.   App.   191,  60  to  assist  in  getting  at  the  truth  of  it.     Moran 
S.  E.  1087  (1908).     In  Trull  v   True,  33  Me.  v.    Abbey,    58    Cal.    163     (1881);    Porter'  v. 
367,  it  was  held  that  "  testimony  cannot  be  Valentine,    41    X.    Y.    Supp.    507,    18    Misc. 
excluded   as   irrelevant  which  would  have  a  213    (1896);    Platner   v.    Platner,   78   N.    Y. 
tendency,   however    remote,    to   establish    the  90,95  ( 1879)  ;  Walls  v.  Walls,  170  Pa.  48,  32 
probability   or   improbability   of   the   fact   in  Atl.  649  (1895);  3  Chamb.,  Ev.,  §  1715,  n    2. 
issue."     State  v.  O'Neill,   13  Or.   183.  9  Pac.  12.  3   Chamb.,   Ev.,   §    1715,   n.   3. 

286  (1885).  "Relevant."  as  applied  to  tea-  13.  3  Chamberlayne,  Evidence,  §  1717 
timony,  means  that  the  testimony  bears  \ipon  14.  Indian  Evidence  Act.  1  of  1872.  Intro- 
the  issues  so  as  to  tend  to  prove  or  disprove  duction  by  James  Fitzjames  Stephen, 
them,  but  testimony  may  be  relevant  if  it  is  15.  Plumb  v.  Curtis,  66  Conn.  154,  33  Atl. 
only  a  link>  in  the  chain  of  evidence  tending  998  (1895);  Seller  v.  Jenkins,  97  Ind.  430 
to  prove  the  issues  by  reasonable  inference.  (1884):  Louisville  Ry.  Co.  v.  Ellerhorst,  33 
though  not  directly  bearing  upon  them.  San  Ky.  L.  Rep.  605,  110  S.  W.  823  (1908)  ;  Fish- 
Antonio  Traction  Co.  v.  Higdon  (Tex.  Crim.  man  v.  Consumers'  Brewing  Co.,  78  X.  J.  L. 
App  1910).  123  S  W.  732.  Relevancy  is  that  300,  73  Atl.  231  (1909);  McXair  v.  Na- 
which  conduces  to  the  proof  of  a  pertinent  tional  Life  Ins.  Co.,  13  Hun  (X.  Y.)  144 
hypothesis.  Hence  it  is  relevant  to  put  in  (1878);  3  Chamb.,  Ev.,  §  1717,  n.  2. 


487 


STEPHEN'S  DEFINITION. 


other  when  one  is,  or  probably  may  be,  or  probably  may  have  been  —  the  cause 
of  the  other ;  the  effect  of  the  other ;  an  effect  of  the  same  cause ;  a  cause  of  the 
same  effect ;  or  when  the  one  shows  that  the  other  must  or  cannot  have  occurred, 
or  probably  does  or  did  exist,  or  not ;  or  that  any  fact  does  or  did  exist,  or  not, 
which  in  the  common  course  of  events  would  either  have  caused  or  have  been 
caused  by  the  other."  10  The  definition  in  the  third  Edition  of  his  instructive 
Digest  of  the  Law  of  Evidence,  though  made  cautious  by  acute  though  always 
appreciative  and  friendly  criticism,  does  not  greatly  differ  from  that  of  the 
first.  "  The  word  '  relevant '  means  that  any  two  facts  to  which  it  is  applied 
are  so  related  to  each  other  that  according  to  the  common  course  of  events  one 
either  taken  by  itself  or  in  connection  with  other  facts  proves  or  renders  prob- 
able the  past,  present,  or  future  existence  or  non-existence  of  the  other/'  17 

§  642.  Stephen's  Definition  Considered.18 — That  the  foregoing  •  definition  of 
relevancy  is  an  excellent  statement  of  that  relation  between  facts  which  has 
hereinbefore  been  spoken  of  as  probative  19  seems  unqeutionable.  Equally  obvi- 
ous is  it  that  as  a  definition  of  relevancy  in  general,  it  is  insufficient.  It  takes 
no  account  of  those  important  relations  of  facts  to  the  proper  conduct  of  judicial 
processes  of  reasoning  which  have  been  denominated  constituent  20  or  delibera- 
tive 21  relevancy.  But,  for  practical  objects,  the  definition  suffices.22 


16.  Digest  Law  of  Evid.    (1st  Ed.)    Ch.  2, 
Art.  9. 

17.  Stephen,  Dig.  Law  of  Evid.    (3rd  Ed.) 
Ch.  1,  Art.  1. 

18.  3  Chamberlayne,    Evidence,    §§     1718- 
1718m. 

19.  Supra,  §   640;    3  Chamh..  Ev.,  §   1712. 

20.  Supra,   §  640 :    3   Chamb..  Ev.,   §   1713. 
91.  Supra,  §  640;   3  Chamb.,  Ev.,  §   1714. 


22.  3  Chamb..  Ev.,  §  1718.  For  a  full  dis- 
cussion of  Stephen's  theory  and  a  critical 
consideration  of  Stephen's  definition,  see  3 
Chamb.,  Ev.,  §§  1716,  1717.  1718,  1718a,  1718b, 
1718c,  1718d,  1718e,  1718f,  1718g,  1718h, 
1718i,  1718.J,  1718k,  17181,  1718m.  See  also 
Discussion  of  Substantive  and  Adjective  Law, 
3  Chamb.,  Ev.,  §§  1719,  1720,  1720a,  1720b, 
1720c,  1720d. 


CHAPTER  XXIV. 

INCORPORATION  OF  LOGIC. 

Incorporation  of  logic,.  643. 
logic  defined,  644. 
propositions,  645. 
mental  operations,  646. 

intuitions,  647. 

deductive  operations,  648. 

inductive  reasoning,  649. 

inference  from  experience,  650. 

deduction  the  basis  of  induction,  651. 
mental  certainty,  652. 
hypothesis,  653. 

§  643.  Incorporation  of  Logic.1 — At  this  point  of  the  consideration  of  the 
general  topic  of  Reasoning  by  the  court  or  by  witnesses,  it  seems  essential  to 
make  what  is,  in  appearance  at  least,  a  digression. 

The  subject  in  hand,  the  modern  law  of  evidence,  properly  embraces,  with  im- 
material exceptions,  the  consideration  of  but  two  main  factors  each  invoking 
and  conditioned  by  the  true  laws  of  thought,  canons  of  correct  reasoning. 
First  is  the  appropriate  judicial  province  of  the  jury,  the  ascertainment  of 
truth,  the  reality  of  things,  as  to  the  res  gestae.  Second,  and  of  still  higher 
social  import  as  an  integral  part  of  the  law  of  evidence,  is  the  judge's  executive 
function  of  administration,  using  sound  legal  reasoning  for  the  attainment 
of  justice.  The  result  is  the  practical  incorporation,  by  reference,  of  the  rules 
of  logic  into  the  law  of  evidence.  This  reference  to  logic,  as  the  science  of 
the  laws  of  thought,  is  incessant,  though  usually  tacit.  At  every  turn  in  the 
judicial  work  of  the  jury  or  the  executive  administration  of  the  court,  wherever 
action  of  any  sort  is  to  be  taken  by  either  branch  of  the  tribunal,  the  standards 
prc>cribod  by  logic  are  constantly  applied  and  regularly  enforced. 

§  644.  [Incorporation  of  Logic] ;  Logic  Defined.2 —  "  Logic,"  says  Mr.  John 
Stuart  .Mill/*  ''comprises  the  science  of  reasoning,  as  well  as  an  art  founded 
on  that  science."  The  important  fact  to  observers  regarding  this  familiar 
definition  is  that  logic  refers  simply  to  reasoning  itself  and  is  in  no  way  con- 
cerned as  to  the  subject,  matter  to  which  that  reasoning  is  applied.  It  is  a 

1.  3  rhar.iUTlnyne,   Evidence,  §   1721.  3.  Mill's  Logic.  Intro.  §  2  (8th  Ed.),  18. 

2.  3   Chamberlayne,   Evidence,   §   1722. 

488 


489  PROPOSITIONS.  §§  645-647 

regulator  of  the  means  by  which  belief  may  properly  be  engendered.  The 
object  of  the  belief  is  immaterial.  "  Logic  is  the  common  judge  and  arbiter 
of  all  particular  investigations.  It  does  not  undertake  to  find  evidence,  but 
to  determine  whether  it  has  been  found.  Logic  neither  observes,  nor  invents,  nor 
discovers ;  but  judges."  4  The  science  of  the  laws  of  reasoning,  the  limitations 
of  logic,  is  thus  seen  to  deal  only  with  the  modes  of  thought. 

§  645.  [Incorporation  of  Logic] ;  Propositions.5 —  While  Stephen,  as  is  well 
known,  indicates  as  the  objective  to  which  evidence  is  to  be  offered,  what  he 
terms  '*  facts  in  issue "  it  is,  nevertheless,  fairly  obvious  that  his  critic  in 
the  Solicitors  Journal6  is  entirely  right  in  saying  that  the  object  to  be  estab- 
lished by  proof  is  not  a  fact  but  a  proposition.  The  purpose  of  evidence,  proof 
by  the  use  of  inference,  is  the  creation  of  a  belief  in  the  truth  or  actuality  of 
something.  "  Whatever  can  be  an  object  of  belief  or  even  of  disbelief,"  says 
.Mr.  Mill,7  "must  when  put  into  words  assume  the  form  of  a  proposition." 
It  may,  accordingly,  be  profitable  to  consider,  in  barest  outline,  the  nature  of 
propositions.  A  proposition  is  defined  by  logic  as  a  sentence  which  affirms  or 
denies.9 

The  law  of  evidence  has  to  do  only  with  what  is  placed  in  issue  by  the  plead- 
ings, what  has  a  past  or  present  existence  and  which  may  be  called  a  proposi- 
tion of  fact. 

§  646.  [Incorporation  of  logic] ;  Mental  Operations.10 —  In  view  of  the  vast 

_ 

range  of  subjects  to  which  a  court  for  purposes  of  abjudication  may  be  called 
upon  to  apply  the  reasoning  faculty,  and  the  almost  innumerable  administra- 
tive connections  in  which  it  may  be  required  to  apply  reason  to  judicial  prob-' 
lems,  it  may  fairly  be  said  that  the  law  of  evidence  is  limited  to  no  particular 
form  of  mental  operation  specialized  in  the  law  of  logic.  Still,  as  has  been 
observed,  the  main  processes  of  judicial  reasoning  are  three :  —  proving  by 
facts  probatively  relevant,  measuring  facts  constituency  relevant,  and  weighing 
by  means  of  facts  characterized  by  deliberative  relevancy. 

§  647.  [Incorporation  of  Logic;  Mental  Operations];  Intuition.11 — Most  un- 
controvertible  in  its  effect  in  the  production  of  belief  as  to  the  existence  of  a 
mental  impression  regarding  any  fact,  physical  or  psychological,  is  that  tran- 
scendent property  of  the  mind  denominated  intuition.  Intuition,  the  mental 
operation  by  which  consciousness  becomes  aware  of  the  results  of  sense-per- 

4.  Mill's  Logic.  Intro.  §  5  (8th  Ed.),  21.  sertion  about  it.     The  expression  of  this  men- 

5.  2  Chamberlayne,     Evidence,     §§     1723,  tal  assertion  or  judgment  in  language  is  a 
1724.  proposition."     Jones,  Logic  Inductive  and  De- 

6.  2.0  Sol.  Jour.  p.  857.  ductive.  p.  66. 

7.  Mill  Logic,  i  21,  P.  12a  quoted  in  Gul-  9.  Whately    Logic,    41,    quoted    In    Gulson 
son,  Philosophy  of  Proof,   §   52.  Philosophy  of  Proof.  §  52. 

8.  "  Introspection   will   show   at  once  that  10.  3  Chamberlayne,  Evidence,  §   1725. 
when  we  hold  an  object  before  the  mind,  there  11.  3  Chamberlayne,    Evidence,    §§     1726- 
is  an  inevitable  tendency  to  think  some  as-  1728. 


§§   648,  649  INCORPORATION  OF  LOGIC.  490 

ception  or  observation  is  carefully  to  be  distinguished,  in  connection  with  the 
law  of  evidence,  from  inference,  the  reasoning  of  proof.  Intuition  seems  to  be 
not  so  much  a  branch  of  reasoning  as  engaged  in  presenting,  to  the  witness  or 
to  the  tribunal  (according  to  whether  the  observation  is  made  in  pais  or  in  the 
court  room),  the  data  or  raw  material  upon  which  reasoning  is  based.  It  is, 
therefore,  a  mental  operation  of  the  highest  importance  and  most  intimate  in 
connection  with  legal  logic. 

§  648.  [Mental  Operations] ;  Deductive  Keasoning.12 —  Every  instance  of  de- 
duction is  conducted  by  the  use  of  two  propositions  which  are,  for  that  reason, 
called  premises.13  The  truth  of  these,  or,  in  case  of  a  fact,  their  existence, 
being  assumed,  the  conclusion,  the  truth  of  a  third  proposition  is  logically 
deduced,  or  inferred,  by  an  act  of  the  reasoning  faculty.14  Deduction,  as  un- 
derstood in  logic,  is  that  process  of  "  reasoning,  which  consists  in  combining 
two  or  more  general  propositions  synthetically,  and  thus  arriving  at  a  con- 
clusion which  is  a  proposition  or  truth  of  less  generality  than  the  premises, 
that  is  to  say,  it  applies  to  fewer  individual  instances  than  the  separate  premises 
from  which  it  was  inferred."  15  The  concluding  from  generals  to  particulars 
characteristic  of  deduction  is  in  main  conducted  by  the  use  of  the  syllogism. 

Fordhe  purposes  of  the  law  of  evidence  much  of  this  is  usually  syncopated; 
and  the  varieties  in  the  subdivision  of  the  syllogistic  form  of  reasoning  are 
greatly  restricted.  The  major  premise,  the  first  and  more  comprehensive  of 
the  two,  is  usually  suppressed.  Xo  one  cares  to  be  told  nor  would  a  court  con- 
sent to  waste  the  time  called  for  in  hearing,  still  less  in  proving,  that  all  men 
are  mortal. 

§  649.  [Mental  Operations] ;  Inductive  Reasoning.16 —  Induction  may  be  de- 
fined as  that  process  of  reasoning  which  consists  in  combining  less  general  or 
even  individual  facts  into  more  general  propositions,  truths,  or  so-called  laws 
in  the  natural  world  or  in  the  domain  of  conduct  and  other  human  affairs. 
"  An  Induction,  that  is  an  act  of  Inductive  reasoning,  is  called  Perfect 
when  all  the  possible  cases  or  instances  to  which  the  conclusion  can  refer,  have 
been  examined  and  enumerated  in  the  premises.  If,  as  usually  happens,  it  is 
impossible  to  examine  all  cases,  since  they  may  occur  at  future  times  or  in  dis- 
tant parts  of  the  earth,  or  other  regions  of  the  universe,  the  Induction  is  called 
Imperfect."  Induction  observes  uniformity  of  operation  in  the  natural  world 

12.  3  Chamberlayne,    Evidence,    §§    1728a-  logic,  a  'syllogism.'"     Gulson,  Philosophy  of 
1729.  Proof,  §  130. 

13.  Whately,   Logic.    17.  15.  Jevons,  Element.  Logic,  ch.  25,  p.  210. 

14.  "  Every    conclusion    or    inference    is    in  "  An   inference  from   a  law  or  general  prin- 
reality   deduced   or  drawn   from   two   propo-  ciple  to  some  consequence  of  the  principle  is 
aitions  or  premises,  which,  together  with  the  a  deductive  inference."     Jones,  Logic  Tnduc- 
conclusion   itself,  are   styled   an   'argument,'  tive  and  Deductive,  p.  111. 

or,  in  the  more  strictly  technical  language  of          16.  3  Chamberlayne,     Evidence,    §§    1730- 

1732. 


491  EXPEBIENCE,  §§  650-652 

or  in  that  of  human  conduct  and  it  infers  therefrom  that  what  is  true  in  certain 
observed  instances  will,  by  reason  of  this  uniformity,  continue  to  be  so  in  all 
other  cases. 

§  650.  [Mental  Operations] ;  Inference  from  Experience.17 —  In  the  process  of 
reasoning,  so  far  as  this  is  deductive  and  confined  to  objective  relevancy,  a 
probative  fact,  factum  probans,  recognized  by  the  mind  as  being  within  the 
scope  of  the  general  proposition  which  constitutes  the  major  premise  is  estab- 
lished by  evidence,  and  thus  forms  the  minor  premise  of  the  syllogism.  The 
deduction  of  logical  reasoning  from  these  two  premises  is  a  conclusion  which 
establishes,  with  a  more  or  less  probability,  the  existence  of  a  factum  probandum. 
It  will  be  observed  that  the  only  point  at  which  evidence  itself  is  applied  is  the 
minor  premise ;  —  the  major  having  been  tacitly  assumed  as  a  matter  of  com- 
mon knowledge  and  the  conclusion  being  reached  by  an  act  of  judgment,  i.e., 
an  inference  which  indeed  was  implicit  in  the  mental  act  which  recognized  the 
relevancy  or  connection  between  the  fact  offered  in  evidence  as  a  minor  premise 
and  the  general  proposition  of  experience  used  as  a  major.  Such  continues  to 
be  the  fact  in  the  other  stages  of  any  direct  line  of  proof. 

§  651.  [Mental  Operations] ;  Deduction  the  Basis  of  Induction.18 —  The  relation 
between  induction  and  deduction  goes  further.  Each  real  deduction  or  in- 
ference is  based  upon  a  major  premise  in  the  form  of  a  general  proposition 
which  is  itself,  as  has  been  seen,  reached  as  a  matter  of  induction.  This, 
however,  is  by  no  means  all.  Every  act  of  observation  used  in  the  induction 
itself  is  made  effective  by  a  preliminary  deduction  from  a  general  proposition 
still  more  comprehensive  which  has  been,  in  its  turn,  obtained  by  means  of  a 
prior  induction.  Even  the  fundamental  general  proposition  which  is,  in  most 
cases,  the  announcement  of  a  uniformity,  natural  or  moral,  that  what  is  true  of 
certain  things  in  a  class  or  placed  under  a  common  designation  will  be  found  to 
be  true  of  all  of  them,  is  itself  the  result  of  a  large  number  of  observed  in- 
stances of  the  application  of  such  a  rule.  Tn  the  average  act  of  induction,  this 
major  proposition  of  uniformity  is  suppressed.  The  alternation  of  induction 
and  deduction  is  the  same  in  case  of  direct  or  circumstantial  evidence:  the 
difference  being,  that  in  case  of  circumstantial  evidence,  additional  terms  in 
the  series  are  needed  before  the  ultimate  factn  probanda  are  reached. 

§  652.  [Incorporation  of  logic] ;  Mental  Certainty.19 —  It  will  be  at  once  found 
that  according  as  the  mental  process  emploved  by  it  is  that  of  intuition,  on 
the  one  hand,  or  inductive  and  deductive  reasoning,  on  the  other,  will  the  degree 
of  mental  certainty  produced  in  the  mind  of  a  tribunal  in  connection  with  proof 
of  a  fact  be  found  to  vary.  Where  the  mental  action  is  intuitive,  the  effect  is 

17  3  Chamberlayne,  Evidence,  §§  1733,  19.  3  Chamberlayne,  Evidence,  §§  1736- 
1734.  1740. 

18.  3  Chamberlayne,  Evidence,  §  1735. 


§   653  INCORPORATION  OF  LOGIC.  492 

demonstration.  Inductive  and  deductive  reasoning  can  produce  in  the  mind  of 
a  court  or  jury  only  that  lower  form  of  certainty  properly  classed  as  moral. 
As  commonly  employed  in  connection  with  the  law  of  evidence,  a  demonstra- 
tion is  an  act  or  series  of  acts  of  intuitive  reasoning  which  produce  upon  the 
mind  of  a  person  to  be  affected  an  absolute  certainty  of  mental  conviction. 
*  Mental  certainty  may  arise  by  direct  observation  by  sight  or  hearing,  which 
observation  is  however  subject  to  error  especially  in  case  of  the  untrained  ob- 
server, or  it  may  arise  through  mathematical  or  other  hypothetical  reasoning. 
The  court  itself  may  as  in  case  of  experiments  conducted  in  court  use  its  in- 
tuitive faculties.  However  in  most  cases  all  that  can  be  accomplished  is  proof 
to  a  moral  certainty  or  probability. 

§  653.  [Incorporation  of  Logic] ;  Hypotheses.20 —  A  general  rule  of  administra- 
tive action,  modified  by  various  considerations  to  which  attention  is  soon  to  be 
called,  is  that  either  party  may  prove  such  facts  as  are  reasonably  necessary  to 
substantiate  his  hypothesis  or  theory  of  the  case  or  to  invalidate  that  of  his 
opponent.  Strictly  speaking,  the  term  hypothesis  may  well  be  specifically 
applied  to  proof  of  a  particular  fact  or  to  anv  relevant  existence,  e.g.,  the 
credibility  of  a  witness.  As  commonly  employed,  however,  the  use  of  a  term  is 
almost  exclusively  related  to  the  question  as  to  what  are  the  actual  res  gestae 
facts  involved  in  any  particular  inquiry.  Speaking-  generally,  wore  the  res 
gestae  of  the  case  established,  by  agreement  or  otherwise,  the  need  for  hypothesis 
would  not  arise.  The  inquiry,  under  such  circumstances,  would  be  merely 
one  of  constituent  relevancy,  as  to  what  the  res  aestne  amount  to,  in  terms  of 
law  or  of  fact.  As  the  res  gestae,  however,  are  disputed  in  most  trials  at  law, 
it  would  be  fairly  accurate  to  restate  the  administrative  rule  in  question  by  say- 
ing that,  in  general,  a  litigant  will  bo  allowed  to  introduce  into  evidence  such 
probatively  relevant  facts  as  are  reasonably  necessary  to  establish  his  hypothesis 
as  to  what  the  res  gestae  facts  actually  are. 

The  hypothesis  of  the  litigant  having  the  burden  of  proof  necessarily  is,  in 
the  normal  case,  that  the  res  gestae  facts,  sufficient  to  establish  the  right  or 
liability  asserted,  actually  exist.  His  claims  for  administrative  indulgence  in 
the  range  and  variety  of  his  proof  necessarily  depend  in  large  measure  upon 
whether  he  is  able  to  produce  direct  evidence,  i.e.,  the  statements  of  witnesses 
or  the  declarations  of  documents  as  to  the  existence  of  the  res  gestae :  or  is,  on  the 
other  hand,  compelled  to  produce  other  probative  facts  in  proof  of  these  res 
gestae.  His  main  position,  however,  as  exhibited  in  his  hypothesis,  is  that 
these  res  gestae  facts  actually  exist. —  If  the  right  in  pursuance  of  which  the 
actor  claims  administrative  indulgence  be  the  right  to  prove  his  case  that  of 
the  non-actor  in  so  doing  is  the  equally  important  forensic  right  of  testing  the 
case  of  his  adversary.  It  is  the  object  of  the  actor,  therefore,  to  present  a  case 
of  maximum  efficiency  for  the  establishment  of  the  res  gestae  claimed  in  his 

20.  3  Chambeslayne,    Evidence,    §§    1740a-  1740c. 


493  HYPOTHESES.  §  653 

hypothesis  and  meet,  so  far  as  he  is  able,  attacks  made  upon  the  credibility  of 
the  witnesses  or  the  existence  of  these  res  gestae.  It  is  sufficient  for  the  non- 
actor  if  he  should  prevent  the  accomplishment  of  the  actor's  purpose.  He 
may,  therefore,  content  himself  with  testing,  probing,  weighing. 


CHAPTER  XXV. 

PROBATIVE  RELEVANCY. 

Canons  of  relaxation;  claim  of  the  Crux,  654. 
direct  and  circumstantial  evidence,  655. 
inherent  difficulty  of  proof,  656. 

Canons  of  requirement;  must  accord  equal  privileges,  657. 
definiteness  demanded,  658. 
time  must  be  economized,  659. 
jury  must  be  protected,  660. 
fact  must  not  be  remote,  661. 
time,  662. 

proving  the  res  gestae,  663. 
optional  admissibility,  664. 

consistent  and  inconsistent  facts,  665. 

explanatory  or  supplementary  facts,  666. 

negative  facts,  667. 

preliminary  facts,  668. 

Probative  relevancy;  objective  and  subjective,  669. 
objective;  ancillary  facts,  670. 
subjective,  671. 

§  654.  Canons  of  Relaxation;  Claim  of  the  Crux.1 — The  right  of  a  party  to 
prove  the  res  gestae  of  his  case  is  a  substantive  one  and  has  already  been  stated 
as  a  matter  of  right.2  In  dealing  with  the  admissibility  of  any  particular  fact 
not  strictly  within  the  field  of  the  res  gestae  the  judge  is  seeking  to  harmonize, 
in  a  rational  way,  the  proper  influence  of  several  administrative  principles. 
There  are  what  may  be  called  Canons  of  Relaxation  and  certain  other  prin- 
ciples of  judicial  administration  which  may  be  designated  Canons  of  Require- 
ment. In  case  of  most  disputed  questions  of  fact  there  is  a  crux  or  hinge  upon 
which  it  will  be  found  to  turn.  It  may  be  the  existence  of  a  particular  fact, 
the  credibility  of  a  special  witness.  Strong  administration,  therefore,  makes 
all  efforts  to  be  sure  that  this  particular  point  is  decided  right.  Special  relaxa- 
tion is  called  for  and  will  be  accorded  to  the  use  of  any  fact  which  may  reason- 
ably tend,  even  in  a  somewhat  remote  degree,  to  establish  the  exact  truth  re- 
garding so  important  a  matter.3 

1.  3  Chamberlayne,  Evidence,  §   1742.  3.  3  Chamb.,  Ev.,  §  1740d. 

2.  Kuprn,  §§  149  et  seq.;  1  Chamb.,  Ev.,  §§ 
334  <"  "rq. 

494 


495  CIRCUMSTANTIAL  EVIDENCE.  §§  655,  656 

§  655.  [Canons  of  Relaxation] ;  Direct  and  Circumstantial  Evidence.—  For 
obvious  reasons,  the  presiding  judge  will  accord  a  wider  range  of  proof  to  one 
who  is  seeking  to  establish  the  res  gestae  by  proof  of  circumstantial  evidence 
than  to  one  whose  endeavor  is  to  show  the  res  gestae  by  direct  proof,4  i.e..  by 
the  statements  of  eye  witnesses  of  the  transactions  themselves.  Facts  not  sus- 
ceptible of  direct  observation  are,  in  most  cases,  necessarily  established  by  cir- 
cumstantial evidence.  Such  evidence  is  frequently  more  satisfactory  and  con- 
vincing in  character  than  direct  testimony  \vould  have  been.5  Administrative 
necessity  for  the  securing  of  proof  of  essential  facts  in  the  only  way  practically 
available  may  go  so  far  as  to  permit  the  use  of  deceit,  dissimulation,  fraud,  or 
even  grave  illegality  for  the  purpose  of  obtaining  testimony.0  As  a  legitimate 
method  of  corroboration  7  and  even,  in  many  cases  involving  the  employment  of 
circumstantial  evidence,  as  a  necessary  mode  of  proving  a  prima  facie  case  a 
party  may  properly  negative  any  adverse  iniirmative  suggestion  or  alternative 
hypothesis.8 

§  656.  [Canons  of  Eelaxation] ;  Inherent  Difficulty  of  Proof. —  Xot  only  will 
administrative  indulgence  be  accorded  a  party  whose  case  involves  an  ex- 
tended use  of  the  element  of  inference  between  the  factum  probam  and  the 
factum  i>robandum,  the  same  canon  is  applied  where  the  witness  himself  is 
forced  to  make  a  large  use  of  the  element  of  inference.9 

Ancient  Facts. —  Consideration  is  given  in  another  place  10  to  the  judicial 
relaxation  which  is  caused  by  the  inherent  difficulty  of  proving  ancient  facts.11 

4.  Supra,  §  14;  1  Chamb.,  Ev.,  §  15.  evidence    that    it    was    started    by    a    train 

5.  Kennedy  v.  Aetna  Life  Ins.  Co.,  148  111.  Hewitt  v.  Pere  Marquette  R.  Co.,   171  Mich. 
App    273    (1909),  judg.  aff'd  242  111.  396,  90  211,  137  N.  W.  66,  41  L.  R.  A.    (N.  S.)    635 
N.    E.    292;    3    Chamb,    Ev.,    §    1740e.    n.    5.  (1912). 

Evidence  of  financial  and  marital  condition  in  6.  People  v.  Bunkers,  2  Cal.  App.   197.  84 

damage  case.     See  note,   Bender  Ed.,   118  N.  Pac.    364,    370    (1906):    Ford   v.   State,    124 

Y.   95.     Of   financial   condition    of   defendant  Ga.  793,  53  S.  E.  335   (1906);  3  Chamb.,  Ev., 

in  tort  case.     See  note,  Bender  Ed.,  125  X.  Y.  §    1740e,   nn.   6,   7,   8. 

224.     Propriety  of  parol  evidence  as  to  prop-  7.  Infra,  §  670;   3  Chamb..  Ev.,  §   1768. 

erty  of  testator      See  note,  Bender  Ed.,   112  8.  Thus,  on  a  prosecution  for  kidnapping, 

N.  Y.  137.  in   addition   to   showing   that   the   child   was 

Negligence. —  Evidence  to  show  negligence  stolen,  the  impossibility  of  his  being  drowned 

must  be  clear  and  convincing  and  it  is  not  without  observation  in  a  nearby  Sound  may 

enough  to  show  by  speculation  that  the  ac-  be  established   by  the  prosecution      State  v. 

cident    was    due    to    negligence     Duncan    v.  Harrison,  145  N.  C.  408,  59  S.  E.  867  (1907). 

Atchison  Topeka  &  Santa  Fe  R.  Co.  86  Kan  9.  3  Chamb.,  Ev..  §   1741. 

112,   119  Pac.   356,  51  L.   R.  A.    (N.  S.)    565  10.  Infra,  §  938:  4  Chamb.,  Ev..  §  2960 

(1911)  11.  Thus,    evidence    will    be    received   from 

Origin  of  Fire. —  Evidence  is  not  to  be  old  inhabitants  of  the  region  affected  that 
disregarded  or  swept  aside  simply  because  the  bed  of  a  stream  has  slowly  and  gradu- 
it  is  circumstantial.  So  the  origin  of  a  fire-  ally  changed  its  position.  Coulthard  v.  Mc- 
may  be  proved  by  circumstantial  evidence  Intosh,  143  Iowa  389,  122  N  W.  233  (1909K 
Miller  v.  Northern  Pacific  R.  Co.,  24  Idaho  Marshland  allotments. —  A  searcher  of  an- 
567,  135  Pac.  845,  48  L.  R.  A.  (N.  S.)  700  cient  records  may  be  allowed  to  testify  as 
(1913).  The  mere  fact  that  a  fire  originated  to  the  facts  which  appear  of  record  regard- 
on  a  railroad  right  of  way  Is  not  sufficient  ing  allotments  of  "^-^hlnrd  made  in  1654 


§  656  PROBATIVE  RELEVANCY.  496 

Facts  of  Family  History. —  The  administrative  indulgence  which  the  court 
accords  to  the  inherent  difficulty  of  proving  facts  of  family  history  is  treated 
in  connection  with  the  subject  of  Pedigree.12 

Identity. —  Prominent  among  facts  proof  of  which  presents  inherent  diffi- 
culty is  that  of  identity.  A  wide  range  of  circumstantial  evidence  will,  there- 
fore, usually  be  received.13  In  such  a  connection,  even  statements  in  their 
independently  relevant  capacity,  e.g.,  those  showing  special  knowledge  14  are 
admissible.  In  like  manner,  the  fact  that  a  person  has  lived  in  a  particular 
residence,  sojourned  in  a  certain  place/5  country  or  state  16  may  be  received 
as  significant.  A  witness  who  testifies  to  the  conversation  conducted  by  means 
of  a  telephone  may  properly  identify  the  speaker  at  the  other  end  by  means  of 
his  voice.17  The  identification  may,  however,  be  established  later  in  other 
ways.18 

Mental  Condition. —  Mental  conditions  present  such  an  inherent  difficulty 
in  proof  as  authorizes  relaxation  in  the  strict  requirements  of  relevancy. 
Whether  the  condition  in  question  be  one  of  soundness  or  its  opposite  it  may, 
as  is  more  fully  seen  elsewhere,19  be  shown  by  the  inference  of  observers  of  its 
manifestations.20  Any  relevant  act  fairly  indicative  of  the  condition  of  the 
person's  mind  will  be  received  in  evidence.21  But,  where  the  inquiry  is  not  one 
relating  to  genealogy,  the  fact  of  insanity  cannot  be  shown  by  the  hearsay  declara- 
tions of  members  of  the  person's  family.22  A  fortiori  reputation  in  the  family 
is  rejected.23  Likewise,  general  reputation  in  the  community.24  Among  facts 
to  which  a  witness  may  testify  are  those  which  are  psychological.25  A  person 
conscious  of  the  existence  of  a  mental  condition  or  state,26  on  his  own  part 

and  later.     Shinnecock  Hills  &  Peconic  Bay  19.  Infra,  §§  701,  et  seq;  3  Chamb.,  Ev.,  §§ 

Realty  Co.  v.  Aldrich,  116  N.  Y.  Supp.  532,  1892,  2006  et  seq. 

132   App.   Div.    118    (1009),   judg.   aff'd   200  20.  Wells  v.  Houston,  29  Tex.  Civ.  App.  619, 

N.  Y.  533,  93  N.  E.  1132  (1910).     3  Chamb.,  69  S.  W.  183  (1902). 

Ev.,  §  1741a,  n.  2.  21.  In   re  Mullin,    110    Cal.    252,    42    Pac. 

12.  Infra,  §  937;  4  Chamb.,  Ev.,  §  2952.  645   (1895);  Waterman  v.  Whitney,  11  N.  Y. 

13.  State  v.  Ah.  Chuey,  14  Nev.  79,  33  Am.  157,  62  Am.  Dec.  71    (1854)  ;  3  Chamb.,  Ev., 
Rep.  330  (1879)  ;  Allen  v.  Halsted  (Tex.  Civ.  §  1741d,  n.  3. 

App.   1905),  87   S.  W.  754.  22.  People  v.  Koerner,  154  N.  Y.  355,  373, 

14.  Infra,   §  850;   4   Chamb.,  Ev.,  §  2667.       48  N.  E.  730  (1897). 

Cuddy  v.  Brown,  78  111.  415   (1875)  ;  Ameri-  23.  Walker  v.  State,  102  Ind.  502,  1  X.  E. 

can  L.   Ins.,  etc.,  Co.  v.  Rosenagle,   77   Pac.  856    (1885);    People    v.    Koerner,    supra;    3 

507    (1875);  3  Chamb.,  Ev.,  §  1741c.  n.  2.  Chamb.,  Ev.,  §  1741d,  n.  5. 

15.  Wise  v.  Wynn,  59  Miss.  588,  42  Am.  24.  State  v.   Holt,   47   Conn.   518,   36   Am. 
Rep.  381    (1882);  Byers  v.  Wallace,  87  Tex.  Rep.   89    (1880);    State  v.   Coley,    114  N.  C. 
503,  28  S.  W.  1056,  29  S.  W.  760   (1895).  879,    19   S.    E.    705    (1894);    3   Chamb.,   Ev.r 

16.  Byers  v.  Wallace,  supra.  §  1741d.  n.  7. 

17.  National   Bank  of   Ashland  v.   Cooper,  25.  Sharpe  v.  Hasey,  141  W7is.  76,  123  X. 
86  Neb.  792,  126  N.  W.  656  (1910).  W.  647    (1909). 

18.  Miller  v.  Leib,  109  Md.  414,  72  Atl.  466  26.  People  v.  Weil.  244  111.   176.  91  N.  E. 
(1909);   People  v.  Strollo,  191  N.  Y.  42,  83  112   (1910);  Richards  v.  U.  S.,  175  Fed.  911, 
N.  E.  573  (1908)  ;  3  Chamb.,  Ev.,  §  1741c,  n.  99  C.  C.  A.  401    (1909)  ;   3  Chamb.,  Ev.,   § 
9.  1741d,  n.  11. 


497 


DIFFICULTY  OF  PROOF. 


§  656 


may  testify  as  to  it.  But  a  party  accused  of  crime  27  or  any  other  witness  will 
not  be  permitted  to  testify  as  to  his  motive,28  purpose  29  or  intention  30  unless 
these  psychological  facts  have  some  material  effect  upon  the  right  or  liability 
involved. 

Mental  State. —  Some  relaxation  in  the  strict  rules  of  relevancy  is  impera- 
tively required  for  the  establishment  of  a  mental  state.31  The  mental  state  to 
be  proved  must,  as  a  matter  of  course,  be  objectively  relevant.32  Thus,  for  ex- 
ample, in  any  case  where  the  consequences  of  conduct  are  involved,  an  undis- 
closed intention  may  be  strictly  irrelevant.  If  so,  no  evidence  on  the  poiut  can 
be  received.33  Evidence  of  good  faith  may  be  rejected  as  irrelevant  because 
immaterial.  Should  the  fact  of  good  faith  be  relevant,  however,  in  any  of 
its  phases,  to  an  issue  in  the  case,  evidence  of  it  may  be  received.  Indeed,  the 
person  in  question  may  testify  to  it  himself.34  A  witness  may  give  evidence 
as  to  the  existence  of  any  mental  state  of  his  own  mind  of  which  he  is  con- 
scious, should  the  fact  be  material.35  He  is  not,  as  a  rule,  entitled  to  testify 
directly  as  to  the  mental  state  of  any  other  person.36  The  declarations  of  a 
party  or  other  person  may  be  shown  as  manifestations  of  relevant  mental  state, 
whether  they  be  oral 37  or  in  writing.38  The  existence  of  various  mental 
states,  e.g.,  knowledge,39  notice,40  and  the  like41  may  satisfactorily  be  estab- 
lished by  proof  of  what  happened  upon  other  occasions. 


27.  Rose  v.  State,  144  Ala.  114,  42  So.  21 
(1905);   Gordon  v.  Com.    (Ky.  1910),  124  S. 
W.  806. 

28.  Crumpton  v.  State,  167  Ala.  4,  52  So. 
605  (1910). 

29.  Gray  v.  Strickland,  163  Ala.  344,  50  So. 
152   (1909). 

30.  Pate  v.  State,  162  Ala.  32,  50  So.  357 
(1909). 

31.  White  v.   White,   76   Kan.   82,  90   Pac. 
1087     ( 1907 )  ;    Cook    v.    Carr,    20    Md.    403 
(1863). 

32.  Millspaugh  v.   Potter,  71   N.  Y.  Supp. 
134,  62  App.  Div.  521    (1901)  ;  Globe  Ins.  Co. 
v.    Hazlett,    1    Phila.     (Pa.)     347    (1852);    3 
Chamb.,  Ev.,  §  1741e.  n.  3. 

33.  Sampson  v.  Hughes,  147  Cal.  62,  81  Pac. 
292    (1905);    Dunbar   v    Armstrong,   115   111. 
App.   549    (1904):    Tallant   v.    Stedman,    176 
Mass.  460,  57  X.  E.  683  (  1900)  :  Fresno  Home 
Packing  Co.  v.  Turtle  &  Skidmore.  117  X.  Y. 
Supp.    1134,    132    App.    Div.    930    (1909);    3 
Chamb.,  Ev.,  §   1741e,  n.  4. 

34.  Thatcher  v.   Phinney.  7   Allen    (Mass.) 
146    (1863);   Hubbell  v.  Alden,  4  Lans.    (X. 
Y.)  214  (1870)  :  Moore  v.  May.  117  Wis.  192. 
94  X.  W.  45   (1903)  ;  3  Chamb.,  Ev.,  §  1741e, 
n.  5. 

35.  Fagan  v.  Lentz,  156  Cal.  681,  105  Pac. 


951  (1909);  Partridge  v.  Cutler,  104  111. 
App.  89  (1902);  Blaney  v.  Rogers,  174 
Mass.  277,  54  N.  E.  561  (1899);  Grout  v. 
Stewart,  96  Minn.  230,  104  X.  W.  966  (1905)  ; 
Hill  v.  Page,  95  N.  Y.  Supp.  465,  108  App. 
Div  71  (1905);  Tucker  v.  Hendricks.  25 
Ohio  Cir.  Ct.  426  (1903)  ;  Arnold  v.  Cramer, 
41  Pa.  Super.  Ct.  8  (1909)  :  3  Chamb.,  Ev., 
§  1741e,  n.  6. 

36.  Spaulding  v.  Strang,  36  Barb.   (X.  Y.) 
310    (1862). 

37.  Perry  v.  State,  110  Ga.  234,  36  S.  E.  781 
(1900);     Jacobs     v.     Whitcomb,     10     Cush. 
(Mass.)    255    (1852):   People  v.  Colmey,   188 
N.  Y.  573,  80  X.  E.  1115   (1907),  afTg  judg. 
102    X.    Y.    Supp.^  714,    117    App.    Div.    462; 
Baker  v.  Toledo  &.  I.  Ry..  30  Ohio  Cir.  Ct.  78 
(1907)  :  3  Chamb.,  Ev.,  §  1741e,  n.  10.     See 
also,  infra,  §§  847  et  seq  :  4  diamb..  Ev.,  §§ 
2643  et  seq. 

38.  Long  v.  Booe,  106  Ala.  570,  17  So.  716 
(1894). 

39.  Joseph  Taylor  Coal  Co.  v.  Dawes,  220 
111.    145.    77    X.   E.    131     (1906):    Hadtke   v. 
Grzyll,  130  Wis.  275,  110  X.  W.  225    (1907). 

40.  Hanselman   v.    Broad,   99   X.   Y.   Supp. 
401,  113  App.  Div.  447  (1906). 

41.  Baldwin  v.  People's  Ry.  Co.,  7  Pennewv 
(Del.)   81,  76  Atl.  1088   (1908). 


§  657  PROBATIVE  RELEVANCY.  498 

Moral  Qualities. — 'Moral  qualities  present  even  greater  difficulties  in  proof 
than  those  which  inhere  in  the  establishment  of  mental  conditions  or  states. 
Under  these  circumstances,  procedure  has  adopted  a  formal,  semi-mechanical 
expedient  of  somewhat  doubtful  utility.42  It  proves  moral  qualities  by  showing 
their  effect  upon  persons  with  whom  the  individual  in  question  habitually  comes 
in  contact.  In  case  either  of  the  veracity  of  a  witness  43  or  some  other  relevant 
trait  of  character,44  the  only  attempt  made  is  to  show  the  reputation  in  the 
community  on  the  subject.45  But  reputation  itself,  in  many  cases  is  not  pro- 
bative 4tt  of  the  existence  of  a  particular  trait  of  character,  e.g.,  chastity  47  or 
loyalty,48  or  of  character  as  a  whole. 

Value. —  The  special  relaxation  accorded  by  administration  to  the  proof  of 
the  value  or  price  of  real  or  personal  property  is  given  elsewhere.49 

"State  of  the  Case." — It  is  not  to  be  inferred,  from  what  has  been  said, 
that  a  party  is  at  liberty,  as  a  matter  of  right,  to  prove  a  fact,  even  one  in  the 
res  (jestae,  irrespective  of  what  is  commonly  called  l<  the  state  of  the  case."  Ad- 
ministrative relaxation,  like  any  other  privilege,  may  be  waived.  If  a  fact  be 
already  sufficiently  proved50  or  be  admitted51  or  if,  though  not  distinctly  ad- 
mitted, its  existence  is  not  seriously  controverted  32  it  is  within  the  reasonable 
exercise  of  the  administrative  power  of  the  presiding  judge  to  reject  the  evi- 
dence. 

§  657.  Canons  of  Requirement;  Must  Accord  Equal  Privileges. —  Any  privilege 
accorded  one  of  the  parties  which  may  prejudice  his  opponent  the  latter  may 
claim  the  right  to  offset  in  any  appropriate  way.  Thus,  a  party  who  asks  for 
the  inferences  or  conclusions  of  a  witness,  cannot  successfully  object  to  a  pur- 
suance of  the  same  method  of  inquiry.53  Suppose,  however,  that  a  party, 

42.  Infra,    1037;  4  Chamb.,  Ev.,  §  3310.  Old  Dominion  S.  S.  Co.,  102  X.  Y.  660,  6  X. 

43.  3  Chamb.,  Ev.,  §  174tf,  n.  4.  K     281)    (1886);    3   Chamb.,    Ev.,    §    1742,   n. 

44.  Infra,  §§   1033  et  seq.;  4  Chamb,  Ev..       2. 

§§  3288  et  seq.  52.  Cole  v.   Curtis,    16  Minn.    182    (1870); 

45.  Boies  v.  McAllister,  12  Me.  308  (1835);  Austin   v.   Austin,  45   Wis.   523    (1878). 
Hart    v.    Reynolds,     1     Heisk.     (Tenn.)     208  53.  Provident  Sav.  Life  Assur.  Soc.  v.  King, 
(1870).  216  III.  416.  75  X.  E.  166    (1905)  ;  Ahnert  v. 

46.  Baldwin  v.  Western  R.  Corp.,  4  Gray  Union  Ry   Co   of  Xew  York,  110  X.  Y.  Supp. 
(Mass  )  333  (1855)  ;  Cook  v.  Parham,  24  Ala.  376   (1908)  ;  3  Chamb.,  Ev.,  §  1742a,  n.  2. 

21   (1853).  Relevant  evidence. —  Where  one  of  the  liti- 

47.  Boies  v.  McAllister,  supra.  gants  has  introduced  evidence  upon  a  given 

48.  Hart  v.  Reynolds,  supra.  topic  sustaining  some  logical  relation  to  the 

49.  Infra,  §§  762  et  seq.;  3  Chamb.,  Ev.,  §§  case  he  must,  as  a  rule,  be  content  that  his 
2175a  et  seq.  opponent    should   bring   forward   countervail- 

50.  State  v.  Trimble,  104  Md.  317,  64  Atl.  ing  evidence  on  the  same  point.     Waters  v. 
10£6     (1900):     Allendorph    v.    Wheeler,    101  Rome  &  X.   Ry.   Co.,    133  Ga.   641,   66   S.  E. 
X.  Y.  649,  5  X.  E    42   (1886)  ;  3  Chamb.,  Ev..  884    (1909)  :   Peter  v.  Schult/,   107  Minn.  29, 
§   1742,  n.   1.  119  X.  W.  385    (1909)  ;   Crawford  v.  Kansas 

51.  Batavia  Mfg   Co.  v.  Xewton  Wagon  Co..  City  Stockyards  Co.,  215  Mo.  394,  114  S.  W. 
91  111.  230  (1878)  :  Scheibeck  v.  Van  Derbeck,  1057   (1908)  ;  Whipple  v.  Farrelly,  121  X.  Y. 
122  Mich.  29,  80  X.  W.  880  (1899)  ;  White  v.  Supp.  117,  136  App.  Div.  587  (1910)  ;  Schmidt 


499  DEFINITENESS.  §  658 

having  been  indulged  in  the  use  of  perfectly  irrelevant  testimeny,  should  object 
when  his  adversary  desires  to  enter  upon  a  like  inquiry  in  such  a  way  as  to 
prejudice  or  mislead  the  jury.  There  is  some,  though  rather  doubtful,  author- 
ity to  the  effect  that  a  party  who  has  permitted  such  evidence  to  be  received 
against  him  may,  as  of  right,  present  similar  testimony,  011  his  own  behalf,  on 
the  same  subject.04  The  court,  however,  is  justified  in  rejecting  immaterial 
evidence  whenever  objection  is  made.35 

A  somewhat  different  situation  is  presented  when  the  party  who  now  offers 
rebutting  testimony  may  fairly  be  regarded  as  having  himself  been  injuriously 
affected  by  the  immaterial  facts  originally  offered.  That  the  trial  court  may, 
in  discharge  of  its  administrative  powers,  permit  the  present  proponent  to  re- 
pair any  injustice  which  may  have  been  done  to  him  and  receive  the  rebutting 
immaterial  evidence  even  against  objection,  is  entirely  clear.56 

§  658.  [Canons  of  Requirement] ;  Definiteness  Demanded. —  Evidence  may  be 
rejected  because  lacking  in  definiteness.07  Xo  fact  or  the  inference  to  be 
drawn  from  it  can  however  properly  be  rejected  as  uncertain  simply  because, 
standing  alone,  it  may  appear  to  be  so.  The  evidence  will  be  received  as 
definite  if  other  evidence  to  make  it  so  is  produced  or  promised.58  Legally, 
that  is  certain  which  may  be  made  so.  It  follows,  a  fortiori,  that  evidence 
which  is  simply  conjectural  in  its  nature  will  properly  be  excluded.59  The 
court  will,  however,  disregard  the  form  of  statement  and  seek  the  substance. 
Should  the  witness,  for  example,  see  fit,  for  any  reason,  to  testify  that  he 

v.  Turner,  27  Ohio  Cir.  Ct.  R.  327   (1905)  ;  3  55.  San  Diego  Land,  etc.,  Co.  v.  Neale,  88 

Chamb.,  Ev.,  §   1742a,  n.  2.  Cal.  50,  25  Pac.  977,  11  L.  R.  A.  604   (1891)  ; 

According-  to  the  same  rule  in  its  re-  Stapleton  v.  Monroe,  111  Ga.  848,  36  S.  E. 
verse  form,  a  party  who  has  objected  to  the  428  (1900);  Farmers',  etc.,  Bank  v.  Whin- 
reception  of  a  certain  grade  or  species  of  evi-  field,  24  Wend.  (N.  Y  )  419  (1840)  ;  3 
dence  when  tendered  by  his  adversary,  will  Chamb.,  Ev.,  §  1742a,  n.  4. 
not  be  permitted  to  secure  the  benefit  of  in-  56.  Illinois  Steel  Co.  v.  Wierzbicky,  206 
troducing  it  for  himself.  Shedd  v.  Seefeld,  111.  201,  68  X.  E.  110  ( 1903 );  Treat  v.  Curtis, 
126  111.  App.  375  (1906)  :  Electric  Carriage  124  Mass.  348  (1878)  ;  Waldron  v.  Romaine, 
Call  &  Specialty  Co.  v.  Herman,  123  X.  Y.  22  X.  Y.  368  (1860)  ;  Krause  v.  Morgan,  53 
Supp.  231,  67  Misc.  394  (1910).  Ohio  St.  26,  40  X.  E.  886  (1895);  3  Chamb., 

Completeness    required. —  In    cases    where  Ev.,  §  1742a,  n.  5. 

the    new    evidence    is    required    to    complete  57.  Hardwood    Mfg.    Co.    v.    Wooten,    126 

that    which    has    already    been    received,    an  Ga.    55,    54    S.    E.    814    (1906);    Phillips   v. 

additional   administrative   reason   for   receiv-  Middlesex    County,    127    Mass.    262     (1879); 

ing   the   former   is   furnished.     Chicago   City  Slack    v.    Bragg,    83    Vt.    404,    76    Atl.    148 

Ry.   Co    v.   Bundy.   210   111.   39,   71    X.   E.   28  (1910):  3  Chamb.,  Ev.,  §  1743,  n.  1. 

(1904);   Buedingen  Mfg.  Co.  v.   Royal  Trust  58.  Ashley  v.  Wilson,  61   Ga.  297    (1878); 

Co.,   181   X.  Y.  563,   74  X.   E.    1115    (1905);  Blauvelt  v.   Delaware.   L.  &   W.   R.   Co.,   206 

Early   v.    Winn,    129    Wis.    201,    109    X.    W.  Pa.   141.  55  Atl.  857    (1903). 

633   (1906)  ;  3  Chamb.,  Ev.,  §  1742a,  n.  2.  59.  Pond  v.  Pond,   132  Mass.  219    (1882)  ; 

54.  Yank  v.  Bordeaux,  29  Mont.  74,  74  Pac.  Charlton  v.  St.  Louis  &  S.  F.  R.  Co.,  200  Mo. 

77    (1903);    Lessler  v.  Bernstein,    123  X.   Y.  413,  98  S.  W.   529    (1906);   Xewell  v.  Doty, 

Supp.  223   (1910)  ;  Warren  Live  Stock  Co.  v.  33  X.  Y.  83   (1865)  ;   3  Chamb.,  Ev.,  §  1743, 

Farr,  142  Fed.  116,  73  C.  C.  A.  340  (1906).  n.  4. 


§§  659,  660  PROBATIVE  RELEVANCY.  500 

"guesses,"00  "presumes,"61  or  "supposes"62  any  fact  to  exiit,  or  say  he 
has  an  "  impression  "  63  that  a  thing  is  so,  when  he  really  knows  such  to  be 
the  case,  his  statement,  conjectural  in  form,  may  be  used  as  one  of  fact.  An 
inference  which  is  speculative,  not  based  upon  observation  or  any  fact  established 
in  the  case,  is  incompetent  under  this  principle.*'4 

§  659.  [Canons  of  Requirement] ;  Time  Must  be  Economized —  In  exercising 
administrative  function  the  trial  judge  who  at  the  stage  of  right  was  called 
upon  to  hear  all  reasonable  necessary  evidence  regardless  of  its  consumption  of 
time,6''  may  at  this  stage  properly  reject,  at  his  option,  evidence  which  for  any 
reason,  fails  to  convince  him  that  it  will  warrant  using  the  court's  time  — 
which  frequently  is  in  reality  the  time  of  other  litigants  —  long  enough  to 
hear  it.6tj  The  judge  may  properly  refuse  to  consume  time  in  hearing  evidence 
the  effect  of  which,  if  any,  would  be  slight.'57  This  is  particularly  true  where 
the  party  offering  the  evidence  has,  himself,  suppressed  important  testimony.88 

§  660.  [Canons  of  Requirement] ;  Jury  Must  be  Protected.09 — It  is  the  duty  of 
the  court  to' keep  the  jury  from  being  misled,70  under  the  zeal  or  unscrupulous- 
ness  of  counsel  or  their  own  inaptitude  for  the  work  in  hand.71  Where  the 
proof  offered  is  that  relating  to  a  constituent  or  res  yestae  fact  or  to  the 
circumstantial  evidence  necessary  to  establish  these  72  it  may  well  be  the  right 
of  the  proponent  to  insist  that  the  evidence  should  be  received  whatever  may 
be  its  incidental  effect  upon  the  emotionalism  of  the  jury.  Where  the  stage 
of  res  gestae  proof  has  been  passed,  it  is  clearly  not  only  within  the  power  but 
part  of  the  administrative  duty  of  the  court  to  reject  any  evidence  of  op- 
tional admissibility  which  should  directly  tend  to  induce  the  jury  to  employ 
emotion  rather  than  reason  in  reaching  their  decision.  Thus,  evidence  should 
be  rejected  which  tends  to  prejudice  the  objecting  party  by  exciting  hostile 
feelings  on  the  part  of  the  jury  against  him,™  or  where  the  effect  of  the  evi- 

60.  Louisville,  etc.,  R    Co.  v.  Orr,  121  Ala.       612,  74  N.   W.    14    (1898)  ;   Moore  v.   U.   S., 
489,  26  So    35    (1H98).  150    U.    S.   57,    14   S.   Ct.   26,   37    L.   ed.   996 

61.  People  v.  Soap,   127  Cal    408,  59  Pac.       (1893)  ;  3  Chamb ,  Ev.,  §  1744.  n.  2. 

771  (1899).  67.  Home  F.  Ins.  Co.  v.  Kuhlman,  58  Neb. 

62.  Chatfield  v.  Bunnell,  69  Conn.  511,  37  488,    78    N.    W.    936,    76    Am     St.    Rep.    111. 
Atl.   1074    ( 1897)  ( 1899)  ;  Amoskeag  Mfg  Co.  v.  Head,  59  X.  H. 

63.  State  v   Flanders,  38  N.  H.  324  ( 1859)  :  332   (1879)  ;  3  Chamb.,  Ev  .  §  1744,  n.  3. 
State   v.    Wilson,   9    Wash.    16,   36    Pac    967  68.  Long  v.  Travellers'   Ins.  Co.,   113  Iowa 
(1894).  259.  85  N.   W.  24    (1901);   3  Chamb.,  Ev.,  § 

64.  Borrett    v     Petry,    148    111.    App.    622  1744.  n.  4. 

(1909);   Weaver  v.  Richards,  156  Mich    320,  69.  3  Chamberlayne,  Evidence,  §  1745. 

120  N.  W.  818  (1909)  •.  Patten  v   Lynett,  118  70.  Supra,  §  180;   1  Chamb.,  Ev.,  §  386. 

N    Y.  Supp.  185,  133  App.  Div.  746    (1909);  71.  Cunningham     v.     Smith,     70    Pa.    450 

Winkler  v.   Bower  &   Mining  Machinery  Co.,  ( 1 872 ) . 

141    Wia     244,    124    N.    W.    273    (1910);    3  72.  People  v.   Farrell.   137  Mich.   127,   100 

Chamb.,  Ev.,  §   1743,  n    10.  N.  W.  264   (1904)  ;  Pease  v.  Smith,  61  N.  Y. 

65.  Supra.  §§   149,  157;   1  Chamb.,  Ev.,  §§  477    (1875);  3  Chamb.,  Ev.,  §   1745,  n.  4. 
334  et  seq.,  358.  73.  Swan  v.   Thompson,    124   Cal.    193.   56 

66.  Names    v.    Union    Ins.    Co.,    104    Iowa  Pac.  878    (1899);   Stearns  v.  Reidy,  135  111. 


501 


TIME. 


661,  062 


dence  offered  would  be  to  arouse  the  emotion  of  sympathy  or  other  favorable 
feeling  on  behalf  of  the  proponent.74  The  judge  may  exclude  a  secondary  grade 
of  evidence  where  primary  proof  to  the  same  effect  is  already  in  the  case.75 

§  661.  [Canons  of  Requirement] ;  Fact  Must  Not  be  Remote.70 —  Evidence  is  fre- 
quently and  very  properly  rejected  upon  the  ground  that  it  is  too  remote.77 
As  has  been  elsewhere  indicated,76  facts  will  not,  as  a  rule,  be  admitted  in  evi- 
dence when  so  remote  from  the  res  gestae  fact  as  to  fail  to  possess  any  appre- 
ciable probative  effect. 

§  662.  [Canons  of  Requirement] ;  Time.79 —  What  facts  possessing  logical 
relevancy  to  the  existence  of  one  in  the  res  gestae  will  be  rejected  by  the 
court  on  the  ground  of  remoteness  in  point  of  time  will  be  found  to  be  a  function 
of  a  number  of  variables.  Much  will  depend  in  any  instance  upon  the  state 
of  the  case,80  and  how  necessary  the  evidence  offered  may  be  to  the  contention 
of  the  proponent.  Should  the  evidence  offered  be  too  remote  in  point  of  time 
to  be  relevant  at  all  it  will  of  course  be  rejected.81  The  same  result  follows 

clusively  establishing  that  he  was  negligent 
but  as  having  an  obvious  bearing  on  the 
matter.  Mclntosh  v.  Standard  Oil  Co.,  89 
Kan.  289,  131  Pac.  151,  47  L.  R  A  (N.  S.) 
730  (1913).  The  fact  that  at  the  time  of 
an  accident  a  street  car  was  being  operated 
in  violation  of  an  ordinance  giving  mail 
wagons  the  right  of  way  may  be  shown  as 
evidence  of  negligence.  Bain  v.  Fort  Smith 
Light  &  Traction  Co.,  —  Ark.  — ,  172  S.  W. 
843,  L.  R.  A.  1915  D  1021  (1915). 

Evidence  of  defendant's  wealth  is  only 
admissible  in  cases  where  punitive  damages 
are  recoverable  and  not  in  an  action  for  alien- 
ation of  affections  Phillips  v.  Thomas,  70 
Wash.  533,  127  Pac.  97,  42  L.  R.  A.  (N.  S.) 
582  (1912). 

In  estimating  damages  for  land  not  taken 
by  a  railroad  the  damage  from  dust  and 
noise  and  danger  from  fire  may  be  consid- 
ered. Lewisburg  &  N.  R.  Vo  v.  Hinds,  134 
Tenn.  293,  183  S.  W.  985,  L.  R.  A.  1916  E 
420  (1916). 

79.  3  Chamberlayne,  Evidence,  §  1747. 

80.  Supra,  §   654:    3  Chamb..  Ev.,  §   1742. 
Davis  v.  City  of  Adrian.   147  Mich.  300,   110 
N.    W.    1084    (1907):    Nelson    v.    Young,   87 
N.   Y.   Supp.   69,  91    App.   Div.   457    (1904): 
McQuiggan  v.   Ladd.   79  Vt.  00,  64  Atl.  503 
(1906):   3  Chamb.,  Ev.,  §   1747,  n.  1. 

81.  Goodwin  v.  State,  96  Ind.  550   (1884)  ; 
Reed  v    Manhattan  Deposit  &  Trust  Co.,  198 
Mass.  306,  84  N.  E.  469    (1908):   New  Era 
Mfg.  Co    v.  O'Reilly.  197  Mo.  466,  95  S.  W. 
322  (1906) ;  Gibson  v.  American  Mut.  L.  IM. 


119.  25  N.  E.  762  (189U);  Hoag  v.  Wright, 
54  X.  Y.  Supp.  1)58,  34  App.  Div.  260  (1898)  ; 
3  Chamb.,  Ev.,  §  1745,  n.  5. 

74.  Hutchins    v.    Hutchins,    98    N.    Y.    56 
(1885)  ;  3  Chamb.,  Ev.,  §  1745,  n.  6. 

75.  Steltemeier  v.  Barrett  (Mo.  App.  1909), 
122  S.  W.  1095. 

76.  3  Chamberlayne,  Evidence,  §   1746. 

77.  Com.    v.    Parsons,    195    Mass.    560,    81 
N.    E.   291    (1907);    State   v.    Newcomb,   220 
Mo.  54,   119   S.   W.   405    (1909);    Carhart  v. 
State,  100  N.  Y.  Supp.  499,  115  App.  Div.   1 
(1906)  ;  3  Chamb.,  Ev.,  §  1746,  n.  1. 

78.  Xupra,   §    157;    1    Chamb.,   Ev.,   §   358 
Of    defective    places    before    and    after    acci- 
dent.    See  note,  Bender  Ed..   122  N.  Y.  408. 
Of    subsequent    conditions    when    negligence 
claimed      See   note,    Bender    Ed ,    109    N.    Y. 
243.     Correction  of  defect  after  accident  may 
not   be    shown.     See   note,    Bender    Ed..    118 
N.    Y.    425.     Improper    to    show    subsequent 
repairs    of   defects   in   personal    injury    case. 
See  note,  Bender  Ed.,  127  N.  Y.  639.     Change 
in    situation    after    accident    as    evidence    of. 
See  note.  Bender  Ed.,  73  N   Y  468.     Evidence 
of  suspicion  of  felony  may  be  given  to  miti- 
gate the  damages  in  an  action  for  false  im- 
prisonment, as  where  a  father  has  the  plain- 
tiff arrested  for  seduction  after  she  has  told 
him    that    the    defendant    had    seduced    her. 
Rogers  v.  Toliver,  139  Ga.  281,  77  S.  E.  28, 
45  L.  R.  A.   (N.  S.)   64    (1913). 

Evidence  of  negligence. —  On  the  issue  of 
negligence  evidence  that  the  party  was  in- 
toxicated is  alwavs  admissible  not  as  con- 


§§663,664  PROBATIVE  RELEVANCY.  502 

where  it  is  of  little  practical  value.  A  continuing  fact,  cannot,  however,  be 
said  to  be  too  remote  for  relevancy  so  long  as  the  logical  inference  of  con- 
tinuance 82  rends  to  show  that  the  condition  or  other  fact  still  existed  at  the 

time  rendered  important  in  the  case.83 
r 

§  663.  [Canons  of  Requirement] ;  Proving  the  Res  Gestae.84 —  The  right  of  a 
party  to  prove  the  res  (/estate  of  his  case  is  undoubted.85  The  term  "  material 
facts  "  w7ould  seem  to  include  the  res  gestae  facts  which  are  constituent  86  and 
all  probative  ones  which  must  be  proved  if  such  constituent  facts  are  to  be  es- 
tablished.87 The  latter  are  received  almost  as  a  matter  of  course.88 

Action  of  Appellate  Courts. —  Even  where  the  higher  court  feels  that  error 
has  been  committed  in  admitting  certain  evidence,  it  will  not,  as  a  rule,  find 
prejudice  where  the  evidence  admitted  was  entirely  irrelevant,  i.  e.,  immaterial. 
Sound  practice  would  seem  to  allow  the  action  of  the  trial  judge  to  stand,89 
unless  prejudice  should  arise  from  other  causes,  for  example,  where  the  evidence 
is  affirmatively  shown  to  have  confused  !>0  or  misled  91  the  jury.92 

§  664.  [Canons  of  Requirement] ;  Optional  Admissibility. —  Facts  of  optional 
admissibility  may  fall  under  any  of  the  broad  lines  of  administrative  require- 
ments above  enumerated.  Reason  is  the  only  guide  in  view  of  the  rights  of  the 
litigants  and  the  social  objectives  which  judicial  administration  proposes  to 
itself.93 

Antecedent  or  Subsequent  Facts;  Antecedent. —  Facts  are  to  be  regarded  as 
antecedent  or  subsequent  according  to  their  relation  to  the  point  of  time  covered 
by  the  occurrence  of  the  res  gesiae.  The  relevancy  of  such  facts  is,  as  a  rule, 

Co.,  37  N.  Y.  580   ( 1868 )  ;   3  Chamb.,  Ev.,  §      cal   condition   in   personal   injury   case.     See 

1747,  n.  5.  note,  Bender  Ed.,  35  X.  Y.  487.     Proof  must 

82.  Supra,  §  416;  2  Chamb.,  Ev.,  §  1030.  follow    allegations    of    pleadings.     See    note, 

83.  Sturdevanfs  Appeal,  71  Conn.  392,  42  Bender  Ed.,   104  X.  Y.   170,  133  N.  Y.  437. 
Atl.  70   (1899)  ;  State  Bank  v   Southern  Nat.  What   may   be   shown   under   general   denial. 
Bank,  170  N.  Y.  1,  62  N.  E.  677    (1902)  ;   3  See  note,  Bender  Ed.,  Ill  N.  Y.  270,  142  N. 
Chamb.,  Ev.,  §  1747,  n.  7.  Y.  135.     Variance  from  complaint.     See  note, 

84.  3  Chamberlayne,  Evidence,  §  1748.  Bender  Ed.,  160  N.  Y.  191. 

85.  Supra,  §  157;   1  Chamb.,  Ev.,  §  358.  89.  Brown  v.  Tourtelotte,  24  Colo.  204,  50 

86.  Supra,  §§  31,  32:   1  Chamb.,  Ev.,  §§  47,  Pac.    195    (1897)  :    Kellogg   v.    Kimball.    122 
49.  Mass.  163  (1877)  :  Lake  Shore,  etc.,  R.  Co   v. 

87.  Vaughan's  Seed  Store  v.   Stringfellow,  Erie  County,  41  Hun  (N   Y.)   637.  2  St.  Rep. 
56   Fla.   708,  48   So.   410    (-1909);    American  317   (1886):  3  Chamb.,  Ev.,  §  1749,  n.  2. 
Process  Co.  v.  Pensauken  Brick  Co.,  78  N.  J.  90.  Lucas  v.  Brooks,  18  Wall.   (U.  S.)   436, 
L.  658,  75  Atl    976    (1910);   3  Chamb.,  Ev.,  21  L.  ed.  779  (1873). 

1748,  n.  4.  91.  Hunter  v.  Harris,  131  111   482,  23  N.  E. 

88.  Stuart  v.  Noble  Ditch  Co.,  9  Ida.  765,       626    (1890);    Gregg  v.   Northern  R.   Co.,  67 
76   Pac.    255    (1904):    Hildebrand   v.   United       N.   H.   452,   41    Atl.   271     (1893);    3   Chamb., 
Artisans,   50   Or.    159.   91    Pac.    542.     Imma-       Ev..   §   1749,  n.  4. 

terial   facts,    on    the   other   hand,   are   to   be  92.  Where  there  is  no  jury,  the  inference 

excluded.     Czarnecki   v    Derecktor,   81    Conn.  of    prejudice    from    such    a    ruling    fails    to 

338,  71  Atl.  354   (1908)  ;  First  Nat.  Bank  v.  arise.     Andrews  v.  Johnston,  7  Colo.  App.  551, 

Miller,  235  111.   135,   85  N.  E.  312    (1908);  44  Pac.  73   (1896). 
3  Chamb.,  Ev.,  §  1748,  n.  5.     Proof  of  physi- 


503  CONSISTENT  AND  INCONSISTENT.  §  665 

causal  or  explanatory;  they  tend  to  give  plausibility  and  connectedness  to  the 
hypothesis  of  the  proponent.94  The  facts  constituting  the  res  gestae  of  the  case 
derive  clearness  and  coherence  of  outline  when  taken  in  connection  with  the 
causes  and  conditions  which  have  created  the  situation.95  Some  causal  con- 
nection between  the  antecedent  fact  and  one  in  the  res  gestae  must  be  shown. 
Otherwise,  no  ground  is  furnished  for  admitting  a  prior  fact.9tt 

Subsequent. —  The  relevancy  of  subsequent  facts  is  much  the  same.  The 
result  is  frequently  to  reinforce  the  correctness  of  the  inferences  relating  to 
the  actual  nature  of  the  res  gestae  by  showing  that  the  subsequent  effects  were 
such  as  might  naturally  have  been  expected  had  the  res  gestae  actually  been  as 
they  are  now  claimed  to  be.  In  other  words,  causation  97  as  it  were,  throws 
light  forward  from  antecedent  facts  upon  the  zone  of  the  res  gestae.  It  casts 
light  backward  upon  the  same  zone  from  the  subsequent  transactions. 

§  665.  [Canons  of  Requirement] ;  Consistent  and  Inconsistent  Facts.98 —  Among 
probative  facts  collaterally  relevant  are  those  whose  existence  is  inconsistent 
with  that  of  some  res  gestae  or  directly  evidentiary  fact.  Conduct  inconsistent 
with  a  present  claim  may  at  all  times  be  shown  by  the  adverse  interest.99 
Generally  speaking,  collateral  facts  whose  existence  is  merely  consistent  with 
probative  or  res  gestae  ones  possess  no  marked  evidentiary  value.  Some  rela- 
tion, more  directly  Causal  in  its  nature  must  be  established  for  such  a  result.1 
Situations  may  arise  where  it  may  be  necessary  to  use  mere  consistency  in  an 

93.  3  Chamberlayne,  Evidence,  §  1750*.  fanity  and  inability  to  enunciate  words  dis 

94.  Supra,    §    37 ;    1    Chamb.,    Ev.,    §    55.  tinctly  and  inability  to  stand  steadily      State 
Chicago  Consol.  Traction  Co.  v.  Mahoney,  230  v.  Baughn,   162  Iowa  308.   143   X.  W    1100, 
111.   562,   82    X.    E     868    (1907);    Witmer    v.  50  L.  R    A.    (X.  S)    912    (1913).     In  an  ac- 
Buffalo  &  X.  F.  Electric  Light  &  Power  Co.,  tion  for  breach  of  warranty  that  a  fertilizer 
187  X.  E.  572,  80  X.  E.  1122   (1907)  :  United  contained  certain  ingredients,  evidence  is  ad- 
Power  Co.  v.  Matheny,  81  Ohio  St.  204.  90  missible  that  the  results  of  using  them  were 
X    E.  154  (1909)  :  3  Chamb.,  Ev.,  §  1751.  n.  1  poor  where  the  kind  of  soil,  manner  of  culti- 

95.  Goldschmidt  v.  Mutual  Life  Ins.  Co.  of  vation  accidents  of  season  and  other  pertinent 
New   York,    119   X.   Y.   Supp.   233,    134   App  facts  are  shown  as  this  tends  to  shown  that 
Div.  475  (1909).  they  did  not  have  these  ingredients      Hamp- 

96.  Casey   v.   J    W    Reedy    Elevator   Mfg.  ton   Guano   Co.   v    Hill    Live-Stock    Co..    168 
Co.,  142  111    App    126    (1908)  -.   Shadowski  v.  X.  C.  442,  84  S.  E.  774,  L    R.  A.  1915  D  875 
Pittsburg  Ry.  Co.;  226   Pa    537,   75  Atl    730  (1915). 

( 1910)  :  3  Chamb.,  Ev  ,  §  1751,  n.  4.  98.  3  Chamberlayne,    Evidence,    §§     1752- 

97.  ffupru.  §§  36:   1  Chamb.,  Ev  ,  §§  55,  58:        1754. 

Infra,  §  671:  3  Chamb,  Ev.,  §  17*4.     Avery  99.  Thus,  where  it  is  contended,  in  an  ac- 

Mfg.     Co.     v     Mooney.     137     111      App.     551  tion    for    personal    injuries    that    the    latter 

(1907);    People  v.   Colmey.   102  X    Y.   Supp.  were    being    simulated,    evidence    is    compe- 

714,    117    App.   Div.   462    (1907);    3   Chamb.,  tent  to  show  that  the  party  setting  up  this 

Ev.,  §   1751.   n.   2.     Damages   in  a   libel   suit  claim    has   acted    in    a    manner    incompatible 

may  be  proved  by  showing  the  effect,  the  libel  with  any  bona  fide  belief  in  it      Williams  v 

had  upon  persons  who  heard  or  read  it      Van  Spokane  Falls  &  X.  Ry    Co..  42  Wash.  597. 

Lonkhuyzen    v.    Daily    Xews    Co,    195    Mich  S4  Pac.  1129   (1906)  ;  3  Chamb.,  Ev.,  §  1752. 

283,   161   X.   W.   979.   L    R.    A     1917   D  855  1.  Hawkins  v.  James,  69  Miss.  274,  13  So. 

(1917).     Drunkenness  may  be  shown  by  evi-  813    (1891). 
dence  of  loud  talking  «n  the  street  and  pro- 


§§  666,667  PROBATIVE  RELEVANCY.  504 

evidentiary  capacity.  Thus,  it  may  be  shown  that  certain  things  happened  as 
they  might  have  been  expected  to  happen  if  one  contention  or  the  other  before 
the  court  were  true.2  The  admissibility  of  any  evidence  as  to  the  existence  of 
merely  consistent  facts  may  fairly  be  deemed  matter  of  administration,  as  is 
commonly  said,  of  "  discretion."  3  On  the  other  hand,  the  right  of  a  litigant 
to  prove  a  fact  inconsistent  with  one  directly  probative  or  material  in  the  res 
gestae  seems  preeminently  a  matter  of  right,  ex  debito  justiciae.4 

§  666.  [Canons  of  Requirement] ;  Explanatory  or  Supplementary  Facts.5 — 
Prominent  among  facts  admitted  as  indirectly  relevant,  e.g.,  from  which  a 
deliberative  or  collateral  inference  may  be  drawn  are  those  which  may  properly 
be  denominated  explanatory.6  Facts  of  an  explanatory  or  supplementary  na- 
ture may  even  be  used  to  give  force  and  cogency  to  those  in  the  direct  line  of 
proof.7  The  effect  of  evidence  of  this  nature  is  not,  however,  in  all  cases  af- 
firmative. An  explanation  may  equally  well  be  intended  and  calculated  to 
diminish  the  force  of  the  evidence  produced  by  one's  adversary.8 

§  667.  [Canons  of  Requirement] ;  Negative  Facts.9 —  This  distinction  between 
the  probative  effect  of  consistent  and  that  of  inconsistent  facts,  always  of  im- 
portance, may  be  noted  in  operation  where  the  form  of  the  evidence  is,  as  it 
well  may  be,  negative.10 

Absence  of  Entry,  Record,  Etc. —  The  circumstance  that  there  is  found  to  be 
no  entry  in  a  certain  book,11  that  no  memorandum  or  other  written  insertion 
has  been  made  on  a  given  record,12  where  it  naturally  would  have  been  placed 
had  the  fact  existed,  may  furnish  some  evidence  that  the  fact  is  not  as  alleged. 
The  probative  force  of  the  inference  from  non-entry  varies  with  the  extent  to 
which  regularity  in  the  recording  of  business  transactions  may  rationally  be 

2.  Alpena  Tp.  v.  Mainville,  153  Mich.  732,  8.  People  v.  Philbon,  138  Cal.  530,  71  Pac. 
117    N.    W.    338,     15    Detroit    Leg.    N.    605  650    (1903);    Woodrick  v.   Woodrick,   141   N. 
(1908);    Gallegos   v.    State    (Tex.    Cr.    App.  Y.  457,  36  X.  E.  395   (1894);  Burley  v.  Ger- 
1905),  90  S.  W.  492;  3  Chamb  ,  Ev.,  §  1753.  man- American  Bank,  111  U.  S.  216,  4  S.  Ct. 

3.  Cook  v.   Malone,    128   Ala.   662,   29   So.  341,  28  L.  ed.  406   (1883);  3  Chamb.,  Ev.,  § 
653    (1900);   Blaisdell  v.  Davis,  72  Vt.  295,  1755,  n    6. 

48  Atl.  14  (1898);  3  Chamb,  Ev,,  §  1754,  n.  9.  3  Chamberlayne,     Evidence.     §§     1756- 

1.  1759. 

4.  3  Chamb.,  Ev,  §  1754.  10.  Treat  v.  Merchants'  L.  Assoc.   198   111. 

5.  3  Chamberlayne,  Evidence,  §  1755.  431,  64  NT.  E.  992    (1902)  ;   Shannon  v.  Cast- 

6.  Atlantic  Coast  Line  K.  Co.  v.  Taylor,  125  ner,  21  Pa.  Super.  Ct.  294  (1902)  ;  3  Chamb., 
Ga.  454,  54  S.   E.  622    (1906);   Hayward  v.  Ev.,  §   1756. 

Scott,    114    III.    App.    531    (1904):    Jones   v.          11.  Peck  v.  Pierce,  63  Conn.  310,  28  Atl. 

Cooley  Lake  Club,   122  Mo.  App    113,  98  S.  524  (1893)  ;  Woods  v.  Hamilton,  39  Kan.  69, 

W.  82  (1906)  ;  3  Chamb.,  Ev.,  §  1755.  n   2.  17  Pac.  335  (1888)  ;  3  Chamb.,  Ev.,  §  1757,  n. 

7.  Buckeye  Mfg    Co.  v.  Woolley  Foundry,  1. 

etc.,  Works.  26  Ind.  App.  7,  5*  N.  E.   1069  12.  Knapp  v.  Day,  4  Colo.  App.  21,  34  Pac. 

(1900);   Hughes  v.   Gross,  166  Mass.   61,   43  1008    (1893):    Bristol   County   Sav.   Bank   v. 

N.  E.  1031,  55  Am.  St.  Rep.  375.  32  L   R    A.  Keavy,    128    Mass.    298     (1880);    Gaston    v. 

620  (1896)  ;  Tracy  v.  McMamis,  58  N.  Y   257  Merriam,  33  Minn  27L  22  N.  W.  614  (1885)  ; 

(1874)  ;  Tibbals  v.  Iffland,  10  Wash.  451,  39  3  Chamb.,  Ev.,  §  1757,  n.  2. 
Pac.  102  (1895)  ;  3  Chamb.,  Ev,  §  1755,  n.  5. 


505  NEGATIVE  FACTS.  §  667 

inferred  from  experience.13  The  systematic  habit  of  entering  transactions 
must,  therefore,  be  affirmatively  shown.  This  rule,  so  far  as  it  relates  to  entries 
on  books  of  account,  is  qualified.  It  has  been  held  that  the  fact  that  a  set  of 
books  shows  no  receipt  of  goods,14  no  entry  of  the  receipt  of  money,15  or  of  the 
assumption  of  a  risk,16  affords  no  inference  that  the  goods  were  not  delivered. 
or  that  such  payment  was  not  received  or  contract  made.  In  general,  the  mere 
self-serving  absence  of  an  entry  on  books  of  account  is  not  evidence  that  there 
was  no  ground  for  making  one.17 

Failure  to  See,  Hear,  Etc. —  In  the  same  way  a  witness  may  properly  testify 
that  he  did  not  see  a  given  sight,18  hear  a  particular  sound,19  in  general,  did 
not  notice  a  fact.  Such  evidence  is  of  no  value  if  at  the  time  of  the  alleged 
occurrence  of  these  events  the  witness  was  so  situatd  that  they  well  might  have 
occurred  and  he  neither  have  seen  nor  heard  them.  Should  the  witness,  how- 
ever, have  been  so  located  that  they  could  not  have  occurred  without  his  having 
seen  or  heard  them,  then  his  failure  to  see  or  hear  them  makes  the  inference 
that  they  did  not  happen  a  legitimate  one.20  Under  certain  circumstances,  fail- 
ure by  one  in  the  position  to  do  so  to  hear  any  report,  rumor,  or  other  form  of 
private  or  popular  expression  on  a  given  subject  may  be  independently  relevant 
to  the  existence  of  a  psychological  fact,  mental  state  or  moral  quality.21 

Ignorance  of  Alleged  Fact. —  In  much  the  same  way,  ignorance  of  a  given 
fact  of  such  nature  or  notoriety22  that  the  witness  would  probably  have  known 
of  it  had  it  existed,  furnishes  some  evidence  that  such  is  not  the  case.23  The 
necessary  inference  is  that,  had  the  fact  existed,  the  person  in  question  must 
have  known  it.24 

13.  Corner  v.  Pendleton,  8  Md.  337  (1855)  ;  21.  Thus,  that  a  member  of  a  given  corn- 
Roe  v.  Xichols,  38  X.  Y.  Supp.   1100,  5  App.  munity  has  at  no  time  heard  anything  said 
Div.  472  (1896)  ;  3  Chamb.,  Ev.,  §  1757,  n.  4.  with  regard  to  the  reputation  or  character 

14.  Keim    v.    Rush,    5    Watts   &    S.     (Pa.)  of  a  given  individual  may  be  a  relevant  fact. 
377  (1843).  Corrigan  v.  Wilkes-Barre  &  W.  V.  Traction 

15.  Scott  v.  Bailey.  73  Vt.  49,  50  Atl.  557  Co.,  225  Pa.  560,  74  Atl.  420  (1909).     A  wit- 
(1901).  ness   qualified   to   do   so   may    state   that   he 

16.  Sanborn  v.  Fireman's  Ins.  Co.,  16  Gray  never  heard  that  the  railroad  company  had 
(Mass.)  448,  77  Am   Dec.  419   (1860).  at  any  time  objected  to  the  crossing  by  the 

17.  Schwar/.e  v.  Roessler,  40   111.  App.  474  public    of    one    of    their    bridges.     Lamb    v. 
(1891)  ;  Morse  v.  Potter.  4  Gray   (Mass.)  392  Southern  Ry.  Co.,  86  S.  C.  106,  67  S.  E.  958 
(  1855i  ;  3  Chamb.,  Ev.,  §  1757,  n.  8.  (1010).     A  date  for  the  happening  of  a  given 

18.  Whittaker   v.   New   York,   etc.,   R.   Co.,  event    may   be   fixed   in   the   same   way,   e.g., 
51   X.   Y.   Super.   Ct.  287    (1885)  ;   Galveston,  that  a  particular  witness  heard  nothing  of  it 
etc.,  Ry.  Co.  v.  Udalle   I'Tex.  Civ.  App.  1905),  prior  to  a  certain  time.     Lincoln  v.  Hemen- 
91  S.  W.  33ii;   3  Chamb.,  Ev.,  §  1758,  n    1.  way.  SO  Vt.  530,  60  Atl.  153   (1908). 

19.  \Yest   Chicago   St.   R.   Co.   v.   Kennelly,  22.  Dawson  v.  State,  38  Tex.  Cr.  50,  41  S. 
170  Til.  508,  48  X.  E.  996    (1897):  Hannefin  W.  590    (1S07).     That  a  given  person  "has 
v.  Blake,    102   Mass.  297    (1869)  ;   Greany  v.  money"  is  not  a  fact  of  this  nature.     Killen 
Long  Island  R.  Co.,  101  X.  Y   419.  5  X.  E.  425  v.   Lide.   65   Ala.   505    (1880). 

(1886);  3  Chamb.,  Ev ,  §  1758,  n.  2.  23.  Xelson  v.   Iverson,   24   Ala.   9.   60  Am. 

20.  East  Tennessee,  etc.,  R.  Co    v.  Carloss,  Dec.  442   (1853)  ;  3  Chamb..  Ev..  §  1750.  n.  2. 
77    Ala,   443    (1884);    Chambers   v.   Hill,   34  24.  Xetherlands  Fire  Ins.  Co.  v.  Barry,  3  N. 
Mich.  523   (1876);  3  Chamb.,  Ev.,  §  1758,  n.  Y.  Supp.  164,  103  App.  Div.  581    (1905). 

3. 


§§  668,  669  PROBATIVE  RELEVANCY.  506 

§  668.  [Canons  of  Requirement] ;  Preliminary  Facts.25 —  Antecedent  facts  26 
are  carefully  to  be  distinguished  from  facts  which  are  logically  necessary  to  the 
admissibility  of  any  piece  of  evidence  offered,  facts  as  to  which  the  court  will 
require  to  be  reasonably  satisfied  before  permitting  the  evidence  to  go  to  the 
jury.27  Instances  where  preliminary  proof  is  required  or  its  future  production 
tacitly  assumed  are  very  numerous  in  connection  with  the  trial  of  causes.  A 
plan,  cause  of  action  28  or  other  thing  must,  in  many  instances,  be  identified  in 
some  suitable  way  as  a.  condition  of  its  being  received  as  evidence.  Such  facts 
are  merely  conditioning  circumstances  whose  existence  is  essential  to  the  rel- 
evancy of  certain  others.  Such  facts  are  designated  as  preliminary.29  In  like 
manner,  the  authority  of  an  attorney  30  or  other  agent  to  bind  his  principal,  or 
of  a  given  individual  to  bind  a  corporation  as  one  of  its  officers,  should,  in  strict- 
ness, be  proved  as  a  fact  preliminary  to  receiving  evidence  of  statements  or 
other  facts.  It  must  be  affirmatively  shown  that  bloodhounds  used  in  tracking 
criminals  were  capable,  by  reason  of  previous  experience,  of  doing  the  work 
required.31 

§  669.  Probative  Relevancy;  Objective  and  Subjective. —  In  endeavoring  to 
apply  the  reasoning  faculty  to  the  simplest  probative  statement  by  a  witness  a 
double  question  at  once  presents  itself;  (1)  Is  the  declaration  such  that,  as  a 
matter  of  objective  reality,  a  tribunal  would  be  reasonably  justified  in  acting 
on  it  I  (2)  Is  the  witness  free  from  controlling  motive  to  misrepresent  and 
possessed  of  such  adequate  knowledge  as  to  give  reasonable  ground  for  believing 
that  he  knows  the  truth  and  will  truly  state  it  ?  Should  the  first  of  these  ques- 
tions be  answered  in  the  affirmative,  the  fact  stated  is  objectively  relevant  to  a 
proposition  in  the  case.  Should  the  second  be  similarly  answered,  the  declara- 
tion of  the  witness  is  subjectively  so.  Both  these  elements  must  unite  to  insure 
complete  relevancy.32 

Court  and  Jury. —  All  objective  inferences  are,  in  the  first  instance,  passed 
upon,  previously,  by  the  Court,  ultimately  by  the  jury.  Where  the  statement 

25.  3  Chamberlayne,  Evidence,  §  1760.  dence    of    the    facts    asserted    in    them,    the 

26.  Supra,  §  664;  3  Chamb.,  Ev.,  §  1751.  court   must   be   satisfied,   in    some  way,   that 

27.  Thus,  in  order  that  a  witness  should  be  they  were  accurately  kept.     West  Coast  Lum- 
permitted  to  testify  it  must  be  proved  to  the  her  Co.  v.  Newkirk,  80  Cal.  275,  22  Pac.  231 
satisfaction    of    the    court,    or    the    presiding  (1889). 

judge  must  feel  justified  in  assuming  that  he  28.  Harris   v.    Miner,   28   111.    135    (1862^  : 

is  possessed  of  adequate  knowledge  regarding  Dupuis  v.  Interior  Constr.,  etc.,  Co.,  88  Mich, 

the  subject  as  to  which  he  proposes  to  speak.  103.  50  X.  W.   103    (1891). 

Supra,  §36;   1  Chamb.,  Ev.,  §  56:  Comeau  v.  29.  3  Chamberlayne,  Evidence,  §  1760,  n.  7. 

Hurley,  24  S.  D.  275,  123  N.  W.  715   (1909)  ;  30.  American    Process    Co.    v.    Pensauken 

3  Chamb.,  Ev.,  §  1760,  n.  3.     In  the  same  way,  Brick  Co.,  78  N.  J.  L.  658,  75  Atl   976  ( 1910) . 

before  a  photograph  can  be  admitted  into  evi-  31.  State   v.   Freeman,    146   N.    C.   615,   60 

dence,  proof  must  be  offered  that  it  is  accu-  S.    E.    986    (1908);    State   v.    Dickerson,    77 

rate.     Miller  v.   Louisville,   etc.,   E.   Co..   128  Ohio  St.  34,  82  NT.  E.  969,  13  L.  E.  A.  (N.  S.) 

Ind.  97,  27  X.  E.  339,  25  Am.   St.  "Rep.  416  341    (1907);    3  Chamb.,  Ev.,  §   1760,  nn.   10, 

(1890);   3  Chamb.,  Ev.,  §   1760.  n.  4.     That  11.  12.     See.posf.  §  797. 

books  of  account  should  be  regarded  as  evi-  32.  3  Chamberlayne,  Evidence,  §  1761. 


507  OBJECTIVE.  §  670 

of  a  witness  is  objectively  relevant,  the  court  is  extremely  apt  to  regard  the 
question  as  to  whether  it  is  subjectively  so,  as  one  of  fact  for  the  jury,  a  neces- 
sary incident,  as  it  were,  in  determining  the  weight  of  the  evidence.33 

Ignorance  and  Other  Subjective  Impairment. —  In  general,  where  the  state- 
ment of  a  witness  or  the  declarations  of  a  document  are  objectively  relevant,  the 
court  will  decline  to  intervene  on  account  of  the  bias,  interest,  or  other  sub- 
jective condition  of  the  declarant.  Where  the  proposed  declarant  has  no  suit- 
able knowledge  as  to  the  subject-matter  of  his  statement,  the  judge  intervenes 
to  reject  his  testimony.  The  practice  of  the  courts,  in  thus  making  a  distinction 
between  the  impairment  of  subjective  relevancy  due  to  lack  of  adequate  knowl- 
edge and  that  arising  from  other  subjective  conditions  on  the  part  of %a  witness, 
is  comparatively  a  modern  one.34 

Independent  Sufficiency  Not  Required. —  No  statement  or  other  fact  is  ad- 
missible which  is  not  relevant  to  some  material  proposition  submitted  for  judi- 
cial determination  in  the  case.  Any  statement,35  or  other  fact  relevant  to  some 
material  36  proposition  so  submitted,  is  admissible.  It  is  not  important  that 
any  individual  fact,  classed  as  relevant  should,  taken  in  and  of  itself,  be  suf- 
ficient to  sustain  the  proponent's  contention  on  the  point  covered  by  it37  If  in 
connection  with  other  facts,  the  one  in  question  has  a  logical  bearing  upon  the 
truth  of  a  proposition  in  issue,38  it  is  admissible. 

§  670.  [Probative  Relevancy];  Objective;  Ancillary  Facts.89 — A  fact  mm 
relevant  even  where  the  only  use  is  to  condition  other  facts  in  themselves  ir- 
relevant.    This  may  Happen  where  a  circumstance  intrinsically  irrelevant    • 
used  to  establish  a  date40  or  determine  the  fact  of  identity.41     In  the  s^1 
logical  position,  stands  any  fact  which  merely  completes  one  which  is  itself  ; 
trinsically  relevant.42     To  facts  of  this  class,  the  term  ancillary  seems  proper" 
applied. 

33.  3  Chamberlayne,  Evidence,  §  1762.  35  X.  Y.  49    (1866);    Schock  v.   Solar  Ga 

34.  3  Chamberlayne,  Evidence,  §  1763.  light  Co.,  222  Pa.  271,  71  Atl.  94   (1908);   ? 

35.  That  the  statement  is  made  in  an  an-       Chamb.,  Ev.,  §  1764,  n.  4. 

swer  irresponsive  to  the  question  asked,  does  38.  Com.  v.  Williams,  171  Mass.  461,  50  N. 

not  render   it  an   irrelevant   fact.     O'Neal  v.  E.    1035    (1898);    Passmore  v.   Passmore,   50 

McKinna,  116  Ala.  606,  22  So.  905  (1897).  Mich.   626,    16   X.   W.    170,   45   Am.   Rep.   62 

36.  Where    the    proposition    to    which    the  (1883);   De  Arman  v.  Taggart.  65  Mo.  App. 
evidence  is  directed  is  an  immaterial  one  the  82  (1805)  ;  3  Chamb.,  Ev.,  §  1764,  n.  5. 

fact  itself  may  well  be  excluded.     Fry  v.  Provi-  39.  3   Chamberlayne,    Evidence,    §§     1764- 

dent    Sav     L.    Assur.    Soc.    (Tenn.    Ch.    App.  1773. 

1806),  38  S.  W    116.     Should  such  evidence,  40.  McDonald     v.     Savoy.     110     Mass.     49 

however,    be    admitted,    even    over    objection,  (1872)  ;  Levels  v.  St.  Louis  &  H.  Ry.  Co.,  196 

the  ruling  cannot  be  deemed,  in  the  absence  Mo.  606.  94  S.  W.  275  (1906)  :  Artcher  v.  Mc- 

of  special  circumstances  tending  to  show  in-  Duffle,  5  Barb.  (X.  Y.)  147  (1849)  ;  3'Chamb., 

jury,  to  constitute  prejudice.     Smay  v.  Etnire,  §   1765,  n.   1. 

09  Iowa  140.  68  X.  W.  597    (1896).  41.  ,^/pro,  §  653;  3  Chamb.,  Ev.,  §  1741c. 

37.  Heffernan    v.    Ball,    109    111.    App.    231  42.  This  may  occur  where  a  fact  has  been 
(1903);    Glassberg  v.  Olson,   89   Minn.    195,  incorporated  by  reference.     Krech  v.  Pacific 

94  X.   W.  554    (1903);    People" v.  Gonzalez,      R.  Co.,  64  Mo.  172  (1876). 


§   671  PROBATIVE  KELEVANCY.  508 

Burden  on  Proponent. —  Objective  relevancy  being  thus  an  essential  condition 
to  the  admissibility  of  any  fact  as  evidence,  the  burden  of  showing  its  existence 
whenever  in  dispute  or  not  apparent,  rests  on  the  proponent,  the  party  offering 
the  evidence.43 

Effect  of  Substantive  Law. —  The  substantive  law  frequently  interferes  with 
the  adjective  law  of  evidence  by  prescribing  what  evidence  shall  be  received  or 
forbidding  any  evidence  whatever  on  certain  subjects  "*4  or  that  a  certain  num- 
ber of  witnesses  or  amount  of  proof  shall  be  required  for  certain  matters. 

Corroboration  and  Impairment. —  It  is  frequently  necessary  to  test  the  evi- 
dence of  the  proponent  by  proving  incidental  facts  which  tend  to  impair  its 
probative  £orce. 

Furthermore  it  may  be  corroborated  in  either  of  two  ways,  (1)  By  cumulative 
t  ..iToboration  which  adds  merely  to  the  number  of  witnesses  or  confirmatory 
facts  to  a  given  effect  but  with  little  tendency  to  establish  a  correlation  between 
-weral  inferences:  (2)  By  corroboration  to  a  given  effect  but  with  little 
1;  nclency  to  establish  an  inference  of  itself  by  welding  together  the  individual 
..Tength  of  the  separate  inferences  into  one  whose  cogency  is  far  in  excess  of 
i  lie  aggregate  in  proving  power  of  the  separate  inferences  themselves. 

Corroboration  of  a  witness  should  be  offered  through  some  evidence  inde- 
pendent of  the  witness  himself.45 

§  671.  [Probative  Relevancy];  Subjective.46 — Many  inferences  from  experi- 
ence are  uniformly  admissible  which  though  possibly  objective  to  the  tribunal 
may,  it  would  seem,  be  properly  classed,  from  the  standpoint  of  the  witness  or 
other  declarant,  as  subjective.  .Shortly  stated,  subjective  relevancy  is  such  a 
relation  between  the  mental  equipment  of  a  witness,  writer  of  a  document  or 
other  declarant,  and  the  statement  made  by  him  as  rationally  leads  to  an  in- 
ference that  the  declaration  asserts  the  truth.  It  is  not  a  matter  of  consequence, 
in  this  connection,  whether  the  statement  be  judicial  or  extra-judicial,  sworn 
or  unsworn.  Subjective  inferences  relate  to  the  state  of  mind  of  the  witness, 
writer  or  other  declarant  whose  assertion  goes  before  the  tribunal,  as  to  his 
interest,  bias,  motive  to  misrepresent,  opportunities  for  observation,  means  of 
knowledge,  etc.  The  point  to  be  determined  by  these  inferences  is :  As  a  mat- 

43.  Williams  v.  Case,  78  111.  356  (1875)  ;  44.  As  in  case  of  State  secrets  or  privileged 
Gibson  v.  Burlington,  etc.,  R.  Co.,  107  Iowa  communications.  See  post  §. 
596,  78  N.  W.  190  (1899)  ;  Ehrehart  v.  Wood,  45.  Under  the  rule  that  in  a  prosecution 
71  Hun  (i09,  25  N.  Y.  Supp.  31  (1893):  for  seduction  there  must  be  some  corrobora- 
Hutchinson  v.  Canal  Bank,  3  Ohio  St.  490  tive  evidence  letters  and  post-cards  identified 
(1854)  ;  3  Chamb.,  Ev.,  §  1766,  n.  1.  For  a  only  by  the  prosecutrix  are  insufficient.  Rog- 
full  discussion  and  consideration  of  Objective  ers  v.  State.  101  Ark.  45,  141  S.  W  491.  49 
and  Subjective  Relevancy,  Corroboration  and  L.  R.  A.  (X.  S.)  1198  (1911).  In  a  prose- 
Impairment,  see  3  Chamb..  Ev.,  1767-1778.  cntion  for  rape  the  complaint  of  the  prose- 
As  to  Probative  Relevancy  of  Deliberative  cution  to  the  police  does  not  constitute  corro- 
Inferences,  Objective  and  Subjective,  see  also  boration.  People  v.  Carey,  223  N.  Y.  519, 
discussion  thereof,  3  Chamb.,  Ev.,  §§  1779-  119  N.  E.  83  (1918. 
1790 


509  SUBJECTIVE.  §  671 

ter  of  experience,  is  a  mind  like  that  of  the  witness,  with  such  a  content  subject 
to  the  influence  of  such  feelings  and  emotions,  one  through  which  truth  is  so 
apt  to  come  to  the  tribunal  as  reasonably  to  justify  the  latter  in  relying  upon  it  \ 
This  is  the  question  psychology  presents  to  every  court  in  the  case  of  every  wit- 
ness. The  fact  that  the  witness  has  acted  from  habit  or  routine  as  in  case  of 
shop-book  entries  may  also  be  shown.  The  oath  required  of  the  witness  is  a 
survival  of  the  ancient  ordeal  by  oath  imposed  to  ensure  truth. 

The  attention  and  memory  of  the  witness  and  the  power  of  suggestion  exer- 
cised on  him  must  also  be  considered  as  well  as  the  capacity  of  the  witness. 
The  testimony  of  the  witness  may  be  corroborated  or  impaired  by  these  con- 
siderations. 

46.  3  Chamberlayne,  Evidence,  §  1774. 


CHAPTER  XXVI. 

REASONING  BY  WITNESSES. 

"  Matters  of  opinion;  "  an  ambiguous  phrase,  672. 

irrelevancy  as  true  ground  for  rejection,  673. 
Inference  by  wi'-nesses;  use  of  reason  a  matter  of  right,  674. 
Entire  elimination  of  inference  impossible,  675. 
Involution  of  reasoning,  676. 

conditions  of  admissibility ,  677. 

necessity;  inability  of  witness  to  state  precise  mental  effect  of  observar 

tion,  678. 

inability  of  jury  to  coordinate  the  sense  impressions  of  the  ob- 
servers, 679. 

functions  of  the  judge,  680. 
relevancy ;  objective  and  subjective,  681. 
adequate  knowledge,  682. 
ordinary  observer,  683. 
skilled  witness,  684. 

conclusions  and  judgment  of  skilled  witness,  685. 
judge  as  tribunal  of  fact,  686. 
action  of  appellate  courts,  687. 

§  672.  "Matters  of  Opinion;"  An  Ambiguous  Phrase.1 — A  familiar  rule  of 
exclusion  is  to  the  effect  that  witnesses  are  to  state  facts  and  not  "  matters  of 
opinion."  2  Facts,  physical  or  psychological,  being  the  subject-matter  of  evi- 
dence, this  exclusion  of  the  "  opinion  "  of  witnesses  applies  to  the  use  of  the 
reasoning  faculty  concerning  them.  "  Matter  of  opinion,"  thus  related  to  facts, 
is,  as  has  been  seen,:!  separated  from  the  general  class  of  facts  for  the  purpose 
of  indicating,  usually  marking  thereby  for  exclusion  from  evidence,  an  act  of 
reasoning  or  a  fact  in  which  the  element  of  inference  is  unnecessarily  prom- 
inent. The  same  phrase,  "  matter  of  opinion,"  may  be  so  used  as  to  indicate  also 
propositions  of  belief,  incapable  of  verification,  religious  views,  political  prin- 

1.  3  Chamberlayne,      Evidence.      §§      1701,  475,  22  X.  E.  182   (1889)  :  Pugh  Printing  Co. 
1792.  v.  Yeatman,  22  Ohio  Cir.  Ct.  584.  12  Ohio  Cir. 

2.  Saxton  v.  Perry,  47  Colo    263,  107   Pac.  Deo.   477     ( 1901 )  :    Chicago,   etc.,    Ry.   Co.   v. 
281    (1910)  ;   West  Skokie  Drainage  Dist.  v.  Hale",  176  Fed.  71.  99  C.  C.  A.  379   (1910)  ;  3 
Dawson,  243  Til.   175,  90  X.  E.  377    (1909)  -.  Chamb.,  Ev.,  §  1791.  n.  1. 

Barrie  v.  Quimby,   206  Mass.   259,   92   X.   E.  3.  Supra,  §  25;  1  Chamb.,  EV.,  §  42. 

451     (1910);    People   v.    Barber,    115    X.    V 

510 


511  IBKELEVAXCY.  §  673 

ciples  and  the  like,  as  to  which  certainty  is  practically  impossible.     All  such 
facts  are  excluded,  it  would  seem,  under  the  rule  in  question.4 

§  673.  [Matters  of  Opinion] ;  Irrelevancy  as  True  Ground  for  Rejection.5 — 
The  rule  which  undertakes  to  reject  "  opinion  "  may  be  a  mere  assignment,  as 
it  were,  of  irrelevancy.  The  statement  which  the  witness  makes  is  lacking  in 
subjective  relevancy.6  He  has  no  adequate  knowledge  on  the  subject.  His 
declaration,  therefore,  is  so  said  to  be  rejected  as  "  opinion."  7  Such 
an  announcement  evidently  fails  to  assign  the  primary  ground  for  exclusion. 
Illustrations  of  the  method  by  which  irrelevant  testimony,  e.  g.,  that  given 
without  adequate  knowledge,  is  solemnly  rejected  as  if  taken  out  of  the  class 
of  "  evidence,"  to  which  it  never  really  belonged,  by  virtue  of  the  rule  ex- 
cluding "  opinion  "  are  extremely  numerous.  The  witness  may  use  various 
forms  of  expressing  himself.  Thus,  he  may  make  an  offer  of  an  "  approxima- 
tion." 8  He  may  state  his  "  belief,"  9  or  give  what  he  "  considers  "  to  be 
true.10  He  may  tender  to  the  court  his  u  expectation,"  ll  "  guess  "  12  or  "  im- 
pression," 13  his  "  judgment,"  14  or  a  "  supposition."  15  In  all  such  cases,  the 
evidence  is  to  be  rejected  on  account  of  the  lack  of  subjective  qualifications  on 
the  part  of  the  witness.  He  is  not  entitled  to  testify  as  to  what  he  u  thought,"  16 
if  thinking  on  the  matter  is  all  that  he  has  done.17  But,  that  a  witness  uses 
language  in  giving  his  testimony  which  would  be  appropriate  to  the  statement 
of  an  inference  or  to  indicate  lack  of  adequate  knowledge  should  by  no  means 
be  regarded  as  fatal  to  the  reception  of  his  evidence.  The  true  test  is  whether 
he  actually  knows  enough  to  make  his  testimony  such  that  the  jury  might  rea- 
sonably act  upon  it.  If  he  does,  it  will  be  received  although  he  couches  his 

4.  Whited  v.  Cavin,  55  Or.  98,  105  Pac.  396  13.  Lovejoy  v.  Howe,  55  Minn.  353,  57  X 
(1909);   3  Chamb.,  Ev.,  §  1792.  W.   57    (1893):    Crowell   v.   Western    Reserve 

5.  3  Chamberlayne,     Evidence,     §§      1793-  Bank,  3  Ohio  St.  406   <  1854)  ;  Plymouth  Coal 
1796.  Co.    v.    Kommiskey,    116    Pa.365,   9   Atl.    646 

6.  Supra,  §  36;   1  Chamb.,  Ev.,  §  56.  (1887)  ;  3  Chamb..  Ev.,  §  1794,  n.  7. 

7.  Reid  v.   Ladue,  66   Mich.   22,  32   N.   W.  14.  Huntsville  Belt  Line,  etc.,  R.  Co.  v.  Cor- 
916,   11   Am.   St.    Rep.   462    (1887);    Cook  v.  pening,  97  Ala.  681,  12  So.  295   (1892). 
Brockway,    21    Barb.    (N.    Y.)     331     (1856);  15.  Menifee  v.  Higgins,  57  111.  50    (1870); 
Arcade  Hotel  Co.  v.  Wiatt,  44  Ohio  St.  32,  4  State    v.    King,    22    Iowa    1,    96    X.    W.    712 
N.  E.  398,  58  Am.  Rep.  785  (1886)  :  3  Chamb.,  (1903)  :  Weber  v.  Kingsland,  8  Bosw.  (X.  Y.) 
Ev..  1793,  n.  2.  415    (1861);   3  Chamb.,  Ev..  §  1794,  n.  9. 

8.  Hopper  v.  Beck,  83  Md.  647,  34  Atl.  474  16.  State  v.   Xolan,   48   Kan.   723,  29   Pac. 
(1896).  568,    30    Pac.    486    (1892):    Lund    v.    Tyngs- 

9.  Hodges  v.  Hodges,  2  Cush.    (Mass.)   455  borough,  9  Cush.   (Mass.)   361    (1851):  Barre 
(1848);    Berg   v.    Parsons,   90   Hun   267,   35  v.   Reading   City   Pass.    R.   Co.,    155  Pa.    170, 
X.   Y.   Supp.   780    (1895)  ;    3   Chamb..   Ev.,   §  26  Atl.  99   (1893)  ;  3  Chamb.,  Ev.,  §  1794.  n. 
1794.  n.   3.  10. 

10.  Yanke  v.  State.  51  Wis.  464,  S  X.  W.  17.  A  witness  may  enforce  the  credibility  of 
276   ( 1881) .  what  he  says  by  some  assertion  as  to  the  posi- 

11.  Hager  v.  Xat.  German-American  Bank.  tiveness  of  his  belief  in  the  truth  of  what  he 
105  C,a.  116,  31  S.  E.  141   (1897).  says.     State  v.  Duncan,  116  Mo.  288,  22  S.  W. 

12.  Johnson    v.    Hovey,    98    Mich.    343,    57  699    (1893). 
N.  W.  172   (1894). 


§  674  REASONING  BY  WITNESSES.  512 

utterance  in  the  precise  language  which  has  just  been  seen  18  to  warrant  its  re- 
jection.19 Thus,  a  witness  may  properly  testify  as  to  what  he  "  believes,"  20 
as  to  that  which  is  the  u  best  of  his  judgment,"  21  or  what  he  "  considers  "  to 
be  true.22  His  evidence  may  be  none  the  less  valuable  because  he  is  willing 
to  tell  only  what  he  u  expects,"  23  u  guesses  "  24  or  "  has  an  impression  "  25 
that  such  is  the  fact.  It  may  be  sufficient  for  all  judicial  purposes  if  the 
witness  testifies  that  he  "  has  an  opinion,"  26  or  "  judges  "  27  the  fact  to  be  as 
he  states  it.  A  cautious  witness  may  be  credited  although  his  only  statement 
is  that  he  ll  should  say  "  28  certain  things  are  true.  A  person  may  be  permitted 
to  testify  although  he  merely  "  supposes,"  29  "  thinks  "  30  or  "  understands  "  31 
tliat  his  testimony  represents  the  truth.  He  may  be  received  to  testify  al- 
though he  is  unwilling  to  swear  positively  to  the  actual  truth  of  what  he 
says.32  His  "  best  recollection  "  may  be  all-sufficient.33  As  stated  elsewhere,34 
the  real  administrative  consideration  to  which  the  power  of  the  court  is  directed 
in  dealing  with  so  called  "  matters  of  opinion  "  is  the  necessity  for  preserving  to 
the  parties  the  substantive  right  to  a  jury  trial.35  The  positive  law,  in  a  very 
emphatic  and  sweeping  way,  has  established  the  inviolable  right  to  such  a 
trial.36 

§  674.  Inference  by  Witnesses;  Use  of  Reason  a  Matter  of  Right.37 — The 
proponent  of  an  act  of  reasoning  by  a  witness  has,  as  a  litigant,  not  only  the 
substantive  right  to  prove  his  case  38  but  also  a  substantive  right  to  the  use  of 
reason.39  Combining  these  two  rights,  a  litigant  is  justly  entitled  to  insist  that 
he  should  be  able  to  place  the  facts  of  his  contention  before  a  tribunal  fitted  to 

18.  See  last  preceding  section.  29.  State  v.  Porter,  34  Iowa  131    (1871). 

19.  Stone  v.  Com.,  181  Mass.  438,  63  N.  E.  30.  Harris  v.  Fitzgerald,  supra;  Kirscher  v. 
1074    (1902);    Hallahan   v.    New    York,   etc.,  Kirsher,  120  Iowa  337,  94  X.  W.  846  (1903): 
R.  Co.,   102  X.  Y.   194,  6  X.  E.  287    (1886)  ;  Voisin  v.  Commercial  Mut.  Ins.  Co.,  70  X.  Y. 
3  Chamb.,  Ev.,  §  1795,  n.  2.  Supp.     147,    60    App     Div     139     M901);     3 

20.  Griffin  v    Brown,  2   Pick.    (Mass.)    304  Chamb.,  Ev.,  §   1795.  n.   13 

(1824);    State    v.    Freeman,    72    X.    C.    521  31.   I.ockett   v.   Minis,   27   Ga.   207    (1858). 

(1875)  ;  3  Chamb.,  Ev.,  §  1795,  n.  3.  COXTRA:    Henderson    v.    Brunson,    141    Ala. 

21.  Alabama  G.  S.   R.  Co.   v.  Hill,  93  Ala.       674,  37  So.  549    (1904). 

514,  9  So   722,  30  Am    St.  Rep.  65   (1890).  32.  Lewis  v.   Freeman,   17  Me.  260    (1840). 

22.  Richards  v    Knight,  78  Iowa  69.  42  X.  33.  .Tockers   v.    Borgman,   29   Kan.    109,   44 
W.  584,  4  L    11.  A.  453    (1889)  ;  De  Graw  v.       Am.  Rep.  625    (1883). 

Emory,   113  Mich.  672,  72  X.  W.  4    (1897)  ;  34.  Infra,  §  676:  3  Chamb..  Fv.,  §  1807. 

3  Chamb.,  Ev.,  §  17!>'>,  n.  5.  35.  Supra,   §   206;    1    Chamb..    Fv.,    §   412. 

23.  Hunter  v.  Helsley,  98  Mo.  App   616,  73  Hames    v.    Brownlee,    63    Ala.    277     (1879)  ; 
S.  \V.  719    (1903).  Robertson  v    Stark,   15  X.  H.   109    (1844);   3 

24.  Hunter  v.  Helsley.  .supra.  Cham.,  Fv.,  §  1796,  n.  2 

25.  Harris  v.   Fit/gerald,   75   Conn.   72,   52  36.  State  v.  Hull,  45  W    Va.,  767,  32  S.  E. 
All     315    (1902).  240    (1899). 

26.  Hallahan    v.    Xew    York,    etc.,    R.    Co.,  37.  3    Chamberlayne.    Evidence,    §§    1797- 
supra.  1800 

27.  People    v.     Eastwood,     14     X.    Y.     562  38.  Supra,  §§   149   ct  seq.:   \   Chamb..  Ev., 
(1856):    3   Chamb.,   Ev.,   §    1795,   n.    10                §§  334  et  seq. 

28.  White   v.   Van   Horn.    159   U.   S.   3,    15  39.  Supra,  §§   179  et  seq.;  1  Chamb.,  Ev., 
S.  Ct.  1027,  40  L.  ed.  55    (1894).                             §§  385  et  seq. 


513  INFERENCE.  §§  675,070 

reason  about  them  in  a  rational  manner.  If  the  tribunal  selectedby  the  law, 
the  jury,  are  unable  to  reason  concerning  the  facts  in  their  primary  form.40 
one  of  two  things  must  be  done  in  order  to  protect  the  proponent  in  his  rights. 

(1)  The  jury  may  be  so  taught  upon  the  subject-matter  involved  in  the  inquiry 
as  to  enable  them  to  dispose  of  it  in  a  rational  manner  at  the  end  of  the  instruc- 
tion.41    Practically,  this  is  what  the  law  undertakes  to  do  for  the  purpose  of 
enabling  the  jury  to  apply  the  rule  of  law  to  the  constituent  facts  of  a  case. 

(2)  The  proponent  may  prepare  the  facts  for  the  reasoning  faculty  of  the  jury 
in  a  secondary  form,  viz.,  the  effect  which  they  have  produced  upon  the  mind 
capable,  by  training  or  experience,  of  reaching  a  rational  conclusion  with  re- 
gard to  them.     Almost  of  necessity,  the  second  expedient,  the  reasoning  of 
witnesses  with  regard  to  the  facts,  is  adopted  in  most  cases.42     The  normal  po- 
sition of  a  witness  is  that  portrayed  in  the  Year  Books.     He  must  be  oyant  et 
voyant,  he  who  hears  and  sees.43     His  function  is,  par  excellence-,  that  of 
observation.     The  tribunal  is  to  hear  through  his  ears,  see  through  his  eyes. 
He  may  merely  state  the  facts  and  let  the  jury  draw  the  conclusion.44 

§  675.  Entire  Elimination  of  Inference  Impossible.45 —  The  impression  which 
first  arises  to  the  mind  is  a  conviction  of  the  impossibility  for  any  one  to  satisfy 
such  requirements.  If  insisted  upon,  no  one  could  testify.  The  statement  of 
the  simplest  fact  embodies  an  element  of  inference.  The  most  instant  in- 
tuitive recognition  of  a  familiar  object  necessarily  connotes  an  act  of  reasoning. 
Observation,  undoubtedly,  presents  to  the  mind  certain  sense-impressions  by 
the  aid  of  the  faculty  analogous  to  but  conveniently  distinguished  from  that  of 
inference  or  reasoning,  viz.,  intuition.  So  instantly  and  intuitively  that  the 
mind  is  seldom  conscious  of  the  process  these  sense-impressions  are  seized  by 
the  reasoning  powers  and  the  mind  becomes  aware  of  the  concept  rather  than  a 
mere  perception.46 

§  676.  Involution  of  Reasoning.47 —  It  would  seem  convenient  to  divide  the 
acts  of  reasoning  by  witnesses  as  they  come  before  the  tribunal  according 
to  the  proportion  which  reasoning  bears  to  observation.  So  regarded,  these 

40.  The    rule    that    facts    themselves    are  44.  Parkin  v.  Grayson-Owen  Co.,  157  Cal. 
primary  and  that  the  reasoning  of  witnesses  41,    106    Pac.    210     (1909);    Atlantic    Coast 
about  them  is  a  secondary  grade  of  evidence  Line  K    Co    v.   Caple's  Adm'x,    110   Va.   514, 
applies  not  only  where  a  jury  is  employed  but,  66  S    E.  855    (1910)  ;   3  Chamb.,  Ev.,  §  1800, 
equally  well,   in   cases  where  the  judge  acts  n.  2 

for    the    determination    of    matters    of    fact.  45.  3  f'hamberlayne,  Evidence.  §  1801. 

Thus,  it  is  operative  at  the  stage  of  roir  dire.  46.  People  v.  Xunley,  142  Cal.  105,  441,  75 

Shepard     v.     Pratt,     16     Kan      200     H876K  Pac.   676    (1004);    Taylor  v.   McClintock,   87 

Where  the  judge  is  sitting  as  a  jury  the  rule  Ark.  24.3.   112  S    W.   405    (1008)  :   Movers  v. 

is  the  same.     Lazarus  v.  Metropolitan  El.  R  Fogarty.  140  Iowa  701,  119  X   W.  159  (1909)  ; 

Co..  60  Hun  100.  23  X.  Y.  Supp.  515   (1893).  3  Chamb.  Ev..  §  1801. 

41.  Infrn,  $  679 ;  3  Chamb..  Ev.,  1816.  47.  3    Chamberlayne,    Evidence,    §§    1802- 

42.  3  rhamb..  Ev..  §§  1707.  1708,  1799.  1807. 

43.  Supra,  §  242;  1  Chamb.,  Ev.,  §  486. 


sj  670  REASONING  BY  WITNESSES.  514 

mental  acts  or  processes  may  be  treated  as  consisting  of  (1)  Inference,   (2) 
Conclusion,  and,  (3  )  Judgment.48 

(1)  Inference. —  In  Inference,  the  element  of  observation  is  at  its  maximum. 
The  witness  is  an  observer  and  his  inference  attaches  to  the  effect  of  the  impres- 
sions which  have  come  to  his  consciousness  from  what  he  has  seen  or  otherwise 
perceived.     Speaking  generally,  the  observation  will  be  spoken  of  as  ordinary  49 
n-here  it  is  in  relation  to  the  every-day  affairs  of  life,  common  knowledge50 
which  every  one  may  have,  and  skilled51  when -made  within  the  domain  of 
an  art,  science  or  trade  by  one  proficient  in  it.     According  as  the  element  of 
inference  or  reasoning  is  in  greater  or  less  proportion  the  inference  is  spoken 
of  as  inlmlire  or  reasoned™ 

(2)  Conclusion. —  As    in    Inference,    both    observation    and    reasoning   are 
present.     The  proportion,  however,  of  the  two,  is  reversed.     In  Inference,  we 
have  observation   with   incidental   reasoning.      In   Conclusion,   is  to  be  found 
reasoning  with   incidental  observation.     In  any  case,  direct  specific  observa- 
tion of  the  phenomena  is  blended  with  much  else,  the  results  of  past  observation, 
general   knowledge,   information  furnished   by   others,   and   the   like,     instant 
recognition  of  a  book,  dog,  one's  house,  familiar  friend,  etc.,  would  be,  under 
such  a  definition,  an  intuitive  inference.     That  A.,  a  neighboring  tradesman, 
was  in  failing  health  or  on  the  verge  of  bankruptcy,  might  properly  be  treated 
as  a  Conclusion.     Much  of  the  result  of  past  observation  may  have  been  lost 
from  memory.53 

(3)  Judgment.—  In  Judgment,  the  element  of  observation  entirely  disap- 
pears.    Nothing  remains  but  an  act  of  pure  reasoning.     Facts,  assumed  to  be 
true,  are  placed  before  the  intellect  of  a  suitably  equipped  witness  and  the 
results  given  to  the  jury.     The  assumption  of  fact  upon  the  basis  of  which 
the  witness  reaches  his  mental  result  is  styled  a  hypothetical  question.54     The 
mind  resultant  at  which  he  arrives  is  referred  to  as  his  Judgment.     The  witness 
himself  is  termed  an  "  expert/'     As  spoken  of  in  the  present  treatise  an  expert 
may  be  defined  as  a  witness  who  gives  his  reasoning  and  the  result  at  which 
he  arrives  upon  the  basis  of  hypothetically  stated  facts.55     Should  the  act  of 
judgment  in  any  particular  case  be  a  necessary  one,  a  mere  summary  of  facts 

48.  3  Chamberlayne,  Evidence,  §  1802.  55.  Best     evidence     required.     Russell      v. 

49.  Infra,  §  688;  3  Chamb .,  Ev.,  §  1837.  State,  53  Miss   367   (1876). 

50.  Supra,  §§  345  et  seq.;   1  Chamb.,  Ev.,  Common  Knowledge. —  The  court  is  not  re- 
§§  691  et  seq  quired  to  admit  the  opinion  of  an  expert  con- 

51.  Infra,  §§  713  et  seq.;  3   Chamb.,  Ev .,  trary    to    common    knowledge.     Goodwin    v. 
§§  1947  et  seq  State,  96  Tnd.  550   (1884)  ;  Com.  v.  Marzyn- 

52.  3  Chamberlayne,  Evidence,  §   1802  ski,  140  Mass    68,  21  N.  E.  228    (1889). 

53.  3  Chamberlayne,  Evidence,  §  1803,  nn.  Judicial  Knowledge. —  A  fortiori,  a  judge 
1,  2.  is  not  called  upon  to  hear  expert  testimony 

54.  Infra,   Hypothetical   Questions,   §§   816  as  to  a  rule  of  law  concernir-"  which  he  has 
et  seq.;  3  Chamb,  Ev.,  §§  2451  et  seq.;  Wich-  judicial  knowledge.     Supra.  §§  :U;>  et  seq.;  1 
ita  v.   foggshall,   3   Kan.   App.   540,   43   Pac.  Chamb.,  Ev.,  §§  570  et  seq.;  Merchants',  etc., 
S42  i  ISM)  ;  Titus  v.  Gage,  70  Vt.  13,  39  Atl.  Sav.  Bank  v.  Cross,  65  Minn.  154,  67  N.  W. 
246    (1896).  1147    (1896). 


515  LN  VOLUTION  OF  REASONING.  §  676 

proved  in  evidence,  no  administrative  objection  would  seem  to  exist  to  receiving 
it  and  no  prejudice  caused  by  its  reception,  in  the  absence  of  special  circum- 
stances.56 

Ambiguity  of  the  Term  Expert. —  A  confessedly  arbitrary  use  is  made  in 
the  present  treatise  of  the  term  ''  expert,"  as  limited  to  a  skilled  witness  testify- 
ing in  response  to  a  hypothetical  question.  The  object  of  such  an  effort  is 
simply  to  emphasize  the  unusual  position  of  one  who  thus  testifies  without  the 
use  of  observation.  From  the  administrative  point  of  view  his  position  is 
unique.  He  should,  accordingly,  it  would  seem,  receive  separate  administra- 
tive treatment,  as  is  done  in  respect  to  the  form  of  question  which  may  properly 
be  addressed  to  him.'*7  The  ambiguity  of  the  term  is  obvious.  The  witness 
who  testifies  to  a  fact  of  special  knowledge,58  is  commonly  spoken  of  in  current 
parlance  as  an  expert.  A  skilled  observer,  familiar  with  a  science,  diagnosing 
the  complicated  phenomena  presented  to  his  attention  is  an  expert.  The  man 
of  science  or  other  technical  skill  who  is  asked  to  give  his  opinion  on  the  basis 
of  the  truth  of  a  hypothetically  stated  set  of  facts  observed  by  others  is  also 
an  expert.  Of  these  several  uses,  the  third  alone  is  adopted  in  the  present 
work.59 

Credibility  of  I ntuition.—  Modern  judicial  administration  recognizes  that 
the  spontaneous  intuitive  action  of  the  mind,  approaching,  as  it  does,  the  uni- 
formity of  nature,60  is  far  more  trustworthy  than  an  act  of  volitional  reasoning, 
subject  to  the  variations  in  operation  which  attend  moral  uniformity.61  In- 
tuitive observations,  like  spontaneous  statements,  are  presumably  true.  The 
reason  in  both  case?  is  the  same. 

Canons  of  Administration. —  Each  litigant  has  a  right  to  insist  that  the 
reasoning  of  a  jury  should  be  applied  to  the  facts  of  his  case,  but,  in  an  admin- 
istrative point  of  view,  the  party's  highest  right  is  the  right  to  insist  upon  being 
given  a  reasonable  opportunity  to  prove  his  case.Q2  Should  a  conflict  arise  be- 
tween the  party's  right  to  prove  his  case  to  a  reasonable  extent  by  the  best 
evidence  in  his  power  and  the  opposing  party's  right  to  insist  upon  having  the' 
reasoning  of  the  jury  applied  to  the  facts  of  the  case  or  the  normal  operation 

Number. —  The       marked       administrative  56.  Williams   v.    Anniston    Electric   &   Gas 

power  of  the  jud<re  in  dealing  with  this  class  Co..  164  Ala.  34.  51  So.  385   (1909). 

of  witnesses  is  further  marked  by  the  readi-  57.  Infra,   §§   816  et  seq. ;  3   Chamh.,   Ev.. 

ness  with  which   he  may  limit  their  number.  §§  2451  et  seq. 

Fraser  v.  .Tennison.  42  Mich,  206.  3  X.  \V   882  58.  Xi/pra.   §§   375   et  seq.:   1   Chanib..   Ev.. 

(1S7<M  :    Powers  v    McKen/ie.   00  Tenn     167.  §§  870  et  seq  ;  Green  v    Kansas  City  Soiith- 

16  S    W    550   i  1801  )  ern  Ry.  Co.,  142  Mo.  App    67.  125  S    YV.  865 

Other  Definitions. —  See  Ausmns  v.  People.  (101  OK 

47  Colo.  167.  107   Pac.  204    (1910);   Fowlie's  59.  3  Chamberlayne,  Evidence.  §   1805. 

Adm'x    v.    Ale-Donald.    Cutler    &    Co.    82    Vt  60.   Infrn.  §  906:   4  Chamh,  Ev  .  §  3150. 

230.    72    Atl.    OSO     (1900);     3    Chamh.    Ev.,  61.   Infrn,  §§   1008   et  seq.;  4  Chamh..  EV., 

§   1804.  n    2      As  to  the  marked  penem!  ad-  §§  3207  et  seq.;  3  Chamb..  Ev..  §   1806. 

ministrative  control   which    the   court   has  of  62.  Supra.   §§    149  et  seq.;   1   Chamb,  Ev., 

expert  witnesses  see  cases  cited  in  3  Chamb.,  §§  334  et  seq. 
Ev.,  §  1804,  n.  2. 


^   077,678  REASONING  BY  WITNESSES.  516 

of  any  other  administrative  principle,  the  latter  must  yield  to  the  extent  of  its 
inconsistency  with  the  former.  The  substantive  right  to  prove  one's  case  is 
paramount.63 

§  677.  [Involution  of  Reasoning1] ;  Conditions  of  Admissibility.04 — The  phe- 
nomena observed  by  the  witness  being  the  primary  evidence  to  be  presented  to 
the  tribunal  wherever  possible,  and  the  inferences,  conclusions  and  judgments 
of  witnesses  being  a  secondary  species  of  evidence,  the  conditions  for  the  ad- 
missibility  of  this  class  are  determined  by  the  ordinary  administrative  principles 
governing  the  reception  of  other  kinds  of  secondary  evidence.00  There  are 
two  elements  of  admissibilitv,  Xecessitv,  and  Relevancv. 

v,.'  v    7  t, 

Necessity. —  Should  it  appear  that  inferences  are  essential  to  protect  the 
proponent  in  his  paramount  right  to  prove  his  case  66  they  will  be  admitted. 
As  indicated  above,67  the  necessity  for  receiving  the  reasoning  of  witnesses 
arises  when  that  of  the  jury  must  necessarily  be  defective.  Where  no  adequate 
necessity  for  receiving  the  secondary  evidence  has  been  shown  it  is  to  be  re- 
jected.68 Where,  for  example,  the  existence  of  a  fact  has  been  69  or  may  be  70 
verified  beyond  question  through  a  simple  act  of  sense-perception  71  or  by  the 
exhibition  of  a  plan  72  or  photograph,73  no  statement  as  to  the  inferences  of  a 
witness  with  regard  to  it  can  be  received.  Documentary  evidence,  e.g.,  letters,74 
stands  in  much  the  same  position. 

§  678.  [Involution  of  Reasoning];  Necessity;  Inability  of  Witness  to  State 
Precise  Mental  Effect  of  Observation.75 —  The  fact  or  set  of  facts  which  a  wit- 
ness has  observed  may  be  so  numerous,  complicated,  minute,  or  interblending 
as  to  elude  effective  individual  expression  by  the  witness.70  The  individual 

63.  3  Chamberlayne,  Evidence,  §  1807.  70.  Stephens   v.    Oradner   Creamery   Co.,   9 

64.  3  Clianiberlayne,  Evidence,  §  1808.  Kan.  App.  183,  57  Pac.  1058   (189!)). 

65.  Xupra,  §§   1.50  et  seq.;   1   Chamb.,  Ev.,  71.  Com.   v.   Stiirtivant,   117   Mass.   122,   19 
§§  339  et  seq.;  3  Chamb.,  Ev.,  §  1808.     Opin-  Am.   Rep.   401    (1875):    Cole   v.   Lake   Shore, 
ion    evidence,    proper    subjects    for  —  specific  etc.,    R.    Co.,    95    Mich.    77,    54    X.    W.    638 
cases,  .see  note.  Bender  od.,  97  X.  V.  507.  520.  (1893)  -.   3  Chamb.,  Ev.,  .§  1809,  n.  8. 
Proper  subjects  of  opinion,  see  note,  Bender  72.  Schwede  v.  Hemrich,  29  Wash.  124,  69 
ed.,  39  X.  Y.  49,  04.     Admissibilitv  of  opinion,  Pac.  643   (1902). 

what    are    admissible,    and    what    are    not —  73.  (Josser    v.    Washington    Tp..     11     Pa. 

specific  instances,  see  note,  Bender  ed.,  27  N.  Super.  Ct.  112    (1899). 

Y.  244.     To  show  licit  fasteners  defective,  see  74.  Kellogg  v.  Frazier,  40  Iowa  502  (1875). 

note,  Bender  ed.,  113  X.  Y.  600.  The  action  of  a  trial  judge  in  this  respect  will 

66.  Supra,  §§   149  et  seq.;  1   Chamb..  Ev.,  not  be   reversed   unless  manifestly  unreason- 
§§  334  et  seq.;  Weiss  v.  Kohlhagen,  58  Or.  able.     Barker    v.    Lawrence    Mfg.    Co..    176 
144,  113  Pac.  46   (1911).  Mass.  203.  57  X.  E.  366   (1900).     See  discus- 

67.  Supra,  §  674;  3  Chamb.,  Ev.,  §  1799.  sion  generally  of  Inferences,  Conclusions  and 

68.  Barker  v.  Lawrence  Mfg.  Co.,  176  Mass.  Judgments   of   witnesses,    3   Chamb.,   Ev.,   §§ 
203,  57   X.   E.   366    (1900);    3  Chamb.,  Ev.,  .  1810,1811. 

§  1809.  75.  3    Chamberlayne,    Evidence,    §§     1812, 

69.  Southern  Kansas  R.  Co.  v.  Robbing,  43       1813. 

Kan.  145,  23  Pac.  113   (1890);  Smith  v.  Mu-  76.  Savage    v.    Haves,    142    111.    App.    316 

tual  Hen.  L  Ins.  Co.,  173  Mo.  329,  72  S.  W.  (1908)  :  Clark  v.  Baird,  9  X.  Y.  183  (1853)  ; 
935  (1903)  ;  3  Chamb.,  Ev.,  §  1809,  n.  6.  3  Chamb.,  Ev.,  1812,  n.  2. 


517  INVOLUTION  OF  REASONING.  §  679 

phenomena  presented  to  the  sense-perception  of  a  witness  may  be  so  disposed 
among  themselves  that  they  can  be  placed  before  the  mind  of  a  tribunal  only 
through  a  statement  as  to  their  combined  effect  upon  that  of  an  observer.  This 
limitation  upon  the  power  of  a  witness  to  describe  a  complicated  set  of  phe- 
nomena only  by  their  secondary  effect  connotes  and  involves,  as  a  matter  of 
course,  the  forensic  necessity  on  the  part  of  a  proponent  of  offering  to  the  jury 
these  phenomena  in  the  only  form  which  is  available  to  him.  The  canon  of 
administration  which  admits  such  evidence  is  applied  in  numerous  instances.77 
Where  all  the  constituent  phenomena  can  be  fully  placed  before  the  jury,  how- 
ever, the  mental  summary  of  the  observer  is  rejected.78 

Detailed  Statement  of  Calient  Facts. —  That  the  right  of  a  litigant  to  the 
judgment  of  the  jury  should  be  invaded  only  to  the  extent  that  the  necessity  of 
the  proponent  requires,  the  observing  witness  will  be  called  upon  to  state,  for 
the  benefit  of  the  jury,  such  portions  of  the  component  or  constituent  facts  as 
admit  of  separate  statement.  Having  stood  successfully  the  tests  which  this 
preliminary  detail  applies  to  his  evidence,  he  is  then  permitted  to  state  the  entire 
set  of  phenomena  observed  by  him  as  they  have  been  collected  into  the  secondary 
form  of  a  single  concept  or  act  of  reasoning,  e.g.,  a  compound  fact  or  expression 
of  fact.  Thus,  in  some  degree,  is  the  precision  of  his  reasoning  brought  to 
light.  More  subjective  feelings,  bias,  interest,  and  the  like,  occasionally  stand 
revealed.  In  assisting  the  work  of  the  jury,  this  preliminary  detail  of  con- 
stituting facts  is  of  considerable  importance.  Its  effect  in  testing  the  memory 
is  of  no  slight  consequence.79  It  follows,  as  a  necessary  corrollary,  that  wrhere 
all  the  constituting  facts  can  be  placed  before  the  jury  no  reason  exists  for 
receiving  the  inference,80  provided  the  jury  are  able  to  coordinate  the  facts 
presented  into  a  reasonable  deduction. 

§  679.  [Involution  of  Reasoning] ;  Inability  of  Jury  to  Coordinate  the  Sense  Im- 
pressions of  the  Observers.81 —  From  similar  causes  inherent  in  the  fact  that 
verbal  description  is  necessarily  ill-adapted  for  the  presentation  of  reciprocally 
interacting  phenomena.82  it  is  probable  that  even  should  the  witness  succeed  in 
giving  to  the  jury  an  exact  representation  of  many  commingling  phenomena, 

77.  Taylor  v.  State,   135  Ga.  622.  70  S.  E.  nomena  is  one  very  generally  made.     Snell  v. 
237   ( 1911  i  ;  Kolp  v.  Decatur  Ry.  &  Light  Co.,  Weldon,  239  111.  279,  87  N.  E.  1022   (1909)  ; 
145    111.    App.    645     (1908)  ;    3    Chamb..    Ev.,  Landrum  v.  Swann,  8  Ga.  App.  209,  68  S.  E. 
§  1812,  n.  3.  862    (1910):    3  Chamb.,  Ev.,   1813.  n.   3. 

78.  Springfield    &    X.    E.    Traction    Co.    v.  80.  Keefe  v.  Sullivan  County  R.  R.  Co.,  75 
YVarrirk.  '249   111.  470,  94  X.  E.  933    (1911);  X.   H.    116,   71    Atl.    379    (190S):    Pearson  v. 
Hufnagle  v.  Delaware  &  H.  Co.,  227  Pa.  476.  Alaska  Par.  S.  S.  Co.,  51  Wash.  560,  99  Pac. 
76  Atl.  205    (1910)  :   3  Chamb.,  Ev.,  §   1812,  753   (1909)  :  3  Chamb.,  Ev.,  §  1813.  n.  4. 

n.  4.  81.  3    Chamberlayne,    Evidence.    §§     1814- 

79.  Abingdon  Mills  v.  Grogan.  167  Ala.  146,       1S19. 

52  So.  596    (1910).  82.  3     Chamberlayne,    Evidence,     §§    1814, 

A      general      requirement. —  The     require-       1815. 
ment  of  a  preliminary  detail  of  observed  phe- 


§  679  REASONING  BY  WITNESSES.  518 

the  tribunal  would  still  fail  to  receive  an  accurate  impression  of  the  situation 
as  a  whole.83 

Instructing  the  Jury. —  To  avoid  the  administrative  difficulty  of  the  jury's 
lack  of  knowledge,  such  instruction,  by  way  of  preparation  for  their  act  of 
judgment,  as  will  render  it  an  exercise  of  sound  reasoning,  occasionally  can  be 
satisfactorily  afforded  them.84  Such  instruction  may  be  afforded  to  the  jury 
by  the  witnesses  who  appear  on  the  stand.  On  the  other  hand,  this  evidence 
may  be  rejected  when  tendered.85 

Jury's  Lack  of  Knowledge. —  The  necessity  for  receiving  the  secondary  evi- 
dence of  an  act  of  inference,  conclusion  or  judgment  may  arise  not  so  much  from 
difficulty  in  understanding  the  probative  or  evidentiary  fact,  as  from  lack  of 
the  special  experience  which  alone  can  form  a  satisfactory  inference  or  con- 
clusion.86 Where  the  experience  of  the  jury  does  not  enable  them  to  under- 
stand and  reason  intelligently  with  regard  to  a  matter  of  science,  or  as  to  the 
affairs  of  a  trade  or  calling,  skilled  witnesses  will  be  allowed  to  state  facts  of 
special  knowledge.87  The  evidence  of  these  witnesses  is  admissible  where  the 
facts  are  such  that  those  who  testify  may  well  be  supposed  from  their  experi- 
ence and  study  to  have  peculiar  knowledge  on  the  subject  which  jurors  generally 
do  not  possess.88 

Common  Knowledge. —  Conversely,  it  follows  that  where  the  matter  is  one  of 
common  knowledge,89  i.e.,  where  the  general  proposition  df  experience  is  one 
within  the  knowledge  of  the  average  juryman,  no  ground  for  admitting  the 
reasoning  of  witnesses  is  furnished.90  The  secondary  evidence  is,  therefore, 
rejected  under  the  rule  excluding  the  reasoning  of  witnesses.91  "  A  witness 

83.  Missouri,  etc.,  Telephone  Co.  v.  Vande-      telligence.     Ferdon    v.    New   York,   0.   &    W. 
vort,  67  Kan.  269,  72  Pac.  771    (1903).     See      Ry.  Co.,  115  N.  Y.  Supp.  352,  131  App.  Div. 
Sequences   and   Coexistences,   3   Chamb.,   Ev.,      380   (1909). 

§  1815,  and  notes.  88.  Buis    v.    Northern    Pac.    Ry.    Co.,    42 

84.  Hiwins    v.    Devvey,    107    Mass.    494,    9  Mont.   471,    113    Pac.   472    (1911);    Horst   v. 
Am    Uep    63    (1871);    Read  v.  Valley  Land,  Lewis,  71  Neb.  365,  103  N.  W.  460   (1905). 
etc-..  Co..  (56  Neb.  423,  92  X.  W.  622    (1902)  ;  89.  Supra,  §§  345  et  seq.;   1   Chamb.,  Ev., 
Roberts  v    Xew  York  El.   R.  Co,   128  N.  Y.  §§  691  et  seq. 

455.  2K  X.  E.  486,  13  L.  R.  A.  499    (1891);  90.  Xew     England     Glass     Co.     v.     Lovell, 

3  Chamb,  Ev.,  §  1816,  n.  1  supra. 

85.  Middlebury    Bank    v.    Rutland,    33    Vt  91.  Swift  &  Co.  v.  Miller,  139  111.  App.  192 
414   (1860).  (1908);   Frick  v.  Kabaker,  116  Iowa  494,  90 

86.  Louisville,  etc.,  R.  Co.   v.  Malone,    109  X.  W.  498   (1902)  :  Welch  v.  Xew  York,  etc., 
Ala.    509,   20   So     33    (1895);    Xew   England  R.  Co..  176  Mass.  393,  57  X.  E.  608    |190()); 
Glass    Co.    v.    Lovell,    7    Cush      (Mass.)     319  Lee   v.    Knapp.    155   Mo.    610,    56   S.    W.   458 

(1851).  (1899)  ;   Harrison  v.  Xaw  York  Cent.  &  H.  R. 

87.  McClendon  v.  State,  7  Ga.  App    7S4,  68  R    Co,   195  X.  Y.  86.  87  X    E.  892    (1909)  ; 
S.    E.    331     (1910);    3    Chamb..    Ev.,    §    1817,  Ohio.  etc..  Torpedo  Co.  v.  Fishburn.  61   Ohio 
n.    3.     Conclusions   of   expert   witnesses   may  St.   608,  56   X.   E.  457.  76   Am.   St.   Rep.  437 
only  be  given  in  evidence  where  the  conclu-  (1900);   Seifred  v    Pennsylvania  R.  Co..  206 

)sions  as  well  as  knowledge  of  the  facts  from  Pa     399,    55    Atl.     lOfil     (1903):     Selleck    v. 

'which   they  are   drawn   depend    upon    profes  .Tanesville  City,  104  Wis    r>70,  80  X".  W.  644, 

sional   or  scientific  information  or  skill,  not  76  Am.  St.  Rep.  892.  47  L.  R.  A.  691    (1899)  ; 

within  the  range  of  ordinary  training  or  in-  ?  Chamb.,  Ev.,  §  1818.  n.  3.     "The  governing 


519  INVOLUTION  OF  EEASONING.  §  679 

testifying  merely  as  to  matters  with  which  the  jury  may  well  be  supposed  to 
be  as  conversant  as  himself,  and  as  capable  of  drawing  a  correct 'conclusion,  is 
not  allowed  to  give  an  opinion."  92  "  The  jury  should  not  be  influenced  by  the 
opinion  of  anyone  who  is  not  more  competent  to  form  one  than  themselves."  93 
.For  example,  as  the  rules  which  experience  has  established  for  reasonable  con- 
duct/*4 whether  certain  acts  are  safe  or  dangerous,95  capable  of  being  performed 
without  unusual  exertion  96  or  within  the  limits  of  human  endurance  97  are 
parts  of  common  knowledge,  the  reasoning  of  witnesses  with  regard  to  them 
will  not  be  admitted.  In  like  manner,  no  evidence  will  be  received  as  to  the 
reasoning  of  witnesses  with  regard  to  the  operation  of  well  known  laws  of 
nature.98  For  instance,  the  inference  of  a  witness  as  to  the  results  of  applying 
force  in  a  well  known  way  cannot  be  received."  Inferences  based  upon  familiar 
instances  of  the  uniformity  of  nature  l  and  therefore  known  to  every  one,  and 
facts  which  anybody  may  understandingly  observe  for  himself.2  are  not  proper 
subjects  for  the  reasoning  of  skilled  witnesses.  The  general  rule,  in  other 
words,  is  that  whenever  the  question  to  be  determined  is  to  be  inferred  from 
particular  facts  which  can  be  readily  produced  before  the  jury,  and  the  inference 
to  be  deduced  therefrom  is  within  the  common  experience  of  men  in  general, 
requiring  no  special  knowledge,  skill  or  training,  the  inference  is  to  be  drawn 
by  the  jury,  and  not  by  the  witness.3  Expert  testimony  is  inadmissible  on  a 
question  which  court  and  jury  can  themselves  decide  on  the  facts,  or  where 

rule  deduced   from   the  eases   permitting  the  Ala.    241,    16    So.    75,    53    Am.    St.    Rep     39 

opinions  of  witnesses  is  that  the  subject  must  (1803);    Cooper    v.    Mills    County.    69    Iowa 

be  one   of  science   or   skill   or   one   of   which  350.  28  X.  W.  633   (1886). 

observation    and    experience    have    given    the  99.  Chicago,   etc.,   R.   Co.   v.   Lexvandowski, 

opportunity  and  means  of  knowledge,   which  190  111.  301,  60  X.  E.  497   (1901)  ;  Passmore 

exists  in  reasons  rather  than  descriptive  facts,  v.    Passmore.    60    Mich.    463.    27    X.    \V.    601 

and  therefore  cannot  be  intelligently  commu-  (1886)  ;  Rawls  v.  American  Mut.  L.  Tns.  Co., 

nicated  to  others  not  familiar  with  the  sub-  27   X.   Y.   282,   84   Am.   Dec.   280    (1863);    3 

ject  so  as  to  possess  them  with  a  full  under-  Chamb.,  Ev.,  §   1818,  n.   13 

standing  of  it."     Schwander  v.  Birge.  46  Hun  1.  Knoll   v.   State,   5o   Wis    249,   12  X.  W. 

(X.  Y.)    66    (1887).     To  the  same  effect,  see  369,  42  Am.  Rep.  704   (1882). 

Georgia  R..  etc.,  Co.  v.  Hicks,  95  Ga.  301.  22  2.  Hovey  v.   Sawyer,  5   Allen    (Mass.)    554 

S.  E.  613   (1894),  and  other  cases,  3  Chamb.,  (1863)  ;  Xew  Jersey  Traction  Co.  v.  Brabban, 

Ev.,  §  1818,  n.  3.  57  X.  J.  L.  691,  32  Atl.  217    (18SK5)  :   McCall 

92.  Hurt  v.   St.  Louis,  etc.,  R.  Co.,  94  Mo.  v.    Moschcowitz,    10    X.    Y.    Civ.    Proc.    107 
255,  7  S.  W.  1,  4  Am.  St.  Rep.  374   (1887).  (1886)  ;  3  Chamb.,  Ev.,  §  1818,  n.  15. 

93.  Veerhusen   v.   Chicago,  etc.,  R.   Co.,  53  3.  Smith  v.  Stevens,  33  Colo.  427.  81   Pac. 
\Yis.  689,   11   X.  W.  433    (1882).  35    (1905);   Riley  v.  American  Steel  &  \Yire 

94.  Stone   v.   Denny,  4   Mete.    (Mass.)    151  Co..  129  111.  App.  123   (1906):  ^Yise  v.  Sugar 
(1842).  Apparatus   Mfg.    Co.,   84    Kan.    86,    113   Pac. 

95.  Edwards  v.   Worcester.   172  Mass.   104,  403    (1911);   Com.  v.  Spiropoulos.  208  Mass. 
51  X.  E.  447   (1898)  71,  94  X.  E.  451    (1911)  ;  State  v.  Heffernan, 

96.  Clay  County  v.  Redifer,  32  Tnd.  App.  93,  28  R.   1.  20,  65  Atl.   284    (1906)  :   Stanch  v. 
69  X.  E.  305   (1903).  Fire  Ass'n  of  Philadelphia,   111   X.  Y.  Supp. 

97.  Metropolitan   Sav.   Bank  v.  Manion,  87  540.  127  App.  Div.  350   (1908)  -.  Lincoln  Ver- 
Md.  6S,  39  Atl.  90   '1897)  mont  Ry.  Co..  82  Vt.  187.  72  Atl.  821   (1909)  ; 

98.  Johnson  v.  Louisville,  etc..  R.  Co..   104  3  Chamb.,  Ev.,  §  1818,  n.  16. 


§  680  REASONING  BY  WITNESSES.  520 

the  relation  of  facts  and  their  probable  results  can  be  determined  without 
special  skill.4 

Special  Knowledge. —  It  is  not  essential  that  the  subject  matter  should  be 
one  of  science ;  if  it  be  such  that  a  special  habit  of  mind  or  specific  information 
not  usually  possessed  by  common  men  is  essential  for  its  complete  understanding, 
a  court  is  warranted  in  admitting  the  reasoning  of  a  skilled  witness  with  regard 
to  it.5  The  mere  fact,  however,  that  the  witness  belongs  to  a  particular  trade 
is  not  ground  for  receiving  the  evidence  of  his  inferences.  The  latter  must 
embody  technical  knowledge.6  The  inferences  of  those  especially  familiar  with 
animals  are  not  necessary  to  state  facts  regarding  which  the  average  man  has 
adequate  knowledge,  e.g.,  what  is  likely  to  frighten  7  or  otherwise  injure  8 
them.  The  matter,  however,  is  largely  one  of  administration.9  Where  no 
special  training  is  required  for  learning  a  business,  facts  as  the  method  in 
which  it  is  done  will  not  be  received.10  "  Xo  rule,  however,  can  be  made  so 
precise  as  to  include  all  cases,  and  each  question  as  it  arises  must  be  determined 
by  the  application  of  general  principles  to  the  particular  inquiry  involved  in 
the  case  before  the  court."  ll  In  this  connection,  the  conflicts  are  numerous 
for- the  decided  cases  "  may  be  said  not  only  to  have  become  legion,  but  legion 
against  legion."  12 

§  680.  [Involution  of  Reasoning] ;  Functions  of  the  Judge.13 — As  is  elsewhere 
suggested,  a  particularly  strong  forensic  necessity  for  admitting  the  inference, 
conclusion  or  judgment  of  a  witness  must  be  shown  where  the  act  of  reasoning 
relates  to  the  existence  of  a  controverted  fact  upon  which  the  jury  will  be  re- 
quired to  pass.  The  inertia  of  the  court  against  admitting  such  evidence 
will  naturally  be  found  to  be  great.14  The  establishment  by  the  proponent  of 
the  fact  that  such  proof  is  fairly  necessary  to  enable  him  to  bring  out  his  case 
will  alone  suffice  to  warrant  the  judge  in  sanctioning  so  great  a  violation  of 

4.  Consol.  Gas,  etc..  Co:  v.  State,   109  Md.  434,  33  X.  E.   173,   10  L.  R.   A.   119    (1892)  ; 
186,  72  Atl.  651    (1909).  Flynn  v.  Boston  Electric  Light  Co..  171  Mass. 

5.  Wight  Fire-Proofing  Co.  v.  Poc/ekai,  130  39.1,  50  X.   E.  937    (1898);   Rawls  v.  Ameri- 
111.    139,    22    X.    E.    543     (1889);    People    v.  can  Mut.  L.  Ins.  Co.,  suprn :  3  Chamb.,  Ev., 
Barber,  115  X.  Y.  475,  22  X.  E.  182   (1889)  ;  §  1819,  n.  7. 

3  Chamb.,  Ev.,  §  1819,  n.  1.  11.  Van   Wycklen    v.   Brooklyn.    118   X.   Y. 

6.  Georgia    R.,   etc.,   Co.    v.   Hicks,    95   Ga.       424.24  X.  E.  179   (1S90). 

301,  22  S.  E.  613   (1894).  12.  Graham   v.   Pennsylvania   Co.,    139   Pa. 

7.  Ouverson   v.   Grafton,   .1    X.   D.   281.    6.1       149,  21   Atl.  151,  12  L.  R.  A.  293    (1891). 

X.   W.   676    (1895);    3   (  hamb..   Ev..  §    1819,  Social  customs. —  The  existence  and  nature 

n.  4.     What  an  animal  will  deem  it  safe  to  of  social  customs  is  not  a  matter  of  special 

approach  is  also  a  matter  of  common  knowl-  knowledge.     Compton    v.   Bates.    10   111.   App. 

edge.     Connelly  v.  Hamilton  Woolen  Co.,  163  78   (1881)  :  3  Chamb..  Ev..  §  1819.  n.  10. 

Mass.  1.16,  39  X.  E.  787   (1895).  13.  3  Chamberlayne  Evidence.  §  1820. 

8.  Brewster     v.    Weir.    93     Til.    App.    588  14.  People  v.  Wright.  93  Cal.  564.  29  Pac. 
(1900).  240    (1892):    Webb  v    State.  6  Ga.  App.  353, 

9.  Harber  v    Manchester.  72  Conn.  675,  45  64  S.   E.   1001    (1909);    Sokel  v.   People,  212 
Atl.  1014    (1900).  111.  238,  72  X.  E.  382  (1904)  ;  3  Chamb.,  Ev., 

10.  Illinois  Cent.  R.  Co.  v.  People,  143  111.       §  1820,  n.  2. 


521 


INVOLUTION  OF  REASONING. 


§  680 


the  right  to  a  jury  trial.15  Much  of  the  same  attitude  is  taken  by  the  presiding 
judge  toward  the  tender  of  an  inference,  conclusion  or  judgment  of  a  witness 
as  to  the  existence  of  a  fact  highly  material  to  the  truth  of  the  proposition  in 
issue.16  The  credibility  of  a  material  witness,17  the  existence  of  any  cause  for 
which  liability  is  claimed  in  the  action  1S  or  questions  as  to  the  extent  of  a 
proper  recovery  for  damages  19  may  stand,  and  are  frequently  treated  as  stand- 
ing, in  the  same  administrative  position.  In  like  manner,  the  possibility  of 
doing  certain  crucial  acts  may  be  so  highly  material  to  the  issue  as  to  exclude  the 
reasoning  of  witnesses.-"  The  province  of  the  jury  is  equally  protected  from 
the  reasoning  of  witnesses  whether  the  essential  fact  is  physical  or  psychological, 
e.g.,  as  to  the  intent  or  intention  with  which  a  given  act  is  done.21  In  propor- 
tion as  the  fact  covered  by  the  act  of  reasoning  approaches,  as  it  were,  the 
heart  of  the  jury's  province,  the  more  pressing  must  be  the  necessity  which  the 
proponent  is  called  upon  to  show  if  he  is  to  succeed  in  securing  its  reception.22 


15.  Evans  v.   Elwood,   123   Iowa  92,  98  X. 
VV.   584    ( 1904 )  ;    Furbush   v.   Maryland  Cas- 
ualty Co.,  131  Mich.  234,  91  X.  W.  135,  100 
Am.  St.  Rep.  605  ( 1902)  ;  Blum  v.  Manhattan 
R.    Co.,    20    X.    Y.    Supp.    722,    1    Misc.    119 
(1892);    Ohio  Oil   Co.   v.   McCrory,    14   Ohio 
Cir.   Ct.   304,   7   Ohio   Cir.   Dec.   344    I  1896)  : 
Saunders  v.  Xorthern  Pac.  Co.,  15  Utah  334, 
49  Pac.  646    (1897);   3  Chamb.,  Ev..  §   1820. 
n.  3. 

16.  Chicago,  etc.,  R.  Co.  v.  Kuchkuch,  197 
111.  304,  64  X.  E.  358    ( 1902 )  ;   Dammann  v. 
St.  Louis,  152  Mo.  186,  53  S.  W.  932   I  1899)  : 
People  v.  Smith,  172  X.  Y.  210,  6  X.  E.  814 
(1902)  :   Seville  v.  State,  49  Ohio  St.  117,  30 
X.  E.  621,  15  L.  R.  A.  516   (1892)  :  Reiter  v. 
Mc.Tunkin,   194  Pa.  301,  45   Atl.  46    (1900); 
3  Chamb.,  Ev.,  §  1820,  n.  4, 

17.  Lovell  v.  Hammond  Co.,  66  Conn.  500, 
34  Atl.  511   (1895)  :  McElhannon  v.  State,  99 
Ga.  672,  26  S.  E.  501    (1896)  :  Van  Bokkelen 
v.    Berdell,    130    X.    Y.    141,    29    X.    E.    254 

(1891)  :  3  Chamb.,  Ev.,  §  1820,  n.  5. 

18.  Chicago,   etc.,   R.   Co.   v.   Ross,   24   Ind. 
App.  222,  56  X.  E.  451    (1899)  ;  Yant  Hul  v. 
Great  Xorthern  R.  Co.,  90  Minn.  329,  96  X. 
W.    789     (1903);    Winters    v.    Xaughton.    86 
N.  Y.  Supp.  439,  91  App.  Div.  80    (1904)  ;    3 
Chamb.,  Ev.,  §  1S20.  n.  6. 

19.  Illustrative    instances. —  Thus,    a    wit- 
ness may  be  forbidden  giving  his  inference  as 
to  the  amount  of  damages  caused  by  the  in- 
juries  arising   from   some   specific   defect   on 
which  the  cause  of  action  is  based. 

Alley.— Musick   v.   Latrobe,    184   Pa.    375, 
39  Atl.  226   (1898). 
Bridge. —  Bliss    v.     Wilbraham,     8     Allen 


(Mass.)  564  (1864)  ;  McDonald  v.  State,  127 
X.  Y.  18,  27  N.  E.  358J1891). 

Car. —  Dooner  v.  Delaware,  etc.,  Canal  Co., 
164  Pa.  17,  30  Atl.  269  (1894). 

Dock.—  Marcy  v.  Sun  Mut.  Ins.  Co.,  1 1  La. 
Ann.  748  (1856). 

Highway. —  Edwards  v.  Worcester,  172 
Mass.  104.  15  X.  E.  447  (1898);  White  v. 
Cazenovia,  78  X.  Y.  Supp.  985,  77  App.  Div. 
547  (1902);  Stillwater  Turnpike  Co.  v. 
Coover,  26  Ohio  St.  520  (1875);  3  Chamb., 
Ev.,  §  1820,  n.  7. 

B-ailroad  track. —  Roberts  v.  Chicago,  etc., 
R.  Co.,  78  111.  App.  526  (1898). 

Sidewalk. —  Barnes  v.  Xewton,  46  Iowa  567 
(1877):  Bradley  v.  Spickardsville,  90  Mo. 
App.  416  (1901  )  :  3  Chamb.,  Ev.,  §  1820,  n.  7. 

Street. — Baker  v.  Madison,  62  Wis.  137,  22 
X.  W.  141.  583  (1885). 

20.  Shapter  v.  Pillar,  28  Colo.  209,  63  Pac. 
302   (1900)  ;  Graney  v.  St.  Louis,  etc.,  R.  Co., 
157  Mo.  666,  57  S.  W.  276,  50  L.  R.  A.  153 
(1900)  ;  Dittman  v.  Edison  Elec.  Illuminating 
Co.,   83   X.   Y.   Supp.    1078,   87   App.   Div.   68 
(1903);   3  Chamb.,  Ev.,  §  1820,  n.  8.     Rape. 

—  A  skilled  witness  will  not  be  permitted  to 
testify  whether  it  is  possible  to  commit  rape 
upon  a  mature  female.  People  v.  Benc,  130 
Cat.  159.  62  Pac.  404  (1900). 

21.  Tait  v.  Hall,  71   Cal.   149,   12  Pac.  391 
(1886)  :  Carey  v.  Moore.  119  Ga.  92.  45  S.  E. 
998   (1903)  :  Dwight  v.  Badgley,  60  Hun  144, 
14  XT.  Y    Supp    49S   (1891)  ;  Devore  v.  Terri- 
tory.   2    Okl.    562,    37    Pac.    1092    (1894):    3 
Chamb.,  Ev.,  §  1820,  n.  9. 

22.  '•'  It  is  the  very  question  to  be  passed 
upon  by  the  jury."     Hamrick  v.   State.   134 
Ind.  324,  34  X.  E.  3   (1893) 


§§   681,  682  REASONING  BY  WITNESSES.  522 

Proving  this,  however,  evidence  of  the  reasoning  of  a  witness  in  the  form  of  a 
conclusion  2a  or  judgment  may  be  received  even  as  to  the  truth  of  the  precise 
proposition  regarding  which  the  parties  are  at  issue.24  This  may  be  done 
either  in  civil  25  or  criminal  26  cases.  But  one  condition  is  imposed.  The 
proponent  must  show  that  he  cannot  enjoy  a  reasonable  opportunity  to  establish 
his  position  unless  this  concession  be  made.  Should  the  proof,  however,  fail 
in  this  all-important  matter,  if  the  forensic  necessity  which  he  establishes  is 
not  such  as  rationally  to  warrant  such  an  invasion  of  the  adversary's  rights  as 
he  requires  should  be  made,  the  inference,  conclusion  or  judgment  upon  the 
precise  point  in  issue  should  be  rejected.27 

§  681.  [Involution  of  Reasoning];  Relevancy;  Objective  and  Subjective.28— 
Relevancy  in  the  fact  offered  in  evidence  is  a  necessary  condition  of  its  adrnis- 
sibility.29  JS'ot  only  should  it  be  objectively  relevant,  but  the  declarant  should 
possess  such  qualities  of  mind  as  to  make  his  statement  subjectively  relevant.30 
The  essential  elements  or  conditions  of  subjective  relevancy  are  two,  adequate 
knowledge  and  absence  of  controlling  motive  to  misrepresent.  So  subtle  may 
be  the  influence  of  interest  as  to  affect  the  testimony  of  a  witness  to  an  extent 
of  which  he  himself  is  ignorant.  The  more  potent,  however,  the  operation  of 
such  a  motive  may  be,  the  less  will  be  the  probative  force  which  attaches  to  the 
reasoning  so  affected. :n 

§  682.  [Involution   of  Reasoning] ;  Adequate  Knowledge.22 —  The  presiding 

23.  National  Gas  Light,  etc.,  Co.  v.  Miethke,  18,  97  Pac.  1096;   3  Chamb.,  Ev..  §  1820.  n. 
35  111.  App.  629   (1890)  ;  Summerlin  v.  Caro-  16.     COXTKA:     State  v.  Hyde,  234  Mo.  200, 
lina.  etc.,  R.  Co.,  133  X.  C.  550,  45  S.  E.  898  136  S.  W.  316   (1911)  ;  Lemons  v   State  (Tex. 
(1903)  ;  3  Cham!).,  Ev.,  §  1820,  n.  11.  Cr    App.  1910),  128  S.  W.  416. 

24.  Leslie  v   Granite  R.  Co.,  172  Mass.  468.  27.  Sampson  y.  Hughes,  147  Cal.  62,  81  Pac. 
52  X   E   542   (  1899)  :  Littlejohn  v.  Shaw,  159  292    (1905);   City  of  Chicago  v.  France,   124 
X.  Y.  188,  53  X.  E.  810  (1899)  ;  Daly  v.  Mil-  111.  App.  (i48    (1906)  ;   City  of  Grand  Rapids 
watikee,  103  Wis.  58S,  79  X.  W.  752   (1899)  ;  v.  Coit,  149  Mich.  668,  113  X.  W.  362,  14  De- 
3  Chamb.,  Ev.,  §  1820,  n.  12.     Should  the  fact  troit   Leg.   XT.   555    (1907):    Winn  v.  Modern 
stated  in  the  act  of  reasoning  be  probatirely.  Woodmen  of  America,  138  Mo.  App.  701,  119 
rather  than  constituency,  relevant,  the  prob  S.    W.   536    (1909);    Zide  v.    Scheinberg.   114 
ability  of   its  being  admitted   is   greatly   in-  X.  Y   Supp.  41    (1909)  :  Schult/  v.  Union  Ry 
creased      Ohio,  etc..  Torpedo  Co.  v    Fishburn,  Co.,    181    X.    Y.    33,    73    XT.    E.    491     (1905); 
61  Ohio  St.  60S.  56  X    E.  457   ( 1900)       Where  Fowler  v.  Delaplain,  79  Ohio  St.  279,  87  X.  E. 
proof  of  the  res  gest*  is  by  the  use  of  circum-  260  (1909)  ;  3  Chamb.,  Ev.,  §  1820,  n.  17. 
stantial   evidence   it   will,   in   general,   be   as-           28.  3     Chamberlayne,    Evidence,    §§     1821, 
sumed  by  the  court  that  the  jury  are  capable  1822 

of  drawing  all  necessary  inferences      ./Etna  L  29.  Manayunk    Fifth    Mut.    Bldg.    Soc.    v. 

Ins   Co.  v.  Kaiser.  115  Ky   539,  74  S.  W.  203,  Holt,  184  Pa.  572.  39  Atl.  293  (1898)  ;  Hank- 

24  Ky    L    Rep    2454    (1903).  witz  v.  Barrett,  143  Wis.  639.  128  XT.  W.  430 

25.  Western  Union  Tel    Co.  v    Peagler.  163  (1910)  ;  3  Chamb.  Ev..  §  1821,  n    1. 

Ala.  38,  50  So   913    (1909)  :   Johnson  v.  Wil-  30.  Pupra,  §  671:   3  Chamb.,  Ev.,  §  1774. 

mington   City   Ry    Co.   7   Pen     (Del.)    5,   76  31.  Patrick  v    Howard,  47  Mich.  40,  10  N. 

Atl.  96   (1905)  :  3  Chamb.  Ev.,  §  1820,  n.  15  W    71   (1881)  :  3  Chamb.,  EV.,  §  1822. 

26.  People,  v.  Monat.  200  X.  Y.  308.  93  X.          32,  3    Chamberlayne,    Evidence,    §§    1823- 
E.  982   (1911)  ;  State  v.  Bridgham,  51  Wash.  1825. 


523 


INVOLUTION  or  REASONING. 


§  682 


judge  will  require  that  it  be  proved  to  his  satisfaction  33  either  by  means  of  the 
statements  of  witnesses  testifying  in  open  court  or  by  the  relevant  assertions 
contained  in  documents,  i.e.,  directly  34  or  else  by  probative  facts,35  that  the 
proposed  witness  possesses  sufficient  knowledge  to  make  his  act  of  reasoning, 
inference,  conclusion  or  judgment,  helpful  to  the  jury.36  The  mental  qualifica- 
tions of  the  witness  must  relate  to  the  precise  point  as  to  which  his  inference 
is  asked.  Adequate  knowledge  upon  other  heads  is  immaterial.37  This  proof 
of  a  qualification  is  usually  made  in  connection  with  the  examination-in- 
chief.38  The  burden  of  showing  knowledge  rests  upon  the  proponent.39 

Observation  and  Inference. —  Merely  showing  adequate  opportunities  for 
observation  is  no  longer  sufficient.40  Mental  capacity  to  coordinate  these  ob- 
servations into  a  resultant  helpful  to  the  jury  must  also  be  shown.41  Even 
association  with  a  given  trade  or  calling  is  not  adequate  to  enable  an  observer 
to  aid  the  jury  as  to  the  more  technical  aspects  of  a  special  pursuit.42  '  A  fairly- 
satisfactory  test  as  to  the  probative  value  of  any  inference  from  observation  is 
furnished  by  requiring  the  proposed  witness  to  state,  so  far  as  he  can,  the 
separate  phenomena  observed  by  him  and  used  as  constituting,  in  part  at  least, 
the  basis  of  his  inference.43 

Position  of  the  Witness. —  The  court  may  recognize  in  the  claim  of  the 
proposed  witness  to  the  possession  of  suitable  knowledge  prima  facie  proof  44 


33.  Metropolitan  West  Side  El.  R.  Co.  v. 
Dickenson,  161  111.  22,  43  X.  E.  706   (1896)  ; 
Bowen  v.  Boston,  etc.,  R.  'Co.,  179  Mass.  524, 
61  X.  E.  141  (1901)  ;  Brunnemer  v.  Cook,  etc., 
Co.,   85   X.   Y.    Supp.   954,   89   App.   Div.   406 
(1903)  ;   Allen's  Appeal,  99  Pa.   196,  44  Am. 
Rep.  101   (1881)  ;  3  Chamb.,  Ev.,  §  1823,  n.  1. 

34.  Chicago  City  R.  Co.  v    Handy,  208  111. 
81,  69  X.  E.  917  ( 1904)  ;  Leopold  v.  Van  Kirk, 
29  Wis.  548    (1872):   3  Chamb.,  Ev.,  §  1823, 
n.  2. 

35.  Pennsylvania  R.  Co.  v.  Connell,  127  111. 
419,  20  X.  E.  89   ( 1889)  ;  Wright  v.  Schnaier, 
70   X.  Y.  Supp    128,  35  Misc.   37    (1901):    3 
Chamb.,  Ev.,  §  1823.  n.  3. 

36.  San  Diego  Land,  etc.,  Co.  v.  Xeale,  88 
Cal.   50,   25   Pac.  977    (1891);    Zinn  v    Rice, 
161  Mass.  571,  37  X'.  E.  747    (1894)  :  Dooner 
v.  Delaware,  etc.,  Canal  Co,   164  Pa.   17,   30 
Atl    269   (1894)  :  3  Chamb.,  Ev  ,  §  1823.  n.  4. 

37.  Dore  v.  Babcock,  72  Conn.  408,  44  Atl. 
736  (1899K 

38.  Reed  v.  Drais.  67   Cal.  491,  8  Pac.   20 
(1885):   Campbell  v.  Russell,  139  Mass.  278, 
1    X.  E.  345    (1885);   Haslam  v.   Adams  Ex- 
press  Co..   6   Bosw.    <X.   Y.)    235    (1860);    3 
Chamb.,  Ev.,  §  1823,  n.  6. 

39.  Denver,  etc.,  R.  Co.  v.  Smock,  23  Colo. 
456,  48  Pac.  681    (1897);    Pennsylvania  Co. 


v.  Swan,  37  111.  App.  83    (1890);   3  Chamb., 
Ev.,  §  1823,  n.  7. 

40.  Lincoln  v.  Barre,  5  Cush.    (Mass.)    590 
(1850)  ;  Page  v.  Parker,  40  X.  H.  47   (1860)  ; 
State   v.    Barrett,    33    Or.    194,   54    Pac.    807 
( 1898)  ;  3  Chamb.,  Ev.,  1824,  n.  3. 

41.  Kirkpatrick    v.    Snyder,    33    Ind.    169 
(1870);   Webster  v.  White,  8   S.  D    479,  66 
X..  W.   1145    (1896):   3  Chamb.,  Ev.,  §   1824, 
n.  4. 

42.  Koccis  v.  State,  56  X.  J.  L.  44.  27  Atl. 
800   (1893).     Thus,  a  worker  in  soapstone  is 
not,  necessarily,  enabled  to  speak  authorita- 
tively as  to  the  art  of  mining  it  or  as  to  the 
probable  results  of  given  operations.     Page  v. 
Parker,  40  X'.  H.  47  (  1860) . 

43.  Chicago,   etc.,   R.    Co.   v.   Kern,   9    Ind. 
App.   505,   36   X.   E.   381    (1893):    Sexton   v. 
Xorth   Bridgewater,    116   Mass.   200    (1874); 
Rochester,  etc.,  R.  Co.  v.  Budlong,  6  How   Pr. 
(XT    Y.)   467    (1851);   3  Chamb.,  Ev.,  §  1824, 
n.  8. 

44.  Scandell    v.    Columbia   Constr.   Co..   64 
X.  Y.   Supp.  232.  50  App.  Div.  312    (1900); 
State  v.  Wilcox,  132  X.  C.  1120.  44  S.  E.  625 
(1903).     A  witness  is  not  necessarily  quali- 
fied  because  he  asserts  the   fact.     Staats  v. 
Hausling,  50  XT.  Y.  Supp.   222,  22  Misc.   526 
( 1898) .     One  who  disclaims  qualification  doeg 


683 


REASONING  BY  WITNESSES. 


524 


of  qualifications,45  permitting  the  adverse  party,  if  so  disposed,  to  cross-ex- 
amine on  the  point.46  In  any  case,  the  judge,  in  order  to  admit  the  result  of 
a  mental  operation,  must  be  able  to  assume  that  it  was  made  by  one  who  pos- 
sessed adequate  data  upon  which  to  make  it  and  had  the  requisite  mental 
faculties  to  enable  him  to  reach  a  sound  conclusion.47  The  question  is  whether 
the  witness  has  shown  so  intimate  an  acquaintance  with  the  subject-matter  as 
to  enable  him  to  make  an  inference  which  would  be  helpful  to  the  jury.48 
"  Courts  cannot  establish  a  standard  by  which  to  measure  expert  witnesses. 
If  they  show  that  they  have  practical  skill  or  scientific  knowledge  or  experience 
as  to  matters  under  investigation,  they  are  competent  to  testify."  49 

§  683.  [Involution  of  Reasoning] ;  Ordinary  Observer.50 —  In  case  of  the  ordi- 
nary observer,  all  that  need  to  be  shown  is  that  the  proposed  witness  has  had 
suitable  opportunities  for  observing  the  facts  which  he  proposes  to  state  51  and 
has  mentality  sufficient  to  enable  him  to  coordinate  his  impressions  into  a 
simple  act  of  direct  inference  in  a  rational  way.52  A  mere  guess  will  not  be 
received.53  If  the  jury  might  reasonably  act  upon  the  inference  which  the 
witness  states  arid  the  "  state  of  the  case  "  54  does  not  require  some  other  course 
the  testimony  will  be  received.55  All  that  is  necessary  is  opportunity  to  ob- 
serve and  a  fair  average  intelligence.56  But  such  a  witness  will  not  be  per- 


npt  necessarily  fail  to  qualify.  Walker  v. 
Scott,  10  Kan.  App.  413,  61  Pac.  1091  (1900)  ; 
Com.  v.  Williams,  105  Mass.  62  (1870);  3 
Chamb,  Ev.,  §  1825,  n.  1. 

45.  Minnesota    Belt   Line   R.,   etc.,   Co.,   v. 
Gluck,  45  Minn.  463,  48  X.  W.   194   (1891); 
Sale   v    Eichberg,    105   Tenn.  333.  59   S.   W. 
1020    (1900);   3  Chamb.,  Ev.,  §   1825,  n.  2. 

46.  Goodwine   v.    Evans,    134    Ind.    262,   33 
N.  E.  1031    (1892)  :  Pennsylvania,  etc.,  Canal 
Co    v    Roberts,  2   Walk.    (Pa.)    482    (1881). 
It   is  a   matter  of  administration.     Finch   v. 
Chicago,  etc.,  R.  Co.,  46  Minn.  250,  48  X    W. 
915    (1891).     The   rule   apparently   is   other- 
wise in  Xew  York.     Walter  v.  Hangen,  75  X. 
Y.   Supp.   683,   71   App.    Div.   40    (1902)       It 
would  seem  to  be  a  matter  of  right.     Davis  v. 
State,  35  Ind    496,  9  Am.  Rep.  700    (1871); 
Jaeckel  v   David,  69  X.  Y.  Supp.  998,  34  Misc. 
791    (1901).     3  Chamb.,  Ev ,  §  1825,  n    3. 

47.  Campbell  v.  Cayey,  69  X.  Y.  Supp.  859, 
59  App.  Div    621   (1901). 

The  province  of  an  expert  being  that  of 
pure  reasoning,  his  possession  of  the  faculty 
of  description  would  not  be  deemed  impor- 
tant Smith  v  Brooklyn,  52  X.  Y.  Supp. 
983,  32  App.  Div.  257  (1898). 

48.  Lee  v.  Clute.   10  Xev    149    (1875). 

49.  Sioux  City,  etc.,  R.  Co.  v.  Finlayson,  16 


Xeb.  578,  20  X.  W.  860,  49  Am.  Rep.  724 
(1884).  Whether  the  jury  will  credit  the 
testimony  is  for  them  to  say.  Com.  v.  Wil- 
liams, 105  Mass.  62  (1870);  Gleckler  T. 
Slavens,  5  S.  D.  364,  59  X.  W.  323  (1894). 
The  matter  of  probative  force  is  entirely 
with  them.  Jones  v.  Erie,  etc.,  R.  Co.,  151  Pa 
30,  25  Atl.  134,  31  Am.  St.  Rep.  722,  17  L. 
R.  A.  758  (1892). 

50.  3  Chamberlayne,  Evidence,  §   1826. 

51.  May  v.  Bradlee,  127  Mass.  414  (1879)  ; 
People  v.   Kinney,   124  Mich.  486,  83   X.   W 
147    (1900);    State   v.    Williamson,    106   Mo. 
162,   17  S.  W.   172    (1891);   Slocovich  v.  Ori- 
ent Mut.  Ins.  Co.,  108  X.  Y.  56,  14  X.  E.  802 
(1888)  ;  3  Chamb.,  Ev.,  §  1826,  n.  1. 

52.  Grand  Lodge  B.  of  R.  T.  v.   Randolph, 
186  111.  89,  57  X.  E.  882   (1900)  ;  Gilmore  v. 
Mittineague  Paper  Co.,  169  Mass.  471.  48  X. 
E.  623   (1897)  ;  Conrad  v.  Swanke,  80  Minn. 
438,   83   N.   W.   383    (1900);    Teerpenning  v. 
Corn   Exch.   Ins    Co..  43  X.   Y.  279    (1871); 
3  Chamb..  Ev.,  §  1826.  n.  2. 

53.  Illinois  Cent.  R.  Co.  v.  Behrens,  106  111. 
App.  471    (1902). 

54.  Supra.  §  654;  3  Chamb.,  Ev  .  §  1742. 

55.  Goodwin  v.  State,  96  Ind.  550    (1884). 

56.  Chicago,   etc.,   R.    Co.   v.    Ingersoll,   65 
111.  399  (1872). 


525  INVOLUTION  OF  REASONING.  §  681 

mitted  to  testify  as  an  expert;57  nor  can  hearsay  properly  be  used  as  consti- 
tuting part  of  the  basis  upon  which  the  witness  purposes  to  testify.58  The 
court  is  not  called  upon  to  pass  upon  the  qualifications  of  an  ordinary  observer. 
The  question  is  one  of  fact  and  embodies  no  issue  as  to  technical  or  scientific 
training.59  The  practice,  however,  is  to  do  so,  should  the  fact  to  be  stated 
contain  a  large  proportion  of  the  element  of  volitional  reasoning.60 

Special  Facilities  for  Observation. —  Residence  in  a  given  community  or 
some  other  circumstance  of  a  similar  nature  may  confer  special  opportunities 
for  observation  denied  to  observers  not  so  situated-111  Such  reasoning  is 
seldom  entirely  specific  to  the  facts  of  a  particular  case  and  more  completely 
resembles  a  conclusion.62  Thus,  one  who  lives  on  a  stream  may  be  able  to 
state  that  a  dam  across  it  has  been  raised  to  a  height  beyond  the  capacity  of 
the  water  course.03  He  knows,  as  a  result  of  observation  and  experience, 
what  the  probable  effect  of  a  serious  of  dry  seasons  would  be ;  64  in  what  way 
use  may  properly  be  made  of  its  water  for  floating  logs ;  65  whether  a  given 
freshet  is  greater,  in  any  respect,  than  those  which  have  come  in  former 
times ;  6G  what  channel  a  stream  in  his  neighborhood  would  take  if  permitted  to 
do  so.(1T  He  may  be  competent  to  state  the  probability  of  being  able  to  locate  a 
given  object,  e.g.,  a  human  body,68  within  its  waters ;  to  state  that  the  construc- 
tion of  a  railroad  embankment  R9  or  other  impediment  to  the  free  flow  of  the 
stream  had  caused  its  waters  to  set  back ;  to  state  the  capacity  of  a  certain 
structure  to  pass  on  the  waters  of  a  particular  stream  when  in  a  given  condi- 
tion, as  that  of  freshet.'0  Of  a  particular  dam,  he  may  have  knowledge  enough 
to  be  able  to  say  that  it  is  or  is  not  properly  constructed,71  or  as  to  how  far 
back  it  will  cover  land  by  the  waters  which  it  controls.72 

§  684.  [Involution  of  Reasoning] ;  Skilled  Witness.73 —  One  familiar  with  the 
facts  or  lines  of  thought  known  to  those  engaged  in  a  particular  science,  trade 

57.  Cook    v.    Fuson,    66    Ind.    521     (1879);       Rep   130  ( 1875)  ;  Hot  Springs  Lumber  &  Mfg. 
Zachary  v.  Swanger,  1  Or.  92.  (1853).  Co.  v.  Revercomb,  110  Va.  240,  65  S.  E.  557 

58.  Scull  v.   Wallace.   15  Serg.  &  R.    (Pa.)        (1009). 

231     (1826):    Lester   v    Pittsford.   7   Vt.    158  66.  Galveston,  etc.,  R   Co.  v.  Daniels.  9  Tex. 

(1835).  Civ.  App    253,  28  S.  W.  548,  711   (1894). 

59.  Prentis  v.   Bates,  93  Mich.  234.  53  X.  67.  Winter  v.  Fulstone,  20  Xev.  260,  21  Pac. 
W.  153.  17  L.  R.  A.  494  (1892).  201,  687   (1S89). 

60.  People  v.  Young.  151  \.  Y.  210,  45  X.  68.  Travelers'  Ins.  Co.  v.  Sheppard,  85  Ga. 
E.  460    (1896).  751,  12  S.  E.  18   (1890) 

61.  Cottrill  v.  Myrick.  12  Me.  222   (1835)  ;  69.  Central  R  ,  etc..  Co   \    'V      ^'4  Ga.  351, 
Pettibone    v.    Smith,    37    Mich     579    (1877)  :  10  S.  E.  965   (1890)  ;  3  Cliaml...  K\  .  §  1826a, 
Lincoln,  etc.,   R.   Co.  v.   Sutherland.  44   Xeb.  n   9. 

526,   62   X.  W.   859    (1895)  :    3   Chamb.,   Ev.,  ,    70.  McPherson  v.  St.  Louis,  etc.,  R.  Co.,  97 

§  1826a.  n.  1.  Mo.  253.  10  S.  W.  846  (1889). 

62.  Infra,  §§  792:   3  Chamb..  Ev.,  §§  2291  71.  Porter  v.  Pequonnoc  Mfg.  Co..  supra, 
et  seq.  72.  Walker    v.    Davis.    83    Mo.    App.    374 

63.  Porter  v.  Pequonnoc  Mfg.  Co.,  17  Conn.  (1900)  :  3  Chamb.,  Ev.,  §  1826a,  n.  12. 

249  (1845).  73.  3    Chamberlayne,    Evidence,    §§    1827- 

64.  Pettibone  v.  Smith,  supra.  1829. 

65.  Dean  v.  McLean,  48  Vt.  412,  21   Am. 


§  68-i  REASONING  BY  WITNESSES.  526 

or  calling  not  within  the  scope  of  common  knowledge  may  well  be  termed  a 
skilled  witness.74  He  may  testify  equally  well,  under  proper  conditions,  to 
an  inference,  conclusion,  or  judgment.  The  skilled  witness  is  allowed  to  draw 
technical  and  scientific  deductions  or  conclusions  from  the  existence  of  a  state 
of  phenomena  in  which  a  question  of  science  or  art  is  presented.  When  thus 
acting,  he  is  spoken  of  as  a  Skilled  Observer.75  That  which  he  contributes  to 
the  cause  of  justice  may  be  an  act  of  pure  reasoning,  passing  upon  facts  as- 
sumed to  be  true  and  submitted  to  the  intelligence  of  the  witness  in  the  form 
of  a  so  called  hypothetical  question.76  Under  these  circumstances,  the  skilled 
witness  becomes  an  Expert?1 

Who  are  Skilled  Witnesses. —  If  the  inquiry  relate  to  any  form  of  human 
activity  which  embodies  a  knowledge  denied  to  other  men,  not  shared  by  men  in 
general,  or  creates  special  powers,  the  topic  is  one  for  the  reasoning  of  the 
skilled  witness.78  A 'little  experience,  in  a  casual  way,  may  not  suffice  to  en- 
title a  witness  to  be  heard  as  one  who  possesses  skill  on  the  subject.79  In  the 
same  way,  a  witness  may  be  rejected  if  he  shows  ignorance  of  some  fact  material 
to  giving  helpful  testimony.80  In  practical  questions,  experience  which  im- 
plies time,  is  indispensable.81  The  extent  of  qualification  required  in  a 
skilled  witness  must  be  commensurate  to  the  specialized  nature  of  the  infer- 
ence which  the  witness  offers  to  state.  With  the  commonly  known  facts  of 
any  particular  form  of  human  activity,  the  special  knowledge  82  of  the  craft,  it 
may  practically  be  assumed  that  any  member  of  it  is  familiar.83  No  rule 
requires  that  the  witness  should  be  a  member  of  the  special  trade  or  calling  to 
which  his  reasoning  relates.84  Nor  can  any  assumption  fairly  be  made  that  a 
witness  is  skilled  or  experienced  in  a  particular  trade  or  calling  merely  be- 
cause the  one  in  which  he  is  actually  engaged  is  so  connected  with  the  former 
that  knowledge  and  experience  acquired  in  it  would  be  helpful  to  him  in  his 
own  business.85  It  is  for  the  presiding  judge  to  decide  as  to  whether  a  wit- 

74.  People  v.  Temperle,  94  Cal    45,  29  Pac.       Ill,  54  X.  E.  490   (1899)  ;   Hall  v.  Murdock, 
709   (1892);  Boswell  v   State,  114  Ga    40,39       114    Mich.    233;    72    X.    W.    150     (1897);    3 
S.  E.  897    (1901)  ;  Siebert  v.  People,  143  111.      Chamb,  Ev.,  §  1828,  n.  3. 

571,  32  N.  E.  431   (1892)  ;  Emerson  v.  Lowell  79.   Broquet  v.  Tripp,  36  Kan.  700,  14  Pac. 

Gaslight   Co.,   6  Allen    (Mass.)    146,  83   Am  227   (1887). 

Dec.  621   (1863);   Piehl  v.  Albany  ~R.  Co.,  162  80.  Stevens  v.   Minneapolis,  42   Minn.   136, 

N.  Y.  617,  57   N.  E.   1122    (1900);   Koons  v.  43  N.  W.  842    (1889). 

State,    36    Ohio    St.    195    (1880);    Fraim   v.  81.  Otey  v.  Hoyt,  47  N.  C.  70  (1854). 

Nat.   F.   Ins.   Co.,    170  Pa.    151,   32   Atl.   613,  82.  Supra,  §§   375  et  seq.;  1   Chamb.,  Ev., 

50  Am.  St.  Rep.  753   (1895)  ;  3  Chamb.,  Ev.,  §§  870  et  seq. 

§  1827,  n.  1.  83.  Siebert  v.  People,  supra;  Hardiman  v. 

75.  Infra,   §§   713   et  seq.;   3   Chamb.,   Ev.,  Brown,  162  Mass.  585,  39  X.  E.  192   (1894); 
§§  1947  et  seq.  Lowe  v.   State,   118  Wis.  641,  96  X.  W.   417 

76.  Infra,   §§   816   et  seq.;  3   Chamb.,  Ev.,  (1903)  ;  3  Chamb.,  Ev.,  §  1828,  n.  10. 

§§  2451  et  seq.  84.  Christman  v.  Pearson,  100  Iowa  634,  69 

77.  Only   skilled   witnesses  may  testify   as  X.  W.  1055   (1897);  Van  Deusen  v.  Young.  2 
experts.  Barb.    (X    Y.)    9    (1858);    3   Chamb.,  Ev.,   § 

78.  Isenhour  v.   State,  157  Tnd.  517,  62  X.  1828,  n    11. 

E.  40    (1902);   Childs  v.  O'Leary,  174  Mass.  85.  People  v.  Millard,  53  Mich.  63,  18  N. 


527  INVOLUTION  OF  REASONING.  ^  085,686 

ness  who  undertakes  to  state  special  knowledge  shall  be  regarded  as  qualified 
to  do  so.80 

§  685.  [Involution  of  Reasoning] ;  Conclusions  and  Judgment  of  Skilled  Wit- 
ness.87—  A  skilled  witness  should  be  able  'so  understandingly  to  observe  the 
phenomena  in  all  relevant  relations  and  so  possessed  of  mental  training  and 
experience  as  to  enable  him  to  coordinate  these  phenomena  into  a  result  which 
the  jury  may  reasonably  adopt  as  their  own.ss  The  court  is  wan-anted  in  in- 
sisting, so  far  as  consistent  with  a  reasonable  opportunity  to  prove  one's  case, 
that  the  skilled  witness  who  undertakes  to  testify  as  an  expert  should  be  af- 
firmatively shown  to  be  one  whose  reasoning,  coupled  with  technical  experi- 
ence, may  guide  that  of  a  jury  to  a  sound  conclusion.*9  "  The  value  of  the 
expert  testimony  .  .  .  depends  largely  on  the  extent'  of  the  experience  or 
study  of  the  witness.  The  greater  the  experience  or  knowledge,  the  greater 
is  the  value  of  the  opinion  resting  upon  it."  90  The  real  question  is,  as  has 
been  said,  as  to  whether  the  training,  experience,  reading  or  other  qualifica- 
tions of  the  witness  are  sufficient  in  the  opinion  of  the  court  to  make  his  infer- 
ence, conclusion  or  judgment,  helpful  to  the  jury  in  respect  to  the  subject-mat- 
ter as  to  which  he  proposes  to  tesify.91  To  render  the  opinion  of  a  non-expert 
admissible,  the  facts  upon  which  the  witness  is  called  upon  to  express  his 
opinion  must  be  such  as  men  in  general  are  capable  of  understanding.92  Xoth- 
ing  could  well  be  better  settled  than  that  a  skilled  witness  may  be  competent 
to  testify  as  an  expert  although  his  knowledge  on  the  subject  is  based  entirely 
upon  his  reading.93  Such  a  course  assumes  that  the  reading  is  digested  and 
harmonized  into  the  general  experience  of  the  witness  and  that  the  latter  has 
found  nothing  to  oppose  to  the  propositions  gained  by  his  reading.94  It  must 
have  enabled  him  to  form  a  reasonable  conclusion  for  himself.9'' 

§  686.  [Involution  of  Reasoning] ;  Judge  as  Tribunal  of  Fact.90 —  The  admin- 
istration of  the  court  is  greatly  modified  when  the  judge  himself  sits  for  the 

W.    562     (1884):    PiehJ    v.    Albany    R.    Co.,'  90.  Wells  v.  Leek.  151  Pa.  431,  25  Atl.  101 

supra;  3  Chaml)..  Ev.,  §  1828,  n.  12.  (1892). 

86.  Osborne  v.  Troup,  60  Conn.  485,  23  Atl.  91.  O'Rourke  v.   Sproul,   147   111.   App.  609 
157    (  1801)  ;   Baxter  v.  Chicago,  etc.,  R.  Co.,  (1909)  ;  Spino  v.  Butler  Bros.,  113  Minn.  326, 
104  Wis.  307,  80  X.  \V.  644   (1899).  129   X.    W.   590    (1911);    State   v.    Bell,   212 

87.  3    Chamberlayne.    Evidence,    §§    1830-  Mo.  Ill,  111  S.  W.  24  (1908);  3  Chamb.,  Ev., 
1832.  §  1831,  n.  5. 

88.  Zinn  v.   Rice,   161   Mass.  571.  37   X.   E.  92.  Combs  v.  Lake,  91  Ark.  128,  120  S.  W. 
747    (1894)  :    Evans   v.   People,    12   Mich.   27  977   (1909)  :  3  Chamb.,  Ev.,  §  1831,  n.  6. 
(1863)  :   Pfau  v.   Alteria,  52  X.  Y.  Supp.  88,  93.  Jackson   v.  Boone.  9  Ga.  662,  20  S.  E. 
23  Misc.  693   (1898)  ;  3  Chamb.,  Ev.,  §  1829,  46   (1894)  :  Brown  v.  Marshall,  47  Mich.  576, 
n.  3.  11  N.  W.  392   (1882)  ;  3  Chamb.,  Ev.,  §  1832, 

89.  Xational  Gas  Light,  etc.,  Co.  v.  Miethke.  n.  1. 

35    111.    App.    629     (1890);    Boston,    etc..    R.  94.  Carter   v.    State,    2    Tnd.    617     (1851); 

Corp.   v.  Old   Colony,  etc..  R.   Corp.,   3   Allen  State  v.  Hinkle,  6  Iowa  380   (1858). 

(Mass.)    142    (1861);    Eerguson   v.   Hnbbell,  95.  People  v.  Thacker,   108  Mich.  652,  66 

97   X.  Y.  507.  49  Am.  Rep.  544    (1884);    3  N.  W.  562  (1896). 
Chamb.,  Ev.,  §  1830,  n.  2. 


§  687  REASONING  BY  WITNESSES.  528 

trial  of  questions  of  fact,  where,  as  in  case  of  maritime  or  admiralty  causes,  the 
court  is  usually,  in  a  greater  or  less  degree,  skilled  in  the  subject-matter  under 
consideration.5*7  Wide  latitude  will  be  accordingly  conceded  him  both  in  re- 
gard to  accepting  or  rejecting  witnesses  of  this  class.  It  has  even  been  held 
that  the  ruling  of  a  trial  judge  upon  the  matter  of  qualification  of  a  skilled 
witness  is  not  open  to  review.98  This,  however,  is  not  generally  conceded." 

§  687.  [Involution  of  Reasoning] ;  Action  of  Appellate  Courts.1 —  An  appellate 
court  will  not,  as  a  rule,  reverse  the  action  of  the  judge  presiding  at  the  trial 
in  respect  to  the  admission  of  opinion  evidence,  provided  that  he  has  acted 
reasonably.2  That  the  appellate  tribunal  itself  would  have  acted  to  a  different 
effect  furnishes  no  ground  for  reversing  the  original  ruling.3  Action  which  is 
clearly  unreasonable  will,  as  a  matter  of  course,  be  reversed.4  In  several 
states,  to  secure  reversal,  prejudice,  as  well  as  error,  must  be  affirmatively 
shown.5 

96.  3  Chamberlayne,  Evidence,  §  1833.  N.  E.  1069   (1900)  ;  Perkins  v.  Stickney,  132 

97.  The  Attila,  5  Quebec  340   (1879);  Bar-  Mass.   217    (1882);    Woodworth   v.    Brooklyn 
num  v.   Bridges,   81    Cal.    604,   22    Pac.    924  El.  R.  Co.,  48  N.  Y.  Supp.  80,  22  App.  Div. 
(1889);   Hunt  v.  Trusts  and  Guarantee  Co.,  501    (1897);    Citizens'  Electric  Ry.,  etc.,  Co. 
41  Can.  L.  J.  653   (1905).  v.   Bell,  26  Ohio  Cir.  Ct.   R.   691    (1903)  ;    3 

98.  Dole  v.  Johnson,  50  N.  H.  452   (1870)  ;  Chamb.,  Ev.,  §  1834,  n.  1. 

State    v.    Murray,    11    Or.    413,    5    Pac.    55  3.  People  v.  Goldsworthy,  130  Cal.  600,  62 

(1884);  3  Chamb.,  Ev.,  §  1833,  n.  3.  Pac.  1074    (1900). 

99.  Wiggins  v.  Wallace,  19  Barb.    (N.  Y.)  4.  Fayette  v.   Chesterville,   77   Me.   28,   52 
338    (1855).  Am.  Rep.  741    (1885);  Hawks  v.  Charlemont, 

1.  3  Chamberlayne,  Evidence,  §  1834.  110  Mass.  110  (1872)  ;  3  Chamb.,  Ev.,  §  1834, 

2.  People   v.   McCarthy,    115   Cal.   256,   46      n.  4. 

Pac.  1073  (1896);  Buckeye  Mfg.  Co.  v.  Wool-  5.  Powers  v.  McKenzie,  90  Tenn.  167,  16 
ley  Foundry,  etc.,  Works,  26  Ind.  App.  7,  58  S.  W.  559  (1891). 


CHAPTER  XXVII. 

INFERENCE  FROM  SENSATION;  ORDINARY  OBSERVER. 

Inference  from  sensation;  ordinary  observer;  familiar  physical  objects,  688. 
Negative  inferences,  689! 
Instinctive  inferences,  690. 
Reasoned  inferences,  691. 

Conditions  of  admissibility  of  inferences  from  observation,  692. 
Physical  inferences;  body,  693. 
conduct,  694. 
identities  and  correspondences,  695. 

how  far  reasoned  inference  is  essential,  696. 
circumstantial  evidence,  697. 
intoxication,  698. 

physical  condition  of  inanimate  objects,  699. 
Physiological  inferences,  700. 
Psychological  inferences,  701. 

insanity ;  ordinary  observer  rejected;  Massachusetts  rule,  702. 

rule  in  New  York,  703. 
ordinary  observer  admitted,  704. 

qualification  of  ability  to  state  details  of  phenomena,  705. 
qualification  of  suitable  opportunities  for  observation,  706. 
qualification  of  ability  to  coordinate  phenomena,  707. 
judicial  estiniates  as  to  probative  force,  708. 
skilled  observer,  709. 
subscribing  witness,  710. 
objective  mental  states,  711. 
inference  rejected,  712. 

§  688.  Inference  From  Sensation;  Ordinary  Observer;  Familiar  Physical  Ob- 
jects.1—  Every  act  of  observation  carries  a  certain  degree  of  inference,  in- 
stantly fusing,  as  it  were,  a  series  of  sense  impressions  into  a  mental  concept 
of  an  observed  object.  Tn  no  other  way  can  any  fact,  however  simple,  be  per- 
ceived. The  result  in  evidence  is  simply  the  statement  of  a  fact.2  As  facts 
become  more  complex,  more  compound,3  the  proportion  of  reasoning,  almost  of 
necessity,  grows  greater.  So  intimate,  in  many  cases,  is  the  blending,  that 

1.  3     Chamberlayne,     Evidence,     §§     1836-  3.  Supra,  §§  28,  32;  1  Chamb.,  Ev.,  §§  44, 
1839.                                                                                  49. 

2.  3  Chamb.,  Ev.,  §  1836,  and  notes. 

529 


689 


INFEKENCE  FROM  SENSATION. 


530 


the  court  is  compelled  to  accept  or  reject  the  whole,  despairing  of  success  in 
separation.4  Such  is  the  perception  by  the  ordinary  observer  of  a  common- 
place object  familiar  to  him.  In  all  cases  where  the  positive  perception  of  a 
familiar  object  is  in  full  accordance  with  human  experience  the  statement  is 
readily  received  as  one  of  fact.5  The  mere  act  of  naming  implies  a  certain 
amount  of  inference,  an  explanation,  a  theory,  of  the  actual  sense  impressions,0 
which  is,  as  it  were,  simply  drawing  upon  the  common  stock  of  knowledge.7 
The  familiar  object  recognized  or  named  by  the  witness  may  be  a  solid  *  or 
in  the  form  of  a  liquid,9  and  may  equally  well  constitute  the  subject  of  an 
intuitive  inference. 

§  689.  Negative  Inferences.1" — Should  it  be  established  to  the  satisfaction 
of  the  presiding -judge,  either  by  direct  u  or  circumstantial  evidence,1-  that  a 
witness  had  such  opportunities  of  observation  that,  had  a  certain  fact  oc- 
curred, he  could  not  have  failed  to  observe  it,  he  may  be  permitted  to  state  that 
it  did  not  occur.13  Such  a  witness  may  testify,  in  his  own  behalf,  as  to  the 
probability  14  that  a  given  scene  was  presented  and  he  have  failed  to  see  it;  l5 
or  that  the  particular  sound  should  have  been  made  and  he  not  have  heard 
it.10  Where  the  facts  attending  the  nonobservatiori  of  the  witness  can  be  fully 
and  adequately  placed  before  the  jury,  a  presiding  judge  is  well  warranted  in 
rejecting  the  inference,17  either  in  civil  ls  or  on  criminal  1!)  proceedings. 


4.  Auberle  v.  McKeesport,  179  Pa.  321,  36 
Atl.  212   (1897-)  ;  3  Chamb.,  Ev.,  §  1837,  n.  2. 

5.  Hanna  v.    Barker,   6  Colo.   303    (1882); 
Graham  v.  Pennsylvania  Co.,  139  Pa.  140,  21 
Atl.  151,  12  L.  K.  A.  293    (1891)  ;  3  Chamb.. 
Ev.,  §  1838,  n.  1. 

6.  Morris  v.  State,  124  Ala.  44,  27  So.  336 
(1900). 

7.  Turner  v.  State.  114  Ga.  421,  40  S.  E. 
308    (1901);    Robinson  v.   Fitchburg,  etc.,  R. 
Co.,  7  Gray    (Mass.)    92    (1856);   Shepard  v. 
Metropolitan  El.  R.  Co.,  62  X.  Y.  Supp.  977, 
48  App.  Div.  452   (  1900),  aff'd  169  N.  Y.  160, 
62  N.  E    151    (1901)  ;  3  Chamb.,  Ev.,  §  1838, 
n.  3. 

8.  Com.  v.  Dorsey,   103  Mass.  412    (1869) 
(hair)  ;  Currier  v.  Boston,  etc.,  R.  Co.,  34  X. 

H.  498  (1857)    (hard-pan). 

9.  Thus,  an  observer  may  state  that  a  Driven 
article  perceived   by   his   senses  was   alcohol, 
Sebastion  v.  State,  44  Tex.  Cr.  508,  72  S.  W. 
849    (1903);    blood,   People  v.  Loui  Tung.  90 
Cal.  377,  27  Pac.  295  (1891)  ;  Com.  v.  Sturti- 
vant,  117  Mass.  122,  19  Am.  Rep   401   , 1875)  : 
People  v.   Burgess,   153  X.  Y.  561,  47  X.  E. 
889    (1897);    3   Chamb.,   Ev.,   §    1839,   n.    2; 
chloroform,  Miller  v.  State   (Tex.  Cr.  App.), 
50  S.  W.  704  (1899)  ;  gin,  Com.  v.  Timothy,  8 


Gray  (Mass.)  480  (1857):  lager  beer.  Com. 
v.  Moinehan,  140  Mass.  463,  5  X.  E.  259 
(1886);  ichiskey,  Mam-hall  v.  Laugh  ran.  47 
111.  App.  29  (1893)  ;  People  v.  Marx,  112  X. 
Y.  Supp.  1011.  128  App.  Div.  828  (1908)  :  or 
other  intoxicating  liquor. 

10.  3  Chamberlayne,  Evidence,  §  690. 

11.  Com.    v.    Cooler,    6   Gray    (Mass.)    350 
(1856). 

12.  .State  v.   Kidd.  89   Iowa   54,   56  X.  W. 
263  (1893). 

13.  Maynard  v.  People,  135  111.  416.  2f>  X. 
E.  740   (1890)  :  E.  T.  &  H.  K.  Ide  v.  Boston 
&  M.  R.   R.,  83  Vt.  66,  74   Atl.  401    (1909)  ; 
3  Chamb.,  Ev.,  §  1842.  n.  4. 

14.  Pittsburgh,   etc.,   R.   Co.   v.   Story,    104 
111    App.  132   (1902). 

15.  Territory    v.    Clayton.    8    Mont.    1,    19 
Pac.  293   (1888)  ;  3  Chamb.,  Ev.,  §  1842,  n.  6. 

16.  Crane   v.    Michigan    Cent.    R.    Co.,    107 
Mich.   511,   65   X.   W.   527    (1895):    Casey   v. 
Xew  York  Cent.,  etc.,  R.  Co..  6  Abb.  X".  Cas. 
(X.  Y.)    104   (1879^  ;   3  Chamb..  Ev..  §  1842, 

n.  7. 

17.  Com.  v.  Cooley,  supra. 

18.  Marcott   v.  Marquette,  etc..  R.   Co..   49 
Mich.  99.  13  X.  W.  374   (1882)  :  Lunansky  v. 
Hamburg- American  Packet  Co.,  94  X.  Yr.  Supp. 


531 


INSTINCTIVE  INFERENCES. 


§  600 


§  690.  Instinctive  Inferences.20 — Where  the  facts  are  few  and  simple  and 
the  mental  result  deduced  from  their  existence  one  as  to  which  men  conld  not 
reasonably  differ,'  the  inference  will  be  received,  almost  as  a  matter  of  course. 
Though  a  line  between  the  two,  intuitive  inferences  and  necessary  conclusions, 
is  frequently  confused,  and  though  at  times  it  is  confessedly  difficult  to  trace  it, 
in  the  results  arrived  at  administration  has  confidence.21  So  long  as  the 
content  of  reasoning  is  still  comparatively  slight  the  statement  of  a  witness  as 
to  the  result  of  his  observation  may  continue  practically  one  of  fact,  although, 
perhaps,  somewhat  complicated.22  Should  a  new  fact  be  evolved,  entirely 
distinct  from  its  constituting  facts,  by  means  of  an  act  of  reasoning,  e.g.,  where 
one  who  has  examined  a  complicated  set  of  books  of  account  reaches  a  certain 
mental  result  from  their  perusal,23  a  different  administrative  situation  is  pre- 
sented. Where  a  number  of  component  details  of  observation  are  appre- 
hended by  a  single  act  of  consciousness,  and  immediately  reduced  by  the  in- 
tuitive action  of  the  mind  to  a  familiar  designation,  such  a  result  is  termed  a 
"  collective  fact,''  and,  as  a  rule,  is  admitted.24  Where  the  statement  of  an 
inference  is  not  a  shorthand  method  of  summarizing  collective  facts  it  may  be 
rejected.25  Conduct  may  be  summarized  as  well  as  other  natural  phenomena, 
and  a  statement  of  the  conclusions  reached  will  be  received  as  a  fact.2C  Where 
the  element  of  inference  assumes  considerable  proportion,27  or  the  statement 


557  (1905).  But  see  City  of  Chicago  v.  Mur- 
doch, 212  111.  9,  72  X.  E.  46  (1904):  Ren- 
shaw  v.  Dignan,  128  Towa  722,  105  X.  W.  209 
(1905)  ;  3  Chamb.,  Ev.,  §  1842,  n.  9. 

19.  Boiling  v.  State,  54  Ark.  588,  16  S.  W. 
658   (1891). 

20.  3    Chamberlayne,     Evidence,    §§     1840, 
1841. 

21.  Aurora,  E.  &   C.   Ry.  Co.  v.  Gary.   123 
111.    App.    163    (1905):    Stone   v.    Stone,    191 
Mass.   371.   77   X.  E.   845    (1906);   People  v. 
Woodbury,    123    X.    Y.    Supp.    592.    67    Misc. 
481     (1910);    3    Chamb.,    Ev.,    §    1840,    n.    7. 
Witness   may  be   asked   whether   hold   of  de- 
ceased   and    prisoner    was    friendly    or    un- 
friendly.    See  note,  Bender  ed.,  14  X.  Y.  561. 

22.  Southern    Cotton    Oil    Co.    v.    'Wallace 
(Tex.  Civ.   App.   1899),  54   S.  W.   638;    Bird 

v.  St.  Mark's  Church,  62  Towa  567,  17  N.  W. 
747  (1883)  ;' Evans  v.  People.  12  Mich.  27 
(1863);  see  jilso,  3  Chamb.,  Ev.,  §  1841.  nn. 
5,  6,  7,  8. 

23.  Voluminous  records. —  Should  the  books 
of  account,  prpers.  or  other  documents  sub- 
mitted to  a  jury  be  too  voluminous  to  admit 
of   separate   presentation,   abstracts,    calcula- 
tions or  summaries  prepared  in  advance  may 
be  submitted,  together  with  the  originals,  to 


the  tribunal.  Friek  v.  Kabaker,  116  Iowa 
494,  90  N.  W.  498  (1902);  State  v.  Clem- 
ents, 82  Minn.  434,  85  X.  W.  229  (1901); 
Howard  v.  McDonough,  77  X.  Y.  592  (1879)  ; 
3  Chamb..  Ev.,  §  1841,  n.  9. 

24.  Louisville  &  X.  R.  Co.  v.  Elliott,   166 
Ala.  419,  52  So.  28  (1910)  ;  Winslow  v.  Glen- 
dale  Light  &   Power  Co.,   12   Cal.   App.   530, 
107  Pac.   1020    (1910):   Gagnon  v.  Sperry  & 
Hutchinson  Co.,  206  Mass.  547,  92  X.  E.  761 
(1910);   Sturgis  v.  Fifth  Avenue  Coach  Co., 
107    X.    Y.    Supp.    270,    122    App.    Div.    658 
(1907)  ;  3  Chamb.,  Ev.,  §  1841,  n.  11. 

25.  Gress  Lumber  Co.  v.  Georgia  Pine  Shin- 
gle Co,   120  Ga.   751,  48  S.   E.   115    (1904); 
United  Press  v.   A.   S.   Abell   Co.,   178   X.   Y. 
578,  70  X    E.   1110    (1904);   3  Chamb.,  Ev., 
§  1841.  n.  12. 

26.  Thus,  that   a   given  person  operated   a 
poolroom,   Bailey  v.   State,   160  Ala.    119,   49 
So.    754    (1909);    "was   managing   a   place," 
Green  v.  State.  56  Tex   Cr.  191,  120  S.  W.  425 
(1909);    or    the    like,    Crowell    v.    State,    56 
Tex.  Cr.  480,  126  S.  W.  897   (1909),  is  merely 
a  syncopated  or  shorthand  method  of  summar- 
izing a  number  of  obvious  subsidiary  facts. 

27.  Williams  v.  State  (Tex.  Cr.  App.  1908), 
114  S.  W.  802. 


§  691  INFERENCE  FROM  SENSATION.  532 

relates  to  the  existence  of  a  fact  material  in  the  case,28  or  is  an  irrelevant  one,29 
the  evidence  may  be  excluded. 

§  691.  Reasoned  Inferences.30 —  Reasoned  inferences  are  a  rather  undefined 
and  perhaps  unden'nable  species  of  mental  act  in  which  the  proportion  of  in- 
ference is  low  as  compared  to  that  of  observation  and  which  stretches  from 
intuitive  inferences  on  the  one  hand  to  conclusions31  on  the  other.  Thus,  a 
witness  may  go  beyond  the  intuitive  mental  reaction  implied  in  naming  an 
object  and  may  describe  its  form.32  He  may  give  its  color,33  freshness,"4  loca- 
tion 35  and  the  like.:ui  He  may,  in  Uke  manner,  state  the  strength  37  and  other 
salient  qualities  of  the  material  objects  as  these  are  presented  by  sense  per- 
cption.;!S  A  witness  will  be  permitted  to  give  simple  inferences  as  to  the  state 
of  his  own  consciousness,  i.e.,  to  state  subjective  conditions.  Thus,  a  witness 
may  declare  as  to  his  own  physical  health  30  or  mental  state.40  The  existence  of 
a  relevant  state  of  mind  may  even  be  a  proper  subject  for  cross-examination.41 
A  witness  may  declare  as  to  his  financial  condition.42  One  who  is  in  pain  may 
state  its  existence.43  He  may  properly  assert  the  symptoms  which  his  injury 
produces,44  and  the  results  observed  by  him  in  his  own  person  flowing  from 
certain  injuries,4'"  and  the  result  upon  his  health  of  a  particular  cause.46  He 
may  declare  whether  he  has  been  permanently  injured,47  so  far  as  this  is  a 
matter  of  fact.  One  who  has  had  reasonably  adequate  opportunities  for  ob- 
servation may  be  allowed  to  state  the  inference  which  he  has  formed  from 

28.  People  v.  Meert,   157  Mich.   93.   121   X.  40.  Casey  v.  Chicago  City  Ry.  Co.,  237  111. 
W.  318    (1909);   3  Chamb.,  Ev.,   1841a,  n.  5.  140,  86  X.  E.  606    (1008):    Bayliss  v.   Cock- 

29.  State  v.   Churchill,  .52   Wash.   210,   100  roft,  81  X.  Y.  363   (1880)  ;  Grever  v.  Taylor, 
Pac.  300   (1009).  53  Ohio  St.  (521,  42  X.  E.  829   (1895)  ;  Frame 

30.3    Chamberlayne,    Evidence,    §§     1843,  v.  William  Penn  Coal  Co.,  97  Pa.  309   (1881)  ; 

1844.  3  Chamb.,  Ev.,  §  1843,  n.  10. 

31.  Infra,  §§   792   et  seq.;   3   Chamb.,   Ev.,  41.  Carey   v.   Moore,   119  Ga.  92,  45   S.   E. 
§§  2291  et  seq.  098  (1903)  :  Boyd  v.  Xew  York  Security,  etc., 

32.  Morisette  v.   Canadian  Pac.  R.  Co.,  76  Co.,    176    X.    Y.    556,    618,    68    X.    E.     1014 
Vt.  267,  56  Atl.  1102  (1904).  (  1903)  ;  Holtz  v.  State,  76  Wis.  99,  44  X.  W. 

33.  State  y.  Buchler,  103  Mo.  203,  15  S.  W.  1107   (1890)  ;  3  Chamb.,  Ev.,  §  1843,  n.  11. 
331   (1891).  42.  Chenault  v.  Walker,  14  Ala.  151  (1848). 

34.  People  v.   Loiii   Tung,  90   Cal.   377,  27  43.  Xorth  Chicago  St.  R.  Co.  v.  Cook,  145 
Pac.  294   (1891)  ;  3  Chamb.,  Ev.,  §  1843,  n.  4.  111.  551,  33  X.  E.  958   (1893). 

35.  Carter  v.  Clark,  93  Me.  225,  42  Atl.  398  44.  Chicago,   etc.,   R.   Co.   v.^m^ert,    119 
(1898).  111.  255.  10  X.  E.  219   (1887).  „„, 

36.  Currier  v.  Boston,  etc.,  R.  Co.,  34  X.  H.  45.  Lombard,   etc.,    Pass.    R. /Co.   v.   Chris- 
498   (1857).  tian,  124  Pa.  114,  16  Atl.  628  .,(1889). 

37.  Gerbijr   v.   Xew   York,   etc.,   R.   Co.,   27  46.  Monongahela  Water  Co.  |V.  Stewartson, 
X.  Y.  Supp    594   (1894).  96  Pa.  436  (1880). 

38.  Marschall  v.  Laughran,  47  111.  App.  29  47.  Baltimore,  etc.,  Turnpike  Co.  v.  Cassell, 
U892).  66   Md.    419,    7    Atl.    805,    59    Am.   Rep.    175 

39.  Roche   v.   Redin«ton.    125   Cal.    174,   57  (1887)  :   Pfau  v.  Alteria.  52  X.  Y.  Supp.  88, 
Pac.    890     (1899);    Lindley    v.    Detroit,    131  23  Misc.  693   ( 1898)  ;  3  Chamb.,  Ev.,  §  1843, 
Mich.  S,  90  X.  W.  665   (1902)  -.  Cass  v.  fnird  n.  19. 

Ave.  R.  Co..  47  X.  Y.  Supp   356,  20  App.  Div. 
591    (1897)  ;  3  Chamb.,  Ev.,  §  1843,  n.  9. 


533 


REASONED  IXFEEE^CES. 


§  692 


the  appearances  presented  by  a  given  individual  as  to  his  financial  condition,48 
as  that  he  appears  to  him  to  be  destitute,49  in  need  of  assistance,50  or  insolv- 
ent,51 or,  on  the  other  hand,  solvent.52  lie  may  be  permitted  to  state,  from 
personal  knowledge,53  his  estimate  as  to  the  amount  of  income  enjoyed  by  a 
man  whom  he  mentions.54  A  witness  who  shall  have  shown  qualities  fitting 
him  to  do  so  may  state  the  moral  or  aesthetic  aspect  of  the  phenomena  as  the 
latter  affect  his  mind.  lie  may  declare  whether  a  certain  appearance  ob- 
served by  him  is  pleasing,00  goodlooking,  or  the  reverse. 

§  692.  Conditions  of  Admissibility  of  Inferences  from  Observation.56 —  When 
the  impressions  which  the  mind  of  an  observer  accepts  at  a  glance  are  so 
many,57  mutually  interacting  or  evasive  5S  as  to  prevent  effective  individual 
statement  of  the  primary  phenomena,  the  observer  will  usually  be  permitted 
to  state  them  in  the  secondary  form  of  the  effect  which  they  have  produced  on 
his  mind.59  E  converse,  where  the  constituting  phenomena  on  which  the  pro- 
posed inference  is  based  can  be  placed  before  the  jury  with  satisfactory  clear- 
ness and  completeness  60  and  coordinated  by  them  into  a  reasonable  result,6 1 
no  administrative  ground  is  furnished  for  receiving  the  mental  act  of  the 
witness.02  Accordingly,  it  is  rejected.  It  will  usually  be  required,  for  rea- 


48.  Iselin    v.    Peck,    2    Rob.     I  X,    Y.)    629 
(1864);   Hard  v.   Brown,  18  Vt.  87    (1846); 
3  Chamb.,  Ev.,  §  1843a,  n.  1. 

49.  Bever  v.  Spangler,  93  Iowa  576.  61  N. 
W.  1072   (1895). 

50.  Sloan   v.    New   York   Cent.    R.    Co.,   45 
N.  Y.  125  (1871). 

51.  Riggins  v.  Brown,  12  Ga.  271    (1852); 
Thompson    v.    Hall,    45    Barb.     (X.    Y.)    214 
(1866)  -.  Richardson  v.  Hitchcock,  28  Vt.  757 
(1856)  ;  3  C'hamb.,  Ev.,  §  1843ai  n.  4. 

52.  Watterson.  v.   Fuellhart,   169  Pa.  612, 
32  Atl.  597    (1895). 

53.  Stix  v.   Keith,   85   Ala.   465,  5   So.   184 
(1888)  ;   Iselin  v.  Peck,  supra. 

54.  State  v.  Cecil  County  Com'rs,  54  Md. 
426    (1880). 

55.  Gahagan  v.  Boston,  etc..  R.  Co.,  1  Allen 
(Mass.)    187,  79  Am.  Dec.  724    (1861);   Mc- 
Killop  v.   Duluth   St.   R.   Co.,   53   Minn.   532, 
55  N.  W.  739    (1893);   Castner  v.  Sliker,  33 
X.   J.   L.   95    (1868):    Felska   v.    Xew   York 
Cent.,  etc.,  R.   Co.,   152  X.  Y.   339,  46  X.  E. 
613   (1897)  :  3  Chamb.,  Ev.,  §  1844,  n.  1.     In 
what   way,    however,    these    phenomena    may 
affect  the   more  distinctly   moral   sense   may 
not    be    asserted    by    an    ordinary    observer 
People  v.  Muller,  96  N.  Y.  408*,  48  Am.  Rep. 
635   (1884). 

56.  3  Chamberlayne.  Evidence,  §  1845. 

57.  Denver,    etc.,    R.    Co.    v.    Pulaski    Irr. 


Ditch  Co.,  19  Colo.  367,  35  Pac.  910  (1894)  ; 
Salem  v.  Webster,  95  111.  App.  120  (1900); 
Com.  v.  Kennedy,  170  Mass.  18,  48  X.  E.  770 
(1897)  ;  3  Chamb.,  Ev.,  §  1845,  n.  8. 

58.  Holland   v.    Zollner,    102   Cal.    633,   36 
Pac.  930,  37  Pac.  231   (1894). 

59.  Carter  v.  Carter,  152  111.  434,  28  N.  E. 
948,  38  X.   E.   669    (1894);   Com.  v.   Mullen. 
150  Mass.  394,  23  X.  E.  51    (1890);   Russell 
v.  State,  66  Xeb.  497,  92  X.  W.  751    (1902)  ; 
De    Witt    v.    Early,    17    X.    Y.    340     (1858); 
Cleveland,  etc.,  R.  Co.  v.  Ullom,  20  Ohio  Cir. 
Ct.   512,    11    Ohio   Cir.   Dec.   321     (1898);    3 
Chamb.,  Ev.,  §  1845,  n.  10. 

60.  Sievers    v.    Peters    Box,    etc.,    Co.,    151 
Ind.  642,  50  X.  E.  877.  52  X.  E.  399   (1898)  : 
Parker   v.    Boston,    etc..    Steamboat   Co.,    109 
Mass.  449  (1872)  ;  Van  Wycklen  v.  Brooklyn, 
118  X.  Y.  424,  24  X.  E.  179   (1890)  ;  Musick 
v.  Latrobe,  184  Pa.  375,  39  Atl.  226   (1898)  ; 
3  Chamb.,  Ev.,  §  1845,  n.  11. 

61.  Xorth  Kankakee  St.  R.  Co.  v.  Blatch- 
ford,  81  111.  App.  609   (1898)  :  Xew  England 
Glass    Co.    v.    Level  I.    7    Cush.     (Mass.)     319 
(18.)1):   State  v.  Mims,  36  Or.  315.  (51   Pac. 
888   (1900)  ;  3  Chamb..  Ev..  §  1845.  n.  12. 

62.  Koccis  v.  State,  56  X.  J.  L.  44,  27  Atl. 
800    (1893);   Lund  v.   Masonic  L.  Assoc.,  81 
Hun    287.    30    X.    Y.    Supp.    775     (1894);    3 
Chamb.,  Ev.,  §  1845,  n.  13. 


§  693  INFERENCE  FROM  SENSATION.  534 

sons  elsewhere  stated,63  that  the  witness  whose  inference  from  observation  is 
to  be  received  shoull  precede  ° 4  or  accompany °5  his  testimony  as  to  mental 
result  with  the  detail  of  such  of  the  constituent  particulars  observed  by  him  as 
admit  of  effective  individual  statement.  This  may  be  done  at  the  stage  of 
cross-examination.00  Should  the  observer  be  unable  to  state  facts  sufficient  to 
cause  the  court  to  feel  that  the  jury  may  reasonably  be  aided  by  the  inference 
of  the  witness,  his  mental  act  may  be  rejected."'  In  addition  to  other  ex- 
cellent administrative  results  which  may  accrue  from  requiring  the  submission 
to  tjie  jury  of  this  detail  of  alleged  supporting  facts,08  it  has  somewhat  the 
same  useful  relation  to  the  inference  of  the  observer  that  the  hypothetical  ques- 
tion, in  its  detail  of  assumed  facts,09  bears  to  the  judgment  of  the  expert.70 

§  693.  Physical 'Inferences;  Body.71 — The  intuitive  or  reasoned  inference 
concerns  itself,  in  main,  with  physical  objects.  In  general,  a  witness,  after 
enumerating  such  of  the  constituent  details  as  he  can,72  may  state  the  appear- 
ance of  objects  observed  by  him.  When  the  court  is  satisfied  that  the  witness 
has  had  suitable  opportunities  for  observation,73  that  the  fact  observed  is  a 
relevant  one,71  and  that  the  phenomena  as  a  whole  cannot  adequately  be 
placed  before  the  jury,7r>  the  effect  produced  upon  the  mind  may  be  stated,  as  a 
species  of  secondary  proof  of  the  primary  appearances  themselves.  Promi- 
nent among  physical  objects  the  phenomena  of  which  may  be  summarized  into 
an  inference  are  bodies.  An  observer  may  state,  for  example,  the  apparent 
physical  condition  of  a  man.76  One  qualified  to  do  so  may  assert,  as  a  mere 

63.  -Supra,  §  678;  3  Chamb.,  Ev.,  §  1813.  basis  of  facts  observed  by  others.     Pittard  v. 

64.  Com.  v.  Sturtivant,   117   Mass.   122,   19  Foster,    12    111.    App.    132    (1882);    Paipe    v. 
Am.   Rep.  401    (1875);    People  v.   Greenfield,  Hazard,  5   Hill    (X.  Y.)    603    (1843);    Hayes 
23  Hun   (X.  Y.)   454   (1881);  3  Chamb.,  Ev.,  v.    Smith,    62    Ohio    St.    161,    56    X.    E.    879 
§  1845.  n.  15.        .  (1900)  ;  3  Chamb.,  Ev.,  §  1845,  n.  22. 

65.  Healy  v.  Visalia,  etc.,  R.  Co..  101   Cal.  71.  3    Chamberlayne,    Evidence,    §§    1846- 
585,  36  Pac.  125   (1804);  Atlanta  Consol.  St.  1850. 

R.  Co.  v.  Bagwell,  107  Ga.  157,  33  S.  E.  191  72.  Cleveland,  etc.,  R.  Co.  v.  Gray,  148  Ind. 

(1899);    Hardenburgh    v     Cockroft,    5    Daly  266,  46  N.  E.  675  (1897)  ;  Thompson  v   Hall, 

(N.  Y.)    79    (1874);   People  v    Hopt,  4  Utah  45    Barb.     (X.    Y.)    214    (1866);    3    Chamb., 

247,   9    Pac.   407    (1886);    3   Chamb.,   Ev.,   §  Ev.,  §  1846.  n.  1. 

1845,  n.  16.  73.  Hopkins  v.  Bowers,  111  N.  C.  175,  16 

66.  Lund,  v.  Tyngsboroueh.  9  Cush.  (Mass.)  S.  E.   1    (1892). 

36    (1851);   People  v    Driscoll,  45   Hun  590,  74.  Spanpler  v.   State,  41  Tex.  Cr.  424,  55 

9  N   Y.  St.  Rep.  820   (1887)  ;  3  Chamb.,  Ev  ,  S.  W.  326   (1900). 

§  1845,  n    17.  75.  Cleveland,  etc.,  R.  Co.  v.  Gray,  supra. 

67.  People    v     Smith,    172    N     Y.    210,    64  76.  West   Chicago   St.   R.   Co.   v    Fishman, 
N.  E.  814  (1902).  169  Til.  196,  48  X.  E.  477    (1897);  O'Xeil  v. 

68.  Eaton   v.    Rice,   8    X.   H.    378    (1836^  ;  Hanscom,  175  Mass.  313,  56  X.  E.  587  (1900)  ; 
Sloan  v.  Maxwell,  3  X.  J.  Eq    563   (1831)  ;   3  Farrell  v.  Metropolitan  St.  R.  Co.,  64  X.  Y. 
Chamb,  Ev.,  §  1845,  nn    19,  20.  Supp.   709,  51    App.  Div.  456    (1900)  :   Myers 

69.  Infra,   §§   816   et  srq.;   3   Chamb.,  Ev.,  v.   Lucas.   16  Ohio   Cir.  Ct.  545,  8  Ohio  Cir. 
§§  2451  et  seq.  Dec.    431     (1898);    Tenney  v.   Smith.   63   Vt. 

70.  Not  an  expert.— It  follows  from  what  520,    22    Atl.    659    (1891);    3    Chamb.,    Ev., 
has  been  said  that  the  ordinary  observer  will  §  1846,  n.  5. 

not  be  permitted  to  state  his  inference  upon  a 


535 


PHYSICAL 


693 


fact,  the  physical  development  of  a  child ;  "  the  indications  cf  race  78  or  those 
of  a  fa-tiis.71'  lie  may  declare-  the  comparative  appearance  of  two  human 
persons  in  some  material  particular.80  lie  may  properly  testify  as  to  the 
physical  appearance  of  animals,  for  instance,  the  condition  of  cattle/1  horses,82 
or  other  domestic  animals.83  An  observer  may  properly  state,  under  appro- 
priate circumstances,  what  is  the  appearance  'S4  and  visible  result  ^  of  a  certain 
injury."0  Its  real  nature,  probable  permanence, St  obvious  implications  or 
the  results  to  be  anticipated,1^  may,  however,  be  subjects  as  to  which  the  in- 
ference of  a  skilled  witness  is  alone  admissible.  An  unskilled  observer  fairly 
familiar  with  the  use  and  effects  of  firearms  may  testify  as  to  the  general  na- 
ture *9  or  location  y"  of  wounds  caused  by  the  use  of  firearms.  Only  a  skilled 
observer  can  state  technical  inference,91  e.g.,  that  a  decedent  had  been  shot92 
or  as  to  the  effect  of  an  injury  of  this  nature.93  A  salient  feature  of,  physical 
appearances  which  a  witness  is  permitted  to  state  is  that  of  apparent  healik** 
as  visually  perceived,  or  sickness?5  What,  on  the  other  hand,  as  a  true  mat- 
ter of  fact,  may  be  the  actual  health  of  a  given  individual  may  be  a  technical 


77.  Ilubbard  v.  State,  72  Ala.  164   (1882); 
Jackson  v.  State,  29  Tex.  App.  458,  16  S.  W. 
247    (1891). 

78.  Hare  v.  Board  of  Education,  113  N.  C. 
9,  18  S.  E.  55   (1893). 

79.  Gray   v.   Brooklyn    Heights    R.   Co.,   76 
N.  Y.  Supp.  -20.  72  App.  Div.  424  (1902). 

80.  Brownell     v.     People,     38     Mich.     732 
(187S)  :   Hare  v    Board  of  Education,  supra. 
See   Stephenson    v.    State,    110    Ind.    358,    11 
X.  E.  360  (1886). 

81.  Palmer  &   Son  v.   Cowie,   27   Ohio  Cir. 
Ct.    R.   617    (10051:    Grayson   v     Lynch.    163 
U.  S.  468,  470,   16  S.  Ct.  1064,  41  L.  ed.  230 
(189.1)  :  3  Chamh..  Ev.,  §  1847,  n.  1 

82.  Rogers  v.  Ferris,   107  Mich.   126,  64  N. 
W.   1048    (1895);   Harris  v.  Panama  R.  Co.. 
3f>  X.   Y.   Super  Ct.   373    (1873);    3  Chamb., 
Ev.,  §  1847,  n.  2. 

83.  Rarden   v.   Cunningham,    136   Ala.   263, 
34  So.  26   ( 1002 ) . 

84.  \Yeber  v.  Creston.  75  Iowa  16,  39  X'.  W. 
126    (1888)  :   Craig  v.  Gerrish.  58  X.  H.  513 
(1879);   3  Chamb..  Ev..  §   1S48.  n.   1. 

85.  People  v.  Gibson,  lOfi  Cal.  4->8.  39  Pac. 
864   (1895)  :  Goshen  v.  England.  119  Ind    36S. 
•21  X.  E.  977   (1889)  :  Doyle  v.  Manhattan  R. 
Co.,   13  X.  Y.   Supp.  536    (1891);   3  Chamb., 
Ev.,  §  1848.  n.  2. 

86.  Baltimore,  etc..  Co.  v.   Cassell,  66  Md. 
419,    7    Atl.    805.    59    Am.    Rep.    175    (1886): 
Jerome  v    United  Rys    Co.  of  St.  Louis,  loo 
Mo     App.    202.    134    S.    \Y.     107     (1911):     3 
Chamb..   Ev.,   §    1848.   n    3.     Xon-expert  wit- 
nesses may  testify  that  marks  on  the  plain- 


tin's  thumb  were  teeth  marks.  Patterson  v. 
Blatti,  133  Minn.  23,  157  X.  \Y.  717,  L.  R. 
A.  1916  E  896  (1916). 

87.  Dean    v.    State,   89   Ala.   46,   8    So.   38 
(1890). 

88.  Shawnee-town  v.  Mason,  82  111.  337,  25 
Am.  Rep.  321  (1876). 

89.  People  v.  Gibson,  supra. 

90.  Balls  v.  State  (Tex.  Cr.  App.  1897),  40 
S.  XV.  801. 

91.  Mitchell  v    State.  38  Tex.  Cr.   170,  41 
S.  XV.  816   (1897). 

92.  Monk  v.  State,  27  Tex.  App.  450,  11  S. 
XY.  460   (1889). 

93.  State  v   Justus.  11  Or.  178,  8  Pac.  337, 
50  Am.  Rep  470  (1883). 

94.  Chicago  City  R    Co.  v.  Yan  Yleck,  143 
111.  480,  32  X.  E.  262   (1892)  ;  Cleveland,  etc., 
Ry   Co.  v.  Hadley,  40  Ind.  App.  731,  82  X.  E. 
1025    (1907):   Parker  v.  Boston,  etc..  Steam- 
boat  Co.,   109  Mass.  449    (187*2);    Cannon  v. 
Brooklyn  City  R.  Co.,  9  Misc.  282.  29  X.  Y. 
Supp.   722    (1894):    Billings  v.   Metropolitan 
L.   Ins.  Co..  70  Yt.  477,  41  Atl.  516   (1898)  ; 
3  Chamb..  Ev  .  §  1849.  n.  1 

95.  Robinson  v.  San  Francisco  Exempt  Fire 
Co..  103  Cal.  1,  36  Pac.  955,  42  Am.  St.  Rep. 
93.    24    L     R     A.    715    (1894);    State   v.    Mc- 
Knight,   119   Iowa  79.  93  X.   XV.  63    il903): 
Corbett  v.  Troy.  53  Hun  228.  6  X    Y.  Supp 
381    (1889)  :  Lake  Shore,  etc.,  R.  Co.  v.  Gaff- 
ney.  9  Ohio  Cir.  Ct.  32,  6  Ohio  Cir.  Dec.  94 
(  1^94)  :  3  Chamb  .  Ev..  §  1849.  n.  2.     Admia- 

sibility  on  health  and  disease,  see  note,  Bender 
ed.  109  X.  Y.  313. 


694 


INFERENCE  FROM  SENSATION. 


536 


inference  to  be  drawn  only  by  a  skilled  witness.00  A  change  in  these  apparent 
conditions  may  be  observed ;  and,  if  observed,  may  be  stated.97  The  transition 
may  be  from  sickness  to  health  98  or  vice  u&rt>a  from  health  to  sickness ;  "  from 
bad  to  worse  *  or  from  worse  to  better.2  Mere  transitory  physical  appearances 
may  be  stated  by  an  ordinary  observer.  The  person  may  be  declared  to  be 
nervous,3  suffering,4  exhausted,5  and  the  like.6  It  may  be  said,  as  the  result 
of  his  inference,  whether  a  certain  person  was  so  well  able  to  help  himself  as 
he  had  been  before  a  given  time,7  as  to  whether  a  faculty  appears  to  have  been 
impaired,8  the  use  of  limbs  9  or  other  parts  of  the  body  10  restricted  and  the 
like.  One  competent  to  do  so  may  state  whether  earning  capacity  has  been 
reduced11  by  the  particular  disease  or  injury  or  has  not  been  affected.12  He 
may  state,  as  an  inference  from  the  appearances,  that  a  given  individual  was 
under  the^influence  of  narcotic  drugs,  e.g.,  morphine.13 

§  694.  [Physical  Inferences] ;  Conduct.14 —  Action,  conduct,  is  more  readily 
conveyed  to  the  mind  by  the  aid  of  language  than  are  the  appearances  of  bodies 
or  other  coexistences  and  is  most  frequently  so  described  by  ordinary  observers 


96.  Reid  v.  Piedmont,  etc.,  Ins.  Co.,  58  Mo. 
421    (1874);    Monroeville  v.   Weihl,   13   Ohio 
Cir.  Ct.  689,  6  Ohio  Cir.  Dec.  188    (1894). 

97.  Baltimore,  etc.,  Co.  v.   Cassell,  supra; 
Parker  v.  Boston,  etc.,  S.  Co.,  supra;  Webb 
v.  Yonkers  R.  Co.,  51  App.  Div.  194,  64  X.  Y. 
Supp.  491  (1900)  ;  3  Chamb.,  Ev.,  §  1849,  n.  5. 

98.  Salem  v.  Webster,  192  111.  369,  61  N.  E. 
323  (1901)  ;  Harris  v.  Panama  R.  Co.,  supra. 

99.  Miller  v.  Dill,  149  Ind.  326,  49  N.  E.  272 
(1898)  ;  Com.  v.  Thompson,  159  Mass.  56,  36 
N.  E.  1111   (1893)  ;  Peterson  v.  Seattle  Trac- 
tion Co.,  23  Wash.  615,  63  Pac.  539,  65  Pac. 
543,  53  L.  R.  A.  586   (1900)  ;   3  Chamb,  Ev., 
§  1849,  n.  7. 

1.  Com.  v.  Brayman,  136  Mass.  438  (1884)  ; 
King  v.  Second  Ave.  R.  Co.,  75  Hun  17,  26  X. 
Y.  Supp.  973   (1894)  ;  3  Chamb.,  Ev.,  §  1849, 
n.  8. 

2.  Salem  v.  Webster,  supra. 

3.  Travelers'  Ins.   Co.  v.   Sheppard,  85  Ga. 
751,  12  S.  E.  18   (1890)  ;  Webb  v.  Yonkers  R. 
Co.,  supra. 

4.  Cicero,  etc.,  St.  R.  Co.  v.  Priest,  190  111. 
592,    60    X.    E.    814     (1901):     McSwyny    v. 
Broadway,  etc.,   R.   Co.,   4   Silvernail  495,   7 
X.   Y.  Rupp.  456    (1889);    Shelby  v.  Clagett, 
46  Ohio  St.  549,  22  X.  E.  407,  5  L.  R.  A.  606 
(1889)  ;   3  Chamb.,  Ev.,  §  1850,  n.  2.     As  to 
apparent   existence  of  pain,   see  Mcllwain  v. 
Gaebe,   128   111.   App.   201)    (1909);    Morris  v 
St.   Paul   City   Ry.   Co.,   105   Minn.   276,    117 
N.  W.  500,  17  L.  R.  A.   (X.  S.)   698   (1908). 


5.  State  v.  Ward,  61   Vt.   153,   17  Atl.  483 
(1889). 

6.  Angus  v.  State,  29  Tex.  App.  52,  14  S. 
W.  443   (1890). 

7.  Salem     v.     Webster,     supra.     Decreased 
bodily   capacity.     Cleveland,   etc.,   Ry.   Co.   v. 
Hadley,    40    Ind.    App.    731,    83    X.    E.    1025 
(1907)  ;  Partello  v.  Missouri  Pac.  Ry.  Co.,  217 

Mo.  645,  117  S.  W.  1138  (1909);  3  Chamb., 
Ev.,  §  1850,  n.  5.  Diminished  mental  capac- 
ity. Georgia  Ry.,  etc.,  Co.  v.  Gilleland,  133 
Ga."621,  66  S.  E.  944  (1909). 

8.  Chicago,  etc.,  R.  Co.  v.  Van  Vleck,  supra; 
Adams  v.  People,  63  X.  Y.  621    (1875). 

9.  Will  v.   Mendon,    108   Mich.   251,   66   X. 
W.  58    (1896);   McSwyny  v.   Broadway,  etc., 
R.  Co.,  supra;  Collins  v.  Janesville,  111  Wis. 
348,  87  X.  W.  241,  1087    (1901);   3  Chamb., 
Ev.,  §  1850,  n.  7. 

10.  Chicago,  etc.,  R.  Co.  v.  Long,  26  Tex. 
Civ.  App.  601,  65  S.  W.  882   (1901). 

11.  Healy   v.   Visalia,   etc.,   R.   Co.,   supra; 
West  Chicago  St.  R.  Co.  v.   Fishman,  supra; 
Cass  v.  Third  Ave.  R.  Co.,  20  App.  Div.  591, 
47  X.  Y.  Supp.  356    (1897);   3  Chamb.,  Ev., 
§  1850,  n.  9. 

12.  Adams  v.  People,  63  X.  Y.  621   (1875)  ; 
Baker    v.    Madison,    62   Wis.    137,   22    X.    W. 
141,  583  (1885)  :  3  Chamb.,  Ev.,  §  1850.  n.  10 

13.  Burt  v.  Burt.   168  Mass.  204,  46  X.  E. 
622    (1897);    Endowment  Rank   K.   of   P.   v. 
Allen,  104  Tenn.  623,  58  S.  W.  241   (1900). 

14.  3    Chamberlayne,    Evidence,    §§    1851- 
1860. 


537  PHYSICAL  IXFEBENCES.  §  604: 

as  to  the  most  common-place  matters  as  well  as  those  more  involved.15  As  is 
the  case' with  other  animate  objects,  the  acts  and  habits  of  animals  may  be  char- 
acterized, reproduced  by  means  of  mental  effects  impressed  upon  the  mind,  by 
the  inferences  of  ordinary  observers.  Their  conduct,16  whether  specific  or 
habitual,17  may  thus  be  placed  before  the  tribunal.  The  feelings  or  emotions 
of  which  the  observed  conduct  is,  as  it  were,  a  reaction  may  also  ,be  gathered 
by  observation.18  An  observer  properly  qualified  may  state  what  is  the  cause 
of  certain  conduct  on  the  part  of  an  animal,  for  example,  may  declare  his  infer- 
ence as  to  what  frightened  a  horse.19  Where  the  reasoning  of  the  witness  with 
regard  to  acts  of  conduct  is  simple  and  necessary,  e.g.,  that  the  person  in  ques- 
tion is  habitually  sober20  or  customarily  drunk21  the  statement  is  mainly  one 
of  fact.  In  all  cases,  the  observing  witness  will  be  required  to  give  such  indi- 
vidual acts  as  can  effectively  be  done,  selecting  those  which  strike  him  as 
salient  and  material.22  Should  the  inference  become  involved  with  a  large 
proportion  of  reasoning,  the  basis  for  the  mental  act  be  extended,  the 
boundary  of  conclusion  may  be  passed,  and  the  "  opinion  "  accordingly  ex- 
cluded.23 Where  the  physical  or  psychological  force  alleged  to  dominate  con- 
duct is  one  beyond  the  range  of  common  knowledge  and  presumably  beyond  the 
personal  experience  of  the  witness,  his  inference  will  be  rejected.24  The  in- 
ference as  to  conduct  may  be  stated  in  the  form  of  the  existence  of  a  habit,25 
as  that  the  person  in  question  probably  acted  in  a  particular  way  because  he 
was  in  the  habit  of  so  acting.26  Stating,  and  even  characterizing  the  salient 
peculiarities  of  individual  conduct  merely  submits  to  the  tribunal  a  species  of 
fact.27  To  the  habitual  conduct  observed  by  him,  the  witness  may,  in  differ- 
ent cases,  apply  separate  standards  of  measurement.  He  may,  for  example, 
employ  that  of  reasonable  care,28  the  correct  performance  of  duty,29  fair  deal- 

15.  Taylor  v.  Security  Life  &  Annuity  Co.,  23.  Stevens  v.  Larwill,   110  Mo.  App.  140, 
145  X.  C.  383,  59  S.  E.  139  (1907)  ;  3  Chamb.,  84  S.  \V.  113   (1904)  ;  3  Chamb.,  Ev.,  §  1854, 
Ev.,  §  1851,  n.  4.  nn.  1,  2,  3. 

16.  Lynch  v.  Moore,   154  Mass.   335,  28  N.  24.  New   York    Mut.    L.    Ins.    Co.    v.    Hay- 
E.  277    (1891);   Noble  v.  St.  Joseph,  etc.,  R.  ward    (Tex.    Civ.   App.    1894).   27    S.   W.   36, 
Co.,  98  Mich.  249,  57   N.  W.   126    (1S93);   3  that  a  given  individual  acted  as  if  he  were 
Chamb.,  Ev.,  §  1852,  n.  1.  contemplating  suicide. 

17.  Snow   v.   Price,   1   Tex    App.   Civ.   Cas.  25.  State  v.  David,  25  Ind.  App.  297,  58  N. 
§  1342  (1880).  E.  83    (1900);  Texas  &  P.  Ry.  Co.  v.  Crump 

18.  Ward  v.  Meredith,  220  III.  66,  77  X.  E.  (Tex.  1009),  115  S.  W.  26:  3  Chamb.,  Ev.,  § 
118    (1906)  ;   Whittier  v.  Franklin,  46  X.  H.  185,  n.  1. 

23,  88  Am.  Dec.  185   (1865).  26.  Swift    v.    Zerwick,    88    111.    App.    558 

19.  Mikesell   v.   Wabash   R.   Co.,   134   Iowa       (1899). 

736,  112  NT.  W.  201    (1907).  27.  Illinois  Cent.  R.  Co.  v.  Ashline,  171  111. 

20.  Mitchell   v.   State.  43   Fla.   584,   31   So.  313,  49   X    E.  521    (1898);   Pearl  v.  Omaha, 
242   (1901);  3  Chamb.,  Ev.,  §  1853,  n.  1.  etc.,   R.    Co.,    115    Iowa   535.   88    X.   W.    1078 

21.  Gallagher  v.  People,  120  111.  179,  11  X.  (1902)  ;  3  Chamb.,  Ev.,  §  1855,  n.  3. 

E.  335   (1887)  ;  3  Chamb.,  Ev..  §  1853,  n.  2.  28.  Wilson   v.   Xew   York,  etc.,   R.   Co.,   18 

22.  Leonard  v.  Allen,  11  Cush.   (Mass.)  241       R.  I.  598,  29  Atl.  300   (1894). 

(1853)  ;  Storrie  v  Grand  Trunk  Elevator  Co.,          29.  Shook  v.  Pate,  50  Ala.  91    (1873). 
134    Mich.    297,    96    N.    W.    569     (1903);    3 
Chamb.,  Ev.,  §  1853,  n.  3. 


§  095  INFERENCE  FROM  SENSATION.  53 & 

ing  30  and  the  like.  He  may  decide  whether  a  workman  habitually  uses  me- 
chanical skill.31  How  necessary32  or  proper33  certain  acts  were  the' ordinary 
witness  may  occasionally  state  as  a  matter  of  fact.  A  competent  observer  may 
even  apply  a  standard  of  safety  to  the  acts  observed  by  him,34  stating  to  what 
extent,  if  any.  the  conduct  was  that  of  a  prudent  man. 

As  in  the  case  of  animals  just  considered,  an  observer  may  describe  human 
conduct  by  stating  the  effect  which  it  produced  on  his  mind.35  He  may  give 
the  manner  of  it,  the  way  in  which  it  was  done.36  The  inference  may,  how- 
ever, involve  too  large  an  element  of  reasoning  by  the  declarant  to  be  received. 
Thus,  where  the  witness  is  obviously  applying  his  own  mental  standard  rather 
than  that  of  the  community,  e.g.,  in  characterizing  certain  driving  as  careful, 
meaning  that  he  himself  so  considers  it ;  37  or  the  speaker  may  be  endeavoring 
to  describe  conduct  according  to  a  subjective  moral  standard.38  Again,  should 
the  inference  enter  upon  the  distinctive  field  of  the  jury  to  an  unnecessary  ex- 
tent the  act  of  reasoning  will  be  rejected.39  Likewise,  where  there  is  am- 
biguity and  lack  of  definiteness.40  A  witness  may  state  what  inference  he  has 
reached  with  regard  to  the  mutual  relation  of  two  persons  from  observing  their 
conduct.41  He  may  state  his  inference  as  to  the  object  with  which  certain  acts 
of  conduct  were  undertaken.42  Where  the  proportion  of  reasoning  is  too  large, 
characterization  of  conduct  may  be  rejected  as  more  nearly  in  the  nature  of  a 
conclusion,43  as  where  the  witness  seeks  to  state  the  motives  or  emotions  from 
which  given  conduct  has  taken  its  rise,44  or  what  influenced  a  person  in  a  cer- 
tain connection.45  Admissibility,  in  any  particular  case,  is  conditional  upon 
such  a  variety  of  circumstances  that  no  hard  and  fast  rule  can  well  be  stated.46 

§  695.  [Physical  Inferences];   Indentities   and   Correspondences.47 A   result 

30.  Greville  v.  Chapman,  5  Q.  B.  731,  48  E.  38.  Com.  v.  Mullen,  150  Mass.  394,  23  N. 
C.  L.  731    (1844).  E.  51   (1890). 

31.  Lewis  v.  Emery,  108  Mich.  641,  66  X.  39.  State  v.   Evans,   122    Iowa    174,   97   X. 
\V.  569   (1896)  :   3  Chamh.,  Ev.,  §   1855,  n.  7.  VV.  1008   (1904)  ;  Messner  v.  People,  45  N.  Y. 

32.  Storrie   v.   Grand   Trunk   Elevator   Co.,  1   (1871);  3  Chamb.,  Ev.,  §  1856,  n.  6. 
*upra.  40.  Supra,  §  654:   3  Chamb.,  Ev.,  §   1743; 

33.  Pittsburgh,  etc.,  R.  Co.  v.  Martin,   157  Baltimore  Safe  Deposit,  etc.,  Co.  v.  Berry,  93 
1ml.  216,  61   X    E.  229    (1901).  Md.  560,  49  Atl.  401    (1901). 

34.  Robinson  v.  Waupaca,  77  Wis.  544,  46  41.  State  v.  Marsh,  70  Vt.  288,  40  Atl.  836 
X.   \V.  809    (1890)  (1898). 

35.  Chicago,  etc.,  R.  Co.  v.  Martin,  112  111  42.  Oault  v.  Sickles,  85  Iowa  266,  52  X.  \V. 
16    (1884);   Com.  v.   Snell,   ISO  Mass.   12.  75  206  ( 1892)  ;  Com.  v .  Galavan,  9  Allen  (Mass.) 
N.   E.  75    (1905)  ;   Lewis  v.  Emery,  supra;  3  271   (1864)  :  3  Chamb.,  Ev.,  §  1858,  n.  1. 
Chamb.,   Ev.,  §   1856,   n.   2.  43.  Houston  &  T.  C.  Ry.  Co.  v.  Lee,  104  Tex. 

36.  Pittsburgh,     etc.,     R.     Co.     v.     Martin,  82,  133  S.  W.  868  ( 1911 ) . 

supra;  Blake  v.  People,  73  X.  Y.  586  (1878)  ;  44.  State     v.     Marsh,     supra;     Culver     v. 

State  v.  Edwards,  112  X.  C.  901,  17  S.  E.  521  Dwight.  6  C.ray   (Mass.i   444    (1856). 

<18!»3):   Xorthern  Pac.   R.  Co    v.   I'rlin.   158  45.  O'Connor  v.  Madison,  98  Mich    183,  57 

I.  S.  271,  15  S.  Ct.  840,  39  L   ed.  977   (1895)  :  N.  W.  105  (1893)  :  3  Chamb..  Ev..  §  185!).  n.  2. 

3  Chamh.,  Ev  ,  §  1856,  n.  3.  46.  St.ite  v.  Brown.  86  Tnwa  121.  53  X.  W. 

37.  Morris   v.    East   Haven,    41    Conn.    252  92    MS921-.    3  Chamb..   Ev..   §   1S60 
U874).  47.  3  Chamberlayne,  Evidence,  §   1861. 


539  PHYSICAL  INFERENCES.  §  696 

of  observation  frequently  summarized  by  an  ordinary  witness  into  an  act  of 
reasoning  is  that  of  the  identity  of  a  human  being,  animal  or  any  article  of  real 
or  personal  property,  the  ground  for  receiving  which  in  evidence  is  that  the 
primary  phenomena  of  observation  are  too  numerous  and  minute  to  be  stated  by 
the  witness  or  coordinated  by  the  jury.48  To  state  the  same  proportion  in  a 
reverse  form,  where  the  witness  is  able  to  detail  to  the  jury,  with  substantial 
fullness,  the  matters  observed  by  him;  and  the  jury,  in  turn,  are  as  well  able 
as  the  witness  would  be  to  draw  all  necessary  inferences,  the  act  of  reasoning 
on  the  part  of  the  witness  is  rejected.49 

§  696.  [Physical  Inferences] ;  How  far  Reasoned  Inference  is  Essential.50 — 
The  inference  of  identity  is  a  reasoned  one.  Wherever  by  constant  associa- 
tion, or  the  familiarity  created  by  intense  attention,  the  recognition  of  a  dis- 
tinctive appearance  arises  in  the  consciousness,  a  single  act  of  perception, 
apparently  devoid  of  any  large  element  of  reasoning,  may  produce  intuitively 
a  mental  result  of  identification.  This  is  the  mere  apprehension  of  a  fact 
and,  as  such,  is  admissible.  Where,  however,  the  element  of  observation  is 
absent  and  all  which  is  submitted  to  the  court  is  an  act  of  pure  reasoning 
from  relevant  circumstances,  it  may  be  more  properly  rejected.51  Ordinary 
observers  cannot,  as  would  be  proper  in  case  of  experts,52  state  their  judgment 
upon  the  facts  observed  by  others.  It  has  even  been  held  that  the  mental  re- 
sult of  the  witness  will  not  be  received  at  all  unless  accompanied  by  a  detailed 
statement  of  such  constituent  phenomena  as  will  enable  the  court  to  perceive 
that  the  jury  might  reasonably  act  in  accordance  with  his  inference.53  In 
many  instances,  this  has  been  excused;  in  others,  it  would  be  impossible  to 
furnish  it.  In  certain  cases,  as  has  been  intimated,  identification  is  a  fact, 
compounded,  it  is  true,  but  still  the  result  of  a  single  act  of  perception.54  In 
any  event,  adequate  knowledge  must  be  shown,55  although  a  claim  to  its  pos- 
session has  been  held  to  establish  a  prima  facie  qualification.56  Direct  and 
positive  evidence  of  identification  is  not  indispensable.57  Where  more  force- 
ful proof  of  identity  is  lacking,  even  so  low  a  grade  of  evidence  as  that  a 

48.  Opden  v.  People,  134  111    599,  25  X.  E.  356   (1896)  ;  Eastwood  v.  People.  3  Park.  Cr. 
755    (1890)  ;  Com.  v    Kennedy.  170  Mass.  18,  (X.  Y. )  25  (1855)  ;  Sherlock  v.  Globe  Ins.  Co., 
48  X.  E.  770   (1897)  ;•  3  Chamb.,  Ev.,  §  1861,  7  Ohio  Deo.   (Reprint)    17   (1868)  ;  3  Chamb, 
n.   1.  Ev.,  §   1863,  n.  2. 

49.  Filer  v.  Smith,  96  Mich.  347,  55  X.  W.  54.  Ogden  v.   People,  supra:  Com.  v.  Dor- 
999    (1893):    People  v.   Wilson.   3   Park.   Cr.  sey,  103  Mass.  412   (1869). 

(X.  Y.I    199   (1856).  55.  Roberson  v.  State.  40  Fla.  509,  24  So. 

50.  3  Chamberlayne,     Evidence,     §§     1862-      474   (1898). 

I860.  56.  Turner  v    MrFee.  61   Ala.  468  71878). 

51.  Roziene  v.  Rail.  51  Iowa  328,  1   X.  W.  57.  Kent   v.    State,    94   Ga.    703,    19   S.    E. 
668    (1879);   3  Chamb.,  Ev.,  §  1862.  n.   1.  885    (1894):   State  v.  Howard.   118  Mo.   127, 

52.  Infra,   §§   816   et  seq. :   3   Chamb..   Ev ..  24  S    W.  41    (1893);   People  v    Whigham.  1 
§§  2451  et  seq.     Hearsay  excluded.     State  v  Wheel.   Cr     (X.   Y.)    115    (1822);   3  Chamb., 
Rutledge.  37  Wash.  523.  79  Pac.  1123   (1905K  Ev.,  §   1864,  n.   1. 

53.  Thornton  v.  State,  113  Ala.  43.  21  So. 


§  697  INFERENCE  FROM  SENSATION.  54-0 

given  individual  resembled  defendant  more  than  lie  did  any  one  else  known 
to  the  witness,58  or  that  two  things  appear  to  be  similar,59  has  been  received. 
It  is  not,  however,  sufficient  identification  that  the  witness  "  thought  "  or  was 
"  impressed  "  to  the  effect  that  defendant  was  identical  with  the  doer  of  a 
given  act.60  That  a  witness  was  "  satisfied  "  with  the  identity  of  a  defendant 
is  not  sufficient.61  The  inference  of  one  who  has  had  sufficient  opportunities 
for  observation  on  the  subject  may  be  received  as  to  the  identity  of  one  ac- 
cused of  crime  with  the  perpetrator  of  the  criminal  offense.02  ^The  judicial 
identification  of  animals,63  may  be  based,  in  part,  upon  the  correspondence 
observed  between  marks  noticed  on  the  animal  and  the  salient  points  of  its 
description.  The  testimony  of  witnesses  that  certain  tracks  were  those  of  a 
horse,  .which  tracks  indicated  his  motion  —  whether  walking,  running  or  jump- 
ing —  though  in  the  nature  of  conclusions,  is  admissible."4 

§  697.  [Physical  Inferences] ;  Circumstantial  Evidence.155 —  The  inference  of 
identity  of  a  person,  material  object  or  the  like,  may  be  based  upon  circum- 
stantial evidence,  by  the  use  of  distinctive  mental  traits  or  physical  peculiarities. 
In  this  way,  a  singular  motion,66  e.g.,  a  walk,67  distinctive  odor  °8  or  well  de- 
fined noise  l59  may  act  as  a  mark  of  identification.  The  sound  in  question  may 
well  be  that  of  a  voice.70  Any  suitable  circumstance  may  answer  the  pur- 
pose.71 For  the  purpose  of  establishing  correspondences  and  identities,  facts 
in  the  realm  of  objective  nature  72  or  subjective  facts  7:5  may  be  used.  The 
inference  of  a  witness  may  result  in  identifying  a  stock  of  goods  74  or  other 
chattels.  So  of  the  great  array  of  things  in  general,75  personal  property,  mov- 
ables, and  the  like.  The  evidence  of  the  inference  of  a  witness  is  admissible 

58.  State  v.  Costner,  127  N.  C.  566,  37  S.  E.  66.  State  v.  Hopkirk,  84  Mo.  278  (1884). 
326   (1900).  67.  Beale  v.  Posey,  72  Ala.  323   (18S2). 

59.  People  v.  Mitchell,  94  Cal.  550,  29  Pac.  68.  Walker  v.  State,  58  Ala.  303   (1877). 
1106    (1892).  69.  Com.  v.  Best,   180  Mass.  492,  62  N.  E. 

60.  People   v.    Williams,    1    N.    Y.   Or     336  748   (1902);  3  Chamb.,  Ev.,  §  1867,  n.  4 
(1883).  70.   Deal  v.  State,  140  Ind.  354,  39  N.  E.  930 

61.  Templeton    v.    Luckett,    75    Fed.    254,  (1895);     Com.     v.     Hayes,     138     Mass.     I8o 
21  C.  C    A.  325   (1896).  (1884)  ;  Wilbur  v.  Hubbard,  35  Barb.  (X.  Y.) 

62.  Kent  v.  State,  supra;  Com.  v.  Kennedy,  303   (1861)  ;  3  Chamb.,  Ev.,  §  1S67,  n.  5 
supra;  State  v.   Powers,   130  Mo.  475,  32   S.  71.  Com.    v.     Kennedy,    supra;    Smith    Y. 
W.    984    (1895):    King   v.    New   York   Cent.,  Northern  Pac.  R.  Co.,  3  N.  D.  55,  58  N.  W. 
etc.,  R.   Co.,  72  X.    Y.   607    (1878);    State  v.  345    (1894). 

Harr.  38  W.   Va    58.   17   S.   E.   794    (1893);  72.  3  Chamb,  Ev..  §  1868,  ns.  1.  2. 

3  Chamb  .  Ev.,  1865,  n    1.  73.  3  Chamb.,  Ev.,  §§  1869,  1870.     See  also 

63.  fhrisman-Sawyer  Banking  Co.  v.  Stra-  Circumstantial  Evidence  in  case  of  Pedigree, 
horn-Hutton-Evans   Commission    Co.,   80   Mo.  4  Chamb.,  Ev.,  §§  2967  et  seq. 

App.  438   i  1S99).  74.  Altman  v   Young,  38  Mich.  410   (1878). 

64.  Craig  v.  Wabash  R.  Co..  121  Towa  471,  75.  Askew  v.  People,  23  Colo.  446.  48  Pac. 
96   N.   W.  965    (1903).     Round.—  It  may  be  524    (1897);    Com.   v.   Best,   supra:   King   v 
said   that    a   Certain   noise   was   caused   by   a  New  York  Cent.,  etc.,  R.  Co.,  supra:  Sherlock 
horse  crossing  a  bridge  on  a  lope.     Holder  v.  v.   Globe  Ins.   Co.,  supra;  3  Chamb.,  Ev.,   § 
State,  119  Tenn.  178,  104  S.  W.  225    (1907).  1871,  n.  2. 

65.  3  Chamberlayne,    Evidence,     §'§     1867- 
1878. 


541  PHYSICAL  INFERENCES. 

as  to  the  indentity  of  articles  of  personal  property  which  present  inherent 
difficulties  in  the  way  of  proof  of  identification,76  such  as  ordinary  coins, 
stamped  out  in  large  numbers  by  means  of  a  die,77  banknotes  or  pay  checks.78 
Identification  by  the  witness  may  extend  to  establishing  the  correspondences 
relating  to  wills  79  and  other  documents.  An  observer  competent  for  the  pur- 
pose may  state  whether  certain  offenses  showing  points  of  difference  are,  in 
reality,  the  same.*0 

Footprints. —  An  observer  may  properly  say  whether  a  certain  boot,  shoe, 
or  other  specimen  of  footware  is  capable  of  producing  particular  tracks.81  On 
the  other  hand,  that  certain  marks  were  actually  made  by  a  given  individual  or 
even  were  the  same  as  or  similar  to  those  made  by  him  82  may  not  be  shown. 
The  inference  that  certain  footprints  u  corresponded "  has  been  received,83 
although  there  is  a  lack  of  unanimity  on  this  point.  Delay  of  careful  inspec- 
tion for  a  certain  period,  without  material  change  in  the  situation,  affects 
merely  the  weight  of  the  evidence.84  Measurements  assumed  to  be  accurate, 
taken  by  the  witness,  are  received  in  such  connection.85  It  is  not  essential 
that  they  should  be  exact.86  The  final  inference  from  correspondences  as  to 
what  were  the  actual  res  gestce  is  to  be  reserved  for  the  jury.  Thus,  whether 
a  shoe  would  have  made  a  certain  track 87  or  in  reality  did  make  it,88  or 
whether  two  footprints  corresponded,89  is  a  matter  for  them. 

Other  Track's. —  An  ordinary  observer  with  sufficient  opportunities  for  ob- 
servation may  be  permitted  to  state  his  inference  that  certain  tracks  con- 
nected with  the  scene  of  the  res  gestce  corresponded  with  those  made  by  the 
wheels  of  a  wagon  used  by  a  given  person  9"  or  with  the  grooves  made  by  the 
runners  of  a  sleigh  owned  by  him,91  or  that  certain  hoof  prints  might  have 
been  made  by  the  defendant's  horse.92  A  witness  cannot  testify  as  to.  whether 
marks  were  those  of  a  certain  horse.93 

Other  Correspondences. —  Where  the  court  is  unable  to  obtain  a  personal 

76.  State  v.  Clark,  27  Utah  55,  74  Pac.  119  83.  State   v.   Millmeier,    102   Iowa   692,   72 
(1903).  N.   W.  275    (1897);   Com.  v.  Pope,  supra;  3 

77.  Gady  v.   State,   83   Ala.   51,   3   So.   429  Chamb.,  Ev.,  §  1874.  n.  5. 
(1887)  ;   3  Chamb.,  Ev.,  §   1872,  n.  1.  84.  State  v.  Sexton,  supra. 

78.  Gaines  v.  State    (Tex.  Cr.  App.   1903),  85.  Thompson     v.     State     I  Tex.     Cr.    App. 
77  S.  W.  10.  1903),  77  S.  W.  449. 

79.  Thompson     v.     Davitte,     59     Ga.     472  86.  Baines  v.  State,  43  Tex.  Cr.  490,  66  S. 
(1877).  W.  847   (1902). 

80.  Lamar-Rankin  Drug  Co.  v.  Copeland,  7  87.  Busby  v.  State,  77  Ala.  66   (1884). 
Ga.  App.  567,  67  S.  E.  703   (1910)  ;  3  Chamb.,  88.  Livingston   v.    State,   105   Ala.    127,    16 
Ev..  §  1873,  n.  2.  So.  801    (1894)  ;  3  Chamb.,  Ev.,  §  1876,  n.  2. 

81.  Com.   v.   Pope,   103  Mass.   440    (1869):  89.  Id. 

State  v.   Sexton,   147   Mo.   89,   48   S.   W.   452  90.  State  v.  Fohvell,   14  Kan.   105    (1874). 

(1898)  :   State  v.  Langford,  74  S.  C.  460,  55  91.  State  v.  Ward.  61  Vt.  153,  17  Atl.  483 

S  E.  120  (1906)  ;  3  Chamh.,  Ev.,  §  1874,  n.  1.  (1888). 

82.  Terry  v.  State,  118  Ala.  79,  23  So.  776  92.  Campbell  v.  State.  23  Ala.  44  (1853)  ;  3 
(1897)  ;  State  v.  Morris,  84  X.  C.  756  (1881 )  Chamb..  Ev.,  §  1877.  n.  3. 

CONTRA:  State  v.  Reitz,  83  N.  C.  634  93.  Russell  v.  State,  62  Neb.  512,  87  N.  W. 
(1880).  344  (1901)  ;  3  Chamb.,  Ev.,  §  1877,  n.  4. 


§§  698, 699         INFERENCE  FEOM  SENSATION.  542 

inspection,  it  may  be  shown  by  an  observer  that  two  pieces  of  wood  once  formed 
part  of  the  same  stick  or  block,94  or  that  a  given  metallic  splinter  came  from  a 
depression  in  a  die.95 

§  698.  Physical  Inferences;  Intoxication.90 — The  statement  by  an  ordinary 
observer  that  a  given  individual  was  intoxicated  amounts,  in  many  instances, 
merely  to  the  statement  of  a  fact  and,  as  such,  it  is  usually  received,  as  a  matter 
of  course.97  A  witness  may  properly  state  his  inference  that  a  given  person 
was  intoxicated  98  "  or  had  been  drinking,"  99  or  was  recovering  from  a  state 
of  drunkenness.1  Drunkenness  is  "  easy  of  detection  and  difficult  of  explana- 
tion." 2  The  convenient  practice  is  followed  of  requiring  that  the  observer 
should  state  such  of  the  constituting  facts  as  admit  of  separate  enumeration/1 
An  ordinary  observer  will  not  be  allowed  to  state  that  a  person  whom  he  had 
observed  was  too  drunk  to  know  what  he  was  about.4  It  must  not,  however,  be 
overlooked  that  the  marks  of  intoxication  are  by  no  means  invariable.  One 
man  may  be  quite  bereft  of  the  faculty  of  reasoning  without  presenting  marked 
physical  manifestations  of  his  condition ;  5  while  another  may  present  serious 
outward  appearances  without  grave  mental  impairment.  "  Intoxication  affects 
different  men  in  different  ways  .  .  .  much  depends  upon  the  kind  of  man  and 
liquor."  6 

§  699.  [Physical   Inferences] ;    Physical    Condition    of   Inanimate    Objects.7— 
Where  an  attempt  by  a  witness  to  describe  the  apparent  condition  of  an  inani- 
mate object  would  require  enumeration  of  a  large  number  of  constituent  phe- 
nomena, he  is  permitted,  having  given  such  of  the  constituting  observations  as 
admit  of  being  so  treated,  to  submit,  as  a  species  of  secondary  evidence,  the 

94.  Com.  v    Choate,  105  Mass.  451    (1870).  2.  Holland  v.  Zollner,  102  Cal.  633,  36  Pac. 

95.  Hocking   v.    Windsor    Spring   Co.,    131       930.    37    Pac    231    (1894). 

Wis.  532.  Ill  N.  VV.  685   (1907).     Similarity          3.  Pierce    v.    State,    53    Ga.    365     (1874); 

of  hair.     State  v.  Whitbeck,  145  Iowa  29,  123  Felska  v.  New  York  Cent.,  etc.,  R.  Co.,   152 

N.  W.  982    (1909).  N.  Y.  339,  46   N.   E.  613    (1897).     This  rule 

96.  3  Chamberlayne,     Evidence,    §§     1879-  is  not   invariably   applied.     State   v.   Cather, 
1881.  supra. 

97.  People  v.  Monteith,  73  Cal.  7,  14  Pac.          4.  White  v.  State,   103  Ala.  72,  16  So.  63 
373   (1887);  Chicago  City  R.  Co.  v.  Wall.  93  (1893).     Whether   a   person   was    too   drunk 
111.   App.  411    (1900)  ;   State  v.  Bennett,   143  to  walk  or  even  to  get  out  of  bed.  presents 
Iowa  214.  121  N".  W.  1021   (1909);  Edwards  v.  a   question    for    the    jury.     Colbert   v.    State, 
Worcester,     172    Mass.     104,    51    N.    E.    447  4   Okl.   Cr.   500,    113   Pac.   558    (1910).     The 
(1898);   People  v.  Gaynor,  33  App.  Div.  98,  evidence,  however,   has  been   received.     State 
53  X.  Y.  Supp.  86   (1898)  ;   3  Chamb.,  Ev.,  §  v.  Dolan,  17  Wash.  499,  50  Pac    472   I  1897)  ; 
1879,  n.  1.  3  Chamb..  Ev..  §  1880. 

98.  State  v   Cather,  121  Iowa  106,  96  X.  W.  5.  '•  Some   men    can    drink    twice    a*    much 
722   (1903).  as    others    without    showing    it."     Com      v 

99.  People  v.  Sehorn.  116  Cal.  503,  48  Pac.  Cleary.  135  Pa.  64.  8f>.  19  Atl    1017    mOfM 
495     (1897);    Chicago   City   R.    Co.    v.    Wall,  6.  Texarkana.  etc..  R.  Co.  v    Fruq-ia    (Tex. 
supra  Civ.    App.    1906),    95    S.    W.    -~63,    quoto/l    :t< 

1.  People    v.    Packenham,    115    N.    Y.    200,       Moore   on    Facts,    §    558;    3    Chamb..   Ev.,    § 
21   X.  E.   1035    (1889).  1881. 


543 


PHYSICAL  INFERENCES. 


§  699 


effect  which  the  entire  observation,  taken  as  a  whole,  has  produced  upon  his 
mind.*  lie  may  declare  whether  the  appearance  was  similar  in  certain  other 
instances.9  lie  may  declare  an  inference  as  to  the  existence  of  any  Changes 
which  have  occurred  in  that  appearance  between  different  times,10  or  state 
the  negative  fact  that  there  has  been  no  change.11  One  may  properly  draw 
inferences  from  his  observation  as  to  the  systeuiized  or  disordered  arrange- 
ment of  inanimate  objects.  Thus,  one  may  state  from  the  appearance  of  a 
room  that  burglars  have  been  in  it.12  An  ordinary  observer  may  state  the 
appearance  of  articles  as  being  affected  by  fire,13  water14  or  mud.15  A  prop- 
erly qualified  observer  may  state  his  inference  that  the  apparent  condition  of 
an  inanimate  object  resulted  from  the  application  of  force  in  some  one  of  its 
many  forms,10  or  that  no  force  has  been  applied.17  The  nature,  direction  and 
other  qualities  of  instrumentalities  producing  an  impact  upon  an  inanimate 
object  may  properly  be  stated  by  an  ordinary  observer  who  is  suitably  quali- 
fied.18 Thus,  it  may  be  shown  that  a  certain  mark  in  the  snow  was  made  by 
the  runner  of  a  sleigh,19  tracks  may  be  made  by  footwear  20  of  a  particular 


7.  3  Chamberlayne,     Evidence,     §§      1882- 
1889. 

8.  Lucas  v.   State,   173   hid.  302,  90  N.   E. 
305   (1910.)  ;  Illinois  Cent.  R.  Co.  v.  Behrens, 
208  111.  20,  69  X.  E.  796   (1904)  :  Johnson  v 
State,  88  Xeb.  565,   130  X.  \V.  282    (1911); 
Dubois  v.  Baker,  30  X.  Y,  355  (1864)  :  Cleve- 
land &  S.  W.  Traction  Co.  v.  Ward,  27  Ohio 
Cir    Ct.  R.  7til    (1905);   Williams  v.  Xorton 
Bros.,  81  Vt.  1,  69  Atl.  146  (1908)  ;  )  Chamb., 
Ev.,  §   1882,  n.  2.     Whether  a  lot  of  land  is 
vacant  is  simply  a  question  of  fact.     Cary  v. 
Given,   129  X.   Y.  Supp.  35    (1911). 

9.  Yeager  v    Spirit  Lake,  115  Iowa  593,  88 
X    W.    1095    (1902).     Relevancy  of  the  fact 
to  be  proved,  in  some  relation  to  the  issue,  is 
necessarily  assumed  as  a  preliminary  to  ad- 
missibility.     Moffatt    v.    State,    35    Tex.    Cr. 
257,  33  s!  W.  .344  (1895). 

10.  Gallagher   v.   Williamson,  23   Cal.   331, 
83   Am.   Dec.    114    (1863);    3   Chamb.,  Ev.,   § 
1883,  n.  1. 

11.  Allen  B.  Wrisley  Co.  v.  Burke,  203  111. 
250,  67  X.  E.  818   (1903)  :  Pratt  v.  Mosetter. 
9   X.   Y\  Civ.   Proc.   351    (1886):    3   Chamb., 
Ev..  §  1883.  n.  2. 

12.  State    v.    Shuford,    152    X.    C.    809.    67 
S.    E.   923    (1910).     A   witness   who   has   ob- 
served the  condition  of  a  bed  may,  after  stat- 
in?  that   "  the   sheet   was   down   at   the   foot 
and  there  was  where  two  people  had   laid." 
declare  his  inference  that  it  looked  as  if  two 
persons  had  slept  there  and  gotten  out  in  a 
hurry.     Copeland    v.    State,    58    Fla.    26,    50 
So.  621    (1909). 


13.  James  v.  State,  104  Ala.  20,  16  So.  94 
(1894);    Union   Pac.   Co.   v.  Gilland,  4  Wyo. 
395,  34   Pac.   953    (1893);    3   Chamb.,  Ev.,  § 
1884,  n.   1.     Whether  a  witness  who  merely 
observed   that   a   certain   piece  of  paper   was 
burned   could    testify   that   "  it   had   the   ap- 
pearance of  being  wadding  shot  from  a  gun  " 
has  seemed  to  the  Xew  York  court  of  appeals 
to    state    so    much    of    a    "  border   question  " 
that   they   declined    to   reverse,    in    a   capital 
case,  the  action  of  the  lower  court  granting  a 
new  trial  on  account  of  its  admission.     Peo- 
ple v.  Manke,  78  X.  Y.  611    (1879). 

14.  Com.  v.  Sturtivant,  117  Mass.  122,   19 
Am.  Rep.  401   (1875). 

15.  State  v.  Marceaux,  50  La.  Ann.   1137, 
24  So.  611    (1898) 

16.  Fort  v.   State,   52   Ark.   180,   11    S.   W. 
959,    20    Am.    St.    Rep.    163    (1889).     Where 
several  applications  of  force  have  been  made 
in  succession,  an  observer  may  state  the  par- 
ticular  order   in   which   these  were  probably 
made.     Id. 

17.  Dean  v.  New  York,  45  App.  Div.  605,  61 
X.  Y.  Supp.  374    (1899). 

18.  People  v.  Mitchell,  94  Cal.  550.  29  Pac. 
1106    (1892);    People   v    Fanshawe.   65   Hun 
77.    19    X.    Y.    Supp.    865,    8    X.    Y.    Cr.    326 
(1892):    3  Chamb.,   Ev.,  §   1885,  n.  5. 

19.  State  v.  Ward.  61  Vt.  153,  17  Atl    483 
(1888). 

&  .  James  v.  State,  supra;  Com.  v.  Pope, 
103  Mass.  440    (1869). 


609 


INFERENCE  FKOM  SENSATION. 


544 


size.21  One  may  infer  that  a  given  impact  was  made  by  a  shoulder,22  the  feet 
of  animals,23  or  by  a  collision,  e.g.,  with  a  locomotive,24  or  between  two  ves- 
sels.25 He  may  infer  from  its  appearance  that  it  was  made  by  one  who  was 
walking26  or  had  stopped  doing  so;27  by  a  man  running,  jumping,28  or  the 
like,  lie  may  be  allowed  to  state  his  inference  as  to  the  position  occupied  by 
an  object  at  the  time  when  it  was  struck.-9 

Safety  of  Public  Places. —  Where  the  constituent  facts  observed  by  the  wit- 
ness cannot  fully  be  submitted  to  the  jurors,  the  inference  of  the  witness,  from 
the  observed  appearance  of  inanimate  objects,  may  be  received  as  to  their 
being  either  safe  or  dangerous,  especially  should  the  fact  be  a  collateral  one.30 
He  will  be  permitted  to  apply,  under  the  circumstances  indicated,  the  standard 
of  safety  to  his  observation  regarding  the  condition  of  any  bridge,31  crossing,32 
sidewalk  33  or  other  highway.34  The  inference,  in  some  cases,  may  resemble 
a  conclusion.35  Such  a  witness  may  give  his  inference  as  to  which  of  two 
places  is  the  safer.36  An  ordinary  observer  may  state,  in  terms  of  the  effect 
which  they  produced  upon  his  mind,  the  phenomena  which  made  a  boat  land- 
ing,37 railroad  platform,38  track  39  operated  by  a  steam  or  trolley  line,  or  any 
other  structure  40  or  place  41  dangerous  42  or  safe.43  The  facts  must  be  simple 
and  the  inference  necessary.  In  actions  for  negligence  of  this  sort,  the  com- 
petency of  a  workman  may  be  established  by  the  estimates  or  conclusions  of 
those  who  have  observed  him.44 


21.  Littleton  v    State,  128  Ala.  31,  29  So. 
390  (1900). 

22.  Watkins  v.  State,  89  Ala.  82,  8  So.  134 
(1889). 

23.  Craig  v.  Wabash  R.  Co.,  121  Iowa  471, 
96  N.  W.  965    (1903). 

24.  Seagel    v     Chicago,    etc.,    R.    Co.,    83 
Iowa  380,  49  X.  W.  990   (1891). 

25.  Patrick   v.   The  J.   Q.   Adams,    19   Mo. 
73   (1853). 

26.  Smith,  v.  State,  137  Ala.  22,  34  So.  396 
(1903). 

27.  Chicago,   etc.,   R.   Co.   v.   Legg,   32    111. 
App    -218    (1889). 

28.  Craig  v.  Wabash  R.  Co  ,  supra. 

29.  Fanning    v.     Long    Island    R.    Co.,    2 
Thomps.  &  C.    (X.  Y.)   585    (1874). 

30.  Baltimore   Fireman's  Ins.   Co    v.  Mohl- 
man  Co.,  91  Fed.  85,  33  C.  C.  A.  347    (1898). 

31.  Ryan   v.  Bristol,  03  Conn.   26,  27   Atl 
309   i  1893)  ;  3  Chamb.,  Ev.,  §  1886.  n.  2. 

32.  Martin    v.    Baltimore,    etc.,    R.    Co.,    2 
Marv     (Del.)    123,   42   Atl    442    (1895K 

33.  Atherton  v.  Bancroft.  114  Mich.  241.  72 
N.    W.    208     (1807):    McXerney    v.    Reading 
City,    150    Pa.    611.    25    Atl.    57     (1892):    3 
Chamb  .  Ev.,   §   1886,  n.  4 

34.  Dean  v.  Sharon,  72  Conn    667,  45   Atl 
963    (1900);   Lund  v.  Tyngsborough,  !)  Cush. 


(Mass.)  36  (1851);  Kitchen  v.  Union  Tp., 
171  Pa.  145,  33  Atl.  76  ( 1895)  ;  3  Chamb,  ET., 
§  1886,  n.  5. 

35.  Perry  v.  State,  110  Ga.  234,  36  S.  E.  781 
(1899). 

36.  Cookson  v.  Pittsburgh,  etc..  R.  Co.,  179 
Pa.   184,  36  Atl.  194   (1897). 

37.  Louisville,  etc.,  Mail  Co.  v.  Mossberger, 
13  Ky.  L.  Rep.  927    (1892). 

38.  Graham   v.   Pennsylvania   Co,    139   Pa. 
149,  21  Atl    151.  12  L.  R.  A.  293   (1891). 

39.  Louisville,   etc.,   R.   Co.   v.   Tegner,    125 
Ala    593,  28  So.  510   (1899);   3  Chamb.,  Ev., 
§  1887,  n.  3. 

40.  McNerney     v.     Reading     City,     supra; 
Bridger  v.  Asheville.  etc.,  R.  Co.,  25  S.  C.  24 
(1885). 

41.  Kitchen  v.  Union  Tp.,  supra. 

42.  Ryan  v.  Bristol,  supra  :  Lund  v   Tyngs- 
borough,    supra;     Kitchen     v.     Union     Tp., 
supra;  3  Chamb.  Ev.,  §  1887,  n    6. 

43.  Dean   v.   Sharon,   supra;  Belts  v.   Chi- 
cago, etc.,  R.  Co.,  92  Iowa  343.  60  X    \V.  623 
MK94)  :  Baltimore,  etc.,  R.  Co.  v    Cassell.  06 
Md.  419.  7   Atl    805    (1886):   3  Chamb.,  Ev., 
§  1S87,  n.  7. 

44.  Lake  St.  El.   R    Co.  v.  Fitzgerald,   112 
111.  App.  312   (1904). 


545  PHYSIOLOGICAL  INFERENCES.  §§  700,701 

Soundness. —  The  witness  may  not  only  apply  the  standards  of  safety  and 
utility  but  also  that  of  soundness,  stating  that  certain  inanimate  objects  are 
sound  45  or  unsound.4"  In  any  case,  the  time  indicated  by  the  inference  must 
be  such  as  to  be  relevant  to  the  proposition  put  in  issue  in  the  action.47 

Suitability. —  An  ordinary  observer  may,  under  like  conditions,  be  per- 
mitted to  state  his  inference  as  to  suitability  for  a  given  purpose,  as  whether  a 
certain  building  was  suitable  for  a  particular  purpose^.48  He  may  declare  the 
mental  impression  held  by  him  as  to  the  adaptability,  for  its  appropriate  use, 
of  any  car,49  piece  of  machinery  50  or  any  other  form  or  combination  of  mat- 
ter,51 the  relevant  appearances  of  which  lie  on  the  surface. 

§  700.  Physiological  Inferences.52 — Physiological  inferences,  the  results  of 
observation,  are  conveyed  to  the  mind  by  the  faculty  of  intuition,  with,  as  a 
rule,  but  slight  admixture  of  the  element  of  reasoning.  The  result  is  re- 
garded by  judicial  administration  as  a  mere  statement  of  a  psychological  fact 
and,  as  such,  is  received  without  objection.53  Thus,  a  witness  may  be  allowed 
to  say  that  he  has  suffered  internal  injury,54  or  to  state  the  effect  on  his  health 
of  certain  acts,55  or  to  declare  the  nature,  location  and  other  facts  concerning 
any  sensation  of  pain  which  he  may  have  suffered  56  or  be  suffering. 

§  701.  Psychological  Inferences.57 — Psychological  facts  are  entirely  mental, 
conditions,  phases,  states  of  mind.  As  such,  they  are  not  subject  to  physical 
observation,  although  their  manifestations  undoubtedly  are.  The  person 
whose  mind  is  in  question  may,  as  has  been  seen,58  testify  directly  to  their 
existence.59  The  element  of  reasoning,  of  inference,  is  practically  elimi- 
nated. Because  of  the  difficulty  of  detailing  observed  phenomena  into  a 

45.  Illinois  Cent.  R.  Co.  v.  Foulks,  191  111.  R.    Co.,    135   Mo.    App.   230,  115    S.    W.    452 
57,  60  X.   E.   890    (1901);    Brooks  v.   Sioux  (1909);  Cass  v.  Third  Ave.  R.  Co.,  20  App. 
City,   114  Iowa  641,  87  N.   W.  682    (1901);  Div.    591,    47    N.    Y.    Supp.  356    (1897);    3 
Merkle  v.  Bennington  Tp.,  68  Mich.   133,  35  Chamb.,  Ev.,  §  1890,  n.  4. 

N.  W.  846   (1888)  ;  3  Chamb.,  Ev.,  §  1888,  n.  54.  Chicago  &  J.  E.  Ry.  Co.  v.  Patton,  122 

3.  111.  App.  174   (1905)  :  Pfau  v.  Alteria,  52  N. 

46.  Johnson    v.    Detroit,    etc.,    R     Co.,    135  Y.  Supp.  88,  23  Misc.  693   (1898);  Lombard, 
Mich.  353,  97  N   W.  760  (1904);  Reynolds  v.  etc.,   Pass    R.  Co.  v.  Christian,   124  Pa.   114, 
Van  Buren,  31  N.  Y.  Supp.  827,  10  Misc.  703  16  Atl.  628   (1889)  :  3  Chamb..  Ev.,  §  1890,  n. 
(1895).  5. 

47.  XVolscheid  v.  Thome,  76  Mich.   265,  43  55.  McDonald  v.  City  Electric  Ry.  Co.,  144 
N.  W.  12   (1889).  Mich.  379.  108  N.  W.  85    (1906). 

48.  Rust  v.  Eckler.  41  X.  Y.  488   (1869).  56.  Xorth  Chicago  St.  R.  Co.  v.  Cook,  145 

49.  Betts  v.  Chicago,  etc.,  R.  Co.,  supra.  111.  551,  33  X.  E.  958   (1893). 

50.  Sievers   v.    Peters    Box,    etc.,    Co.,    151  57.  3  Chamberlayne,    Evidence.    §§     1891- 
Ind.  642.  50  X.  E.  877.  52  X.  E.  399   (1898)  ;  1901. 

3  Chamb.,  Ev.,  §  1889,  n.  3.  58.  Supra,  §§  653;  3  Chamb.,  Ev.,  §§  1741d, 

51.  Birmingham    Paint    &    Roofing    Co.    v.       1741e. 

Cillespie.  163  Ala.  408.  50  So.  1032  (t909).  59.  Jeddrey  v   Boston  &  X.  St.  Ry.  Co.,  198 

52.  3  Chamberlayne,  Evidence.  §   ISflO.  Mass.  232.  84  XT    E.  316    (1908^;   Providence 

53.  Roche   v    Redington.    125   Cal.    174,   57  Mach.  Co.  v.  Browning.  72  S.  C.  424.  52  S.  E. 
Pac.  890   I  1899)  ;  Wray  v.  Warner,  111  Iowa  117    (1905)  ;  3  Chamb.,  Ev.,  §  1891,  n.  4. 

64,  82  N.  W.  455    <1900);   Wise  v.  Wabash 


701 


IXFEKEXCE    FEOM    SENSATION. 


546 


reasonable  presentation,  the  instances  in  which  the  secondary  evidence  of  the 
inference  of  the  observer  as  to  the  mental  condition,  weak  or  strong,  sound  or 
unsound,  of  a  designated  individual,  is  received  are  numerous.""  An  ordinary 
observer  may,  as  a  rule,  state  appearances  observed  by  him  regarding  mental 
condition  and  also,  where  these  are  too  numerous  to  be  placed  before  the  jury, 
his  inferences  from  them.61  The  witness  is  accordingly  permitted  to  give  his 
deduction  as  to  the  objective  condition  of  the  mind  in  question,  that  it  was, 
on  the  one  baud,  bright  and  quick,02  judicious,'13  rational  "4  and  the  like ;  or  was, 
on  the  other  hand,  easily  impressed,"5  fickle-mi  tided,"0  simple-minded,07  and 
so  forth.08  The  condition  of  mind  to  which  the  inference  relates  must  be 
relevant  to  the  proposition  in  issue."9  The  time  covered  by  the  observation 
must  not  be  too  remote  to  be  probative.70  The  witness,  as  a  rule,  should  be 
required  to  state  the  ground  for  his  opinion.71  The  presiding  judge  must  be 
satisfied  that  the  witness  has  had  such  opportunities  for  observation  that  the 
jury  might 'rationally  act  in  accordance  with  the  inference  which  he  proposes  to 
draw.7-  Where  it  appears  that  the  inference  is  based  upon  information  fur- 
nished by  others,73  or  that  the  facts  disclosed  by  the  preliminary  detail  are  in- 
sufficient to  warrant  the  jury  in  acting  upon  them,74  the  mental  result  reached 
by  the  witness  will  be  excluded.  Only  a  skilled  witness  will  be  permitted  to 
testify  tu  his  inference  that  certain  conduct  was  based  upon  a  delusion  or  an 
irresistible  impulse,75  or  that  a  given  person  was  subject  to  a  similar  impair- 


60.  Holland    v.    Zollner,    102    Cal.    633,    30 
Pac.  930,  37  Pac.  231    (1894)  ;  Chicago  Union 
Traction   Co.    v.   Scanlon,    136    111.   App.    212 
(1907);     Smith    v.    Hickenbottom,    57    Iowa 
733,  11  X.  W.  664   (1882)  ;  Jones  v.  Thomas, 
218   Mo.    508,    117    S.    W.    1177    (1009);    De 
Witt  v.   Barly,  17  X.   Y.  340,  348    (1858);   3 
Chamb.,  Ev.,  §    1892,  n.   1. 

61.  Brown  v.  Me  Bride,  121)  Ga.  02.  58  S   E. 
702   (1007)  ;   Mayville  v.  French,  246  111.  434, 
92  X.   E.  919    i  191(1)  ; 'Hewitt  v.  Taunton  St. 
R.  Co,  167  Mass    4S3,  46  X.  E.   106    (1807)  : 
Shelton  v.  Southern  Ry.  Co.,  86  S    C.  08,  67 
S.  E.  899   (1910)  ;  3  Chamb  ,  Ev.,  §  1893,  n.  1. 

62.  Martin  v.  Slate,  90  Ala.  602,  8  So.  858 
(1S91). 

63.  St.  Louis,  etc.,  R.  Co.  v.  Shifflet    (Tex. 
Civ.  App.   1900),  56  S.  W.  697. 

64.  Holland  v.  Zollner,  supra;  Paine  v.  Al- 
drich,  133  X.  Y.  544,  30  X.  E.  725    (1892); 
3  Chamb.,  Ev  ,  §  1893,  n.  4. 

65.  Vivian's  Appeal,  74  Conn.  257,  50  Atl. 
707    (1901);    Howell   v.   Howell.   50   Ga.    145 
(1877) 

66.  People   v.    Worthingrton,    105   Cal.    166, 
38  Pac.  689   (1894)  ;  Mills  v.  Winter,  94  Ind. 
320   (1883). 


122  S.  W.  68.  On  the  other  hand,  that  a 
person  "acted  foolish"  has  been  rejected. 
Wallace  v.  Whitman,  201  111.  59.  66  X.  E.  311 
(1003). 

68.  Burney  v.  Torry,   100  Ala.   157,   14  So. 
685   (1893)  ;  3  Chamb.,  Ev.,  §  1893,  n.  8. 

69.  Com.  v.   Buccieri,   153   Pa.  535,  26  Atl. 
228    (1803). 

70.  In  re  Hull,  117  Iowa  738,  89  X.  W.  970 
(1002);     Ramsdell    v-    Ramsdell,    128    Mich. 
110,  87   X.  W.  81    (1001);   3  Chamb.,  Ev.,  § 
1894,  n.  2. 

71.  Graham    v.    Deuterman,    244    111.    124. 
91   X.   E.  61    (1910):    Barker  v.   Comins,   110 
Mass.  477   (1872);  McConnell  v.  Woodworth, 
162    Mich.    683.    127    N.    W.    808    (1910):    3 
Chamb  ,  Ev.,  §  1895,  n.  1.     See,  however,  Ma- 
natt   v.   Scott,   106   Iowa   203,   76   X.   W.  717 
(1808). 

72.  Dowell   v    Dowell,    152   Mich.    104,    115 
X.   W    072    (1908):    3   Chamb.,   Ev.,   §    1805, 
n.   3. 

73.  Snell  v.  Weldon.  230  Til.  270,  87  N.  E. 
1022    (-1000). 

74.  Rlackman  v.   Andrews,    150  Mich.   322, 
114  X    W.  218   (1007). 

75.  Patterson  v.  State,  86  Ga.  70,  12  S.  E. 


67.  Koppe  v.  Koppe  (Tex.  Civ.  App.  1909),       174   (1890). 


54; 


PSYCHOLOGICAL  INFERENCES. 


§  701 


merit  in  mental  condition.76  A  witness  who  has  observed  the  mental  condi- 
tion of  another  at  two  periods  may  be  permitted  to  state  whether  he  has  noticed 
a  change,1'  for  the  worse/8  or  for  the  better.79  lie  may  declare  his  inference 
that  there  has  been  no  change. s"  An  ordinary  observer  who  has  enjoyed  suit- 
able opportunities  for  observation  may  state  an  inference  as  to  whether  a  given 
individual  was  conscious s:  or  unconscious,82  the  observed  phenomena  upon 
which  he  bases  his  inference  being  detailed  to  the  court.83  Among  inferences 
which  an  observer  of  his  own  mental  state  may  draw  is  that  of  conscious- 
ness.*4 

Should  the  question  be  so  drawn  as  to  involve  an  inference  on  the  precise 
point  upon  which  the  jury  are  to  pass,  e.g.,  mental  capacity  to  understand  the 
nature  ami  character  of  an  act,85  it  will,  in  general,  be  objectionable  and  so  re- 
jected.*e  Thus,  a  witness,  however  skilled  in  treating  mental  disorders,  will 
not  be  allowed  to  state  an  inference  as  to  whether  A.  had  the  mental  capacity 
to  draw  a  will,*'  execute  a  contract, s8  sign  a  deed,89  or  transact  business  gen- 
erally.90 I  pon  cross-examination  such  a  question  may  be  permitted  ;91  and 
it  has  occasionally  been  received  even  upon  direct.92  The  analogous  inference 
of  the  witness  as  to  whether  the  person  observed  has  the  mental  capacity  to  be 
criminally  responsible  for  his  acts  93  has  been  deemed  an  invasion  of  the  prov- 
ince of  the  jury.  Such  a  witness  is  not  properly  to  be  regarded  as  an  expert 


76.  State  v.  Winter,  72  Iowa  627,  34  X.  W. 
475    (1887);   3  Chamb.,  Ev.,  §   1896.  n.  4. 

77.  Weber    v.    Delia    Mountain    Min.    Co , 
14    Ida.   404.   94   Pac.    441     (1908);    Chicago 
Union    Traction    Co.    v.    Lawrence,    211    111. 
373,  71  X.  E.   1024   (1904). 

78.  Manatt  v.  Scott,  supra :  Clark  v.  Clark, 

168  Mass.    523.    47    X.    E.    510     (1897):     3 
Chamb..  Ev.,  §   1897,  n.  2. 

79.  West   Chicago  St.  Ry.  Co.  v.  Fishman, 

169  111.    196.    48    X.    E.    447     (1897):    Com. 
v.  Brayman,  136  Mass.  438  (  1884)  :  3  Chamb.. 
Ev..  §  1897.  n.  3. 

80.  Hertricli    v.    Hertrich.    114    Iowa    643, 
87  X   W.  6S9   i  1901). 

81.  Pennsylvania    Co.    v.    Xewmeyer.     129 
Ind.  401,  28   X.  E.  860    (1891)  :   Galloway  v. 
San    Antonio,    etc.,    R.    Co.     (Tex.    Civ     App. 
190.°,  ir  7*  S.  W.  32. 

82.  Chica.c-o   City  R.  Co.   v.  VanVleck.   143 
111.  480.  32  X.  E.  262    (1892). 

83.  Pennsylvania  Co.  v    Xewmeyer,  sitprn 

84.  "  To  tbe  processes  of  his  own  mind  he 
is  uiidoubtedlv  the  be<t  witness."     Hat  Sweat 
Mfir.   Co    v.    Warring.   46   Fed.    106    (1891): 
3   Chamb..    Ev..   §    1898. 

85.  Green  v.  State.  64  Ark    523.  43  S.  W. 
973    (1898);    McGibbons   v.    McGibbons,    119 
Iowa    140,  93  X    W.  55    (1903).     The  prac- 


tice is  otherwise  where  the  point  to  which 
the  inference  is  directed  is  a  collateral  one. 
Koppe  v.  Koppe  (Tex.  Civ.  App.  1909),  122 
S.  W.  68. 

86.  Swick  v.  Sheridan,  107  Minn.   130,  119 
N.  W.  791    (1909)  ;  Checkering  v.  Brooks,  61 
Vt.  554,  18  Atl.  144    (1889). 

87.  Baker  v.  Baker,  202  111    595,  67  X.  E. 
410    (1903);   May  v    Bradlee,   127  Mass.  414 
(1879)  ;  3  Chamb.,  Ev.,  §  1899,  n.  3. 

88.  Smith  v.   Smith,   157  Mass.  389,  32  N. 
E.  348   (1892). 

89.  Langenbeck  v    Louis,   140  Cal.  406.  73 
Pac    1086    (1903)  + 

90.  McGibbons  v.  McGibbons.  supra :  Smith 
v.   Smith,  supra.     Inference  received.     Beard 
v.  Southern  Ry    Co.,  143  X.  C.  137,  55  S.  E. 
505    ( 1906 ) 

91.  hi    re    Daniels.    140   Cal.   335,    73    Pac. 
10.-^    (1903)  :   State  v.  Leehman.  2  S.  D.  171, 
49  X.  W.   3    (1891):   3  Chamb.,  Ev.,  §   1899, 
n.  7. 

92.  Xeely  v.  Sheppard,   190  111.  637.  60  X 
E.    9-22    (1901):    Pflueger   v.    State.   46    Xeb 
493.  64  X.  W.   1094    (1895):   3  Chamb..  Ev., 
§   1899.  n.  8. 

93.  People  v.  Lake.   12  X.   Y.  358    (1855). 
Compare  Pflueger  v.  State,  supra. 


I  702  INFERENCE  FROM  SENSATION.  548 

and  should  not  be  cross-examined  as  one.94  A  witness  with  adequate  facilities 
for  observation  may  give  his  inferences  drawn  from  the  appearances  presented 
to  him,  from  time  to  time,  as  to  the  mental  characteristics  of  an  individual  who 
has  come  under  his  notice.95  Thus  he  may  state  that  a  person  of  average  in- 
telligence 98  is  absent  minded  yT  and  so  forth. 

§  702.  [Psychological  Inferences];  Insanity;  Ordinary  Observer  Rejected; 
Massachusetts  Rule.^8 —  The  original  and,  for  a  time,  controlling  influence  in, 
favor  of  rejecting  the  inference  of  unskilled  witnesses  as  to  insanity  was  the 
supreme  judicial  court  of  Massachusetts."  It  is,  for  example,  distinctly  held, 
in  a  late  case  on  a  will  contest,  that  statements  that  testator's  powers  seemed 
to  be  complete  and  perfect,  and  that  he  was  in  possession  of  clear  faculties  and 
mental  powers  were  conclusions  and  not  responsive  to  questions  calling  for 
observation  of  testator's  powers  of  comprehension,  memory,  etc.,  and  that  the 
direct  inference  of  the  witness  as  to  testator's  mental  capacity  was  properly 
rejected.1  The  rule  is  spoken  of  as  "  well  settled  law."  Later  Massachu- 
setts rulings  seem  to  largely  discredit  the  doctrine.  Where  the  direct  inference 
of  a  witness  as  to  insanity  is  offered,  it  will  be  excluded  under  the  rule.  Almost 
anything,  short  of  this,  he  is  permitted  to  give.3  The  earlier  law  in  Alabama,4 
and  Xew  Hampshire,5  excluded  the  inference  as  to  insanity  of  all  but  skilled 
witnesses,  but, the  rule  has  since  been  changed  and  the  inferences  of  ordinary 
observers  are  now  received  in  evidence.6  Maine  follows  Massachusetts,  in  re- 
jecting the  inference  of  an  ordinary,  or,  as  he  is  frequently  called,  "  non-ex- 
pert "  witness,  as  to  the  insanity  of  one  who  has  come  under  his  observation.7 
The  ruling,  once  adopted,  has  been  maintained,  although  restricted  to  the  nar- 
rowest practical  limits.8 

94.  People    v.    Silverman,    181    N.    Y.    235,  ness.     Barker     v.     Comins,     110     Mass.     477 
73   N.  E.   980    (1905).  (1872);   McCoy  v.  Jordan,  supra;  3  Chamb., 

95.  State  v.   Wright,   112  Iowa  436,  84  X.  Ev.,  §   1906,  n.   7.     A  witness  may   be  asked 
\V.   541    (1900);    Hewitt   v.   Taunton   St.    R.  "whether   he   had    observed   any    fact   which 
Co.,   167  Mass.  483,  46  N.  E.  106    (1897)  ;   3  led  him  to  infer  that  there  was  any  derange- 
Chamb.,  Ev.,  §  1901,  n.  1.  ment    of    the    intellect."     Gorham    v.    Moor, 

96.  Hewitt  v.  Taunton  St.  R.  Co.,  supra.  supra;  3  Chamb..  Ev.,  §  1906,  n.  8.     He  may 

97.  State  v.  Wright,  supra.  assert  or  deny  that  there  has  been  any  change 

98.  3  Chamber layne,     Evidence,  J§     1902-  in     mental     powers.     Clark     v.     Clark,     168 
1906.  Mass.  523,  47  X.  E.  510  (1897).     Upon  cross- 

99.  Gorham  v    Moor,  197  Mass.  522,  84  N.  examination,  the  direct  inference  of  the  ordi- 
E.  436    (1908);  Ratigan  v.  Judge,  181  Mass  nary    observer    may    be    elicited.     Hogan    v. 
572,  64  X.   E.  204    (1902)  ;   3  Chamb.,  Ev.,  §  Roche,  179  Mass.  510,  61  X.  E.  57    (1901). 
1906,  n.   1.     Reasons  assigned  for  rule.     May  4.   Hembert  v.  Urown,  14  Ala.  360   (1848); 
v.  Bradlee,  127  Mass.  421    (1879).  3  Chamb.,  Ev..  §  1903,  n.  3. 

1.  McCoy  v    Jordan,   184  Mass.  575,  69  X.  5.  State  v.  Archer,  54  X.  H.  465   (1874)  ;  3 
E.  358    (1904)  Chamb,  Ev..  §  1903,  n    5. 

2.  Cowles  v.  Merchants,  140  Mass   377,  5  X  6.  Hardv  v    Merrill,  56  X.  H    227,  22  Am. 
E.  288   (18*6).  Rep.  441    (1S75);   Ragland  v.  State,  125  Ala. 

3.  The    details    of    appearance   or   conduct,  12,  27   So.  983    (1899). 

for  example,  may  be  stated  with  the  utmost  7.  Wyman  v.  Gould,  47  Me    159   (1859). 

fullness   and   even   characterized   by  the  wit-  8.  Robinson  v.  Adams,  62  Me.  369,  410,  16 


549  PSYCHOLOGICAL  INFERENCES.         £§  703,  704; 

§  703.  [Psychological  Inferences] ;  Rule  in  New  York.9 —  In  Xew  York,  the 
inference  of  the  ordinary  observer  was  at  first  rejected,10  as  under  the  present 
rule,  but  upon  subsequent  hearing  of  a  case,  was  admitted.11  The  latter 
ruling,  in  complete  uniformity  with  the  general  practice,  was  itself  reversed  in 
later  cases  J~  and  in  the  state  of  Xew  York,  the  inference  of  the  ordinary 
observer  as  to  insanity,  in  itself  considered,  continues  to  be  excluded.  The 
court  stands  upon  stronger  ground  in  ruling  that  an  ordinary  observer  cannot 
testify  as  to  an  inference  of  sanity  upon  the  basis  of  observations  made  by 
others.13  'While  the  direct  inference  of  the  ordinary  observer  as  to  insanity, 
eo  nomine  is  excluded,  he  may  properly  be  asked  whether  the  appearances 
which  he  observed  or  the  acts  which  he  noticed  were  "  those  of  a  rational  or  an 
irrational  man."  14  With  a  difference  largely  of  words,  he  may  be  asked  as 
to  how  he  was  impressed  by  certain  acts  of  the  person  in  question  in  respect  to 
their  rational  or  irrational  character.10  In  general  the  ordinary  observer  may 
be  asked  as  to  what  impression  a  given  act  or  appearance  produced  in  his 
mind,10  e.g.,  whether  he  noticed  anything  which  seemed  to  him  to  indicate  in- 
sanity.17 Violations  of  the  strict  letter  of  the  rule  are  not  regarded  as  preju- 
dicial error.18  A  witness  will  not  be  allowed  to  state  his  inference  as  to  his 
own  mental  condition  at  a  particular  time  in  the  past.19 

§  704.  [Psychological  Inferences]  Insanity;  Ordinary  Observer  Admitted.20 — 
In  England  and  in  the  majority  of  the  American  states,  the  inference  of  the 
ordinary  observer  as  to  the  mental  condition  of  insanity  has  been  received.21 

Am.    Rep.    473    (1870);    Fayette   v.    Chester-  9.  3   Chamberlayne,  Evidence,  §  1907. 

ville,   77   Me    28,  52  Am.   Rep.   741    (1S851.  10.  Dewitt  v.  Barley,  9  X.  Y.  371    (1853). 

Correct  question  to  non-expert  witness. —          11.  De  Witt  v.  Barly,  17  X.  Y.  340  (1858). 
An    attorney    before    he    tries    a    will    case  12.  Wyse  v.  Wyse,  155  X.  Y.  367,  49  X.  E. 

should  be  sure  that  he  knows  just  what  ques-  942    (1898)  :    People   v.   Koerner,   154   X.   Y. 

tions  he  can  ask  a  non-expert  witness  as  to  355,  48   X.   E.   730    (1897);   3  Chamb.,  Ev., 

sanity  and  as  the  practice  in  each  jurisdiction  §  1907.  n.  3. 

is  different  he  must  examine  the  decisions  of  13.  Bell  v.  McMaster,  29  Hun   (X.  Y.)   272 

his  own  state  on  the  subject.     The  difficulty  (1883). 

is    that    we    are    here    really    trying    to    get  14.  Johnson  v.  Cochrane,  159  X.  Y.  555,  54 

and  petting  the  opinion  of  the  non-expert  but  X.  E.  1092   (1899)  ;  3  Chamb.,  Ev.,  §  1907,  n. 

the  courts  realizing  its  value  have  in  many  5. 

states  permitted  these  questions  to  be  asked  15.  White  v.  Davis,  62  Hun  622,  17  X.  Y. 

provided  certain  forms  of  language  are  used.  Supp.  548   (1891)  ;   3  Chamb.,  Ev.,  §  1907,  n. 

For    example    in    Massacluisetts    the    witness  6. 

may  be   asked   "  Whether  you   ever   observed  16.  People   v.    Youngs,    151    X.   Y.   210.   45 

anything    in    A    which    led    you    to    infer    in  X.   E.   460    (1896). 

your  own  mind  that  he  was  a  cra/y  or  cracked  17.  People  v.  Krist,  168  X.  Y.  19,  60  X.  E. 

man?"     See  May  v.  Bradlce.   127  Mass.  414.  1057.  15  X.  Y.  Cr.  532  (1901)  ;  3  Chamb..  Ev., 

This  is  a  leading  case  on  the  subject  and  other  §   1907.  n.  8. 
forms  «f   question   embracing  the   same   idea  18.  Wyse  v.  Wyse.  supra. 

have  been   sanctioned  by   later   cases.  19.  O'Connell  v.  Beecher.  21  App.  Div.  298, 

In  New  York  the  question  may  be   asked  47  X.  Y.  Supp.  334   (1897). 
"  Will  you  tell  whether  the  acts  which   you  20.  3  Chamberlayne,     Evidence,     §§     1908- 

have  described,  impressed  you  at  the  time  as  1910. 
being  rational  or  irrational?"  21.  Green  v.  State,  64  Ark.  523,  43  S.  W. 


INFEEENCE  FEOM  SENSATION. 


550 


As  in  case  of  the  more  active  form  of  insanity,  an  ordinary  observer,  with 
suitable  opportunities  for  observation,  may  state  his  inference  whether  a  given 
individual  is  a  lunatic  22  or  weak  minded.  Such  a  witness  will  be  required  to 
give,  as  a  preliminary  matter,  a  statement  of  such  of  the  constituting  details 
upon  which  his  inference  is  based  as  admit  of  individual  enumeration.23  A 
witness  may  be  allowed  to  declare  whether  he  noticed  anything  unusual,  pecul- 
iar, unnatural 24  or  tending  to  indicate  insanity.25  A  competent  observer  may 
be  asked  as  to  past  mental  conditions,  e.g.,  whether  a  given  person  has  ever 
been  crazy.26  The  inference  or  estimate  of  witnesses  of  this  type  must,  how- 
ever, be  based  upon  observation.  Mere  opinions,  characterizations,  and  con- 
clusions of  non-expert  witnesses  as  to  the  insanity  of  a  person  not  observed  by 
them  are  in  themselves  incompetent.27  The  California  code  of  civil  pro- 
cedure 28  limits  the  non-expert  witnesses  who  are  competent  to  testify  as  to  an 


973  (1898);  In  re  Keithley,  134  Cal.  9,  66 
Pac.  5  (1901);  Hayes  v.  Candee,  75  Conn. 
131,  52  Atl.  826  (1902);  Turner  v.  Amer. 
Security  &  Trust  Co.,  29  App.  D.  C.  460 
( 1907 )  ;  Fields  v.  State,  46  Fla.  84,  35  So. 
185  (1903);  Herndon  v.  State,  111  Ga.  178, 
36  S.  E  634  (1900);  State  v.  Shuff,  9 
Ida.  115,  72  Pac.  664  (1903);  Mayville  v. 
French,  246  111.  434,  92  N.  E.  919  (1910); 
Swygart  v.  Willard,  166  Ind.  25,  76  X.  E.  755 
(1906);  Hertrich  v.  Hertrich,  114  Iowa  643, 
87  N.  W.  689  (1901);  State  v.  Rumble,  81 
Kan.  16,  105  Pac  1  (1909)  ;  Abbott  v.  Com. 
107  Ky.  624,  55  S.  W.  196  (1900)  ;  State  v. 
Coleman,  27  La.  Ann.  691  (1875);  Grill  v. 
O'Dell,  113  Md.  625,  77  Atl.  984  (1910)  ;  Peo- 
ple v  Casey,  124  Mich.  279,  82  N.  W.  883 
(1900)  ;  Cannady  v.  Lynch,  27  Minn.  435,  8  N. 
W.  164  (1881);  Sheehan  v.  Kearney  (Miss.), 
21  So.  41  (1896)  ;  State  v.  Bronstine,  147  Mo. 
520,  49  S.  W.  512  (1899)  ;  Territory  v.  Rob- 
erts, 9  Mont  121,  22  Pac.  132  (1889)  ;  Clarke 
v  Irwin,  63  Xeb  539,  88  X  W.  783  (1902); 
State  v.  Lewis,  20  Xev.  333,  22  Pac.  241 
(1889);  Patten  v.  Cilley,  67  X.  H.  520,  42 
Atl.  47  (1894);  Genz  v.  State,  58  X  J.  L. 
482,  34  Atl.  816  (1896);  Moffitt  v.  Smith, 
153  X.  C.  292.  69  S  E  224  (1010)  ;  Xelson  v. 
Thompson,  16  X.  D.  295,  112  X.  W.  1058 
(1907)  ;  Clark  v.  State,  12  Ohio  483.  40  Am. 
Dee.  481  (1843);  Queenan  v  Territory,  11 
Okl  261,  71  Pac.  218  (1901);  State  v. 
Fiester.  32  Or  254.  50  Pac.  561  (1807): 
Com.  v.  Gearhardt.  205  Pa.  387.  54  Atl  1029 
(1903);  Price  v  Richmond,  etc.,  R.  Co..  38 
S.  C'  199,  17  S.  E  732  (1892);  Halde  v. 
Schultz.  17  S.  D  465.  97  X  W  369  M903)  ; 
Jones  v  Galbraith  (Tenn.  Ch.  App.  1900),  87 


S.  W.  726;  Field  v.  Field  (Tex.  Civ.  App. 
Wis.  641,  96  N.  W.  417  (1903)  ;  Connecticut 
1905),  87  S.  W.  726;  In  re  Christensen, 
17  Utah  412,  53  Pac.  1003  (1898);  Foster 
v.  Dickerson,  64  Vt.  233,  24  Atl.  253  (1891)  ; 
Fishburne  v.  Ferguson,  84  Va.  87,  4  S.-E.  575 
( 1887 )  ;  State  v.  Craig,  52  Wash.  66,  100 
Pac.  167  (1909)  ;  State  v/Maier,  36  W.  Va. 
757,  15  S.  E.  991  (1892)  ;  Lowe  v.  State,  118 
Mut.  L.  Ins.  Co.  v.  Lathrop,  111  U.  S.  612, 
4  S.  Ct.  533,  28  L.  ed.  536  (1883)  ;  3  Chamb., 
Ev.,  §  1908,  n.  1.  Persons  who  have  had 
business  dealings  with  the  testator  and  known 
him  socially  and  talked  with  him  on  various 
subjects  are  competent  to  testify  as  to  his 
mental  soundness.  Re  O'Connor,  271  111.  395, 
111  X.  E.  272,  L.  R.  A.  1916  D  179  (1915). 
Of  lay  persons  on  sanity.  See  note.  Bender 
Ed.,  182  X.  Y.  54.  Opinion  evidence  on  in- 
sanity. See  note.  Bender,  ed.,  138  N.  Y. 
400,  410.  Witness  may  characteri/e  what  he 
saw  and  heard  as  rational  or  irrational. 
See  note,  Bender,  ed..  17  X.  Y.  340.  Xbn- 
expert  as  to  whether  testator  appeared  ra- 
tional See  note,  Bedner.  ed.,  104  X.  Y.  79. 

22.  Grant  v.  Thompson,  4  Conn.  203,  10  Am. 
Dec.  119    (1822). 

23.  3  Chamb.,  Ev.,  §  1908,  n.  3. 

24.  Braham  v.  State,  143  Ala.  28,  38  So.  919 
(1905). 

25.  State    v.    Lyons,    113    La.    959,    37    So. 
890    (1904)  :   3  Chamb.,  Ev.,  §  1908,  n.  5. 

26.  Bell  v.   State.   140  Ala.  57,  37  So.  281 
(1904). 

27.  People  v.   Jones,   115  XT.  Y.  Supp.  800 
(1909). 

28.  §  1870. 


551 


PSYCHOLOGICAL  INFERENCES. 


705 


inference  of  insanity  to  "  intimate  acquaintances."  29  The  presiding  judge 
determines  what  witnesses  are  within  this  class.30  The  statutory  restriction 
applies  only  to  those  witnesses  who  are  asked  to  draw  the  precise  inference 
whether  an  observed  person  is  or  is  not  insane.31  An  observer  qualified  by 
opportunities  may  state  the  negative  fact  that  he  saw  nothing  in  the  person's 
conduct  or  demeanor  to  indicate  insanity.32  An  ordinary  observer  as  to  in- 
sanity is  not  a  skilled  witness  and  cannot  testify  as  an  expert.  He  will  not  be 
allowed  to  answer  hypothetical  questions  based  upon  facts  proved  by  others.33 
The  rule  is  the  same  in  criminal  casess*  The  rule  in  England  35  and  Canada  3e 
is  the  same  as  in  the  great  majority  of  American  states. 

§  705.  [Psychological  Inferences] ;  Qualification  of  Ability  to  State  Details  of 
Phenomena.37 —  The  inference  must  be  in  connection  with,  subsequent  to  and 
based  upon,  the  facts  observed  by  the  witness.38  An  important  qualification  for 
one  who  shall  state  a  helpful  inference  as  to  insanity  is  an  ability  to  give  the 
salient  details  observed  by  him.39  This  will  usually  be  required  by  the  pre- 
siding judge.40  The  statement  of  certain  facts,  in  this  way,  is  not  ground 
for  rejecting  or  for  failing  to  give  due  weight,  in  any  proper  respect,  to  the 
inference  of  insanity.41  The  application  of  the  rule  is,  however,  not  invari- 
able,42 it  being  assumed,  under  certain  circumstances,  that  one  shown  to  have 


29.  People  v.  Clark,   151  Cal.  200,  90  Pac. 
549    (1907). 

30.  People  v.  Hill,  116  Cal.  562.  48  Pac.  711 
(1897). 

31.  People   v.    Barthleman,    120   Cal.   7,  52 
Pac.    112    (1898). 

32.  Proctor  v.  Pointer,  127  Ga.   134,  56  S. 
E.  Ill    (1906):  Com.  v.  Fencez,  226  Pa.  114, 
75  Atl.   19    (1910). 

33.  Spiers  v.  Hendershot,  142  Iowa  446,  120 
X.  W.  1058   (1909). 

34.  Glover  v.  State.   129  Ga.  717.  59  S.  E. 
816    (1907):    State   v.    Rumble,   81    Kan.    16, 
105    Pac.    1     (1909);    State    v.    Banner.    149 
X.  C.  519,  63  S.  E.  84  (1908)  :  Clark  v.  State. 
12  Ohio  487    (1843)  ;   3  Chamb..  Ev.,  §  1908, 
n.  21. 

35.  3  Chamb.,  Ev..  §  1909,  nn   2,  3. 

36.  Re  Estate  John  A.  P.  MoLellan.  28  Nova 
Scotia   Rep.    226    (1896):    R.    v.    Waters.    10 
Ont.  App.  85   (1884).     As  to  Reasons  for  ad- 
mitting the  Inference,   see  3  Chamb..   Ev.,   § 
1910  and  notes  thereto 

37.  3  Chamberlayne.  Evidence.  §   1911. 

38.  American   Bible  Soc.   v.   Price,   115   111. 
623.  .1  X    E    126   (1886). 

39.  Yarbrouirh  v.  State.  105  Ala.  43.  16  So. 
758  (1894)  ;  Grant  v.  Thompson,  4  Conn.  203, 


10   Am.  Dec.    119    (1822);    3   Chamb.,   Ev.,   § 
1911,  n.  2. 

40.  Ragland  v.  State,   125  Ala.   12,  27  So. 
983    (1899);   Shaeffer  v.  State,  61   Ark.  241, 
32  S.  W.  679   (1895)  ;  In  re  Keegan.  139  Cal. 
123,   72    Pac.   828    (1903):    Lodge   v.   Lodge, 
2  Houst.  (Del.)  418   (1862)  :  Raub  v.  Carpen- 
ter, 17  App.  Cas.    (D.  C.)   505    (1901);  Arm- 
strong   v.    State,    30    Fla.    170,    11    So.    618 
(1892);   State  v.  Hurst    (Ida.).  39  Pac.  554 
(1895);    Blume   v.    State,    154    Ind.    343.   56 
X.    E.    771     (1900):    Zirkle    v.    Leonard,    61 
Kan.    636,    60    Pac.    318     (1900);     State    v. 
Smith.  106  La.  33,  30  So.  248    (1901):    Bra- 
shears    v.    Orme.    93    Md.    442.    49    Atl.    620 
( 1901 )  ;   Dickinson  v.  Barber,  9  Mass.  225.  6 
Am.   Dec.   58    (1812);    Woodcock   v.  Johnson, 
36  Minn.  217.  30  X.  W.  894    |  1886)  :   People 
v.  O'Donnell,  51  App   Div.  115.  64  X.  Y.  Supp. 
256    (19001:    State  v.   Potts.   100  X.   C.  457, 
6  S.  E.  657    (1888);   Higgins  v.  Xethery,  30 
Wash.    239.    70    Pac.    489    (1902):    Crawford 
v.    Christian.    102    Wis.    51.    78    X.    W.    406 
(1899):    3   Chamh.,   Ev..    §    1911,   n.    3.     See 
also  cases  rued  in  note  2  to  §  704.  supra. 

41.  State  v.  Rumble,  81  Kan.  16.  105  Pac. 
1    (1909) 

42.  Caddell  v.  State,  129  Ala.  57,  30  So.  76 
(1900). 


§  706  INFERENCE  FROM  SENSATION.  552 

had  opportunities  for  observation  properly  utilized  them.43  Should  the  wit- 
ness be  able  to  give  only  so  meagre  a  list  of  facts  as  fails,  in  the  opinion  of  the 
presiding  judge,44  to  make  his  inference  of  rational  assistance  to  the  jury,45  it 
will  be  rejected ;  46  or,  if  received,  be  accorded  but  little  weight.47  Part  of 
the  basis  for  the  inference  of  the  ordinary  observer  as  to  insanity  may  properly 
be  the  statements  of  the  person  in  question,  viewed  in  their  independently 
relevant  capacity.  No  administrative  objection  exists  to  their  reception.48 
Hearsay  statements  of  others  or  previous  knowledge  of  the  individual  in  ques- 
tion are  not  to  be  regarded,  in  this  connection,  as  a  dependable  foundation  for 
an  inference  as  to  insanity.49 

§  706.  [Psychological  Inferences] ;  Qualification  of  Suitable  Opportunities  for 
Observation.50- —  The  proponent  of  an  inference  must,  in  this  connection,  show 
to  the  court  that  the  inferring  witness  has  had  sufficient  opportunities  for  ob- 
servation to  make  his  inference  helpful  to  the  jury.51  Should  these  be  lacking, 
the  evidence  is  incompetent52  and  will,  as  a  rule,  be  excluded.53  In  other 
words,  unless  suitable  opportunities  for  observation  are  shown,  the  evidence  of 
an  inference  as  to  insanity  will  be  rejected.54  What  shall  be  deemed  to  con- 
stitute a  sufficient  opportunity  for  observation  has  been  thus  stated :  "  It  is 
.  .  .  agreed  by  the  authorities  that  if  the  witness  shows  an  acquaintance  with 
the  accused,  that  he  has  had  conversation  with  him,  or  that  he  has  had  busi- 
ness dealings  or  social  intercourse  with  him,  he  may,  having  stated  the  facts, 
express  an  opinion/'  55  Necessarily,  the  matter  is  mainly  one  of  adminis- 
tration.56 

43.  Xeely  v.  Shephard,  190  111.  637,  60  N.       317,  43   N.   E.   853    (1896);    3  Chamb.,   Ev., 
E.  922  (1901)  ;  State  v.  Winter,  72  Iowa  627,      §  191  la,  n.  2. 

34  N.  W   475   (1887)  ;  3  Chamb.,  Ev.,  §  1911,  49.  Caswell   v.    State,   5   Ga.   App.   483,   63 

n.    7.  S.  E.  566    (1909);    3  Chamb..  Ev.,  §   1911a, 

44.  Collins  v.  People,  194  111.  506,  62  N.  E.       n.   7. 

90     (1902);   O'Connor   v    Madison,  98   Mich.  50.  3  Chamberlayne,  Evidence,  §   1912. 

183,  57  X    W.  105   (1893);  Com    v    Buccieri,  51.  C.rand   Lodge   I.   O.    M.   A.   v.   Wieting, 

153   l>a.  535,  26  Atl.  228    (1893);   3  Chamb.,  168  111.   408,  48   X.   E.  59    (1897);   O'Connor 

Ev..  §   1911,  n    8.  v     Madison,   supra;   Carpenter   v.    Hatch,   64 

45.  Burney  v.  Torrey,  100  Ala.  157,  14  So.  X.  H.  573,  15  Atl.  219  (1888)  ;  3  Chamb.,  Ev., 
685   (1893)  ;  Alvord  v    Alvord,  109  Iowa  113,  §  1912.  n.  3. 

80   X.    \V.   306    (1S99);    Lamb   v    Lippincott,  52.  Sutherland    v.    Hankins.    56    Ind.    343 

115    Mich.    Gil,    73    X     W     887     (1898);    3  (1877);    Buys  v    Buys,  99  Mich.  354,  58  X 

Chamb.,  Ev.,  §  1911,  n.  9  W.  331    (1894)  :  3  Chamh.  Ev..  §  1912,  n.  4. 

46.  Uyder  v.   State,   100  Ga    528,  28  S.  E.  53.  Kimberly's    Appeal,    68    Conn.    428.    36 
246   (1897):  Baltimore  Safe-Deposit,  etc.,  Co.  Atl    S47    (1896):   Stumph  v.  Miller.  142  Tnd 
v.    Berry,    93    Md.   560.   49    Atl.    401     11901);  442.  41   X.  E.  812    (1895);  Moors  v    Sanford. 
Com.  v.   Wireback,   190   Pa     138.  42   Atl.   542  2    Kan     App     243,    41    Pac.    1064    (1895);    3 
(1899):   3  Chamh..  Ev.,  §  1911.  n.   10  Chamb.,  Ev  .  §  1912.  n    5. 

47.  Kinne  v    Kinne.  9   Conn     102.  21    Am.  54.  Donning   v.    Butcher.   9]    Iowa   425,   59 
Dec     732     (18311;    Turner    v.    Cheesman.    15  X    W    00    il«94):   3  Chamb..  Ev..  1912.  n.  6. 
X    J    Eq    243    i  1*57)  :  3  Chamb..  Ev  .  §  1911.  55.  Goodwin  v.  State.  96  Ind.  550  (1884) 

n    11.  56.  Montana   R.   Co.  v.   Warren.   137  U.   S. 

48.  People   v.    Shattuck.    109    Cal.    673.    42       348,  11   S.  Ct.  96.  34  L.  ed.  681    (1890). 
Pac.  315    (1895)  :   People  v.  Nino,  149  N.  Y. 


553  PSYCHOLOGICAL  INFERENCES.  §§  707-709 

§  707.  [Psychological  Inferences] ;  Qualification  of  Ability  to  Coordinate  Phe- 
nomena.57—  Of  primary  importance,  among  qualifications  for  the  giving  of  a 
reasonable  inference  with  regard  to  insanity,  is  a  power  of  mental  coordina- 
nation.  In  this  connection,  not  only  are  the  habits  and  powers  of  observation 
of  the  witness  to  be  considered,  but  also  the  subjective  conditions  under  which 
his  sense-perceptions  are  made/8  Probably  it  is  this  requirement  that  the 
witness  should  be  able  to  coordinate  his  sense-impressions  into  a  reasonable 
mental  inference  which  is  indicated  by  the  statement  of  certain  courts  that 
observers  must  be  "  people  of  good  common  sense."  59 

§  708.   [Psychological  Inferences] ;  Judicial  Estimates  as  to  Probative  Force.60 

—  The  precise  reason  why  the  ordinary  observer  is  allowed  to  state  his  infer- 
ence is  because  he  cannot  fully  detail  the  phenomena  upon  which  he  bases  it.61 
How,  then,  can  the  true  state  of  the  case  well  be  laid,  with  any  greater  preci- 
sion, before  an  alienist  testifying  as  an  expert  ? 62  This  is  practically  the  view 
adopted  in  England  °3  and  in  the  great  majority  of  American  states.64  On  the 
other  hand,  it  has  been  said  that  the  inference  of  ordinary  observers  as  to  the 
presence  of  insanity  is  of  "  little  or  no  weight."  65  The  courts  of  Maine,66 
Massachusetts,67  and  Xew  York08  adopt  a  view  that  such  evidence  is  to  be  re- 
jected in  favor  of  the  reasoning  of  the  skilled  witness. 

§  709.  [Psychological  Inferences] ;  Skilled  Observer.69 —  Under  circumstances 
which  would  warrant  the  court  in  admitting  the  inference  of  an  ordinary  ob- 
server, that  of  a  skilled  witness,  e.g..  a  physician,7"  may  undoubtedly  be  re- 
ceived. He  may  state  whether  one  accused  of  crime  is  legally  capable  of 
committing  it,  i.e.,  is  aware  of  the  nature  and  consequences  of  his  act.71  In 
such  instances,  the  inference  should,  as  a  rule,  be  a  necessary  one.72  As  seen 

57.  3  Chamberlayne,    Evidence,    §§     1913-          65.  Eloi  v.  Eloi,  36  La.  Ann.  563    (1884). 

1915.  66.  Supra,  §  702;  3  Chamb.,  Ev..  §  1905. 

58.  Emery  v.  Hoyt,  46   111.  258    (1867)  ;   3  67.  Supra,  §  702:  3  Chamb.,  Ev.,  §  1906. 
Chamb.,  Ev.,  §  1913.  68.  Supra,  §  703;  3  Chamb..  Ev.,  §  1907. 

59.  New  York,  etc.,  R.  Co.  v.  Luebeck,  157  Function  of  the  Judge.     See  3  Chamb.,  EV., 
111.  595,  41  N.  E.  897   (1895).  §     1917     and     notes.     Action     of     Appellate 

60.  3  Chamberlayne,     Evidence,     §§     1916-  Courts.     See  3  Chamb..  Ev.,  §  1918  and  notes. 
1920.     Comparative  value  of  qualifications  de-  Province  of  the  Jury.     See  3  Chamb.,  Ev.,  § 
manded    by    judicial    administration.     See    3  1910    and    notes.     Weight    of    the    Evidence. 
Chamb.,  Ev.,  §  1014.     Direct  and  Indirect  In-  See  3  Chamb.,  Ev.,  §  1920,  and  notes, 
ferences.     See  3  Chamb.,  Ev.,  §  1015.  69.  3  Chamberlayne,     Evidence,     §§     1921, 

61.  Fayette  v.   Chesterville.   77   Me.  28,  52  1922. 

Am.   Kep.   741    (1885).  70.  Com.    v.    Cressinorer,    193    Pa.    326.    44 

62.  Sehlencker  v.   State,   9  Xeb.   241,   1   X.  Atl.  433   (1899)  ;  3  Chamb.,  Ev.,  §  1921,  n.  1. 
W.  857    (1879)  :  Clark  v.  State,  12  Ohio  483,  71.  State  v.  Roselair.  57  Or.  8,  109  Pac.  865 
40   Am.  Dec.   481    (1843);    3  Giamb..   Ev.,   §  (1910). 

1916.  72.  Taylor  v.  McClintock,  87  Ark.  243,  112 

63.  Supra.  §  704;  3  Chamb.,  Ev.,  §  1009.  S.  W.  405  (1908). 

64.  Supra,  §  704;  3  Chamb.,  Ev.,  §  1908. 


§  710  INFERENCE  FROM  SENSATION.  554 

in  an        r  place,73  the  ordinary  observer  might  well  be  forbidden  to  state  his 
deduction  from  the  same  appearances.74 

Inferences  of  Sanity. —  Sanity  being  the  normal  mental  state,  and  its  exist- 
ence, therefore,  being  assumed,'5  while  an  ordinary  observer  may  not  give  his 
inference  as  to  insanity  without  stating  the  constituent  phenomena  upon  which 
it  is  based,76  he  may  declare  his  opinion  in  favor  of  sanity  without  doing  so.77 
Be  may  be  permitted  to  testify  to  an  inference  that  a  given  person  is  sane,'** 
but  he  may  not  be  permitted  to  testify  as  an  expert,79  In  criminal  cases,  the 
inference  of  an  ordinary  observer  as  to  mental  condition  has  been  rejected.80 
It  seems  to  be  settled  that  general  reputation  in  a  community  is  not  admis- 
sible to  prove  the  fact  of  the  sanity  81  of  a  given  individual.82 

§  710.  [Psychological  Inferences] ;  Subscribing  Witness.s;; —  lu  the  English 
practice,  the  subscribing  witness  is  customarily  permitted  to  state  his  infer- 
ence as  to  the  sanity  of  the  person  executing  a  will  or  deed  which  the  witness 
has  been  called  upon  to  authenticate.84  In  the  United  States,  the  English 
view  on  this  subject  equally  prevails  and  the  inference  of  the  subscribing  wit- 
ness as  to  the  sanity  of  the  executing  party  is,  in  general,  received,85  even  in 
jurisdictions  which  exclude  the  reasoning  of  other  ordinary  observers.80  It 
will  be  received  although  formed  subsequent  to  the  time  of  the  transaction  in 
connection  with  which  he  has  acted.87  Questions  calling  for  the  use  of  a  large 
proportion  of  inference  on  the  part  of  the  witness  may  be  rejected.88 

An  Anomalous  Position.— Grounds  assigned  for  so  unusual  an  anomaly 
have  been  various.89  In  Xew  York,  which  concurs  with  Massachusetts  in  re- 
jecting the  inferences  of  ordinary  observers  as  to  insanity,90  the  exceptional 
adrnissibility  conferred  upon  the  estimates  of  attesting  witnesses  is  placed  upon 
the  ground  of  administrative  necessity.91  The  dissentient  American  states 

73.  Supra,  §  701;   3  Chamb.,  Ev.,  §  1899.  84.  Tatham   v.   Wright,   11   Eng.   Ch.   1,   39 

74.  Town  of  Londonderry  v.  Fryor,  84  Vt.       Eng.   Reprint  295    (1831). 

294,    79   All.   46    (1911);    3    Chamb.,    Ev.,    §  85.  Scott  v.  McKee,  105  Ga.  256,  31  S.  E. 

1921,  n.  5.  183    (1898);    Hertrich  v.  Hertrich,   114  Iowa 

75.  Supra,  §  404;  2  Chamb.,  Ev.,  §  974.  643,  87   N.   W    689    (1901);    In  re  Du  Bois, 

76.  Supra,   §   705;    3   Chamb.,   Ev.,   §   1911.  164    Mich.    8,    128    N.    W.    1092     (1910);    3 

77.  State  v.   Soper,   148  Mo.  217,  235,  49       Chamb..  Ev.,  §  1925,  n.  1. 

S.  W.  1007   (1899)  ,  3  Chamb,  Ev.,  §  1922,  n.  86.  Robinson  v.  Adams,  62  Me.  369,  16  Am. 

4.  Rep.  473    (1874)  :  May  v.  Bradlee,  127  Mass. 

78.  Mollering   v.   Kinneburg,   78   Neb.   758,  414    (1879)  ;   Hewlett  v.  Wood.  55  N.  T.  634 
111  N.  W.  788    (1907)  (1873). 

79.  Myatt  v  Myatt,  149  N.  C.  137,  62  S.  E.  87.  Runyan  v  Price,  15  Ohio  St.  1,  86  Am. 
887    (1908).  Dec.  459   (1864). 

80.  Braham  v.   State,    143   Ala.   28,   38   So.  88.  In  re  Du  Bois.  supra. 

919   (1905).  89.  See  Xeedham   v.   Tde.   5   Pick.    (Mass.) 

81.  People    v.    Pico,    62  Cal.    53     (1882);  510   (1827);   Williams  v.  Spencer,   150  Mass. 
Townsend  v    Pepperell,  99  Mass.  40    (1868):  346,   23   N    E.   105,    15   Am.   St.   Rep.   206,   5 
State  v.  Coley,   114  X.  C.  879,   19  S.  E.  705  L.  R.  A.  790    (1890). 

<1R94)  ;  3  Chamb.,  Ev.,  §  1922,  n.  14  90.  Svpra,  §  703;  3  Chamb.,  Ev.,  §  1907. 

82.  Foster  v    rooks.  6  Ga.  290   M849).  91.  Clapp   v.   Fullerton,   34   N.   Y.    190,   90 

83.  3   Chamberlayne,    Evidence,     §§     1923-  Am.   Dec.  681    (1866). 
1927. 


555  PSYCHOLOGICAL  INFERENCES.  §  711 

have,  however,  imposed  certain  limitations  upon  the  scope  of  the  anomaly.  In 
case  of  a  will,  only  as  to  insanity  as  it  existed  at  the  time  of  executing  it  is  the 
subscribing  witness  permitted  to  speak.92  The  result  of  his  observations  since 
the  execution  of  the  will  93  or  other  instrument,  are  not  deemed  to  be  relevant. 

Marked  Administrative  Indulgence. —  A  subscribing  witness  alone  is  not 
required  to  give  a  preliminary  statement  of  observed  phenomena  constituting 
the  basis  of  his  inference.94  But  the  facts  observed  may  be  inquired  into,95 
and  the  probative  weight  of  the  inference  may  be  reinforced  by  stating  them.96 
Beyond  the  incidents  necessarily  attendant  upon  the  fact  of  attestation,  no 
special  opportunities  for  observation  need  be  shown  to  have  been  enjoyed  by  the 
witness.97  He  may  even  invade,  to  an  extent  permitted  no  other  witness,  the 
province  of  the  jury  98  by  stating  his  opinion  on  the  precise  point  as  to  which 
they  are  to  pass,  e.g.,  whether  a  testator  executing  a  will  was  possessed  at  the 
time  of  testamentary  capacity "  or  one  who  signed  a  deed  was  sufficiently 
sane  to  transact  business.1 

Probative  Force. —  To  the  inference  of  a  subscribing  witness  as  to  the  in- 
sanity of  the  maker  of  the  instrument  the  law  attaches  no  special  or  predeter- 
mined probative  force."  Much  depends  upon  the  personal  credibility  of  the 
attesting  witness.3  In  no  case,  is  it  regarded  as  conclusive.4  He  may  even  be 
impeached,  as  by  proof  that  he  has  made  inconsistent  statements.5 

§  711.  [Psychological  Inferences];  Objective  Mental  States.0 — Inference  of 
ordinary  observers,  as  to  mental  states,  is  governed  by  the  same  general  rules 
which  have  been  seen  to  affect  inference  as  to  mental  condition.  An  observer 
of  competent  knowledge,  after  the  usual  preliminary  detail  of  constituting 
facts,7  may  properly  be  permitted  to  declare  an  inference  as  to  what  mental 
feeling  or  state  is  shown  by  the  manifestations  which  he  has  observed.8 
Wherever  a  given  mental  state  is  a  relevant  fact,9  a  properly  qualified  ob- 
server may,  under  proper  administrative  conditions,  state  his  inference  as  to 
its  existence.  The  mental  state  of  a  witness  may  be  given  by  the  witness 

92.  Robinson   v.    Adams,    supra;    Williams  2.  Burney  v.  Torrey,  100  Ala.   157,  14  So. 
v.  Spencer,  supra;  Clapp  v.  Fullerton,  supra.  685    (1893)  ;  3  Chamb.,  Ev.,  §   1923. 

93.  Williams  v.  Spencer,  supra.  3.  Farnsworth    v.    Xoffsinger,    46    W.    Va. 

94.  Scott  v.  McKee,  supm ;  Hertrich  v.  Hert-  410,  33  S.  E.  246   (1899). 
rich,  supra;  Jones  v.  Collins,  94  Md    403,  51  4.  Cilley  v.  Cilley,  supra. 

Atl    398    (1902)  :  3  Chamb.,  Ev.  §  1927,  n.  1.  5.  In  re  Snelling,  136  N    Y.  515.  32  N.  E. 

95.  Titlow  v.  Titlow,   54   Pa.   216,  93   Am.       1006    (1S93K 

Dec.  691    (1867).  6.  3  Chamberlayne,     Evidence,     §§     1928- 

96    Cilley  v.  Cilley,  34  Me.   162   (1852).  1937. 

97.  Robinson  v.  Adams,  supra.  7.  Supra,  §  678;   3  Chamb.,  Ev..  §   1813. 

98.  A   contrary  viev,  declining  to  permit  8.  Jones   v    State    (Tex.    Cr.    App.    1905^, 
the   witness   to   apply   the   standard   of   legal  85  S.  W    5;   State  v.  George,  58  Wash.  681. 
responsibility,    has    been    adopted.     Hall    v.  109  Pac.  114   (1910) 

Perry.  87  Me.  569,  33  Atl.  160  (1895)  ;  Dean          9.  Thompkins  v    Augusta,  etc,  R.  Co.,  21 

v.  Fuller,  40  Pa.  474  (1861).  S    C.  420   (1884);  Over  v.  Missouri,  etc.,  R. 

99.  Jones  v.  Collins,  supra.  Co.    (Tex.   Civ.    App.   1903),   73   S.    W.   535; 
1.  Brand  v.  Brand,  39  How.  Pr.  (N.  Y.)  193  3  Chamb.,  Ev.,  §  1928.  n.  3. 

(1870). 


§  711  INFERENCE  FROM  SENSATION.  556 

himself.  He  may  say  that  his  mental  attitude  is  one  of  belief,  disbelief  or  of 
indifference.11'  Such  testimony,  however,  will  be  rejected  if,  on  account  of 
its  impossibility  of  direct  contradiction,  likely  to  mislead  the  jury  or  be  ob- 
jectionable for  some  other  reason.11 

Animals. —  An  ordinary  observer  may  state  an  inference  from  the  appear- 
ances which  he  has  observed  as  to  the  mental  state  of  an  animal,  as  that  the 
animal  looked  "  fierce  " ;  12  that  a  horse  appeared  u  sulky  rather  than  fright- 
ened";  13  or  that  the  animal  was  actually  frightened.14 

Intuitive  and  Reasoned  Inferences. —  Where  the  inference  as  to  mental  state 
is  an  intuitive  one,  it  is,  in  main,  simply  a  statement  of  fact  and  is  accord- 
ingly accepted  as  a  matter  of  course.15  Thus,  the  witness  may  state  that  a  per- 
son observed  by  him  "  expected  "  something  to  happen,  e.g.,  to  meet  a  person  at  a 
certain  place.16  Reasoned  inferences  17  which  are  admissible  may  relate  to 
the  existence  of  mental  states  of  any  degree  of  permanence  or  complexity. 
For  example,  a  witness  may  properly  state  his  belief  or  disbelief  in  the  exist- 
ence of  a  particular  fact,  declare  his  intention  18  or  lack  of  it,  although  it  is 
clear  that  his  inference  may  embody  a  large  element  of  reasoning.  He  may 
state  that  a  given  individual  appeared  to  take  no  interest  in  what  was  going 
on.19  Where,  however,  the  inference  is  rather  an  intellectual  concept  reached 
by  a  line  of  reasoning,  more  or  less  intricate,  than  a  shorthand  method  of  stat- 
ing the  results  of  sense-perception  impossible  of  complete  statement,  it  will  be 
rejected.2*' 

Ad  minist.  rat-ice  Requirements. —  To  justify  the  reception  of  the  inference 
of  an  observer,  the  proponent  must  show  an  adequate  necessity.21  Chief 
among  the  elements  of  subjective  relevancy,  upon  which  judicial  administra- 
tion insists  as  a  condition  of  admissibility,  is  adequate  knowledge.  This  is 
shown,  as  a  matter  of  practice,  by  the  preliminary  detail  of  constituting  facts 
which  the  witness  is  called  upon  to  give  as  part  of  the  basis  of  his  inference.22 

10.  Com.  v.   Piper.  120  Mass.   185    (1876);  Hardy    v.    Merrill,    56    N.    H.    227.    22    Am. 
3  Chamb.,  Ev.,  §  1028,  n  4.  l!ep.  441    (1875)  -.  3  Chamb.,  Ev  ,  §  1020,  n.  1. 

11.  Hoehn  v.  Chicago,  etc.,  R  Co.,  152  111.  16.  State  v.  Thomas.  41   La.   Ann.   1088,  0 
223,  38  X.  E.  541)   (1894)  ;   Douglass  v    Leon-  So.  803   (1880). 

ard,    17    X.    Y.    Supp.   501     (1802),    rev'g    14  17.  Supra.  §  fiOl;  3  Chamb.,  Ev.,  §  1843. 

X.   Y.   Supp    274    (1801);    3   Chamb.,  Ev.,   §  18.  Spencer  v   Peterson,  41  Or.  257,  60  Pac. 

1928,  n.  5.  510,   1108    (1002). 

12.  Mattison  v.  State,  55  Ala.  224    (1876)  19.  Com   v.  Piper,  120  Mass.  185   (1876). 
(dog).                                                                                   20.  Manahan    v.    Halloran,    66    Minn.    483, 

13.  Whittier  v    Eranklin,  46  X.  H    23,  88  60  X    W.  610   (1806):  Diefendorf  v   Thomas, 
Am.    Dec.    185     (1865).  37  App    Div.  40,  55  X    Y.  Supp.  600   (1800)  ; 

14.  Ward   v.    Meredith.    122    111.    App     150  3  Chamb.,  Ev.,  §  1030,  n    4. 
(1005),    judg.    aff'd    220    111.    66.    77    X.    E.  21.  3  Chamb  ,  Ev..  §  1031. 

118  H906)  :  3  Chamb..  Ev.  §  1928a.  22.  Sydleman     v     Beckwith,    43    Conn.     0 

15.  Holland  v   Zollnpr,  102  Cal.  633,  36  Pac.  (1875):    Marshall  v.   Hanby,    115   Iowa   318, 
030.  37  Pac.  231   (1804)  :  Com.  v.  Sturtivant,  88  N.  W.  801   (1902)  ;  3  Chamb.,  Ev.,  §  1932, 
117  Mass   122,  19  Am.  Rep   401   (1893)  :  State  n.    1. 

v.  Buchler,  103  Mo.  203,  15  S.  W.  331  (1890)  ; 


557  PSYCHOLOGICAL  INFERENCES.  §  711 

Self -regarding  States. —  The  psychological  fact  to  which  the  inference  of 
the  witness  relates  may  be  self-regarding,  i.e.,  the  effect  produced  upon  the 
mind  of  a  beholder  may  be  that  of  a  feeling  subjectively  limited,  self-centered. 
Such  an  emotion,  apparently,  is  mental  anguish,23  expectation,24  grief,2"  melan- 
choly,20 and  other  subjective  mental  states^7  It  may  properly  be  said  of  a 
person  observed  that  he  appeared  to  be  nervous  or  to  be  laboring  under  excite- 
ment." Fear  is  also  self-regarding.29  Knowledge,30  or  understanding31 
should,  it  would  seem,  be  looked  upon  in  the  same  light.  Administrative  rea- 
sons may,  however,  cause  its  rejection.32  Into  this  category  falls  the  operation 
of  undue  33  or  other  influence.  One's  "  understanding  "  may  be.  in  certain 
cases,  a  relevant  fact.34  A  given  state  of  mind,  manifesting  outwardly,  may 
properly  be  described  as  "  natural."  35 

Psychological  States  Regarding  Others. —  The  mental  state  as  to  the  exist- 
ence of  which  the  witness  declares  his  inference  may  be  a  forth-putting  emo- 
tion, one  having  reference  to  the  good  or  ill  of  persons  other  than  the  one  pos- 
sessing or  possessed  by  it.  The  feeling  may  be  favorable  or  unfavorable  to 
some  other  person.  Malevolent  feelings  may  be  typified  by  -anger.36  The 
appearance  of  a  given  individual  as  that  of  being  "  cross,"  37  "  mad,"  3S  "  fero- 
cious," 39  or  the  like,  may  be  stated  by  the  observer.  Or,  he  may  be  declared  to 
be  acting  apparently  under  the  influence  of  affection.40 

Disposition. —  Under  appropriate  conditions,  the  inference  of  an  observer 
will  be  received  as  to  the  mental  state  of  character  or  disposition.41  Thus,  one 

23.  For  example,  that  caused  by  failure  to  31.  Piano   Mfg.    Co.    v.    Kautenberger.    121 
render  some  last  office  of  love  to  a  near  rela        Iowa  213,  96  N.  W.  743   (1903). 

the    caused    by   non-delivery   of   a   telegram.  32.  Louisville,    etc.,    R.    Co.    v.    Goben,    15 

Sherrill  v.  Western  Union  Tel.  Co..  117  X.  C.  Ind.  App.   123,  42  N.  E.   1116.  43  N.  E.  890 

352.    23    S.    E.    277    (1895):    3    Chamb.,   Ev..  (1895):    Major   v.   Spies,   66   Barb.    (N.   Y.) 

§    1033.  n.   1.  576    (1873):   3  Chamb.,  Ev.,  §   1933,  n.  10. 

24.  State  v.  Thomas.  supra.  33.  Marshall    v.    Hanby,    supra :   Pattee   v. 

25.  Hughes  v.   Nolte.   7    Ind.   App.   526,   34  Whitcomb,  72  N.  H.  249,.  56  All.  459   (1903). 
X.  E.  745    1 1893) .  34.  Southern  Ry.  v.  Howell,  79  S.  C.  281,  60 

26.  State  v.  McKnight,  119  Iowa  79,  93  X.  S.  E.  677   (1908). 

W.    63     (1903);    Culver   v.    Dwight.    6    Gray  35.  State  v.  Wright,  112  Iowa  436.  84  X.  W. 

(Mass.)  444  i  1856)  ;  3  Chamb.,  Ev.,  §  1933,  n.  541    (1900) . 

4.  4.  36.  State  v.  \Yright,  supra;  State  v.  Buch- 

27.  Jackson   v.   State,   44  Tex.   Cr.   259.   70  ler.  supra;  State  v.  Tighe,-27  Mont.  327,  71 

5.  W.   760    (1902);    Fritz   v.   Western   Union  Pac.  3    (1903);   3  Chamb.,  Ev..  §   1934,  n.  1. 
Tel.  Co.,  25  Utah  263,  71   Pac.  209    (1903)  -.  37.  State  v.  Crafton,  89  Iowa  109,  56  X.  W. 
3  Chamb.,  Ev.,  §  1933,  n.  5.  257   (1893). 

28.  Rolwrts  v.  State,  123  Ga.  146.  51  S.  E.  38.  State  v.  Utley,  132  X.  C.  1022,  43  S.  E. 
374    (1905):    Dimick    v.    Downs.    82    111.    570  820    (1903). 

(1876)  :  3  Chamb.,  Ev.,  §  1933,  n.  6.  39.  State  v.  Buchler.  supra. 

29.  Thornton  v.  State.   113  Ala.  43.  21   So.  40.  Barnes  v.   Tibbits,    164   Mich.   217.   129 
356    (1896):    State   v.    Ramsey.    82   Mo.    133  X.  W.  42,   17  Detroit  Leg.  X.   1062    (1910): 
(1884):    State   v.    Byrd.   41    Mont.   585.    Ill  McKee   v.   Xelson,   4    Cow.    (X.   Y. )    355.    15 
Pac.  407   (1910)  :  3  Chamb.,  Ev.,  §  1933,  n.  7.  Am.  Dec.  384   (1825)  ;  3  Chamb..  Ev..  §  1935. 

30.  Jeffersonville  v.  McHenry,  22  Ind.  App.  n.  1. 

10,  53  X.  E.  183  (1898).  41.  Bush  v.  State,  109  Ga.  120.  34  S.  E.  298 


§  712  INFERENCE  FROM  SENSATION.  558 

who  has  had  suitable  opportunities  for  observation  may  be  allowed  to  state  that 
a  certain  person  appeared  to  be  of  a  happy  and  contented  disposition,42  and 
in  what  way  his  disposition  compared  with  that  of  another  person.43  While 
an  inference  as  to  a  temporary  mental  state  has  been  rejected,44  a  change  in 
customary  mental  attitude  may  be  stated  by  a  qualified  observer.45  The  dis- 
position of  an  animal  may  be  stated,  under  proper  circumstances,  in  the  form 
of  an  inference  by  a  suitably  qualified  observer,40  as  that  a  given  animal  was 
kind,  safe,  or  gentle,47  or  sulky.48 

§  712.  [Psychological  Inferences] ;  Inference  Rejected.49 —  An  inference  or 
other  reasoning  by  a  witness  as  to  the  existence  of  a  mental  state  which  is  not 
justified  by  some  adequate  administrative  necessity  is  properly  rejected;  as 
where  the  precise  point  to  be  passed  upon  by  the  jury,  part  of  the  issue  raised 
in  the  case,  is  as  to  the  existence  of  the  psychological  fact  itself,50  or  where  an 
undue  proportion  of  reasoning  is  involved  in  the  inference.51  A  very  large 
proportion  of  reasoning  is  present  in  a  statement  where  the  witness  is  making 
a  direct  inference  as  to  the  mental  state  of  a  third  person.  Thus,  a  witness 
may  undertake  to  state  that  A  knows  a  given  fact  not  because  A  has  been  ob- 
served by  him  to  show  signs  of  knowing  it  but  because  the  fact  itself  having 
been  stated  in  A's  presence,  he  must  know  it.52  Such  direct  inference,  in  the 
absence  of  manifestation,  is  to  be  rejected.53  Even  an  expert  witness  is  not 
competent  to  testify  to  the  existence  of  a  mental  state  of  another,  resting  merely 
in  the  opinion  of  the  expert  without  any  basis  for  the  inference  as  to  it.54 

Facts  May  Be  Placed  before  the  Jury. —  Where  such  phenomena  as  are  ac- 
tually present  are  few  and  capable  of  being  laid  before  the  jury  with  no 
marked  impairment  of  probative  force,  no  administrative  reason  is  shown  for 
receiving  the  summary  of  the  witness  in  the  form  of  an  inference.  The  jury 

(1899):    Matthewson   v.  Matthewson,  81   Vt.  v.   Minturn,    70   X.    J.    L.    627,    57    Atl.    269 

173,   69   Atl.   646    (1908);    3   Chamb.,   Ev.,   §  (1909);   3  Chamb.,  Ev.,  §§   1938,   1939,  n.  2, 

1936,  n.  1.  1942. 

42.  Morrison  v.  State,  40  Tex.  Cr.  473,  51  51.  Manahan  v.  Halloran,  66  Minn.  483,  69 
S.  W.  358  ( 1899)  ;  3  Chamb.,  Ev.,  §  1936,  n.  2.  N.  W.  619   (1896)  ;  Diefendorf  v.  Thomas,  37 

43.  Brownell     v.     People,     38     Mich.     732  App.  Div.  49,  55  N.  Y.  Supp.  699    (1899);   3 
(1878).  Chamb.,    Ev.,    §    1939,    n.    3.     Inducing    pur- 

44.  McAdory  v.   State,  59  Ala.  92    (1877).  chase.     Duhme  Jewelry  Co.   v.  Browning,   72 

45.  Johnson  v.  State,  17  Ala.  618    (1850).  S.  C.  424,  52  S.  E.  1117   (1905). 

46.  Pioneer  Fireproof  Constr.  Co  v.  Sunder-  52.  Braham  v.   State,    143   Ala.   28,   38   So. 
land,  188  111.  341,  58  N.  E   928  (1900)  ;  John-  919  (1905)  ;  Handley  v.  Missouri  Pac.  R.  Co., 
son  v.  Mack  Mfg.  Co.,  65  W.  Va.  544,  64  S.  E.  61   Kan.  237,  59  Pac.  271    (1899)  ;   3  Chamb., 
841    (1909)  ;   3  Chamb.,  Ev.,  §  1937,  n.  1.  Ev.,  §   1939,  n.  4. 

47.  Sydleman    v.    Beckwitih,    43    Conn.    9  53.  Sneed  v.  Marysville  Gas  &  Electric  Co., 
(1875).  149   Cal.   704,   87   Pac.   376    (1906);    Bush   & 

48.  Whittier    v.    Franklin,    46    N.    H.    23       Hathaway  v.  W.  A.  McCarty,  127  Ga.  30S,  56 
(1865).  S.  E.  430   (1907)  :   3  Chamb.,  Ev.,  §   1939,  n. 

49.  3  Chamberlayne.    Evidence,     §§     1938-      5. 

1946.  54.  Consol.  Gas,  etc.,  Co.  v.  State,  109  Md. 

50.  Piano   Mfg.    Co.   v.    Kautenberger,    121       186,  72  Atl.  651   (1909). 
Iowa  213,  96  N.  W.  743   (1903)  ;  Farrington 


559  PSYCHOLOGICAL  INFERENCES. 

will  be  regarded  as  being  as  well  qualified  to  draw  an  inference  as  the  witness.55 
Lack  of  Objective  Relevancy. —  The  inference  of  an  observer  as  to  the  exist- 
ence of  a  particular  mental  state  will  not  be  received  in  evidence  unless  the 
psychological  fact  itself  is  objectively  relevant,  in  some  respect,  to  the  proposi- 
tion in  issue.  Simply,  it  is  not  evidence."'' 

Subjective  Relevancy. —  Should  the  observing  witness  fail  to  show  to  the 
court,  in  connection  with  his  preliminary  detail  of  constituting  phenomena,57 
that  he  has  had  such  opportunities  for  observation,  and  is  possessed  of  sufficient 
mental  powers  for  utilizing  them  to  enable  him  to  draw  an  inference  reason- 
ably helpful  to  the  jury,  his  inference  will  be  rejected.5*  The  inference  of  an 
observer  as  to  the  intent  or  intention  with  which  a  particular  act  was  done  is 
usually  a  complex  one,  involving  a  large  amount  of  the  element  of  reasoning, 
thus  more  nearly  constituting  a  conclusion,51*  and  it  is,  therefore,  rejected.60 
In  many  cases  where  the  substantive  law  itself  attaches  consequences  to  given 
acts  or  failures  to  act,  regardless  of  the  intent  with  which  they  were  done  or 
omitted,  the  existence  of  the  psychological  fact  is  irrelevant01  and,  conse- 
quently, to  be  rejected.02 

Failure  to  stare  an  adequate  number  of  constituting  phenomena  and  the 
usually  accompanying  presence  of  a  large  portion  of  reasoning,  for  receiving 
which  no  satisfactory  administrative  necessity  is  shown,  unite,  in  many  cases, 
to  lead  the  court  to  reject  the  inference  of  ordinary  observers  as  to  the  existence 
of  complicated  mental  states.  Of  this  nature  is  fraud,63  good  faith,1'4  motive,65 
purpose,66  or  any  similar  mental  state  fairly  like  these.67  The  reasons  as- 
signed by  the  observed  person  for  his  conduct  "8  or  the  facts  upon  which  reli- 
ance was  placed  (l!'  may  be  rejected  for  similar  reasons.  Statements  of  be- 

55.  3  Chamb..  Ev.,  §  1940.  62.  Supra,  §  29;  3  Chamb.,  Ev..  §  1941. 

56.  Louisville,  etc.,  R.  Co.  v.  Goben.  supra:  63.  Maier  v.   Board   of  Public   Works,   151 
Solomon    v.    Amerk-an    Mercantile    Exch..    93  Ind.    197,   51    X.   E.   233    (1898);    3   Chamb.. 
Me.   436,  45   Atl.   510,   74   Am.   St.   Rep.   366  Ev.,  §  1945,  n.  2. 

(1900):    Jennings  v.    Supreme   Council,   etc..  64.  Durrence   v.   Northern   Xat.   Bank.   117 

Assoc.,  81   App.   Div.   76.   81    X.   Y.   Supp.   90  Ga.  385,  43  S.  E.  726  (1903). 

(1903)  -.  3  Chamb.,  Ev.,  §  1941.  n.  2.  65.  Tail  v.  Hall.  71   Cal.   149.   12  Pac.  391 

57.  Suprn.  §  711:  3  Chamb.,  Ev.,  §  1932.  (1886)  ;   Dwight  v.  Badgley.  60  Hun   144,  14 

58.  Rush   v.    State.   109   Ga.    120,   34  S.   E.  N.   Y.   Supp.   498    (1891):    3   Chamb.,  Ev.,   § 
298   (1899)  ;  State  v.  Stockhammer.  34  Wash.  1945.  n.  4. 

262,   75   Pac.   810    (1904):    3   Chamb..   Ev..   §  66.  Western    Xat.    Bank    v.    Flannagan,   35 

1943.  X.  Y.  Supp.  84S.  14  Misc.  317   H895)  :  Heath 

59.  Supra,  §  676;    3  Chamb.  Ev.,  §   1803:  v.  Slocum,  115  Pa.  549,  9  Atl.  259   (1887). 
Infra,  §  792:   3  Chamb.,  Ev.,  §  2291.  67.  Fleckinger  v.  Taffee.  149  Mich.  678,  113 

60.  CJreve  v.  Echo  Oil  Co.,  8  Cal.  App.  275,  X.   W.  311    (1907*  :    Bogart   v.   City  of   Xew 
96  Pac.  904   (1908)  ;  Cihak  v.  Klekr,  117  111.  York,  200  X.  Y.  379.  93  X.  E.  937    (1911)  ; 
643,   7   X.   E.   Ill    (1886);    3  Chamb..   Ev..   §  State  v.  Stockhammer.  supra  :  3  Chamb..  Ev., 

1944.  n.   2.     But  see  Starr  v.   Stevenson.   91       §  194o.  n.  6. 

Iowa  684,  60  X".  W.  217    (1894)  :   Farrington  68.  Goodale  v.  Worcester  Agricultural  Soc., 

v.  Minturn,  supra.  102  Mass.  401    (1869):   Jennings  v.  Supreme 

61.  Sayre  v.  Woodyard,  66  W.  Va.  288,  66  Council,   etc.,   Assoc.,   supra :  3   Chamb.,   Ev.. 
S.    E.    320     (1909).     See    also    §    supra;    3  §  1945,  n.  7: 

Chamb.,  Ev.,  §   1928.  69.  Wabash  R.  Co.  v.  Smillie,  97  111.  App. 


§  712  INFERENCE  FROM  SENSATION.  500 

lief,70  disbelief,  or  as  to  the  operation  of  undue  71  or  other  influence  may  stand 
in  the  same  position.72 

Psychological  States  not  Subject  to  Direct  Observation. —  Where  the  element 
of  inference  predominates  over  that  of  observation  to  a  degree  which  no  ad- 
ministrative necessity  appears  to  justify,  as  an  inference  as  to  the  existence  of 
a  quality  more  nearly  moral  than  mental,  e.g.,  the  extent  of  the  given  person's 
will  power,73  it  may  properly  be  rejected.  The  reasoning  of  the  witness  is  to 
aid  that  of  the  jury,  not  to  supplant  it. 

7    (1901);    Pope  v.   McGill,  58  Hun  294,   12  72.  International  &  G.  N.  R.  Co.  v.  White, 

N.  Y.  Supp.  306  (1890).  103  Tex.  567,  131  S.  W.  811   (1910),  modify- 

70.  Happy  v.  Morton,  33  111.  398    (1864);  ing  judgment    (Civ.   App.    1909),    120   S.    W. 
Faribault  v.  Sater,  13  Minn.  223   (1868).  958. 

71.  Compher  v.  Browning,  216  111.  429,  76  73.  Goodwin  v.  State,  96  Ind.  550  (1884) ;  3 
N.    E.    678    (1906);    Manahan    v.    Halloran,  Chamb.,  Ev.,  §  1946. 

supra,;  3  Chamb.,  Ev.,  §  1945,  n.  10. 


CHAPTER  XXVIII. 

INFERENCE  FROM  SENSATION;  SKILLED  OBSERVER. 

General  position  of  skilled  witness,  713. 

Ordinary  and  skilled  observers;  differentiation  by  subject-matter;  what  topics 
are  technical,  714. 

necessity  and  relevancy,  715. 
Architects  and  builders,  716. 
Business  affairs,  717. 
Technical  matters,  718. 
Mechanic  arts,  719. 
Finger  prints  and  tracks,  720. 
Title  to  real  estate,  721. 
Medical  inferences,  722. 

qualifications  of  witnesses,  723. 

detail  of  constituting  facts,  724. 
who  is  qualified,  725. 

probative  weight,  726. 

results  of  autopsy,  727. 
Military  affairs,  728. 
Mining  matters,  729. 
Photographic  art,  730. 
Railroad  matters;  qualifications,  731. 
Street  railways,  732. 
Telegraphing,  733. 

§  713.  General  Position  of  skilled  Witness.1 —  In  passing  from  consideration 
of  the  use  of  inference  which  administration  permits  an  ordinary  observer  as 
the  result  of  his  regarding  external  nature  or  his  own  sensations  to  some  exam- 
ination of  the  reasoning,  based  upon  sensation,  of  skilled  witnesses,  a  distinct 
step  is  taken.  The  inquiry  is  transferred  from  reasoning  based  upon  common 
knowledge  to  that  grounded  upon  special.  A  skilled  witness  is  one  who  is  ex- 
perienced, e.cpetlus,  in  some  particular  profession,  trade  or  calling  not  familiar 
to  men  in  general.  lie  has,  as  it  were,  received  training,  physical  or  mental, 
in  a  school  which  they  have  not  entered.  This  mental  or  physical  develop- 
ment may  be  scientific :  or  it  may  be  most  severely  practical.  For  administra- 
tive purposes,  it  is  sufficient  if  the  training  is  not  such  as  men  in  general  have 
had  or  the  jury  could  acquire,  to  a  satisfactory  degree,  within  the  time  limits 

1.  3  Chamberlayne,     Evidence,     §§     1947-1951. 

561 


§§   71tt,  715  INFERENCE  FROM  SENSATION.  562 

which  can  be  conceded  to  the  trial  of  an  action  at  law.  Skilled  witnesses,  like 
any  other,  state,  either  as  facts  or.  by  way  of  inference,  what  they  claim  to 
know.  Experts,  on  the  other  hand,  testify  as  to  their  reasoning  upon  facts 
known  to  others.  These  experts  may  testify  as  skilled  witnesses,  and,  vice 
versa,  skilled  observers  may  testify  as  experts.  The  circumstance,  however, 
has  no  effect  to  impair  the  validity  of  the  distinction  between  the  two. 

In  connection  with  divers  occupations,  mercantile,  professional,  trading,  and 
the  like,  or  relations  growing  out  of  them,  an  ever  increasing  volume  of  business 
is  presented  to  the  court.  Here  is  the  neld  of  the  "  skilled  witness,''  so  called. 
To  the  administration  of  justice,  this  witness  contributes  three  things,  to  which 
it  will  be  necessary  to  give  some  examination  in  the  same  order.  (1 )  He  may 
contribute  facts  known  to  those  engaged  in  his  trade  or  calling.  ('2)  He  may 
submit  inferences  and  conclusions,  acts  of  reasoning  based,  more  or  less  com- 
pletely, upon  observation.  (.'})  He  may,  testifying  as  an  expert,  otter  an  act  of 
pure  reasoning,  his  judgment,  rested  upon  the  assumed  truth  of  certain  facts 
stated  to  him  in  the  form  of  a  hypothetical  question.  These  several  tenders, 
judicial  administration  regards,  and  therefore  treats,  in  different  wavs. 

§  714.  [Ordinary  and  Skilled  Observers;  Differentiation  by  Subject-matter]; 
What  Topics  are  Technical.2 —  Special  training  brings  with  it  special  powers  of 
observation.  To  know  for  what  one  should  look  is  a  powerful  aid  to  finding  the 
crucial  point  in  a  complicated  set  of  phenomena.  The  desire  to  find  it  is  that 
which  tends  to  deflect  attention.  The  skilled  observer  is,  therefore,  able,  in  a 
technical  matter,  to  give  unique  assistance  in  the  search  for  truth.  He  sees 
the  bearing  of  facts  which  come  under  his  notice  in  a  way  impossible  to  the 
ordinary  witness.  He  is  very  apt,  partly  by  reason  of  this  fact,  to  observe 
really  significant  phenomena  which  might  escape  the  attention  of  others. 
These  technical  matters,  as  has  been  said,  are  those  as  to  which  the  witness  has 
enjoyed  a  special  training  and  experience  not  shared  by  men  in  general.3 

§  715.  [Ordinary  and  Skilled  Observers];  Necessity  and  Relevancy.4 — In  re- 
ceiving the  inference  of  the  skilled  observer,  .administration  is  admitting  sec- 
ondary evidence.  Upon  the  reception  of  this,  it  at  all  times  imposes  restric- 
tions. In  this  connection,  as  usual,  the  proponent  must  show  that,  it  is  neces- 
sary for  the  proof  of  his  case  to  receive  secondary  evidence  and  that  the  evi- 
dence actually  tendered  is  relevant  for  the  purpose. 

The  necessity  may  arise  because  he  is  testifying  about  complicated  facts 
which  the  jury  cannot  properly  co-ordinate.  The  relevancy  of  the  evidence 
resolves  itself  into  a  question  of  the  qualifications  of  the  witness.  The  experi- 
ence of  the  witness  may  be  short  and  it  need  not  be  'technical  but  it  may  be 
practical. 

2.  3  Chamberlayne,  Evidence,  §    1952.  4.  3  Ohamberlayne,     Evidence.     §§     1953- 

3.  Herhigr   v.    Xew    York,    etc,    R.    Co,    60       1957. 
Hun  IX.  Y.)   177  note  (1893). 


563 


ABCIIITECTS,  ETC. 


716-718 


§  716.  Architects  and  Builders.5  —  Building  trades  furnish  numerous  instances 
of  the  reasoning  of  the  trained  observer.  A  suitably  qualified  member  of  a 
building  trade0  may  testify  as  to  his  inferences  from  what  he  has  observed. 
.Xo  other  witness  is  entitled  to  speak  on  a  trade  matter." 

£  717.  Business  Affairs.s  —  One  connected  with  a  particular  business  may 
state  his  inferences  from  facts  observed,  by  him  as  to  technical  matters  not 
familiarly  known  to  those  outside  that  special  calling  and  which  the  jury  cannot 
coordinate  into  a  reasonable  act  of  judgment  by  the  aid  of  any  experience  of 
their  own.9  In  other  respects,  the  presence  or  absence  l"  of  business  difficulties 
may  be  announced  by  a  properly  qualified  witness.  He  may  declare  his  con- 
clusion as  to  whether  a  gi\en  line  of  industry  ll  could  be  successful;}7  carried 
on  under  prescribed  conditions  or  books  kept  in  a  particular  way.12 

§  718.  Technical  Matters.13  —  A  skilled  observer  may  testify  as  to  the  results 
of  chemical  analysis  14  or  as  to  various  problems  in  engineering  whether  civil  15 
or  electrical16  hydraulic1'  or  surveying18  or  as  to  farming  matters  whether 


5.  3  Chamberlayne,      Evidence, 


1958- 


6.  Bowen  v.  Sierra  Lumber  Co.    (Cal.  App 
1906),  84  Pac.  1010   (life  of  red  fir  timber)  , 
Line    v.    Mason,    67    Mo.    App.    279     (1896.I; 
Behsman    v.   Waldo,    38    Misc.    (X.    Y.)    820. 
78  X.  Y.  Suppl    1108   (1902)    (architects  and 
mechanical        engineers).     An        experienced 
builder  who  has  seen  a  house  just   aiter  its 
abandonment   and   who   has   looked   over   the 
plans  and  specifications  may  state  how  large  a 
proportion  of  the  building  was  completed  at 
the  time  it  was  abandoned.     C.  Scheerer  &  Co. 
v.  Deming   (Cal.  1908),  97  Pac.  155. 

7.  Alexander   v    Mt,    Sterling,    71    111.    366 
(1874)    (sidewalk)  :  Galveston,  etc.,  R.  Co.  v. 
Daniels,   1   Tex.  Civ.  App.  695,  20  S.  W.  955 
(1892)     (sufficiency  of  a  bridge);   Carroll  v 
Welch,  26  Tex.  147    (1861).     Where  a  photo- 
graph  is    in   evidence   showing   the   condition 
of  a  bridge  opinion  evidence  of  railroad  men 
is  not  admissible  that  it  was  not  a  safe  place 
to  work  as  the  jury  can  judge  this  for  them- 
selves.    Duncan  v.  Atchison.  Topeka  &  Santa 
Fe    R.    Co.,    86    Kan.    112.    119    Pac.    356,    51 
L.   R.   A.    (N.   S.)    565    (1911). 

8.  3  Chamberlayne.   Evidence,   §    1963. 

9.  Barrie  v.  Quimby,  206  Mass.  259.  92  X 
E    451    (1910):  Daniels  v    Fowler.  123  X.  C. 
35,   31    S.   E.  598    (1898);   Cochran   v.  U.   S.. 
157  U.  S.  286,   15   S.  Ct    62S,   39   L.   ed.   704 
(1895).     The     proper     method     of     stacking 
flour  in  50-pound  sacks  is  a  subject  of  expert 
testimony.     Commerce  Milling  &  Grain  Co.  v. 
Gowan   (Tex.  Civ.  App.  1907),  104  S    W.  916. 


10.  Crusoe  v.  Clark,  127  Cal.  341,  59  Pac. 
700  (1899)    (no  problem  in  bookkeeping). 

11.  Belding  v.  Archer,  131  X.  C.  287,  42  S. 
E.  800    (1902)    (lumbering). 

12.  Fry  v.    Provident   Sav.  L.   Assur.   Soc. 
(Tenn    Ch    App.    1896),   38   S    W.    116. 

13.  3  Chamberlayne,    Evidence,    §§     1964- 
1987. 

14.  Xussbaumer  v.  State,  54  Fla.  87,  44  So. 
712    (1907)     (intoxicating  quality  of  wine); 
fc.  S.  Health  &  Accident  Ins.  Co.  v.  Jolly  (Ky. 
1909),  118  S.  W.  28  (pus). 

See  ateo  Potvin  v.  West  Bay  City  Ship- 
building Co ,  156  Mich.  201,  120  N.  W.  613 
(1909). 

15.  Gault  v.  Concord  R.  Co.,  63  N.  H.  356 
(1885)       (whether     a     bridge     obstructs     a 
stream) . 

16.  H.    J.    Reedy    Co.    v.    Cameron    (Mich. 
1910),    129    X.    W.    27,    17    Detroit    Leg.    N. 
1025   (proper  operation  of  electric  motor). 

17.  H.    J.    Reedy    Co.    v.    Cameron     (Mich. 
1910),  129  X.  W.  27,  17  Detroit  Leg.  X.  1025. 
Beery  v.  Driver    (hid.   1906),   76   X.  E    967. 
A  nonexpert  cannot  testify  that  it  would  be 
impossible   to  drain   all    the   land   in   contro- 
versy   towards    a   certain    river.     Hetland    v. 
Bijstead      (Iowa     1908).     118     X.     W.     422. 
Whether  a  stream  is  "  floatable,"  is  a  proper 
subject  for  the  inference  of  a  skilled  observer. 
Hot   Springs   Lumber   &    Mfg    Co.   v.    Rever- 
comb    (Va.   1909),  65  S.   E.  557. 

18.  Jackson   v    Lambert,    121    Pa.   St.    182, 
15  Atl.  502    (1888)    (location). 


719 


INFERENCE  FROM  SENSATION. 


564 


in  regard  to  animals  10  their  diseases  and  injuries  20  as  to  the  quality  of  land  21 
as  to  stock  raising  22  or  as  to  questions  of  insurance  23  or  manufactures  in- 
cluding machinery 24  their  repair,25  tools,2"  and  standards  applied.27  The 
same  rules  apply  to  maritime  affairs  including  the  construction  2S  or  equip- 
ment -1'  of  vessels  or  their  management/'1'  Where  any  question  arises  as  to 
these  matters  which  is  a  matter  of  common  knowledge  the  opinion  of  the 
skilled  witness  is  not  admissible/"1 

§  719.  Mechanic  Arts.32  33 —  Although  the  witness  has  received  merely  a 
practical  training,  he  may  state  his  inference  with  regard  to  a  matter  of  me- 
chanics 34  even  where  the  latter  constitutes  the  precise  point  upon  which  the 
jury  are  to  pass.35  In  stating  an  inference  with  regard  to  a  matter  of  me- 
chanic art,  a  degree  of  skilled  training  is  required  commensurate  with  the 
technical  nature  of  the  reasoning  to  be  employed.  The  scientific  attainments 
demanded  may  be  of  a  very  high  order. :>>6  On  the  other  hand,  the  qualifications 
of  a  witness  who  offers  to  speak  regarding  a  matter  of  mechanical  art  may  be 


19.  Clague     v.     Hodgson,     16     Minn.     329 
(1871)    (age  of  sheep). 

20.  International   &   G.    N.   R    Co.    v.   Mc- 
Cullough    (Tex.  Civ.  App.   1909),   118  S.  W. 
558  (splenetic  fever) . 

21.  Farmers',  etc.,  Nat.  Bank  v.  Woodell,  38 
Oreg.   294,  61   Pac.   837,  6.3   Pac.  520    (1900) 
(raising  sugar  beets). 

22.  Cray  son   v.   Lynch,    163   U.   S.   468,    16 
S.    Ct     1064,   41    L.   ed.    230    (1895)     (Texas 
fever ) . 

23.  Brink  v.  Merchants',  etc.,  Ins.  Co.,  49 
Vt.  442   (1877). 

24.  Gundlach    v.    Schott,    192    111.    509,    61 
N.  E.  332,  85  Am    St.  Rep    348   (1901). 

25.  \Yickes  v.  Swift  Electric  Light  Co.,  70 
Mich   322,  38  X.  W.  299   (1888). 

26.  Harvey  v.   Susquehanna  Coal  Co.,  201 
Pa.  St.  63,  50  Atl.  770,  88  Am.  St.  Rep.  800 
( 1 902 )    (mining  apparatus ) 

27.  Olmscheid    v.     Xelson-Tenney    Lumber 
Co.,  (56  Minn.  61,  68  N.  W.  605    (1896)    (op- 
erating  bolting   saw  without  a  carriage   at- 
tachment) . 

28.  Sikes  v.   Paine,  32   N.   C.   280,  51   Am. 
Dec.  38!)   (1849)    (ship  carpenter);  Anderson 
v.  U.  S.,  170  U.  S.  481,  18  S   Ct   689,  42  L.  ed. 
1116   (1898)    (ship  carpenter). 

29.  (lark  v.  Detroit  Locomotive  Works,  32 
Mich.    348     (1875);    Doherty    v.    Booth,    200 
Mass.  522,  86  N.  E.  945   (1909). 

30.  Ward  v.  Salisbury,  12  111.  369   (1851)  ; 
Baltimore  Elevator  Co   v   Xeal    05  Md   438.  5 
Atl.  338  ( 188H)  :  Carpenter  v.  Eastern  Transp. 
Co.,  71  N.  Y.  574    (1878). 


31.  People  v.  Brown,  96  X.  Y.  Suppl.  957. 
110  App.  Div.  490  (  1906)  ;  conditions  making 
a  draft  in  case  of  fire. 

Other  instances  of  the  application  of  com- 
mon knowledge  to  facts  of  fire  insurance 
stand  in  the  same  position.  Davis  v.  Con- 
necticut Fire  Ins.  Co.,  158  Cal.  766.  112  Pac. 
549  (1910)  (fall  of  building  due  to  fire). 
Expert. testimony  as  to  operation  of  machin- 
ery and  danger  of  structure.  See  note.  Ben- 
der, ed.,  142  X.  Y.  39.  Expert  testimony  by 
engineers.  See  note,  Bender,  ed.,  163  X.  Y. 
536. 

32.  3  Chamberlayne,  Evidence,  §  1988. 

33.  Blasting. —  Certain    of    the    phenomena 
presented  in  blasting  operations  may  require 
interpretation  at  the  hands  of  a   skilled   ob- 
server.    Such    a    witness    may,    for    example 
testify  to  his  inference  as  to  whether  a  given 
blast  has  been  discharged.     Stephen  v.  Duffy, 
142   Til.  App.   219    (1908). 

34.  Electrical    wiring. —  A    competent    ex- 
pert   may    testify    that    electrically    charged 
wires   emitting   flame  or   light   are  defective. 
Prince   v.    Lowell    Electric   Light   Corp.,    201 
Mass.    276,    87    N.    E.    558    (1909).     In    the 
same  way,  electrical  experts  can  declare  what 
are  the  usual   methods  of   repairing   electric 
wires     under     given      conditions.     Clark     v. 
Johnson  County  Telephone  Co.   (Iowa,  1909), 
123  X    W.   327. 

35.  Burton   v.   Burton   Car   Stock   Co.,    171 
Mass.  437,  50  X.  E.  1029  (1898) 

46.  Paul  E.  Wolff  Shirt  Co.  v.  Frank'.':,! hall, 
96  Mo.  App.  307,  70  S.  W.  378  (1902). 


:.<;;,  FINGER  PRINTS.  §§  720-722 

of  the  most  severely  practical  kind.37  Adequate  knowledge,  in  the  respect 
involved,  must  be  shown.  One  who  has  this  knowledge  may  testify  as  to  the 
construction  and  use  of  firearms,38  even  dealers  may  be  qualified,39  and  such 
testimony  may  be  given  as  to  their  sounds  40  or  as  to  wounds  41  inflicted  by  them. 

§  720.  Finger  Prints,  and  Tracks. —  Evidence  of  men  who  have  studied 
finger  prints  for  a  long  time  is  admissible  to  show  identity  as  there  is  a  scien- 
tific basis  for  its  use  and  it  is  so  general  that  courts  must  take  judicial  notice 
of  it.  It  is  admissible  as  other  proof  as  tending  to  make  out  a  case.43 

So  persons  experienced  in  trailing  men  may  testify  to  the  difference  in  the 
tracks  of  men  walking  and  running.44 

§  721.  Title  to  Real  Estate —  It  is  the  general  rule  that  the  opinion  of  an 
expert  conveyancer  as  to  the  validity  of  the  title  to  real  estate  is  not  admis- 
sible, though  there  is  some  authority  to  the  contrary.46 

§  722.  Medical  Inferences.47 —  Litigation  is  compelled  to  make  a  very  ex- 
tensive use  of  medical  learning.  In  most  cases  of  bodily  injury  or  mental  im- 
pairment the  help  of  a  skilled  physician  is  invoked  for  care  and  treatment. 
Should  legal  proceedings  follow,  it  is  to  the  inferences  of  the  man  of  medicine 
that  the  parties  with  confidence  are  forced  to  appeal.  A  very  wide  scope  is 
permitted  the  testimony  of  a  medical  witness,  whether  as  to  bodily  48  or  mental 
conditions  and  what  they  seem  to  indicate.49 

37.  Knight    v.    Overman    Wheel    Co.,     174  experts  saves  a  great  deal  of  time  as  ques- 
Mas*.  455,  54  X.  E.  800   (1899).  tions  of  title  are  so  complicated.     Spaeth  v. 

38.  Orr  v.   State.   117   Ala.   69,  23   So.   696  Kouns,  95  Kan.  320,   148  Pac.  651,  L.  R.  A. 
(1897).  1915  E  271    (1915). 

39.  State  v.  Hughes   (Xev.  1909),  102  Pac.  47.  3  Chamberlayne,    Evidence,    §§     1991- 
562  2017. 

40.  Hunter  v.  State   (Tex.  C'r.  App.  1908),  48.  Chatsworth  v.   Rowe,   166   111.    114,  46 
114  S.  W    124.  X.   E.   763    (1897);   Burt  v1.   Burt.   168  Mass. 

41.  Patton  v.  State    (Tex.  Cr.  App.   1904),  204,  46  N.  E.  622  (1897)    (under  influence  of 
80  S.  W.  86.  morphine). 

43.  People  v.  Jennings,  252  111.  534.  96  X  Parts      of      the      body.— The      competent 
E.   1077,  43   L.   R.   A.    (X.   S.)    1206    (1911):  physician    may    identify    parts    of   a    human 
State   v.   Cerciello,   86   X.  J.   L.   309,   90  Atl.  body  submitted  to  his  examination.     Miller  v. 
1112,  52  L.  R.  A.    (X.  S.)    1010    (1914).  State    (Ark.    1910),    128   S.   W.    353.     Physi- 

44.  Grant  v.  State   (Tex    Crim.  Rep  ),  148  cian's  testimony,  see  note.  Bender  ed.,  163  X. 
S.  W.  760,  42  L.  R.  A.    (X.  S.)    428    (1912).  Y.   586,     Expert  testimony   in   elevated   rail- 

46.  The    testimony     of     an     abstracter    of  road  cases,   see  note,   Bender  ed.,    128   X.   Y. 

many  years  experience  and  of  a  conveyancer  488.     Of   physicians   in    insurance   cases,   see 

of  long  experience  as  to  the  validity  of  title  note,  Bender  ed..   138  X'.   Y.  88.     Physician's 

to   a   property   in   another  state   is   not   only  testimony  as  to  probable  results  of  injury,  see 

admissible    but    should    be    controlling    when  note,  Bender  ed.,  118  X.  Y.  94.     Admissibility 

uncontradi<*led    and    it    is    improper    for   the  of  expert  as  to  possible  results  of  disease  and 

court  to  disregard  the  evidence  entirely  and  injury,  see  note.  Bender  ed.,  115  X   Y.  65. 
look   at   the   abstract   and    reach    a   different  49.  Com.  v.  Lynes,  142  Mass.  577.  8  X.  E. 

result,    especially    where    the    evidence    was  408.  56  Am.  Rep.  709  (1886)    ( frequent  sexual 

given  by  deposition  so  that  the  court  had  no  intercourse)  :  State  v.  Merriman.  34  S.  C.  16, 

reason    for    not    believing    the   witness    from  12  S.  E.  619  (1890)    (whether  body  had  been 

their  appearance.     This  method  of  proof  by  moved). 


§  722 


INFERENCE  FROM  SENSATION. 


Basis  of  Inference. —  The  medical  witness  should  be  guided  entirely  by  his 
professional  training  in  dealing  with  observed  phenomena.5"  He  cannot  prop- 
erly u»e  his  individual  knowledge  for  the  purpose,  except  so  far  as  the  latter 
is  disclosed  by  the  evidence  or  is  within  the  scope  of  his  summarizing  infer- 
ence.51 Unless  something  affirmative  appears  to  the  contrary,  it  will  be  as- 
sumed that  the  witness  is  confining  himself  within  these  obvious  limitations.52 

It  is  essential  that  the  views  of  the  medical  man  be  held  with  a  reasonable 
degree  of  certainty  53  and  he  may  also  state  the  causes  of  the  conditions  he 
finds.54  The  inference  of  the  medical  man  may  be  so  clear  from  a  medical 
standpoint  as  to  be  intuitive.55  He  may  state  any  bodily  conditions  he  finds  5C 
including  death  and  its  probable  cause57  or  diseases  of  human  beings58  or  of 
animals  59  or  the  cause  of  injuries00  or  their  nature.61  His  testimony  should 
not,  however,  intrude  on  the  province  of  the  jury  and  he  may  state  what  could 
or  might  have  caused  the  injury  but  not  what  did  cause  it.62  He  may  make 


50.  Grand  Rapids,  etc.,  R.  Co.  v.  Huntley, 
38    Mich.    537,    31    Am.    Rep.    321     (1878); 
O'Flaherty  v.  Nassau  Electric  R.  Co.,  165  X. 
Y.    624,    59    X.    E.    1128     (1!)00);    Miller    v. 
Dumon,  24   Wash.   648,   64  Pac.  804    (1901) 
(X-ray  negative  taken  by  himself). 

51.  Hitchcock    v.    Burgett,    38    Mich.    501 
(1878). 

52.  Western,    etc,    R.    Co.    v.    Stafford,    99 
Ga.  187,  25  S.  E.  656   (1896). 

53.  Spear  v.  Hiles,  67  Wis.  361,  30  N.  W. 
511    (1886). 

54.  Towaliga   Falls   Power   Co.   v.   Sims,   6 
Ga.  App.  749,  65  S.  E.  844    (1909).     Opinion 
as  to  cause  of  injury,   see  note,   Bender  ed., 
146  X.  Y.  165.     Expert  testimony  as  to  cause 
of  injury,  see  note,  Bender  ed.,  127  N.  Y.  667. 
Opinions  of  physicians  as  to  cause  of  disease, 
see  note,  Bender  ed.,  149  X.  Y.  329. 

55.  Hart?ler   v.    Metropolitan    St.    Ry.    Co., 
140    Mo.    App     665,    126    S.    W.    760    (1910) 
(pneumonia) . 

56.  Johnson   v.   Xorthern   Pac.    R     Co.,   47 
Minn.  430,  50  X.  W.  473  ( 1891 ) . 

57.  Eggler  v    People,  56  X.  Y.  642   (1874). 
A   question  to  an  expert  as  to  the  cause  of 
death  in  a  homicide  case  based  upon  a  given 
hypothesis    or    upon    personal    knowledge    of 
the  conditions  or  both  is  one  that  a  properly 
qualified   witness   may  answer.     The   witness 
is  not  limited  to  stating  what  could  or  might 
have  been  the  cause  of  death   on  the  ground 
that   this  is   an    invasion   of  the  province  of 
the  jury.     State   v.   Buck.   88   Kan.    114.   127 
Pac.   631,  42   L.   R.   A.    (X    S)    854    (1912): 
State  v.  Hessenius,  165  Iowa  415,  146  N.  W. 
58,  L.  R.  A.  1915  A  1078   (1914). 


58.  Reininghaus    v.    Merchants'    L.    Assoc., 
116  Iowa  364,  89  N.  W.  1113   (1902)    (liver 
trouble ) . 

59.  Moore  v.  Haviland,  61  Vt.  58,  17  Atl. 
725    (1888). 

60.  Smith  v.  State   (Ala.  1910),  51  So.  610 
(wounds)  ;  St.  Louis  &  S.  F.  R.  Co.  v.  Savage 
(Ala.    1909),   50    So.    113;    demons   v.   State 
(Fla.   1904),  37   So.  647    (fracture  of  cheek- 
bone by  fist)  :  St.  Louis  Southwestern  Ry.  Co. 
of  Texas   v.   Taylor    (Tex.   Civ.   App.    1909), 
123  S.  W.  714.     The  general  rule  is  that  ex- 
pert evidence  is  not  admissible  for  the  pur- 
pose of  proving  that  a  wound  was  or  was  not 
self-indicted.     But  where  a   wound   is  of  an 
extraordinary  nature  and  is  upon  a  portion 
of  the  body  of  which  men  have  little  or  no 
knowledge,  then  expert  evidence  is  admissible 
for   that  purpose.     Miller   v.    State,   9   Okla. 
Crim.   Rep.  255,  131  Pac.  717,  L.   R.  A.   1915 
A  1088   (1913).     There  is  a  sharp  distinction 
between  a  question  calling  for  an  opinion  by 
an  expert  as  to  what  might  or  might  not  have 
caused  an  injury  and  one  calling  for  an  opin- 
ion  as   to   what   in   fact   did    cause    it.     The 
latter  question  cannot  be  answered,  as  this  is 
the   question    which    the   jury    are   to    settle. 
Sever    v.    Minneapolis   &    St.    L     R.    Co..    156 
Iowa  664.  137  X.  W.  937,  44  L.  R.  A.   (X.  S.) 
1200    (1912) 

61.  A  dentist  may  state  from  the  condition 
of  teeth   observed   by  him   whether  the  blow 
which  caused  it  was  a  heavy  one.     Gierc/ak 
v.  Xorthwestern  Fuel  Co.,  142  Wis.  207,  125 
X    W.  436   H910K 

62.  Riser  v.  Southern  R.  Co.,  67  S.  C.  419, 
46  S.  E.  47   (1903). 


567 


MEDICAL  INFERENCES. 


§  723 


mechanical  estimates63  as  in  case  of  injury  as  to  the  force,64  direction65  and 
nature  of  a  blow  t!<i  and  location  of  parties  (i '  or  the  instrument  used.tis 

He  may  state  the  mental  condition  of  the  person  69  as  in  cases  where  insan- 
ity is  claimed.70  The  attending  physician  is  always  permitted  although  not 
an  expert 71  to  testify  as  to  insanity  or  other  medical  conditions  of  .the  patient, 
but  the  medical  witness  cannot  invade  the  province  of  the  jury  by  giving  his 
opinion  as  to  whether  the  patient  was  or  was  not  of  sufficient  mental  capacity 
to  perform  the  act  in  question.'2 

So  an  alienist  may  examine  the  person  and  from  his  observation  give  his 
opinion  as  to  the  sanity  '3  and  even  a  trained  nurse  may  give  her  inference 
based  on  her  observation.74  The  inferences  of  the  medical  witness  may  be  of 
a  non-technical  character  75  and  cover  a  wide  range 7C  arid  may  include  the 
prognosis  or  the  future  chances  of  the  patient 77  and  the  probable  permanence 
of  the  disease.™  So  competent  surgeons  may  give  their  opinions  as  to  the 
proper  method  of  treating  surgical  cases.70 

§  723.  [Medical  Inferences] ;  Qualifications  of  Witnesses.80 —  In  general,  the 


63.  Fort  v    State,  52  Ark.    180,   11   S.  W. 
959,  20   Am    St.   Rep.    163    (1889);    Com.   v 
Spiropoulos,    208    Mass.    71,    94    N.    E.    451 
(11)11)    (wound  self-inflicted) . 

64.  Com.  v.   Piper,   120  Mass.   185    (1876); 
People  v    Rogers,  13  Abb.  Pr.  X.  S.    (X.  Y.) 
370    ( 1901 )  ;    People   v.    Schmidt,    168   X.   Y. 
568.  61  X.  E.  907    (1901). 

65.  Rash  v.  State,  61  Ala    89   (1878)  ;  Fort 
v.  State,  52  Ark.  180,  11  S.  W.  959,  20  Am. 
St.   Rep.   163    (1880);   People  v.  Phelan,  123 
Cal.  551,  56  Pac.  424  (1899). 

66.  Fort  v.  State,  52   Ark.    180,   11   S.  W. 
959,  20  Am.  St.  Rep.   163    (1889)  ;  People  v. 
Fish,  125  X.  Y.  136,  26  X    E.  319   (1891). 

67.  State  v.  Buralli    (Xev.   1903),  71  Pac. 
532. 

68.  Abortion. —  Medical  experts  can  tell  the 
kind  of  instrument   with  which  an  abortion 
was   committed.     Commonwealth   v.    Sinclair 

.  (Mass.  1907).  80  X.  E.  799. 

69.  Chicago   Union    Traction    Co     v.    Scan- 
Ion.  136  111.  App.  212    (1007)    (injured  child 
developed  mentally  according  to  her  years)  : 
Toledo,  etc  ,  R.  Co    v.  Baddeley.  54  111    19.  5 
Am.    Rep.   71    (1870^     (impaired):    Burns   v. 
Brier.   204   Mas?     105.   90   X    E.    309    (1910) 
(  fears  of  hydrophobia  1 . 

70.  A  physician  need  not  be  an  alienist,  in 
the  sense  that  he  is  a  specialist  in  that  line, 
to  qualify  him  to  testify  as  to  mental   con- 
ditions     United  Rys  &-  Electric  Co.  v.  Corbin, 
109  Md.  442.  72  Atl.  606  (1909). 

71.  Hastings  v.  Rider,  99  Mass.  622  (1868)  ; 


Clark  v.  State,  12  Ohio  483,  40  Am.  Dec.  481 
(1843). 

72.  An    expert    witness    cannot    be    asked 
whether  a  person  is  capable  of  making  a  deed 
as   this   involves   not  only   an   opinion   as   to 
mental  capacity  but  also  as  to  what  kind  and 
degree  of  mental  capacity  is  necessary  to  make 
an  instrument  valid  and  binding  and  this  is 
a  question  of  law  and  not  of  fact.     Coblent/ 
v.  Putifer,  87  Kan.  719,  125  Pac.  30.  42  L.  R. 
A.   (X.  S.)  298   (1912). 

73.  Fairchild     v.     Bascomb,     35     Vt      398 
(1862). 

74.  Illinois  Steel  Co.  v.  Delac,  103  111    App. 
98    [affirmed  in  201   111.    150,  60  X    E.  245] 
(1903)  ;   Van  Deusen  v.  Xewcomer.  40  Mich 
90   (1879). 

75.  That  certain  witnesses  were  physicians 
did  not  disqualify  them  to  testify  that  plain- 
tiff walked  with  a  limp,  that  she  dragged  her 
right  foot,  and  that  the  toe  of  her  right  shoe 
was  worn,  matters  which  could  have  been  tes- 
tified to   by  lay  witnesses.     Schmidt   v.   Chi- 
cago City  Ry   Co..  239  111.  494.  88  N.  E.  275 
(1909). 

76.  White  v    Clements.  39  Ga.  232   (1869). 

77.  People    v.    Johnson,    70    111.    App.    634 
(1896). 

78.  Palmer  v.  Warren  St    R    Co.  206  Pa. 
St.  574.  56  Atl.  49,  63  L.  R    A.  507    (1903). 

79.  State  v.   McCoy,   15  Utah   136.  49  Pac. 
420    (1897) 

80.  3  Chamberlayne,  Evidence,  §  2018. 


§§  724,  725  INFEKENCE  FROM  SENSATION.  568 

qualifications  required  by  judicial  administration  in  a  skilled  medical  observer 
are  the  same  as -those  upon  which  it  insists  in  case  of  other  specially  trained 
witnesses  when  speaking  from  observation.81  These  are  two.  The  witness 
must  be  shown  to  have  enjoyed  suitable  opportunities  for  observation  of  the 
phenomena  or  appearances  concerning  which  he  purposes  to  speak.82  But  this, 
standing  alone,  is  by  no  means  sufficient.83  In  the  second  place,  he  must  be 
proved  or  be  fairly  assumed  to  have  had  sufficient  training  by  instruction, 
reading  or  experience  to  have  developed  the  mental  power  necessary  to  enable 
him  to  coordinate  what  lie  has  perceived  into  an  inference  helpful  to  the  jury. 
It  need  not  be  shown  that  the  witness  stands  at  the  head  of  his  branch  of  science 
or  department  of  technical  experience.84 

§  724.  [Medical  Inferences] ;  Detail  of  Constituting  Facts.85 —  As  in  other 
cases  where  the  offer  is  to  summarize,  in  part  at  least,  the  results  of  observation, 
judicial  administration  will  require  that  the  medical  observer  state,  with  such 
completeness  as  he  can,  the  constituting  facts  upon  which  he  grounds  his  infer- 
ence.86 

These  facts  may  be  gleaned  from  the  statements  of  the  patient  himself  so 
far  as  the  symptoms  are  internal  or  not  open  to  perception  87  but  the  state- 
ments of  others  cannot  be  used  by  the  skilled  witness  as  a  basis  for  his  opinion.88 
Where  the  witness  shows  that  he  does  not  know  the  necessary  facts  his  opinion 
will  not  be  received.89 

§  725.  [Medical  Inferences] ;  Who  is  Qualified;  Proof.9" —  As  a  matter  of  prac- 
tice, any  regularly  qualified  and  acting  member  of  the  medical  profession  will  be 
received  as  a  witness,91  whether  practising  in  the  country  or  in  the  city,92 
except  in  some  special  branch  of  the  field  of  medicine  as  insanity.93  It  will 
be  assumed  that  physicians  are  qualified  without  special  proof,94  and  the  ex- 
perience of  the  witness  may  be  of  a  practical  character  as  in  case  of  nurses.95 

81.  Clemmons  v.  State   (Ala.  1910),  52  So.  409,  46  Am.  St.  Rep.  28   (1893)  ;  Manhattan 
467   (coagulation  of  blood)  ;  In  re  Vanauken,  L.  Ins.  Co.  v.  Beard,   112  Ky.  455,  66  S.  W. 
10  N.  J.  Eq.  186   (1854).  35,  23  Ky.  L.  Rep.  1747   (1902). 

82.  Barnes    v.    Chicago   City   Ry.    Co.,    147  90.  3    Chamberlayne,    Evidence,    §§    2023- 
111.  App.  601    (1909).  2029. 

83.  Dashiell  v.  Griffith,  84  Md.  363,  35  Atl.  91.  Stone  v.  Moore,  83  Iowa  186,  49  N.  W. 
1904   (1896).  76   (1891)    (female  physician) . 

84.  State    v.    Lyons,    113    La.    959,    37    So.  92.  Bunel   v.   O'Day,   125   Fed.   303    (1903) 
890  (1904)    (disease  of  the  optic  nerve).  (impotency). 

85.  3    Chamberlayne,    Evidence,    §§    2019-  93.  Cox  v.  State  (Tex.  Cr.  App.  1910),  132 
2022.  S.  W.  125. 

86.  Johnson  v.  Steam  Gauge,  etc.,  Co..  146  94.  State  v.   Kammell    (S.   D.    1000),    122 
N.  Y.  152,  40  X.  E.  773   (1895).  X.  W.  420;  Smits  v.  State,  145  Wis.  601,  130 

87.  Louisville,   etc.,   "R.   Co.   v.   Sandlin,   25  N.  W.  525    (1911). 

Ala.  585,  28  So.  40   (1900).  95.  Dashiell   v.    Griffiths,    84    Md.    363,    35 

88.  Heald    v.    Thing,   45   Me.    392    (1858);  Atl.    1094    (1806):    Com.   v.    Gibbons,    3   Pa. 
Foster   v.   New   York   Fidelity,   etc.,   Co.,    99  Super.   Ct.   408,  39  Wkly    Notes  Cas.    (Pa.) 
Wis.  447,  75  N.  W.  69,  40  L.  R  A.  833  (1898).  565  (1897)    (discoloration  of  a  limb). 

89.  Prince  v.   State,   100  Ala,   144,   14  So. 


569  MEDICAL  INFERENCES.  §§  726,  7^7 

The  qualifications  may  be  based  on  reading  and  study  96  or  on  special  training  97 
and  even  an  unlicensed  doctor  may  be  allowed  to  give  his  opinion.98 

§  726.  [Medical  Inferences] ;  Probative  Weight." —  Many  considerations  may, 
as  is  natural,  affect  the  weight  in  evidence  properly  to  be  attached  to  the  in- 
ference of  a  medical  observer.  Thus,  the  fact  that  ah  examination  was  not 
recently  made  diminishes,  so  far  as  its  influence  extends,  the  probative  force 
which  would  otherwise  attach  to  the  inference  of  a  medical  observer  drawn 
from  it.1  In  like  manner,  that  the  view  of  the  medical  witness  rests,  in  large 
part,  upon  the  truth  of  the  statements  made  to  him  by  the  patient  or  by  others 
is  regarded  as  impairing,  to  a  certain  extent,  merely  the  weight  of  his  testimony.2 
The  general  features  upon  which  the  credibility  of  witnesses  is  based  are  the 
same  in  this  as  in  other  connections.  The  results  arrived  at  bv  an  examination 

• 

which  is  searching  and  thorough  are,  naturally,  more  reliable  than  those  reached 
by  a  casual  or  cursory  inspection.3  The  bias  of  a  medical  witness  toward  the 
side  for  which  he  testifies  may  be  established  in  any  logical  way,  e.g.,  that  the 
witness  is  interested  to  support  his  present  contention  in  other  connections.4 

Province  of  the  Jury. —  The  question  as  to  the  weight  properly  to  be  ac- 
corded to  the  medical  inference  of  a  qualified  physician  is  one  for  the  jury.5 

§  727.  [Medical  Inferences] ;  Results  of  Autopsy .^ —  A  professionally  trained 
medical  witness  who  has  made  an  autopsy  or  has  attended  at  the  making  of  one, 
may  state  his  inference  or  conclusion  as  to  what  it  indicated.7 

Ordinary  Observers. —  Where  one  not  qualified  as  a  skilled  witne>-  is  present 
at  an  autopsy  he  may  state  the  result  of  his  personal  observation.8 

96.  Hardiman  v.  Brown,  162  Mass.  585,  39       observation  of  the  witness  have  been  made  at 
X.  E.  192  (1895)    (tumors).  a  time  too  remote  to  be  relevant  it  will  of 

97.  Where  the  presiding  judge  feels  that  the      necessity  be  rejected. 

medical  inference  to  be  drawn  is  one  which  2.  Mitchell  v.  State,  58  Ala.  417   (1877). 

can  most  satisfactorily  be  reached  by  a  spe-  Cross-examination. —  The     fact     may     be 

cialist.  and  that  it  is  fairly  within  the  power  ascertained   upon  cross-examination.     Lay   v. 

of  the  proponent  to  produce  such  a  witness.  Adrian.  75  Mich.  438,  42  X.  \V.  959    (1889). 

the  evidence  of  an  ordinary  physician  may  be  In  other  cases,  the  inference  so  affected  has 

rejected.     Emerson   Gaslight   Co..   6    All.    146  been    entirely    rejected.     Moore   v.    State,    17 

i  18631    (effect  of  gas  on  the  human  system).  Ohio  St.  521    (1867). 

The  skilled  observer  need  not.  however,  be  a  3.  Johnson  v.  Great  Xorthern  Ry.  Co.,  107 

specialist.     Castner  v    Sliker.  33  X.  J.  L.  05  Minn.  285,  119  X.  W.  1061    (1909). 

'1>!69):   O'Xeil  v.  Dry  Dock,  etc..  R.  Co.,  59  4.  Witty  v.   Springfield  Traction   Co.    (Mo. 

X.    Y.    Super.    Ct.    123,    15    X.    Y.    Suppl.    84  App.  1911),  134  S.  W.  82. 

<1891)    (deafness).  5.  Levering  v.  Com.   (Ky.  1909),  117  S.  W. 

98.  Smits  v.  State.  145  Wis.  601.  130  X   W  253. 

525     (191  n.     See    also    Golder    v.    Lund,    50  6.  3  Chamberlayne.  Evidence.  §  2031. 

Xehr    867.   70  X    W.  379    (1897):   People  v.  7.  People   v.    Schmidt,    168   X.   Y.   568,   61 

Rice.  159  X.  Y.  400.  54  X.  E.  48   (1899).  X.  E.  907.  14  X.  Y.  Cr.  188    (1901). 

99.  3  Chamberlayne.  Evidence.  §  2030.  8.  State  v.  Lyons.  113  La.  959,  37  So.  890 
1.  Reininghaus  v  Merchants'  L.  Assoc..  116  (1904)  ;  Carson  v.  State,  57  Tex.  Cr.  R.  394, 

Iowa  364,  89  X.  W.  1113  (1902).     Should  the       123  S.  W.  590  (1909). 


§§  728-731  INFERENCE  FROM  SENSATION.  570 

§  728.  Military  Affairs.9 —  War  is  scientific.  Members  of  the  army  or 
navy  will  be  permitted  to  state  the  relevant  technical  inferences  which  may 
arise  from  their  observation.  As  a  matter  of  special  knowledge,  military  men 
of  sufficient  experience  or  training  may  be  heard  to  declare  the  written  regula- 
tions lo  and  unwritten  practice  relating  to  their  branch  of  the  service. 

§  729.  Mining  Matters. 1 1 —  In  sections  of  the  country  where  mining  is  a 
prominent  industry,  the  skill  of  a  trained  observer  in  this  branch  of  art  is 
frequently  utilized  by  courts  of  justice.  Any  witness  sufficiently  equipped  by 
scientific  training  or  practical  experience  to  make  his  reasoning  helpful  to  the 
jury  may  state  a  technical  inference  from  what  he  has  observed.12  Unless  a 
scientific  or  practical  skill  commensurate  with  the  quality  of  the  inference  is 
shown  by  the  witness,  his  testimony  will  be  rejected  as  irrelevant.13 

The  testimony  may  relate  to  the  construction  and  lay-out,14  or  equipment,15 
operation,16  and  dangers  from  soil-caving 17  in  mines.  The  expert  should 
state  such  of  the  constituting  phenomena  as  he  reasonably  can.18 

§  730.  Photographic  Art.19 —  An  observer  skilled  in  photography  may  state 
his  inferences  from  appearances  which  he  has  observed.  He  may  be  a  com- 
petent judge  as  to  the  quality  of  work,  e.g.,  whether  a  particular  photograph 
has  been  well  taken.20  It  has  been  very  rationally  required  that  for  one 
skilled  in  photography  to  testify  that  a  photographic  likeness  is  a  good  one,  his 
observation  must  have  covered  not  only  the  photograph,  but  also  the  sitter  as 
well.21  On  the  other  hand,  one  entirely  unacquainted  with  the  technical 
merits  of  a  photograph  as  a  piece  of  professional  work,  may  state  whom,  if 
any  one,  it  resembles.22 

§  731.  Railroad  Matters;  Qualifications.23 — As  a  source  of  litigation,  rail- 
roads have  few  compeers.  Abundant  opportunity  is  therefore  furnished  for 
receiving,  under  proper  administrative  conditions  of  necessity  and  relevancy, 
the  inferences  of  observers  trained  in  the  various  branches  of  the  art  of  rail- 

9.  3  Chamberlayne,  Evidence,  §  203la.  151   Pa.  St.  431,  25  Atl.  101    (1892)    (coal). 

10.  Bradley   v.   Arthur,   4   B.   &   C.   292,   6  15.  Harvey   v.   Susquehanna   Coal   Co.,   201 
D.  &  R.  413,  10  E.  C.  L.  585  (1825).                         Pa.  St.  63,  50  Atl.  770,  80  Am.  St.  Rep.  800 

11.  3    Chamberlayne,    Evidence,    §§    2032,       (1902). 

2033.  16.  Clark   v.   Willett,   35    Cal.   534    (1868) 

\2.  Ferrari   v.   Beaver   Hill   Coal   Co.    (Or.  (tunneling). 

1909),  102  Pac.  1016   (signal  out  of  repair)  ;  17.  Sloss-Sheffield     Steel     &     Iron     Co.     v. 

Anderson  v.  U.  S.,  152  Fed    87,  81    C.  C.  A.  Green   (Ala.  1909).  49  So.  301. 

311    (1907)     (value  of  land  for  mining  pur-  18.  Wells  v.  Leek,  151  Pa.  St.  431,  25  Atl. 

poses).  101    (1892). 

13.  Bennett  v.  Morris   (Cal.  1894),  37  Pac.  19.  3  Chamberlayne,  Evidence,  §  2034. 
929;    Garfield   M.    &   M.    Co.    v.    Hammer,    6  20.  Barnes  v.  Ingalls.  39  Ala    193    (1863K 
Mont.  53,  8  Pac.  153  (1885).     See  also  Harris  21.  Schwartz  v.  Wood,  21  N  Y.  Suppl.  1053 
v.  Consolidation  Coal  Co.,  Ill  Md.  209,  73  Atl.    '  (1893) . 

805   (1909).  22.  Russell  v.  State  (Ala.  1905).  38  So.  291. 

14.  Hickey   v.    Anaconda   Copper   Min.   Co.  23.  3    Chamberlayrie,    Evidence,    §§    2035- 
(Mont.    1905),   81   Pac.   806;    Wells  v.   Leek,       2040. 


571  RAILROAD  MATTERS.  §  732 

roading.  As  a  general  rule,  wherever  the  observed  phenomena  are  too  nu- 
merous and  intangible  effectively  to  be  placed  before  the  jury,  the  skilled  rail- 
road witness  is  received.  Should  it  happen  that  the  inference  is  a  technical 
one,  requiring  for  its  formation  and  expression  the  use  of  special  faculties 
which  the  jury  cannot  be  assumed  to  possess,  the  same  result  follows. 

To  Admit  the  Witness,  the  judge  must  be  satisfied  that  his  qualifications  are 
commensurate  with  the  conclusion  which  he  purposes  to  draw.24 

Preliminary  Detail  of  Constituting  Facts. —  The  witness  will  be  required,  as 
a  matter  of  practice,  to  state  the  detail  of  constituting  facts,  so  far  as  he 
reasonably  can,  upon  which  he  bases  his  act  of  reasoning.25 

Special  Training. —  While  the  qualifications  of  the  skilled  observer  as  to 
railroad  matters  are  usually  gained  through  employment  in  the  railroad  busi- 
ness, it  is  not  necessary  that  this  should  be  the  fact.  One  who  like  an  experi- 
enced traveler,20  has  been  brought  into  close  connection  with  railroads  in  some 
other  capacity  may  be  regarded  by  the  presiding  judge  as  competent  to  draw 
certain  inferences. 

Protecting  the  jury. —  Upon  familiar  administrative  principles,  the  infer- 
ence of  the  witness  must  be  connected  with  his  observation  and  no. unnecessary 
intrusion  upon  the  reasoning  of  the  jury  will  be  permitted.  It  naturally  re- 
sults that  general  expressions  as,  in  case  of  an  engineer,  that  he  "  could  not 
have  done  more ''  2T  to  avert  an  accident  will  not  be  received. 

The  evidence  may  cover  the  construction,28  equipment,29  operation 30  and 
methods  of  transportation  of  goods  31  or  animals  32  provided  it  is  given  by  a 
trained  man.33 

§  732.  Street  Railways.34 —  The  technical  learning  of  the  trolley  or  street 
railway  is  second  in  importance,  if  inferior  at  all,  only  to  that  of  the  railroad.35 

24.  Dillburn  v.  Louisville  &  N.  R.  Co.  ( Ala.  smoke  to  rise  from  the  locomotive  is  a  proper 
1908),  47  So.  210;   Dietrichs  v.  Lincoln,  etc.,  subject    for    skilled    inference.     Harrison    v. 
R.  Co.,   13  Xebr.  361,   13  X.  W.  624    (1882).  Xew  York  Cent.  &  H.  R.  R.  Co.,   195  N.  Y. 
See  also  Horton  v.  Louisville  &  N.  R.  Co.  (Ala.  86,  87  N.  E.  802   (1909). 

1909),  49  So.  423    (engineer);    Pennsylvania  31.  Shriver  v.  Sioux  City,  etc.,  R.  Co.,  24 

Co.  v.  Whitney,  169  Fed.  572,  95  C.  C.  A.  70  Minn.    506,    31    Am.    Rep.    353     (1878);    Ft. 

(1909)    (brakeman).  Worth,  etc.,  R.  Co.  v.  Harlan   (Tex.  Civ.  App. 

25.  San  Antonio,  etc.,  R.  Co.  v.  Waller.  27  1901),   62   S.   W.   971    (properly  packed   and 
Tex.  Civ.  App.  44.  65  S.  W.  210   (1901).  iced  with  a  given  quantity  of  ice). 

26.  Central  of  Georgia  Co.  v.  Storrs    (Ala.  32.  Lindsley    v.    Chicago,    etc.,    R.    Co.,   36 
1910),  53  So.  746.  Minn    539,  33  X.  W.   7,   1   Am.  St.  Rep.  692 

27.  Macon,  D.  &  S.  R.  Co.  v.  Stewart.  125  (1887)    (suffering  from  heat). 

Ga.  88,  54  S.  E.  197   (1906).  33.  Hoyt  v.  Long  Island  R.  Co.,  57  X.  Y. 

28.  Cross   v.   Lake   Shore,   etc.,   R.   Co..   69  678   (1874)  ;  Missouri  Pac.  R.  Co.  v.  Jurrard, 
Mich.  363,  37  X.  W.  361,  13  Am.  St.  Rep.  399  65  Tex.  560    (1886)    (safety  of  track).     Pro- 
(1888)    (dangerous).  priety  of  export  testimony  on  railroad  oper- 

29.  Birmingham  R.,  etc.,  Co.  v.  Baylor,  101  ations.  see  note,  Bender  ed.,  164  X.  Y.  436. 
Ala.  488,  13  So.  793  (1893)    (switch  secured)  ;  34.  3  Chamberlayne.  Evidence,  §  2041. 
Baltimore,  etc..  R.  Co.  v.  Elliott,  9  App.  Cas.  35.  Sanding  track. —  As   a   matter  of  rea- 
(D.  C.)   341   (1896)    (coupling).  soning.  suitably  qualified  motormen  may  state 

30.  That    shutting    off    steam    causes    the  as  to  how  far  the  providing  of  appliances  by 


§  733  INFEKENCE  FBOM  SENSATION.  572 

In  much  the  same  way  as  the  latter,  and  presenting  many  instructing  analogies 
to  it,  the  construction,  equipment  and  operation  of  transportation  lines  for 
carrying  passengers,  express  or  freight,  employing  electricity  as  a  motive 
power,36  present  numerous  opportunities  for  utilizing  the  reasoning  of  skilled 
observers. 

§  733.  Telegraphing.37 —  The  use  of  electricity  for  the  conveyance  of  intel- 
ligence is  an  art  in  which  a  high  degree  of  skill  may  be  acquired.  Facts  of 
special  knowledge  3S  and  inferences  relating  to  technical  matters  can  be  stated 
only  by  the  trained  observer. 

The  ordinary  construction  39  and  equipment  of  telegraph  lines  may,  in  their 
usual  incidents,  be  established  in  the  same  way. 

which  sand  may  be  placed  on  slippery  rails  of  the  new  agency.     Nolan  v.  Newton  St.  Ky. 

is  essential  to  the  safety  of  employees  and  Co.,  206  Mass.  384,  92  N.  E    505   (1910). 

passengers.     Mayer  v.  Detroit,  Y  ,  A.  A.  &  J.  37.  3  Chamberlayne,  Evidence,  §  2041a. 

R.  Co.,  152  Mich.  276,  116  N.  W   429,  15  De-  38.  Postal  Telegraph -Cable  Co.  of  Texas  v. 

troit  Leg".  N.  231   (1908).  S.  A.  Pace  Grocery  Co.  (Tex.  Civ.  App.  1910), 

36.  Electricity  as  a  motive  power. —  Use  of  126  S.  W.  1172. 

electricity  as  a  motive  power  in  street  cars  39.  Barrett   v.    New  England  Telephone  & 

has  had  a  marked  effect  in  bringing  the  man  Telegraph  Co.,  201  Mass.  117,  87  N.  E.  565 
of  science  to  the  aid  of  the  courts  in  the  nu-  .     (1909)    (setting  poles), 
merous  cases  resulting  from  the  employment 


CHAPTER  XXIX. 

ESTIMATES. 

Estimates,  734. 

Administrative  requirements,  735. 
Age,  736. 

Capabilities;  animate  objects,  737. 
mechanical,  738. 

causation,  739. 
Dimensions,  speed,  weight,  etc.,  740. 

§  734.  Estimates —  The  inferences  of  witnesses,  ordinary  or  skilled,  are  with 
great  frequency  received  in  the  form  of  an  estimate.1  Indeed  it  may  fairly 
be  said  that  such  estimating  is  a  constant  and  necessary  incident  of  daily  life. 
Where  the  results  are  intuitive,  as  they  commonly  are,  the  statement  is  one  of 
fact.  Exactness  is  confessedly  only  approximate,  the  process  of  estimating 
being  like  many  acts  of  judgment,  the  application  of  a  standard,  of  distance, 
quality,  quantity,  value  or  the  like,  to  certain  observed  phenomena. 

§  735.  Administrative  Requirements. — Estimates,  like  other  forms  of  reason- 
ing by  witnesses,  present  a  grade  of  secondary  evidence.  An  adequate  forensic 
necessity  for  receiving  it  must  accordingly  be  shown.  Judicial  administration 
does  not  accept  secondary  proof  while  the  primary  can  reasonably  be  required. 
Shoulcl  exact  measurements  of  the  phenomena  by  the  application  of  any 
standard  have  been  made  arid  be  available,  estimates,  except  occasionally  by 
way  of  corroboration,  will  be  rejected.2  In  many  cases,  however,  necessity  is 
shown  for  the  reception  of  the  secondary  evidence.3 

1.  "  It  came  within  that  class  of  cases  these  and  an  infinite  variety  of  other  cases, 
Avhere  evidence  is  received  from  necessity,  the  conclusion  is  drawn  from  evidence  ad- 
arising  from  the  impossibility  of  stating  dressed  to  the  eye  or  ear,  or  both,  and  which, 
those  minute  characteristics  of  appearance,  from  its  very  nature,  cannot  be  described  to 
sound,  and  the  like,  which,  nevertheless,  may  another.  If  it  could  be,  so  as  to  enable  a 
lead  the  mind  to  a  satisfactory  conclusion,  jury  to  decide,  then  the  necessity  of  receiving 
and  be  reasonably  reliable  in  judicial  hives-  the  opinion,  if  it  may  be  so  called,  would  not 
tigations  Among  instances  of  this  class,  exist,  and  the  opinion  should  not  be  received." 
forming  an  exception  to  the  general  rule,  is  State  v.  Sh inborn,  46  X.  H.  497,  501,  88  Am. 
the  proof  of  identity  in  a  great  variety  of  Dec.  224  (1866). 

cases;   such  as  the  identity  of  person,  hand-  2.  Piothchild   v.   New   Jersey  Cent.   R.   Co., 

writing,  animals,  and  inanimate  objects:  and  163  Pa.  St.  49,  29  Atl.  702   (1894).     See  also 

eo  where  the  identity  is  detected  by  the  ear,  Blauvelt  v.  Delaware,  etc.,  R.  Co.,  206  Pa.  St. 

or   by   the   sound   of   the   human   voice,   of   a  141.  5.">   Atl.  857   (1903). 

musical  instrument,  the  discharge  of  a  pistol,  3.   Pennsylvania  Co.  v.  Conlan,  101  111.  93, 

and  the  like.     Tn  the  same  class  are  opinions  101    (1881). 
as  to  distances,   size,  weight,   and  age.    In 

573 


736,737 


ESTIMATES. 


574 


Administration  further  requires,  not  only  that  a  suitable  necessity  for  re- 
ceiving the  estimate  should  be  shown,  but  also  that  the  latter  should  be  so 
probatively  relevant  as  to  be  rationally  helpful  to  the  jury.  That  this  should 
be  so,  it  is  insisted,  as  in  other  connections  where  judicial  use  is  made  of  the 
results  of  observation,  that  the  witness  should  have  had  both  adequate  oppor- 
tunities for  observing4  and  sufficient  mental  powers  for  coordinating  what  he 
has  seen  into  an  act  of  helpful  reasoning.  It  is  to  be  understood,  moreover, 
that  the  fact  to  be  established  by  the  act  of  reasoning  is  objectively  relevant.5 

§  736.  Age —  From  appearances  presented  to  his  observation,  a  qualified 
witness  "  may  estimate  the  age  of  a  given  individual.  The  status  of  the  person 
is  immaterial.  The  estimate  may  apply  equally  well  to  adults,7  minors  8  and 
even  to  children,9  animals  10  or  inanimate  objects,11  but  if  the  person  or  object 
is  in  court  the  jury  will  be  permitted  to  judge  for  themselves  without  any 
estimates  from  witnesses.12 


§  737.  Capabilities ;  Animate  Objects. —  The  inference  that  one  with  ordin- 
nary  powers  could  have  heard  a  given  sound  13  may  be  estimated  by  a  witness 
who  has  had  sufficient  opportunity  for  observing  the  attending  phenomena. 
Whether  a  person  actually  did  hear  a  given  conversation  or  individual  sound 


4.  Lake  Erie,  etc.,  R.  Co.  v.  Juday,  19  Ind. 
App.    436,    49    X.    E.    843     (1898)      (control 
horse)  ;    Pridmore   v.    State    (Tex.    Cr.    App. 
1898),  44  S.  VV.  177. 

5.  Chicago,  etc  ,  R.  Co.  v.  O'Sullivan,   143 
111    48,  32  N.  E.  398   (1892). 

6.  People   v.   Bond    (Cal.   App.    1910),    109 
Pat-    150.     Knowledge  of  the  color  of  the  hair 
of  a  person  in  question  and  of  his  strength 
and  activity  is  not  a  sufficient  qualification. 
Hartshorn  v.  Metropolitan  L.  Ins.  Co.,  55  N. 
Y   App.  Div.  471,  07  X.  Y.  Suppl.  13   (1900). 
These  preliminary  details  of  observation,  the 
witness    may    reasonably    be    called    upon    to 
state.     People   v.   Davidson,   240    111.    Ifll,   88 
X.  E.  565   i  I'.lOO). 

7.  State  v.  Orubb.  55  Kan.  (578.  41  Pac.  951 
(1805);     Com.     v.    O'Brien,     134    Mass      198 
(1883).     Most    courts    have    admitted    non- 
expert opinion  as  to  age  but  it  has  recently 
been  excluded  in  Xew  Jersey.     State  v.  Koett- 
gen,  8!)  X.  J.  I..  078,  90  Atl.  400.  , 

8.  State  v.  Bernstein.  99  Iowa  5,  68  X.  W. 
442  (1896). 

9.  People    v.    Johnson,    70    111.    App.    634 
(1896);    McFadden   v.    Benson,   Wils.    (Tnd  ) 
527    (1874):   Stewart  v.  Anderson,  111   Iowa 
329,  82  X.  W.  770  (1900). 


10.  Clague     v.     Hodgson,     16     Minn.     329 

(1871). 

11.  Bufford  v.   Little    (Ala.    1909),  48  So. 
697    (stumps  old  or  recently  cut)  ;   Standefer 
v.    Aultman    Machinery   Co     (Tex.   Civ.    App. 
1904),  78  S.  W.  552    (thresher  old  and  worn 
out) . 

12.  State  v   Megorden   (Ore.  1907),  88  Pac. 
306    (wound)  ;    State   v.    Robinson,    32   Oreg. 
43,   48    Pac.   357    (1897).     See  also   Ham   v. 
State  (Ala.  1908),  47  So.  126. 

Where  there  is  a  conflict  in  the  evidence 
as  to  the  age  of  the  witness  the  jury  have  a 
right  to  consider  his  size,  appearance,  etc.,  in 
connection  with  the  other  evidence,  but  the 
better  rule  is  to  have  such  description  sup- 
plied by  evidence  which  can  be  preserved  in 
the  record  But  where  no  evidence  has  been 
offered  on  the  subject  and  where  the  atten- 
tion of  the  jury  has  not  been  called  to  the 
appearance  of  the  witness  for  that  purpose  it 
is  error  to  accept  the  finding  of  the  jury  on 
the  question  Quinn  v.  People,  51  Col.  350. 
117  Pac.  996.  40  L.  R.  A.  (X.  S.)  470  (1911). 

13.  Chicago,  etc..  R.  Co.  v.  Dillon.  123  Til 
570.  15  X.  E.  181,  5  Am.  St.  Rep.  559   (1888) 
[affirming  24  111.  App.  203   (1887)];  Crane  v. 
Michigan    Cent.    R.    Co..    107    Mich.    511,    65 
X.  W   527   (1885). 


575  MECHANICAL.  §§  738,739 

may  properly  be  rejected  as  being  an  inference  involving  too  large  a  porportion 
of  the  element  of  reasoning  to  be  warranted  by  any  administrative  necessity 
shown  to  exist.14  A  suitably  qualified  witness  may  be  allowed  to  state,  under 
proper  conditions  of  necessity  and  relevancy,  his  inference  by  way  of  estimate 
as  to  whether  a  certain  person  could,  in  a  particular  situation,  have  observed 
a  certain  occurrance.15  80  an  opinion  will  be  received  as  to  whether  a  given 
individual  could  have  smelt  a  particular  odor.10 

§  738.  [ Capabilities  1 ;  Mechanical. —  In  passing  from  animate  to  inanimate 
objects,  the  same  administrative  rule  is  found  continuing  to  apply.  The  possi- 
bility that  a  given  object  could  have  produced  a  particular  result,  e.g.,  a  razor 
make  a  special  wound,17  may  be  proved  by  the  estimate  of  an  observer. 
Whether  a  machine,18  mechanical  device  19  or  a  coordinated  unit  of  many  parts, 
such  as  a  manufacturing  establishment,20  is  capable  of  turning  out  a  stated 
amount  of  work,  may  properly  be  estimated  in  the  same  way. 

§  739.  [Capabilities];  Causation — Whoso  understands  causation,  compre- 
hends the  universe.  For  practical  purposes,  the  number  of  instances  in  which 
an  estimate  may  properly  be  made  as  to  the  existence  of  a  relation  of  cause  and 
effect  are  innumerable.  In  fact  it  is  in  connection  with  the  category  of  causa- 
tion alone  that  the  uniformity  of  nature  or  of  conduct  upon  which,  as  the  ulti- 
mate basis  of  all  sound  induction,  evidence  is  based,  becomes  practically  avail- 
able for  the  discovery  of  truth. 

So  estimates  may  be  received  as  to  the  cause  of  natural  occurrences,21  the 
effect  of  the  application  of  force.22  the  cause  of  sickness  23  or  injury  24  to  human 
beings  or  the  actions  of  animals.25  The  same  rule  permits  the  observer  to 
state  the  effect  of  certain  phenomena  26  and  the  witness  need  not  confine  his 

14.  Dyer  v.  Dyer,  87  Ind.  13   (1882)  ing):   Burns  v.  Welch,  8  Yerg.    (Tenn.),  117 

15.  Case  v.  Perew,  46  Hun  57  (1887)    (light       (18,35)     (sawmill). 

on  shore  from  harbor).  21.  Wintringham  v.  Hayes,  144  N.  Y.  1,  38 

16.  Adler  &  Co.  v.  Pruitt    (Ala.   1910).  53       X.  E.  999.  4.3  Am.  St.  Rep.  725   (1894). 

So.  315    (sewage  disposal  plant).  22.  Healy  v.  Visalia,  etc.,  R.  Co.,   101   Cal. 

17.  State  v    Knight,  43  Me.  11,  130  (1857).       585,  36  Pac.   125    (1894)  ;   Ball  v.  Mabry,  91 

18.  McCormick    Harvesting    Mach.    Co     v.       Ga.  781,  18  S.  E.  64   (1893) 

Cochran.  64  Midi.  63(5,  31  X.  W.  561    (1887)   '        23.  Suddeth    v.    Boone,    121    Iowa    258,    96 

(harvester)  -.   Sprout  v.  Xewton,  48  Hun    i  X.  X.  W.  853  (1903)    (that  smell  of  sewer  outlet 

Y.)   209,  15  X.  Y.  St.  699    (1888).  made  witness  sick):  Pullman  Palace  Car  Co. 

19.  Romona    Oolitic    Stone    Co.    v.    Shields  v.  Smith,  79  Tex    468,  14  S.  W.  993,  23  Am. 
(Ind.  1909).  88  X.  E.  595   (derrick).  St.  Rep.  356.  1.3  L.  R    A.  215   (1890). 

Basis  of  estimate. —  Studying  a  similar  ma-  24.  Everett   v.    State,   62   Ga    65    (1878): 

r-hine  may  he  regarded  by  judicial  administra-  State  v.  Smith,  22  La.  Ann.  468    (1870). 

tion  as  furnishing  satisfactory  opportunities  25.  Fright   of   horse. — Clinton   v.   Howard, 

for  observation  in  order  to  form  an  estimate  42  Conn.  294.  307   (1875)  :  Yahn  v.  Ottumwa. 

helpful   to  the  jury.     Sprout   v.   Xewton.   48  60  Iowa  429,  15  X.  W.  257    (1883):  Stone  v. 

Hun    (X.  Y.)    209,   15  X.  Y.  St.  699    (1888).  Pendleton,  21  R.  I.  332,  43  Atl.  643    M899) 

20.  Fletcher  v.  Prestwood    (Ala.   1905),  38  26.  Seagel  v.  Chicago,  etc.,  R.  Co.,  83  Iowa 
So.   847    (sawmill):    Paddock  v.  Bartlett.   08  380,  49  X.  W.  990    (1891)    (collision  with  a 
Iowa  16,  25  N.  W.  906    (1885)    (pork-pack-  locomotive). 


ESTIMATES. 


576 


remarks  to  actual  conditions,  27  but  may  extend  them  to  hypothetical  cases  and 
inferences  2S  and  the  present  probabilities  of  future  effects.29 

§  740.  Dimensions ;  Speed ;  Weight ;  Etc. —  Dimensions,  length,  breadth,  thick- 
ness, width,  and  the  like,"0  are  frequently  estimated  by  the  inference  of  ordi- 
nary observers.  It  is  equally  open  to  a  qualified  witness  to  state  any  change 
which  he  has  observed  in  these  or  other  dimensions.1' l 

\\here  exact  measurements  have  been  taken  or  attempted,  the  result  may  be 
stated  by  any  person  who  is  aware  of  it  from  observation.32  One  found  to  be 
qualified  may  properly  state  his  estimate  upon  area.33  or  grade.34  height,35 
direction/"1  distance,37  expense,38  identity,39  location,4"  number,41  quality,42 


27.  Technical  inferences. —  Should  the  rea- 
soning of  the  witness  relate  to  a  matter  of 
special  knowledge  and  no  qualifying  acquire- 
ments   be    shown    the    inference    will    be    re- 
jected.    Marshall  v.  Bingle,  36  Mo.  App.  122 
(1889). 

28.  Gulf,  etc.,  R.  Co.  v.   Richards,  83  Tex. 
203,  18  S.  W.  611   (1892)    (railroad  construc- 
tion ) . 

29.  West  v.  State,  71   Ark.    144,  71   S.  W. 
483    (1903)     (nuisance  on  health);    Pennsyl- 
vania Co.  v.  Mitchell,  124  Ind.  473,  24  N.  E. 
1065  (1890)  ;  Bennett  v.  Meehan.  83  Ind   566, 
43  Am    Rep.  78   (1882)    (drainage);  Roches- 
ter, etc,  R.  Co.  v    Hudlong,  6  How.  Pr.    (N. 
Y.)   467   (1851)    (railroad  layout). 

30.  Eastman  v.   Amoskeag  Mfg.  Co.,  44  N 
H/143,  82  Am.  Dec.  201    (1862);  Morrisette 
v.  Canadian  Pac.  R.  Co,  76  Vt.  267,  56  Atl. 
1102    (1003)     (two-throw    switch);    Park    v. 
Northport  Smelting  &  Refining  Co.,  92  Pac. 
442   (1907)    (board  feet).     A  shoemaker  may 
state  that  a  certain  boot  will  fit  a  given  foot 
State  v    Nordstrom,  7  Wash.  506.  35  Pac.  382 
(1803). 

31.  Romack  v.  Hobbs   (Ind.  Sup.  1892),  32 
N    E   307  (ditch). 

32.  Busch  v    Kilborne,  40  Mich.  297   (1879) 
(unprofessional  log  sealer). 

33.  Bennett  v   Meehan.  83  Ind.  506,  43  Am. 
Hep    7*    (1««2):    Darnel   v.   Harshman,    113 
Io\\a  2S3,  85  X.  W.  85    (1901). 

34.  Where  the   witness  has  seen  the  work- 
done   in   changing  the  grade   of   a   street,   he 
may  state  his  estimate  a?  to  the  height   of 
the  change,  though  he  has  not  actually  meas- 
ured it.     Downey  Bros    Spoke  &  Bending  Co. 
v    Pennsylvania   R    Co..  219  Pa.   32,  67    Atl 
916    (1907). 

35.  Downey  Bros.  Spoke  &  Bending  Co.  v 
Pennsylvania  R.  Co.  219  Pa    3'2.  07  Atl.  916 
(1907)    (grade).     See  also  Vermillion  Co.  v 


Vermillion,  6  S.  D  466,  61  N.  W.  802  (1894) 
(column  water  from  main)  ;  Richardson  v. 
State  (Tex.  Cr.  App.  1906),  94  S.  W.  1016. 

36.  State    v.    Shinborn,    46    X.    II     497.    88 
Am.  Dec.  224    (1866);    Ohio,  etc.,  R.  Co.  v. 
Wrape,  4  Ind.  App.  108,  30  X.  E.  427   (1891) 
(cattle  struck);   State  v.  Knight,  43  Me.   11 
(1857). 

37.  People  v.  Gleason,  127  Cal.  323,  59  Pac. 
592    (1899);    People   v.    Alviso,   55   Cal.   230 
(1880);    Illinois,  etc.,   R.   Co.   v    Swisher,  53 
111.  App.  411    (1893);   Eastman  v.  Amoskeag 
Mfg.    Co.,   44    X.    H.    143,    82    Am.    Dec.    201 
(1862). 

Railroad  matters. —  An  ordinary  witness 
properly  qualified  by  opportunities  for  obser- 
vation may  estimate  the  distance  to  which  the 
headlight  of  a  given  locomotive  will  throw 
its  light.  St.  Louis,  M.  &  S  E  Ry.  Co.  v. 
Shannon  (Ark.  1905),  88  S.  W  851. 

38.  Thompson  v.  Keokuk,  etc.,  R.  Co.,   116 
Iowa  215,  89  X.  W.  975  (1902) 

39.  Jackson   v.    State,    52    So.    730    (1910) 
(gun)  :   State  v.  Vanella,  40  Mont.  326,   106 
Pac.  364   (1910)    (voice) 

Complete  certainty  is  not  required.  State 
v.  Richards  (Iowa  1905).  102  X.  W.  439; 
Sparkman  v.  State  (Tex.  Cr.  App.  1911  ),  135 
S.  W.  134  (impression):  Buzan  v.  State 
(Tex.  Cr  App.  1910).  128  S  W.  388.  Some 
satisfactory  basis  of  inference  must,  however, 
be  shown  That  the  accused  corresponded 
with  a  horse  thief  in  '•  si/e,  shape  and  build  " 
is  not  sufficient.  Pool  v.  State  (Tex.  Cr.  App. 
190.->K  SS  S.  W.  350. 

40.  Xesbit  v.  Crosby,  74  Conn.  554.  .11   Atl 
550    (1902)    (wagon):   International  &  H    X. 
X.  R   Co   v.  Morin   (Tex.  Civ.  App.  1909).  116 
S.   W    656    (railroad   tracks')       Hep  aJsn  Mc- 
Donald v.  Wood.  118  Ala.  589.  22  So.  489.  24 
So    S6    (1897)    (survev  line). 

41.  A    witness,    skilled    or    ordinary,    may 


577 


DIMENSIONS. 


§  740 


quantity,43  or  resemblance.44  In  the  same  category  fall  estimates  of  sound  45 
and  the  speed  of  objects  4<!  as  automobiles,47  animals,48  railroad  49  and  trolley 
cars,50  comparative  speed,51  temperature,5-  time,53  value,54  and  weight.55 


stale  the  average  number  of  farm  hands  em- 
ployed during  a  given  time  Fowler  v.  Fow- 
ler, 111  Mich.  tiTO,  70  X.  \V.  330  (1897). 

42.  A   qualified    witness    may   testify    that 
the  grade  of  gold   employed   in  certain  jew- 
elry   is    inferior    to    that    designated    by    the 
marks    with    which    it    is    stamped      Moline 
Jewelry  Co.  v.  Dinnan,  81  Conn    111,  fO  Atl. 
634,  17  L.  R.  A.   (X.  S.)    1119   (1908). 

43.  Baker    v.    Cotney    (Ala.    1005),   38   So. 
131 ;  Bryant  Lumber  Co   v.  Crist  (Ark.  1908), 
112    S.    W.    965     (timber):    Montgomery    v. 
Southern  Power  Co.    (S.  C.    1910),  68  S.  E. 
1047     (timber);     Berge    v.    Kittleson     (Wis. 
1907),  114  X.  VV.  125   (milk). 

44.  Com.  v.  Dorsey,   103  Mass.  412    (1869) 
(that  hair  resembled  that  of  deceased).     The 
estimate  that  a  child  was  begotten  by  A,  i.e., 
that  A  was  his  father,  because  of  certain  phys- 
ical   resemblances    to    him    in    color,    feature 
and  the  like,  has  been  regarded  by  a  majority 
of  American  jurisdictions  as  too  fanciful  and 
conjectural   to   be  of  assistance  to  the  jury. 
Shorten  v.  Judd,  56  Kan.  43.  42  Pac.  337,  54 
Am    St.  Rep.  587    (1895);   People  v.  Carney, 
29  Hun  47    (1883).     As  is  said  by  the  court 
in  Maryland  [Jones  v.  Jones,  45  Md.  144.  152 
(1876)  J.  "  We  all  know  that  nothing  is  more 
notional    in    the    great    majority    of    cases. 
What  is  taken  as  a  resemblance  by  one  is  not 
perceived   by  another,   with   equal   knowledge 
of  the  parties  between  whom  the  resemblance 
is  supposed  to  exist.     Where  the  parties  are 
before  the  jury,  and  the  latter  can  make  the 
comparison    for   themselves,   whatever   resem- 
blance  is  discovered  may  be  a  circumstance, 
in   connection  with   others,  to  he  considered. 
But  to  allow  third  persons  to  testify  as  to 
their  notions  of  the  resemblance  supposed  to 
exist  between  parties,  would  be  allowing  that 
to   be   given   as   evidence  upon   which   no   ra- 
tional  conclusion   could  be  based,  but   which 
might    readily    serve    to    mislead    the    jury" 
This  is  true  in  case  of  an  infant  of  tender 
vears. 


45.  That   a   certain   sound   appeared   to   be 
that  of  a  collision  is  not  objectionable  as  opin- 
ion evidence.     Binsbacher  v.  St.  Louis  Transit 
Co.,  108  Mo.  App.  1,  82  S.  VV.  540   (1904). 

46.  Johnson    v.    Coey,    142    111.    App.    147 
( 190S) .     Estimates  of  witnesses  of  speed  even 
though  undisputed  are  not  physical  facts  suf- 
ficient to  overthrow  the  direct  testimony  of  a 
witness  as  to  his  acts.     Mosso  v.  Stanton  Co., 
75  Wash.  220,  134  Pac.  941,  L.  R.  A.  1916  A 
943  (1913). 

47.  Wolfe  v.  Ives,  83  Conn.  174,  76  Atl.  526 
(1910).     See    also    Scholl    v.    Grayson    (Mo. 
App.  1910),  127  S.  VV    415;  State  v.  Watson 
(Mo.  1909),  115  S.  W.  1011. 

48.  Xesbit  v.  Crosby,  74  Conn.  554,  51  Atl. 
550    (1902);    Brown   v.   Swanton,  69   Vt.   53, 
37  Atl.  280    (1896). 

49.  Flanagan  v.  New  York  Cent.,  etc.,  R. 
Co.,   173   X.   Y.   631.  66   N.   E.    1108    (1903) 
[affirming  70  X.  Y.  App.  Div.  505,  75  N.  Y. 
Suppl.  225   (1902)]. 

50.  Mertz  v.   Detroit  Electric   R.   Co.,    125 
Mich.  11,  83  X.  W.  1036  (1900). 

51.  Kansas  City,  etc.,  R.  C.  Co.  v   Crocker, 
95  Ala.  412,   11    South.   262    (1891)     (car); 
Ball  v.  Mabry,  91  Ga.  781,  18  S.  E.  64  (1893)  ; 
Mertz  v.  Detroit  Electric  R.  Co.,  125  Mich.  11, 
83  X.  W.  1036   (1900). 

52.  Leopold    v.    Van    Kirk,    29    Wis.    548 
(1872). 

53.  Atlanta,  etc.,  R.  Co.  v.  Strickland,  116 
Ga.  439,  42  S.  E.  864    (1902)    (short  time); 
Bayley    v.    Eastern    R.    Co.,    125    Mass     62 
(1878):   McGrath  v    Great  Xorthern  R.  Co., 
80   Minn.    450,   83    N.    VV.   413    (1900).     The 
rule    is    the    same    even    in    criminal    cases. 
State  v.  Williams   ( Xev.  1909),  102  Pac.  974. 

54.  See  Chapter  x\\.  §§  741  et  set]. 

55.  Dyas    v.    Southern    Pac    Co..    140    Cal. 
296,  73  Pac.  072   (1903)    (counter  balance  on 
a  derrick)  ;  People  v.  Wilson,  16  X.  Y.  Suppl. 
583  (1891)    (blue  stone). 


CHAPTER  XXX. 

* 

VALUE. 

Value,  741. 

various  methods  of  proof,  742. 
Market  value,  743. 
<    hearsay,  744. 

individual,  745. 
qualifications,  746. 
The  proper  market,  747. 
Proof  by  estimate;  time  of  estimate,  748. 
Change  in  value,  749. 
Relative  value,  750. 

Administrative  requirements;  necessity,  751. 
relevancy  demanded,  752. 

qualifications  of  witness;  adequate  knowledge,  753. 
claim  of  knowledge,  754. 
action  of  appellate  courts,  755. 
preliminary  statement  of  fact,  756. 

Ordinary  observer;  personal  property,  real  estate  and  services,  757. 
Owner  as  witness,  758. 
Skilled  observer  as  witness,  759. 
Skilled  witness  testifying  as  an  expert,  760. 

probative  force  of  the  judgment;  how  tested,  7<H. 

function  of  the  jury,  762. 
Constituents  for  the  expert's  judgment;  factors  controlling  it,  763. 

§  741.  Value.1 —  Few  estimates  by  observers  are  so  frequently  utilized  by 
judicial  administration  as  is  that  of  value.2  The  special  reason  for  this  lies 
in  the  fact  of  its  intimate  connection  with  the  substantive  Jaw  relating  to 
damages.  In  most  actions  at  law  this  is  the  object  sought  and  the  ascertain- 
ment of  damages,  being  in  terms  of  money,  has  necessarily  given  to  value,  in 
legal  acceptation,  a  special  meaning.  Of  the  broader  signification  assigned  by 
political  economy,  that  of  the  power  of  the  article  in  question  to  command 
other  commodities,  exchange  or  barter,  the  law  knows  little  or  nothing. 
Legally  speaking,  value  means  very  nearly  wrhat  the  political  economist  under- 
stands by  price.  Value,  then,  may,  for  present,  purposes,  be  defined  as  the 
amount  of  money  which  real  estate,  personal  property  or  services  will  com- 
mand in  an  open  market. 

1.  3  Chamberlayne,  Evidence,  §  2096.  2.  Taft  v.  Com.,   158  Mass.  526,  33  N.  E. 

1046  (1893). 
578 


579  MARKET  VALUE.  v  §§  742, 743 

§  742.  [Value]  Various  Methods  of  Proof.3 —  The  fact  of  value  is,  iii  general, 
determined,  according  to  certain  considerations  hereafter  mentioned,  in  one  of 
two  ways:  (1)  The  establishment  of  a  market  value;  (2)  The  estimates  of 
observers,  ordinary  or  skilled,  or  the  judgments  of  experts. 

§  743.  Market  Value.4 —  Of  the  two  modes  of  proving  value,  it  has  been  said 
that  their  respective  employment  is  dependent  upon  whether  the  existence  of  a 
market  value  can  or  cannot  be  assumed.  The  definition  of  the  term  "  market 
value  "  need  furnish  no  particular  difficulty.  It  is,  using  "  value  "  as  equiva- 
lent to  price,  and  may  fairly  be  defined  as:  The  price  current,  the  price  a 
commodity  will  bring  when  sold  in  open  market.  Market  value  is  regulated 
by  the  proportion  which  is  actually  brought  to  market  and  the  demand  of 
those  who  are  willing  to  pay  the  natural  price  of  the  article.  This  latter, 
"  natural  price,"  as  political  economy  might  well  put  it,  represents  the  rent, 
labor  and  profit  which  must  be  paid  in  order  to  bring  the  commodity  to  the 
market  in  question.  Wherever  real  estate,5  personal  property  6  or  services  can 
fairly  be  said  to  have  a  true  market  value,7  it  may  be  proved,  as  a  fact,8  as  it 
was  at  any  relevant  time9  and  for  any  germane  use.10  The  method  of  estab- 
lishing it,  however  difficult  in  practice,  is,  in  theory  at  least,  simple  from  the 
standpoint  of  judicial  administration  in  relation  to  evidence. 

Absence  of  Market  Value. —  Should  it  be  claimed  that  there  is  no  market 
value  for  a  given  commodity  or  piece  of  land,  it  will  be  sufficient  in  order  to 
let  in  other  evidence,  that  the  court  should  be  satisfied  that  there  is  in  fact  no 
market  value.11  It  will  not  be  necessary  to  make  the  existence  or  non-exist- 
ence of  a  market  value  an  issue  in  the  case. 

3.  3    Chamberlayne,     Evidence,     §§    2097-  9.  Atchison,  etc ,  R.  Co.  v.  Gabbert,  34  Kan. 
2099  132,  8  Pac.  218   (1885)  ;  Park  v.  Chateaugay 

4.  3    Chamberlayne,    Evidence,    §§    2099a,  Iron  Co.,- 8  N.  Y.  St.  507  (1887);  McNicol  v. 
2099b  Collins,  30  Wash.  318,  70  Pac.  753    (1902); 

5.  Gearhart  v.  Clear  Spring  Water  Co.,  202  Boyd  v.  Gunnison,  14  W.  Va.  1   (1878). 

Pa.  St.  292,  51  Atl.  891    (1902)  ;  Sullivan  v.  10.  Gerhart  v.  Clear  Spring  Water  Co.,  202 

Missouri,  etc.,  R    Co..  29  Tex.  Civ.  App.  429,  Pa.  St.  292,  51  Atl.  891    (1902).     Knowledge 

68  S   W.  745  (1902).  of  market  value  as  it  exists  for  some  purpose 

6.  Missouri,   etc.,   R.   Co.   v.   Truskett,    18t  unconnected  with  the  case,  is  not  sufficient  to 
U.  S  480,  22  S  Ct.  943,  46  L.  ed.  1259  (1902)  qualify   a    witness.     Loesch    v.    Koehler,    144 
(cattle)  Ind.  278,  41  N.  E.  326,  43  N.  E.  129,  35  L   R. 

7.  Smith  v   Griswold,  15  Hun  (X.  Y  )   273  A.  682    (1896).     The  estimate  must  be  con- 
(1878)  :  Gulf,  C.  &  S.  F   Ry.  Co.  v   Cunning-  fined  to  the  precise  quality  involved  in  the 
ham  iTex   Civ   App.  1908),  113S.  W.  767  inquiry.     Todd  v.  Warner,  48  How    Pr     (N 

The  fact  that  there  is  a  market  value  Y)  234  U871).  Opinion  evidence  on  dam- 
must  fir^t  i>e  established  as  a  preliminary  age,  see  note.  Bender  ed  .  29  X.  Y.  39.  Proper 
matter.  Smith  v  Griswold,  15  Hun  (N.  Y.)  evidence  on  question  of  value,  see  note,  Ben- 
273  (187S)  der  ed ,  141  X.  Y.  140.  To  prove  value  of 

8.  Cost   of    production. —  Where  a   market  property  basis  for,  see  note,  Bender  ed.,  43 
value  is  shown  to  exist,  the  cost  of  produo-  X.  Y.  284. 

tion    (Chamberlayne.   Evidence,    §    2175c)    is          11.  Pennington  v.  Redman  Van  &  Storage 
immaterial.     Moelering  v.  Smith,  7  Ind.  App.      Co.,  34  Utah  223.  97  Pac.  115  (1908). 
451,  34  X.  E   675  (1893). 


§§  744,745  VALUE.  580 

§  744.  [Market  Value] ;  Hearsay.12 —  In  connection  with  proof  of  market 
value,  judicial  administration  sanely  rejects  the  influence  of  the  so-called 
"  hearsay  rule."  Courts  have  recognized  that  there  is,  in  reality,  no  valid 
distinction  to  be  drawn  between  the  inference  that  a  statement  is  true  because 
it  has  been  made  and  any  other  inference  which  may  rationally  be  inferred 
from  its  existence.  In  other  words,  it  is  perceived,  with  increasing  clearness, 
that  the  assertive  capacity  of  a  statement  differs  in  no  essential  particular  from 
its  independently  relevant  function.  In  either  case,  whatever  satisfies  the 
reason  is  given  probative  weight,  more  especially  in  accordance  with  what  it 
has  been  thought  convenient  to  designate  the  Kelevancy  of  Spontaneity  and 
the  Kelevancy  of  Regularity. 

The  present  practice  seems  an  illustration  of  the  same  tendency.  Market 
value  is  a  fact.13  The  witness  may  derive  his  knowledge  as  to  it  from  the 
information  furnished  by  others.14  It  may  even  be  learned  from  an  examina- 
tion of  stock  or  market  reports,15  price  lists,16  trade  circulars,17  sales  of 
similar  property  18  and  the  like.19  In  short,  a  witness  may  testify  to  the 
value  of  property  if  his  knowledge  of  it  has  been  derived  through  the  general 
avenues  of  information  to  which  the  ordinary  business  man  resorts,  to  inform 
himself  as  to  values  for  the  proper  conduct  of  his  affairs.  Where  the  market 
report,  trade  circular  or  the  like  has  been  credited  by  the  person  against 
whom  it  is  offered,  an  additional  administrative  reason  for  receiving  it  is 
furnished.20 

As  an  administrative  matter,  the  court  may  properly  require  to  be  satisfied, 
before  admitting  the  stock  report  or  similar  publications,  that  the  methods 
of  their  compilation  are  such  as  to  entitle  them  to  credit.21 

§  745.  [Market  Value] ;  Individual.22 —  Still,   even   in  this  connection,   the 

12.  3  Chamberlayne,  Evidence,  §  2099c.  ft   seq. ;  St.   Louis   Southwestern   Ry.   Co.   v. 

13.  Franklin  v.  Krum,   171   111.  378,  49  X  Arkansas   &    T     Grain    Co.    (Tex.    Civ.    App. 
E.  513  (1898).  1906),  95  S.  W.  656 

14.  Thatcher     v.     Kaucher,     2     Colo.     698  19.  Whitney    v.    Thacher,    117    Mass.    52.3 
(1875)  ;  Cleveland,  etc.,  R.  Co.  v.  Patton,  203  (1875)     (prices   current)  :    Hoxsie  v.   Empire 
111.  376,  67  X.  E    804   (1903)    (horses).  Lumber    Co.,    41    Minn.    548,   42    X.    W.    476 

15.  Rodee  v.  Detroit  F.  &  M.   Ins.   Co.,  74  (1889). 

Hun  (X.  Y.)   146.  26  N.  Y.  Suppl.  242  (1893)  ;  20.  Western  Wool  Commission  Co.  v.  Hart 

Whelan  v    Lynch,  60  X.  Y.  469,  19  Am.  Rep.  (Tex.  Sup.  1892).  20  S.  W.  131. 

202   (1875).  21.  Whelan  v.  Lynch,  60  X.  Y.  474  (1875)  ; 

16.  Willard  v.  Mellor,  19  Colo.  534   (1894)  Fairley  v.  Smith.  S7  X.  C    367   (1882). 

(daily    price-circulars    excluded)  :    Marris    v.  22.  3  Chamberlayne,  Evidence,  §  2099d. 

Columbian  Iron-Works,  etc.,  Co.,  76  Md    354,  23.  Long  v.  Douthitt.   142  Ky.  427,  134  S. 

25  Atl.  417,  17  L.  R.  A.  851    (1892)  :  Harri-  W.  453  (1911)  ;  Cobb  v.  Whitsett,  51  Mo.  App. 

eon   v.   Glover,   72   X.   Y    454    (1878)     (price  146   (1892)  :  Hess  v.  Missouri  Pac.  R.  Co.,  40 

lists  admissible);    Cliquot   v.   U.   S.,   3   Wall.  Mo.   App.   202    (1890):    Hoskins   v.  Missouri 

(U.  S.)   114,  18  L.  ed.  116   (1865).  Pac.  R.  Co,   19  Mo.  App.  315    (1885);   Kent 

17.  Tyson  v.  Chestnut,  118  Ala.  3S7.  24  So.  v.  Miltenberger,  15  Mo.  App.  480   (1884)    (ed- 
73  (1898)    (postal  cards  excluded)  :  Smith  v.  itor  of  a  newspaper)  ;  Flynn  v.  Wokl,  10  Mo. 
Xorth  Carolina  R.  Co..  68  X.  C.  107  (1873).  App.  582   (1881). 

18.  3    Chamborlayne,    Evidence,    §§    2175o 


581  MABKET  VALUE.  §§   74<>,  747 

hearsay  rule  is  far  from  being  without  influence.  The  unsworn  statement  of  uu 
identified  individual  in  its  assertive  capacity,  i.e.,  as  evidence  of  the  facts  an- 
nounced, is  still  rejected.23  Only  to  hearsay  in  its  blended  or  composite  24  form 
has  administrative  indulgence  been  accorded.25  !No  particular  credit,  is  placed 
in  any  single  voice  of  the  blended  whole.26  To  do  so  would  be  illegal  under 
the  hearsay  rule.27 

Printed  hearsay. —  Printed  hearsay  is  no  more  admissible  in  this  con- 
nection than  it  would  be  in  any  other.  Should  a  market  report  in  a  newspaper 
be  the  work  of  an  identified  firm  of  stock-brokers,  the  quotations  will  be  rejected 
as  individual  hearsay.28 

§  746.  [Market  Value];  Qualifications.29 — The  indispensable  and  sufficient 
qualification  of  a  witness  who  undertakes  to  testify  as  to  the  fact  of  market 
value  is  that  he  should  know  what  it  is.30  Proof  on  this  point  must  be 
affirmatively  31  made  to  the  satisfaction  of  the  court  unless  the  circumstances 
disclosed  in  the  case  may  warrant  the  presiding  judge  in  assuming  provisionally, 
as  an  administrative  matter,  that  such  qualifications  exist.32  A  skilled  wit- 
ness acquainted  with  a  particular  market  may  give  his  conclusion  from  observa- 
tion 33  or  his  judgment  as  an  expert  as  to  what  is  the  fair  value  of  a  given 
commodity  in  that  market.  It  is  probably  in  this  sense  that  market  value 
has  been  said  to  be  a  matter  of  opinion.34  The  probative  force  of  the  reasoning 
will  be  determined,  in  large  measure,  by  the  intimacy  of  the  acquaintance  with 
the  market  in  question  which  the  witness  shows.35 

§  747.  [Market  Value] ;  The  proper  Market.36 —  The  market  in  which  value 
is  to  be  proved  is,  as  a  rule,  easily  determined.  If  property  possesses  a  market 

24.  §§  873  et  seq.  28.  National   Bank  of  C.  v.   New  Bedford, 

25.  Harrison     v.    Glover,     72    N.    Y.     451  175  Mass.  57,  56  N.  E.  288   ( 1900) . 
(1878);   Ferris  v.  Sutcliff.   1   Alb.   L.  J.    (N.  29.  3  Chamberlayne,  Evidence,  §§  2099e.  f 
Y.)    238     (1870);    Lush    v.    Druse,    4    Wend.  30.  Missouri,  K.  &  T.  Ry.  Co    of  Texas  v. 
(N.    Y.)    313    (1830);    Cliquot    v.    U.    S..    3  Moss    (Tex.  Civ.  App.   1911),   135  S.  W.  626 
Wall.    (U.  S.)    114,  18  L.  ed.   116    (1865).  (cattle). 

26.  "  It  [a  list  of  sales  and  prices  collected  31.  Russell  v.  Hayden,  40  Minn.  88,  41  N. 
from  the  stock  exchange]   is  all  hearsay:  but  W.    456     (1889):    Missouri,    etc.,    R.    Co.    v. 
it   is   the  only   evidence   we   can   have:    it   is  Truskett,    186   U.   S.   480,  22   S.    Ct.   943,   46 
the   only   evidence   we   have   of   the   price   of  L.  ed.  1259   (1902) 

sales  of  any  description.     I  do  not  receive  it  32.  Cleveland,   etc.,   R.   Co.   v    Patton,   203 

as  the  precise  thing,  but  as  what   is  in  the  111.    376,    67    N.    E.    804     (1903^     (owner    of 

ordinary  transactions  of  mankind  received  as  horses)  :  McLennan  v.  Minneapolis,  etc.,  Ele- 

proper  information:    and    I   suppose  there   is  vator  Co..  57  Minn.  317.  59  N.  W.  628   i  1894) 

hardly  a  gentleman  living  who  would  not  act  (wheat). 

on    this    paper."     De    Berengers   Trial.   Gur-  33.  Hoskins  v.  Missouri  Pac.  R.  Co..  19  Mo. 

ney's    Rep.     188     (1814),    per    Ellenborough,  App.  315  ( 1S85) . 

L.  C.  J.  34.  Brockman    Commission    Co.    v.    Aaron 

27.  Lewis  v.  Ins.  Co..  10  Gray  511    (1858)  -..  (Mo    App.  1910).  130  S.  W.  116. 

Wadley  v.   Com.,   98   Va.   803.   35   8.   E.   452  35.  Suttle  v.   Falls,  98  N.   C.  393,  4   S.  E. 

(1900)  ;  Alfonso  v.  U.  S.,  2  Story  426  (1843).       541,  2  Am.  St.  Rep.  338    (1887). 

36.  3  Chamberlayne,  Evidence.  §  2099g. 


§  748  VALUE.  582 

value  at  the  place  involved  in  the  inquiry,  evidence  is  properly  directed  to 
establishing  it  at  that  paint.37  Should  the  question  arise  as  to  the  value  of 
personal  property  converted  or  injured  the  damages  are  assessed  in  relation  to 
the  market  value  as  it  existed  at  the  time  and  place  of  such  conversion  or 
injury.  In  a  case  of  a  contract  for  the  delivery  of  goods  at  a  particular  market, 
damages  are  to  be  estimated  in  accordance  with  the  market  value  of  the 
property  as  it  was  at  the  time  and  place  of  delivery.  Should  it  be  affirmatively 
shown  3S  that  the  land  or  chattels  have  no  market  value  in  the  place  where 
it  is  to  be  computed  under  the  rules  of  substantive  law,  proof  is  to  be  made  of 
the  market  value  as  it  exists  in  the  nearest  39  or  if  a  market  other  than  the 
nearest  is  the  controlling  one,40  in  the  latter.  Incessant  reference  is  being  made 
to  "  fair  market  value  "  in  connections  where,  as  is  understood  by  every  one, 
there  is,  strictly  speaking,  no  market  value  whatever.  To  parcels  or  tracts  of 
land  are  to  be  assigned  their  just  market  value  by  the  jury,  under  the  instruc- 
tions of  the  judge.  Unique  articles  of  personal  property,  rare  coins,  engrav- 
ings, paintings  and  the  like,  are  to  be  fairly  appraised  by  the  jurors  at  this  same 
"  market  value."  In  legal  usage,  the  phrase  is  unceasingly  employed.41  What 
is  meant  by  it  ?  Confessedly,  there  is  no  actual  market  for  these  things. 

There  are  res  non-funyibles.  The  phrase,  therefore,  is  not  to  be  taken 
literally.  Apparently,  what  is  meant  by  it  is  this:  The  court  is  leaving  to 
the  jury  to  say  what  price  would  result,  under  the  circumstances  of  the  case, 
were  the  conditions  of  an  ideal  market  to  be  applied  to  the  property  in  question. 
The  reference  is  always  to  the  standard  established  of  an  entirely  fair,  fully 
attended  and  absolutely  open  place  of  sale. 

§  748.  Proof  by  Estimate;  Time  of  Estimate.42 —  Where  no  relevant  43  market 
value  can  fairly  be  claimed  to  exist,  the  administrative  situation  is  materially 
altered.  Reliance  must,  in  most  cases,  be  placed  upon  the  inference  or  estimate 
of  witnesses  applying  the  standard  of  money  to  the  subject-matter  in  hand.44 
The  period  to  which  the  inference  relates  may  be  prior45  or  subsequent46  to 

37.  Alabama  Iron  Works  v  Hurley,  86  Ala.  X    W.  456   (1881))  ;  Beard  v.  Kirk,  11   X.  H. 
217.  5  So   418    11889)  400   (1840). 

38.  Jones  v.  St.  Louis,  etc..  R    Co.,  53  Ark.  42.  3    Chamberlayne,    Evidence,    §§    2099i- 
27,     13    S.    Vv.    4  Hi,    22    Am.    St.    Rep.    175  2100 

(isiKt).  43.  Raridan    v.    Central    Iowa    R.    Co..    69 

39.  This   is  usually  demanded   by  the  pre-  lo\va  527,  29  X.  W.  599   (1886)    (cornstalks)  ; 
siding  judge.     Porter   v    (handler,  27   Minn.  P>eard  v    Kirk.  11  X    H.  397    (1840):  Erd  v. 
301,  7   X.  W.   142,  38  Am.   Rep.  293    (1880)  :  Chicago,  etc.,  R.  Co.,  41  Wis.  65   (1876). 
McDonald  v.  I'naka  Timber  Co.,  88  Tenn.  3**,  44.  Morris    v.    Columbian    Ironworks,    etc., 
12  S    \V.  420  i  1889).  Co.,  76  Md.  354,  25  Atl    417,  17  L.  R.  A.  851 

40.  llogan    v.    Donohue,    49    III     App.  ^432  (1892). 

(1893)  ;    Aulls    v.   Young,   98   Mich.    231.'  57  45.  Texas,  etc.,  R.  Co   v.  Cella.  42  Ark.  528 

X    \V.  11!)   (1893)  ;  French  v.  Piper.  43  X   H  (1884)  ;  Johnson  v    Farmers'  F.  Ins.  Co.,  106 

439    (1862).  Mich    96.  04  X    W    5    (1895). 

41.  Cooper  v    Randall,  59   111.320    (1371):  46.  Paden    v.    Goldbaum     (Cal.    1894),    37 
Daly  v   Kimball  Co..  67  la.  135.  24  X   XV   7-">';  Pac    759 :    Doane  v.  Garretson,  24  Iowa   351 
(1885);   Russell  v    Hayden.  40  Minn.  90,  41  (1868);    Central   Branch   Union   Pac.   R.  Co. 


583  CHANGE  IN  VALUE.  §§  749-731 

that  of  the  res  gestae.  A  sole  limitation  imposed  in  respect  to  admissibility  is 
that  the  court  should  feel,  in  view  of  the  nature  of  the  property,47  the,  period 
to  which  the  inference  attaches  is  not  too  remote  to  be  relevant  and  that,  having 
in  mind  the  '*  state  of  the  case,"  the  judge  feels  it  to  be  necessary  to  receive  it. 

§  749.  Change  in  Value.48 —  Ability  to  estimate  value  from  observation  neces- 
sarily implies,  where  the  latter  has  extended  over  any  considerable  period, 
the  power  of  declaring  the  occurrence  of  any  change  in  value  which  has  ap- 
peared during  the  interval.  Adequate  acquaintance  with  the  property  in  ques- 
tion is  essential.49  These  principles  apply  to  animals,50  personal  property,01 
real  estate  52  or  to  change  in  value  induced  by  manufacture.53 

§  750.  Relative  Value.54 — Even  where  a  witness  is  ignorant  of  absolute 
value,  he  may  be  permitted  to  state  the  relative  worth  in  money  of  two  pieces 
of  property.55  The  same  rule  applies  to  land.50  "A  man  may  know  the 
effect  on  the  relative  value  without  being  able  to  lix  the  actual  market  price.'' 

§  751.  Administrative  Requirements;  Necessity.58 — A  suitable  administrative 
necessity  for  receiving  the  secondary  evidence  of  an  estimate  must  be  shown 
to  the  court  if  the  act  of  reasoning  is  to  be  received.  Should  it  happen  that  all 
the  facts  can  fully  be  placed  before  the  jury  or  more  satisfactory  and  convincing 
evidence  can  be  submitted  to  the  tribunal  59  the  inference  will  be  rejected.  On 
the  contrary,  should  the  constituting  phenomena  observed  or  the  component 
elements  of  value  be  such  that  they  cannot  fully  be  placed  before  the  jury,8t> 
or  should  it  appear  probable  that  the  latter  would  have  neither  the  special  knowl- 
edge nor  the  acquired  and  developed  mental  powers  necessary  to  coordinate 
the  phenomena  or  facts  presented  into  a  rational  estimate,  a  suitable  administra- 
tive necessity  for  receiving  the  inference  of  a  witness  is  deemed  to  have  been 
established.  In  the  latter  case,  an  adequate  necessity  may  well  be  deemed  to 
have  arisen  for  utilizing  the  services  of  a  skilled  observer.'51  So  estimates  of 

v.  Andrews,  37  Kan.  162.  14  Pac.  509  ( 1887)  ;  53.  Hood  v.  Maxwell.  1  W.  Va.  219   ( 1866) . 

Greenfield  First  Xat.  Bank  v.  Coffin,  162  Mass.  54.  3  Chamherlayne.  Evidence.  §  2101a. 

180   38  X.  E.  444   (1804).  55.  Kronsc-hnable   v.    Knoblauch,   21   Minn. 

47.  Where  a  stock  of  goods  is  not  likely  to  5G   t  1874). 

change  in  value,  an  interval  of  seven  years  is  56.  Dawson  v.  Pittsburgh,  159  Pa.  St.  317, 

not   fatal.     Johnson  v.   Farmers'  F.  Ins.  Co.,  28  Atl.  171    (1891). 

106  Mich   96,  64  X.  YV.  5   (1895).  57.  Dawson  v.  Pittsburgh,  159  Pa.  St.  317, 

48.  3  Chamberlayne,  Evidence,  §  2101.  28  Atl.  171    (1891). 

49.  Shinier   v.   Easton  R.   Co.,  205   Pa.   St.  58.  3    Chamberlayne,    Evidence,    §§    : 
648.  55  Atl.  769    (1903).  2105. 

50.  Perine    v.    Interurban    St.    R.    Co.,    43  59.  Williams  v.  Hersey,  17  Kan.  li 
Misc.   iX.  Y?)  70,  86  X   Y.  Suppl.  479   (1904)  Sanford  v.  Shepard,  14  Kan.  228   (1875). 

(horse)*;  Davis  Bros.  v.  Blue  Ridge  Ry.  Co.,  60.   Atchison,  etc.,  R.  Co.  v.  Harper,  19  Kan. 

81  S    C    466   6-'  S.  E.  856  .(1908)    (cattle).  529    (ISTSi;    Lines   v.   Alaska   Com.    Co.   29 

51.  Xew  York,  etc.,  R.  Co.  v.  Grand  Rapids.  Wash.    133.    69    Pac.    642    (1902)     (value   of 
etc.,  R.  Co.,  116  Ind.  60,  18  X.  E.  1S2   i  1888).  piano  at  Xome.  Alaska K 

52    Ohio,  etc.,  R.  Co.  v.  Taylor,  27  111.  207          61.  Pincery    v.    Cherokee,   etc.,   R.    Co..   78 
i1R69)  Iowa  438,  43  X.  W.  285    (1889);   Phillips  v. 


§§  752-753  VALUE.  584 

the  value  of  similar  property  or  estimates  more  remote  in  time  will  not  be  re- 
ceived .where  better  estimates  are  available.  In  most  instances,  where  the 
property  is  fungible,  has  a  market  value,  the  disputed  question  is  as  to  what 
that  market  value  is.  Where  the  property  is  not  fungible,  has  no  market-value, 
the  determination  of  monetary  worth  must  necessarily  be  one  largely  of  esti- 
mate, of  reasoning,  of  irference.  After  all,  however,  the  ultimate  question  is, 
not  as  to  what  is  the  sum  of  these  elements  of  value,  appraised  at  a  fair  separate 
worth  in  money  for  each ;  but  to  what  conclusion  does  all  this  mass  of  evidence 
rationally  lead  the  mind  of  the  expert  or  of  the  jury  regarding  the  price  which 
such  a  piece  of  property  is  fairly  worth,  i.e.,  as  between  fair  men,  the  one  willing 
to  sell  and  the  other  to  purchase  the  same  on  its  reasonable  merits.  The  more 
common  the  property  the  more  persons  will  be  found  qualified  to  testify  con- 
cerning it.02  Land  is  not  fungible03  so  estimates  as  to  its  value  are  alwayi 
admissible. 

§  752.  [Administrative  Requirements] ;  Relevancy  demanded.64 —  That  the 
estimate  of  a  witness  should  be  received,  it  is  essential  that  it  be  rationally 
helpful  to  the  jury.  It  must  be,  in  other  words,  probatively  relevant  65  both 
objectively  and  subjectively  considered.  This  means  that  the  witness  must  be 
qualified.00 

§  753.  [Administrative  Requirements;  Qualifications  of  Witness;  Adequate 
Knowledge].67 — That  an  estimate  as  to  value  should  be  received,  it  must,  as 
has  just  been  said,  be  subjectively  relevant.  In  order  for  it  to  be  so,  the 
witness  must  be  qualified,  in  the  judgment  of  the  court,68  to  throw  light  upon 
the  matter  in  dispute.  In  case  of  an  ordinary  observer,  this  is  equivalent  to 
saying  that  he  should  be  shown  to  have  enjoyed  reasonable  opportunities  for 
acquainting  himself  with  the  property  or  acts  in  question.69  He  must  be  shown 
to  the  court  to  have  utilized  these  occasions  to  advantage.70  He  must,  also, 
appear  to  possess  the  knowledge,  experience  and  mental  powers  necessary  to 
enable  him  to  coordinate  his  observations  into  an  act  of  reasoning  upon  which 
the  jury  might  rationally  rely.71  It  is  essential  that  the  witness  should  be 
familiar  with  the  specific  property  to  be  appraised  72  as  well  as  with  the 

MarbleheatL,    148    Mass.    326,    19    X.    E.    547  68.  The  judge  should  find  some  real  poten- 

(1889).  tial  value  in  the  estimate  before  admitting  it. 

62.  Jones  v.  Erie.  etc..  R    Co.,  151   Pa.  St.  Rea   v.   Pittsburg  &   C.   R.  Co.,  229   Pa.   100, 
30,  48,  25  Atl.   134,  31   Am.  St.  Rep.  722,   17  78  Atl.  73   (1910). 

L.  R.  A.  758   (1892).  69.  A  very  v.  Xew  York  Cent.,  etc.,  R.  Co., 

63.  Derby  v.  Gallup.  5  Minn.  134  (1860).  2  X.  Y.  Suppl.  101   (1888). 

64.  3    Chamberlayne,    Evidence.    §§    2100-  70.   Pittsburg,  V.  &  C.  R.  Co.  v.  Vance,  115 
2113.  Pa.  332,  8  Atl.  764   (1880). 

65.  Clark  v.  Baird,  9  X.  Y.  183   (1853).  71.  Gallagher    v.    Kemmerer.    144    Pa.    St. 

66.  Florence  v.  Calmet  (Colo.  1908).  96  Pac.  509,  22  Atl.  970,  27  Am.  St.  Rep   673  (1891). 
183;   Whitcomb  v.  Brant    (X.  J.  Sup.   1908),  72.  Crouae  v.  Holman,   19   Ind.  38    (1862) 
68  Atl.  1102.  (real  estate). 

67.  3    Chamberlayne,    Evidence,    §§    2114, 
2115. 


585 


CLAIM  OF  KNOWLEDGE. 


754 


standard  of  value  by  which  it  is  to  be  measured.  Whatever  assumptions  may 
be  made  by  administration,  as  a  provisional  matter,  regarding  the  possession 
of  knowledge  as  to  value  by  witnesses  who  offer  to  give  their  estimates  on  the 
subject,  two  requirements  must  ultimately  be  satisfied  if  the  evidence  is  to  be 
received.  (1)  The  knowledge  must  be  shown  to  be  adequate.13  1^2)  It  must 
be  proved  to  be  actual.14  The  witness  may  be  qualified  by  his  experience  as 
appraiser.75  or  auctioneer  7tt  or  broker  77  or  as  being  in  charge  of  real  es- 
tate,'1"1 and  mere  residence  in  a  community  may  be  enough.79  So  public  officers 
charged  with  the  duty  of  appraising  property8"  like  assessors  sl  or  dealers  in 
property  s~  may  be  qualified. 

§  754.  [Administrative  Requirements] ;  Claim  of  Knowledge.83 —  Should  a 
witness  assert  that  he  knows  the  property  in  question,  whether  real,84  or  per- 
sonal,85 and  is  acquainted  with  its  value,  judicial  administration  may  well  be 
warranted  for  the  sake  of  economizing  tirne,sti  in  holding  that  such  a  claim 
furnishes  a  prima  facie  ability  to  give  a  helpful  estimate.8 '  Should  the  actual 


73.  Butsch  v.  Smith    (Colo.  1907),  90  Pac 
61;    Arnd    v.    Aylesworth    (Iowa    1907),    111 
X.   \V.  407  :   Catlin  v.  Northern  Coal  &  Iron 
Co.   (Pa.  190!)).  74  Atl.  56.     Some  foundation 
must  be  laid  for  the  opinion  of  a  witness  as 
to   value    by    showing   that   he   has   had    the 
means  of  forming  an  intelligent  opinion,  de- 
rived,  in  part,   from  an  adequate  knowledge 
of  the  nature  and   kind   of  property   in  con- 
troversy.    Western    Union    Telegraph    Co.    v. 
Coyle   (Okl.  1909),  104  Pac.  367. 

74.  Schaaf    v.     Fries,     77     Mo     App.     346 
(1898)  ;  Oregon  Pottery  Co.  v.  Kern,  30  Oreg. 
328,   47   Pac.   917    (1897):    Pennock  v.   Cres- 
cent Pipe  Line  Co.,   170  Pa.  St.  372,  32  Atl. 
1085    (1895):   Michael  v.   Crescent  Pipe  Line 
Co.,    159    Pa     St.    99,    28    Atl.    204     (1893): 
Gorgas  v.   Philadelphia,  etc.,  R.  Co.,   144  Pa. 
St.    1,   22   Atl.    715    (1891).     Such   witnesses 
"  should  affirmatively   appear  to  have  actual 
personal  knowledge  of  the  facts  affecting  the 
subject-matter    of   the    inquiry."     Michael    v. 
Crescent  Pipe  Line  Co.,  159  Pa.  St.  99.  104, 
28  Atl.  204  (1893). 

75.  Lyman   v.   Boston   City,    164   Mass.   99, 
41   X.   E.   127    (1895):    State  v.  Sattley,   131 
Mo.  464.  33  S.  W.  41   (1895). 

76.  Amory   v.   Melrose.    162   Mass.   556.   39 
N.  E.  27ti   (1805). 

77.  Bristol  County  Sav.  Bank  v.  Keavy,  128 
Mass.   298    (1890):    Griswold  v.   Gebbie,   126 
Pa.  St.  353,  17  Atl.  673.  24  YVkly.  Notes  Cas. 
72.  12  Am.  St.  Rep.  87<S    (1889) 

78.  That  the  witness  is  not  in  business  for 
himself,   but   is  a   clerk   in  the  office  of   an- 
other,  is  not  conclusive  against  his  compe- 


tency     Teele   v.   Boston   City,    165   Mass.   88, 
42  N.  E.  506  (1895). 

79.  Hewlett   v.    Saratoga   Carlsbad   Spring 
Co.,  84  Hun  (N.  Y.)  248,  32  N.  Y.  Suppl.  697 
(1895). 

Especially  in  large  cities  the  word  "  neigh- 
borhood "  is  a  relative  one.  The  field  which 
a  witness  may  take  into  consideration  in 
forming  an  opinion  of  the  selling  price  of 
particular  land  should  be  reasonably  adja- 
cent thereto  and  embrace  real  estate  of  the 
same  general  character.  Rea  v.  Pittsburg  & 
C.  R.  Co.,  229  Pa.  106,  78  Atl.  73  (1910). 

80.  Chandler  v.  J.  P.  Aqueduct,  125  Mass. 
551    (1878);    Swan   v.   Middlesex,   101    Mass. 
177    (1869):    Fowler  v.  Middlesex,  6  All.  97 
(1863).     See  also  Gayle  v.  Court  of  County 
Com'rs    (Ala.    1908),    46    So.    261:    Town    of 
Ripton  v.  Town  of  Brandon,  80  Vt.  234,  67 
Atl.  541    (1907). 

81.  Muskeget    Island    Club    v.    Nantucket, 
185  Mass.  303,  70  N.  E.  61   (1904). 

82.  Muskeget    Island    Club    v.    Nantucket, 
185   Mass.   303,   70   N.   E.   61    (1904);    Allen 
v.   Chicago  &  N.   W    Ry.   Co.,   145  Wis.  263, 
129  N.  W.  1004   (1911)' 

83.  3    Chamberlayne,    Evidence,    §§    2116, 
2117. 

84.  LTnion  Elevator  Co.  v.  Kansas  City  Sub- 
urban Belt  R.  Co.   (Mo.  Sup.  1896),  33  S.  W. 
926. 

85.  State  v.  Montgomery    (S.  D.   1903),  97 
N.  W.  716  (hogs). 

86.  §§  304  et  seq. 

87.  Wichita  R.  Co.  v.  Kuhn,  38  Kan.   104. 
16    Pac.    75    (1887);    Browne   v.    Moore,   32 


§§   755-757  VALUE.  586 

qualifications  of  the  witness  be  challenged,  they  must  be  established  in  the 
ordinary  way.88 

§  755.  [Administrative  Requirements] ;  Action  of  appellate  Courts.89 —  The 
action  of  a  trial  judge  in  admitting  witnesses  as  competent  to  testify  on  the 
question  of  value  will  not  be  revised  in  an  appellate  court,  so  long  as  reason 
has  been  exercised. IJO  Should  the  court  adopted  seem  not  to  have  been  rational, 
reversal  may  properly  ensue. 

§  756.  [Administrative  Requirements] ;  Preliminary  Statement  of  Fact.91 —  As 
a  general  matter  of  practice,  the  presiding  judge  may  well  require  that  one 
who  proposes  to  state  an  estimate  of  value,  either  in  the  form  of  an  inference, 
conclusion  or  judgment,  should  detail,  before  doing  so,  such  of  the  constituent 
elements  as  the  basis  of  his  estimate  as  he  reasonably  can.92  This  requirement 
has  been  imposed  by  the  court  indifferently  in  the  case  of  real  estate,93  per- 
sonal property94  or  services.95  Where  the  witness  is  himself  the  owner  of 
the  property,  it  has  been  suggested  that  he  ought  fairly  to  be  permitted  to 
state,  in  connection  with  his  preliminary  detail,  such  of  the  elements  of  value 
presented  by  his  property  as  one  desirous  of  selling  it  might  properly  represent 
to  a  proposed  purchaser  in  order  to  facilitate  the  sale.9"  This  preliminary 
statement  of  fact  is  required  from  the  skilled  witness  as  well  as  from  the 
ordinary  observer.97 

§  757.  Ordinary  Observer;  Personal  Property;  Real  Estate  and  Services.98— 

Ordinary  observers  may  accurately  estimate  the  value  of  lands  and  chattels  with 
which  men  in  general  are  acquainted.  The  qualifications  of  the  witness  to 
state  an  inference  helpful  to  the  jury  must  be  proved  to  the  satisfaction  of  the 
presiding  judge  or  the  circumstances  be  such  that  the  existence  of  these  qualifi- 
cations may  reasonably  be  assumed  by  judicial  administration.  No  other  wit- 
Mich  254  (1875):  St.  Louis,  etc.,  R.  Co.  v.  40  Xebr  1,  58  N.  W.  597  (1894);  Rodee  v. 
St.  Louis  Union  Stock  Yards  Co,  120  Mo.  Detroit  F.  &  M  Ins.  Co.,  74  Hun  (N.  Y.) 
541,  25  S.  W  399  (1894)  :  Smith  v.  Hill,  22  146.  26  N.  Y.  Suppl.  242  (1893). 
Barb.  (X.  Y  )  656  (1H.')6)  ;  Moore  v.  Chicago,  "A  description  of  the  property,  its  char- 
etc  ,  R.  Co.,  78  Wis  120,  47  X.  W.  273  (1800K  acter  and  qualities,"  has  been  the  measure 

88.  Missouri   Par   R.  Co.  v.  Coon.   15  Xeb.      of  preliminary  statement  required.     Whipple 
232,  18  X.  W.  62   (1883).  v.  Walpole,  10  N.  H.  130  (1839). 

89    3  Chamberlayne.  Evidence,  §  2117.  95.  Storms  v    Lemon,  7   Ind    App.  435,  34 

90.  Himmer    v.    Wilson     (Colo.    1908).    93       N.  E.  644   (1893)  ;  McPeters  v.  Ray,  85  X.  C. 
Pac    1110:   Phillips  v.  Marblehead,  148  Mass.       462   (1881). 

326    19  X   E   547  (1889).  96.  Little  Rock  Junction  R.   Co.  v    Wood- 

91.  3    Chamberlayne,    Evidence,    §§    2118-      ruff,  49  Ark.  381,  5  S.  W  792,  4  Am.  St   Rep. 
2124.  51    (1887). 

92.  Chicago    Sanitary    Dist.    v.    Loughran,          97.  Chicago,  etc.,  R.  Co.  v.  Calumet  Stock 
160111    362,  43  X    E    359   (1806).  Farm.    96    111.    Anp.    337     (1901)     [affirmed, 

93.  CJordon  v.  Kinks  County  El    R.  Co.,  23       194  111.  9.  61  X.  E.  1095,  88  Am.  St    Rep.  68 
N     Y.    App.    Div.    51,   48    X.    Y.    Suppl     382       (1901)]   (trotting  horse) . 

(189")  98.  3    Chamberlayne,    Evidence,    §§    2125- 

94.  Western  Home  Ins.  Co.  v.  Richardson,      2139. 


587 


OWNEB  AS  WITNESS. 


§  758 


ness  will  be  allowed  to  testify  on  the  subject."  Stringency  of  qualification  is, 
however,  greatly  modified  in  favor  of  one  who  proposes  to  state  an  estimate 
regarding  the  value  of  a  familiar  article.1  In  such  cases,  no  technical  ex- 
perience or  special  knowledge  is  required  for  the  competency  of  the  witness.2 
This  is  the  same  as  to  say  that  an  ordinary  observer  of  common  articles  of 
personal  property  may  state  his  estimate  as  to  their  value.3  This  rule  applies 
to  domestic  articles  in  common  use,4  farm  equipment,5  mercantile  stock  in 
trade,0  ordinary  land,7  services8  whether  agricultural,9  domestic10  or  mer- 
cantile11 and  nursing.12  Where  the  services  are  of  a  technical  nature  the 
province  of  the  skilled  observer  is  more  nearly  reached.13 

§  758.  Owner  as  Witness.14 —  In  most  instances,  the  oivner  is  regarded  as 
qualified  to  state  an  estimate  as  to  the  value  of  his  property,15  especially  where 
the  latter  is  of  an  every  day  nature,  i.e..  employed  in  common  use.  It  may 
usually  be  assumed  that  no  one's  acquaintance  with  the  value  carrying  con- 
stituents of  his  laud  or  movables  is  greater  than  the  owners.  This  relation  to 
the  subject-matter  of  the  inquiry  may  be  fairly  regarded  by  administration  as 
creating,  in  and  of  itself,  a  species  of  special  knowledge.  No  other  showing 
of  special  skill  or  experience  is  required  for  admissibility,  although  establishing 
the  fact  of  their  possession  increases  probative  weight.16  The  owner  of  prop- 


99.  Teerpenning  v.  Corn  Exch.  Ins.  Co.,  43 
N.  Y.  279  (1871)    (stock  of  goods). 

1.  Tuttle  v.  Cone,  108  Iowa  468,  79  N.  W. 
267    (1899)    (bicycles). 

2.  Filson  v.  Territory,  11  Okla.  351.  67  Pac. 
473   (1901). 

3.  Rawles   v.   James,  49  Ala     183    (1873): 
Johnston  v.   Farmers'  F.   Ins.  Co.,   106  Mich. 
96,  T>4  X.  W.  5   (1895). 

4.  Omaha  Auction,  etc.,  Co.   v.   Rogers,   35 
Nebr.  61,  52  X.  W.  826   (1892). 

5.  Minneapolis    Threshing    M.    Co.    v.    Mc- 
Donald,  10  X.  D.  408,  87  X.  W.  993    (1901) 
(threshing  machine) . 

6.  Vandercook  v.  O'Connor,  172  Mass.  301, 
52  X.  E.  444    (1899)    (bottlers'  supplies). 

7.  In   re    Rochester,   40   Hun   588    (1886); 
Clark  v.  Baird,  9  X.  Y.  183  (1853).     See  also 
Bedell   v.   Long  Island  R.  Co.,  44  X.  Y.  367. 
4  Am.  Rep.  688  ( 1871 ) .     Witnesses  who  know 
nothing  as  to  the  amount,  quality  or  quantity 
of  standing  timber  cut  from  land  will  not  be 
allowed  to  give  their  estimates  as  to'its  value, 
although  they  may  know  the  market  price  of 
the  land  itself.     Park  v.  Xorthport  Smelting 
&  Refining  Co.  (Wash.  1907),  92  Pac  442. 

8.  Cleveland,    C.,    C.    &    St    L.    Ry.    Co.    v. 
Hadley,    40    Ind.    App     731.    82    X.    E.    1025 
(1907)     (elocutionary   ability):    Kent  Furni- 
ture Mfg.  Co.  v.  Ransom,  46  Mich.  416,  9  N 


W.  454  (1881)  ;  Bagley  v.  Carthage,  etc,  R 
Co.,  25  X.  Y.  App.  Div.  475,  49  N.  Y.  Suppl. 
718  (1898). 

9.  Loticks  v.  R.  Co.,  31  Minn   534.  18  N.  W. 
651    (1884):   Harris  v.  Smith,  71  X.  H.  330, 
52  Atl.  854    (1902). 

10.  Ruttle   v.    Foss    (Mich.    1910),    125   N. 
W.   790,   17   Detroit   Leg.   X.  258;   Fowler  v. 
Fowler,  111  >Iich.  676,  70  X.  W.  336  (1897)  ; 
Miller  v.  Richardson,  88  Hun  (X.  Y.)  49,  34 
X.  Y.  Suppl.  506   (1895). 

11.  Howard    v.   McCabe    (Xeb.    1907).    112 
X.    W    305;    Chapman   v.   Tiffany,  70   X.   H. 
249,  47  Atl.  603  (1900)    (storage). 

12.  Wahl  v.   Shoulders,    14   Ind.   App.   665, 
43  X.  E.  458    (1896);   Allison  v.   Parkinson. 
108  la.  154,  78  X.  W.  845    (1899);   Reynolds 
v.  Robinson,  64  X.  Y.  589   (1876). 

13.  Little    Rock,   etc..  R.   Co.   v.   Bruce.   55 
Ark.   65,   17   S.   W.   363    (1891);    Eagle,  etc., 
Mfg.  Co.  v.  Browne,  58  Ga.  240  (1877)    (mill 
engineer ) . 

14.  3    Chamberlayne,    Evidence,    §§    2140- 
2150. 

15.  Little  Rock,  etc ,  R.  Co    v.  Bruce,  55 
Ark.  65,  17  S.  W.  363   (1891). 

16.  Haan   v.   Metropolitan    St.    R.   Co.,   34 
Misc.     (N.    Y.)    523,    69    X.    Y.    Suppl.    888 
(1901). 


§  759  VALUE.  588 

erty,  as  well  as  other  witnesses,  may  detail  to  the  jury  the  constituting  facts 
upon  which  he  bases  his  estimate  of  value.  This  he  may  be  permitted  by  the 
judge  to  do  not  only  for  the  purpose  of  reinforcing  the  credibility  of  his  own 
statement,  but  also  for  that  of  enlightening  the  court  and  jury  as  to  his  oppor- 
tunities for  observation  and  his  mental  power  of  coordinating  what  he  has 
seen.17  Where  the  owner  is  not  shown  to  have  any  familiarity  with  the  value 
of  a  certain  class  of  articles,  such  as  jewelry,18  his  inference  as  to  it  will  be 
rejected.19  These  principles  apply  to  farmers,20  householders,21  merchants,22 
real  estate  owners,23  or  a  claimant  for  services  rendered.24 

§  759.  Skilled  Observer  as  Witness.25 —  The  estimate  of  value  may  require 
the  services  of  a  skilled  witness.  The  value  of  the  property  in  question  may 
be  so  far  related  to  a  particular  profession,  trade  or  calling,  as  to  make  the 
estimate  regarding  it  a  technical  one.  The  personal  property,  for  example, 
may  not  be  fungible,  have  a  market  value.  A  rare  gem  or  a  painting  by  an  old 
master  has  a  value  known  accurately  to  the  connoiseur  alone  and  to  him  only 
within  limits.  The  real  estate  may  be  adapted  only  to  a  particular  use,  and 
that  an  uncommon  one.  Its  intrinsic  value  must  be  estimated,  and  the  ele- 
ments may  be  of  an  unusual  nature.  The  services  to  be  appraised  may  be 
those  of  a  doctor  or  of  a  lawyer.  Such  cases  are  typical  of  a  very  large  number 
of  similar  instances.  This  is  the  field  of  the  skilled  witness.  The  witness 
must  be  shown  to  be  acquainted  with  the  property  26  and  qualified  by  experi- 
ence27 to  give  an  estimate.  Thus  one  specially  qualified  by  skill  and  ex- 
perience may  testify  as  to  the  value  of  personal  property,28  real  estate,29  crops,30 
trees,31  or  of  similar  property,32  or  as  to  the  value  of  services33  in  building 

17.  Little  Rock   Junction  R    Co.  v.   Wood-  27.  Buffum   v.    New   York,   etc.,    R.    Co.,    4 
ruff,  49  Ark.  381,  5  S.  W.  792,  4  Am.  St.  Rep.       R.  I.  221    (1856). 

51    (1887);  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  28.  Werten    v.    K.    B.    Koosa   &   Co.    (Ala. 

Giles    (Tex    Civ.   App.   1910),   126  S.  W.  282  1910) ,  53  So.  98  ( damaged  dry  goods );  Lewis 

(clothing).  v.  State  (Ala.  1909),  51  So.  308   (diamonds)  ; 

18.  Gregory   v.   Fichtner,    14   X.   Y.   Suppl.  Echols    v.    State     (Ala.     1906),    41    So.    298 
891,  27   Abb.  X.   Cas.    (X.   Y.)    86.  21    X.   Y.  (stolen  goods)  ;   St.  Louis  &  S.  F.  Ry.  Co.  v. 
Civ.  Proc.   1    [reversing  13  X.  Y.  Suppl.  593  Ewing   (Tex.  Civ.  App.  1910),  126  S.  W.  625 
( 1891 )  ].  (typewriters  damaged  by  water) . 

19.  Armstrong  v.  Smith,  44  Barb.    (X.  Y.)  29.  Bearss  v.  Copley,   10  X.  Y.  93    (1854). 
120   (1865).  Altering   grade. —  Raising  the  grade  of  a 

20.  Metropolitan  St.  Ry.  Co.  v.  Walsh,  197  street  may  have  an  injurious  effect  upon  the 
Mo.  392,  94  S.  W.  860   (1906).  value   of   land.     Blair    v.   Charleston,    43   W. 

21.  Frederick   v.   Sault.    19   Ind     App    604,  Va.   62,  26   S.   E.   341.  64   Am.   St.   Rep.   837, 
49  X.  E.  909    (1898)    (piano).  35  L.  R.  A.  852    (1896). 

22.  Union   Pac.   R.   Co.   v.   Lucas,   136  Fed.  30.  Colorado    Farm    &    Live    Stock    Co.    v. 
374.  69  C.  C.  A.  218   (1905).  York    (Colo     1906),   88   Pac.    181    (melons); 

23.  Shea  v.  Hudson,  165  Mass.  43,  42  X.  E.  Anderson  v.  Chicago,  B.  &  Q.  Ry.  Co.    (Xeb. 
114   (1895).  1909),  120  X.  W.  1114. 

24.  Mercer  v.  Vose,  67  X   Y.  56.  58   (1876K  31.  Williams  v.  Hathaway,  21  P>.  T.  566.  45 
25.3    Chamberlayne,    Evidence,    §§    2151-       Atl.    578     (1900);    Cochran    v.    Casey    (Tex. 

2170  Civ.    App.    1910),    128    S.    W.    1145    (size   of 

26.   Fves  v    Quinn,  7  Misc.   (X.  Y. )    155,  27      chinquapin  trees).     See  also  Mabry  v.  Ran- 
N.  Y.  Suppl.  251    (1894)    (renting). 


589 


EXPERT. 


§   760 


operations,34  commercial  employments 35  or  professional  services.36  The 
skilled  witness  may  go  further  and  state  his  judgment  as  to  what  might  be  the 
value  of  real  37  or  personal  3S  property  in  case  of  certain  contingencies. 

§  760.  Skilled  Witness  testifying  as  an  Expert.-™ —  The  judgments  of  ex- 
perts with  regard  to  the  value  of  property  are  received  by  judicial  administra- 
tion cautiously  and  under  fixed  conditions.40  The  administrative  advantage 
obviously  is  that,  in  this  way,  one  who  has  never  seen  the  property  may  be 
able  to  apply  to  it  what  is  perhaps  a  very  accurate  and  discriminating  standard 
of  value.  The  primary  requirement  is  that  some  forensic  necessity  should 
be  shown  for  invoking  the  judgment  of  the  expert.  In  any  case,  the  judge 
presiding  at  a  trial  will  insist  that  the  judgment  as  to  value  of*  an  expert  be 
a  well  defined  exercise  of  the  reasoning  faculty  upon  ascertained  and  identified 
facts.  Conjecture  and  speculation  are  to  be  excluded.  The  judgment  must 
be  something  more  than  a  guess.41  Where  an  article  of  personal  property 
possesses  exceptional  worth  as  in  case  of  pedigreed  horses,42  crops,43  real 
estate,44  or  technical  services  40  the  judgment  of  the  expert  is  frequently  em- 
ployed. 


dolph   (Cal.  App.  1908;,  94  Pac.  403   (orange 
grove ) . 

32.  Morrison  v.  Watson,  101  N.  C.  332,  7  S. 
E.  795,  1  L.  R.  A.  833  (1882). 

33.  Towle  v.   Sherer,   70  Minn.   312,   73   X. 
W    180    (18971     (cost   of   a   house):    Ingham 
Lumber  Co.  v.   Ingersoll  &   Co     (Ark.   1910), 
125   S.   W.    139    (sawing   lumber)  ;    Floore   v. 
J.  T.  Burgher  &  Co.    (Tex.  Civ.  App.   1910), 
128  S.  W.   1152. 

34.  O'Keefe    v.     St.     Francis'    Church,     59 
Conn.  551,  22  Atl.  325    I  1890). 

35.  Matter  of  Benton,  71    X.  Y.  App.  Div. 
522,  75  X.  Y.  Suppl.  859   (  1902) 

36.  McDonald   v.   Dodge   County,   41    Xebr. 
905,  60  X.  W.  366    ilS94). 

37.  Vandine   v.    Burpee,    13   Mete.    (Mass.) 
288,   46   Am.   Dec.   733    i  1S47)     (brick-kiln); 
Brennan    v.    Corsicana    Cotton-Oil    Co.    (Tex. 
Civ.  App.  1898),  44  S.  \V    588:  Gauntlett  v. 
Whitworth,  2  C.  &  K.  720.  01   E.  C'.  L.   720 
(1849). 

38.  Joy   v.   Hopkins,   5   Denio    (X.   Y.)    84 
(1847)    I  cow)  :  Houston,  etc..  R.  Co   v.  Shir- 
ley. 89  Tex.  95,  31   S.  W.  291    '1895)     i  rail- 
road bonds ) . 

39.  3    Chamberlayne,    Evidence,    §§    2171- 
217  If. 

40.  A    skilled   witness,    so   testifying,    need 
not     have      seen      the      property.     Ross      v. 
Schrieves.  199  Mass.  401.  85  X.  E.  468  <  1908^. 

41.  Comesky  v.  Postal  Tel.  Cable  Co.,  41  X. 


Y.  App.  Div.  245.  58  N.  Y.  Suppl.  467   (1899) 
( damage  by  erection  of  telegraph  poles ) . 

42.  Southern     Ry.     Co.     in     Kentucky     T. 
Graddy    (Ky.    1908),   33   Ky.   Law   Rep.   183, 
109  S.  W.  881  (thoroughbred  colts)  ;  Miller  v. 
Smith,  112  Mass.  470  (1873). 

43.  Foster    v.    Ward,    75    Ind.    594    (1881) 
(farmer);    Lawton   v.   Chase,   108   Mass.   238 
(1871)    (logs)  ;   International,  etc.,  R.  Co.  v. 
Searight,  8  Tex.  Civ.  App.  593,  28  S.  W.  39 
(1894)    (grass). 

44.  Fox  v.  Chicago,  etc.,  Rapid  Transit  R. 
Co.,    68    111.    App.    417     (1896)     (taking    for 
railroad)  ;   St.  Louis,  etc.,   R.  Co.  v.  Fowler, 
113   Mo.   458,   20   S.   W.    1069    (1893)     (rail- 
road) :   Hunter  v.  Manhattan  R.  Co.,   141   N. 
Y.  281,  36  N.  E.  400    (1894)    (elevated  rail- 
road) ;   Gerber  v.  Metropolitan  El.  R.  Co.,  3 
Misc.     (X.    Y.)    427,    23    N.    Y.    Suppl.    166 
(1893). 

45.  Holiday  v.  Watson.  6  Ky.   L.  Rep.  590 
(1885)  ;  Hialey  v.  Hialey's  Estate,  157  Mich. 
45.    1-21    X.   W.   465,    16   Detroit    Leg.   X.   244 
(1909)    (trimmer's  wages):  Thomas  v.  Caul- 
kett,  57  Midi    392,  24  X.  W.  154.  58  Am.  Rep. 
369    (  1 885 ) .     Expert  upon  prices  and  values, 
see  note,  Bender  ed.,  144  X'.  Y.  9. 

Practical  Suggestions  for  Putting  in  Evi- 
dence of  Expert. —  There  is  only  one  sure 
wav  to  examine  one's  own  expert.  First 
qualify  him  by  asking  him  to  state  his  expe- 
rience in  the  subject  on  which  he  is  to  tes- 


§§  761,  762 


VALUE. 


590 


§  761.  [Skilled  Witness  Testifying  as  an  Expert] ;  Probative  Force  of  the  Judg- 
ment; How  Tested.4" —  The  proponent  may  increase  the  value  of  the  expert's 
testimony  by  drawing  from  him  his  reasons,47  and  the  basis  of  his  judgment 
may  also  be  elicited  in  cross-examination.4*  Inconsistent  statements  made  by 
the  witness  at  other  times  may  be  brought  out  49  and  the  scope  of  the  cross- 
examination  is  entirely  within  the  discretion  of  the  presiding  judge.50 

§  762.  Probative  Force  of  the  Estimate  of  Value;  Function  of  the  Jury.51— 
Questions  of  fact  are  for  the  jury.52  Incidentally,  they  must  determine  the 
credibility,  the  belief-carrying  quality,  of  witnesses  and  their  statements.  To 
this  administrative  truism,  the  probative  force  of  estimates  as  to  value  furnishes 
no  exception.  Whether  the  reasoning  be  in  the  form  of  the  inference  or 
conclusion  of  an  ordinary  or  skilled  53  observer  or  as  represented  in  the  judg- 
ment of  the  skilled  witness  testifying  as  an  expert,  its  probative  force  is  to  be 
determined  by  the  jury.54  The  latter  are  to  consider  and  weigh  them,  in  con- 
nection with  all  other  facts  in  the  case.55  The  jury  may,  as  usual  in  the  event 
of  conflict  in  the  testimony,  prefer  one  witness  or  set  of  witnesses  to  another 
as  guides  to  their  judgment.56  That  is  entirely  for  them  to  decide,  within  the 
bounds  of  reason.  If  a  view  of  the  property  has  been  given  to  the  jury,  the 
results  of  it  may  properly  be  regarded  as  part  of  the  evidence  in  the  case.57 


tify.  Second,  ask  him  if  he  has  examined 
the  property  in  question,  when,  and  how  thor- 
oughly. Third,  if  he  has  formed  an  opinion 
as  to  its  value.  Fourth,  what  that  opinion 
is.  Fifth,  what  are  the  reasons  for  his  opin- 
ion. If  this  order  of  questions  is  followed, 
by  the  the  time  the  fifth  question  is  reached 
the  expert  is  then  ready  to  make  a  little 
speech  on  the  subject  explaining  the  whole 
situation  and,  if  he  is  clever,  so  strengthening 
himself  that  he  cannot  be  attacked  with  suc- 
cess on  cross-examination  If  any  other  pro- 
cedure is  adopted  counsel  lays  himself  open 
to  all  sorts  of  objections  by  clever  opposing 
counsel  which  will  embarrass  the  witness  and 
confuse  the  jury  and  weaken  the  effect  of 
anything  the  expert  may  finally  be  allowed 
to  say. 

46.  3  Chamberlayne,  Evidence.  §  2171g. 

47.  Cram    v.    Chicago,    94    111     App.     199 
(1900). 

48.  Questions  as  to  sales  of  adjacent  prop- 
erty are  always  admissible.     Snouffer  v.  Chi- 
cago,  etc.,   R.   Co,   105   Iowa   681,   75   N.   \V. 
501    (1898):    Brown   v    Worcester,    13   Gray 
(Mass.)     31     (1859)      (opposite    side    of    the 
street)  -.   Eno  v.  Manhattan   R.  Co.,  21  N.  Y. 
App.  Div.   548,  48  N.  Y.  Suppl.   516    (1897) 
(rental  value). 

49.  Phillips  v.  Marblehead,  148  Mass.  326, 


19  N.  E  547  (1889)  ;  Krider  v.  Philadelphia, 
180  Pa.  St.  78,  36  Atl.  405  (1897)  (valued 
land  differently  as  an  assessor). 

50.  Roche  v.  Baldwin,  135  Cal.  522.  65  Pac. 
459,  67  Pac.  903  ( 1902)  ;  Cassidy  v.  Com.,  173 
Mass.  533,  54  N.  E.  249   (1899)    (land  in  an- 
other city ) . 

51.  3    Chamberlayne,    Evidence,    §§    2172- 
2175. 

52.  Conjecture    will    be    excluded. —  Thus, 
where  the  manager  of  mines  stated   that  he 
did  not  know  what  they  were  worth,  it  was 
error  to  permit  him  to  testify  that  the  per- 
sons interested   appraised  the  property  at   a 
certain   sum.     Thornburg  v.   Doolittle    ( Iowa 
1910),   125  N.  W.  1003. 

53.  Linforth  v.  San  Francisco  Gas  &  Elec- 
tric Co.   (Cal.  1909),  103  Pac.  320. 

54.  Johnson   v.   Freeport,   etc..   R.  Co.,   Ill 
111.    413     (1884);    Aldrich    v.    Grand    Rapids 
Cycle    Co.,    61    Minn.    531,    63    X.    W.    1115 
(1895);    In   re   Manhattan    Terminal   of   the 
New   York  and   Brooklyn  Bridge.    120   N.   Y. 
Suppl.  465    (1909). 

55.  Johnson   v.   Freeport,  etc.,  R.   Co.,   Ill 
111.  413   (1884). 

56.  Jacksonville,   etc.,   R.   Co.   v.    Caldwell, 
21  111.  75   (1859). 

57.  Terre  Haute,  etc.,  R.   Co.   v.  Flora.  29 
Tnd.  App.  442,  64  N.  E.  648   (1902)  ;  Chicago, 


591 


FACTORS  CONTROLLING  EXPERT. 


§  763 


So  far  as  the  matter  is  one  of  common  knowledge,5*  the  jury  may  employ  their 
general  experience  as  men  of  affairs  in  dealing  with  the  estimates  of  witnesses 
as  to  the  value  of  property,59  whether  drawn  from  observation  or  deduced 
from  assumed  facts.  In  any  case,  the  jury  may  rationally  accord  probative 
force  to  the  estimate  of  a  witness  in  proportion  to  the  subjective  relevancy  of 
his  statement,  the  amount  uu  and  freshness61  of  his  knowledge  and  his  free- 
dom from  any  motive  to  misrepresent  which  could  fairly  be  deemed  con- 
trolling.02 The  jury  are  not  necessarily  obliged  to  follow  the  estimate  of  a 
witness  simply  because  he  is  uncontradicted.63  Such  inferences  are  not  con- 
clusive.'54 The  jury  may  be  allowed  in  matters  of  common  knowledge  to  make 
findings  of  value  based  on  their  own  knowledge  without  evidence  6D  but  where 
the  question  is  technical  the  jury  should  not  be  allowed  to  tind  in  disregard 
of  the  evidence  of  skilled  witnesses  and  any  such  finding  may  be  set  aside.66 

§  763.  Constituents  for  the  Expert's  Judgment;  Factors  Controlling  it.67 — The 
judgment  of  the  expert  may  be  controlled  or  aided  by  auction  sales  G8  or  by 
the  cost  of  property  either  actual  69  or  based  on  the  cost  of  reproduction  70 
figuring  also  the  depreciation.'1  The  expert  may  also  consider  the  various 


etc.,  R  Co.  v  Drake.  46  Kan  .',68,  26  Pae. 
1039  (1S9M;  Matter  of  Guilford.  85  X  V 
App.  Div.  207.  83  X  Y.  Suppl.  312  (1903): 
Wead  v.  St.  Johnsbury,  etc..  R.  Co..  66  Vt. 
420,  29  Atl.  631  ( 1894)  ;  Shoemaker  v.  U.  S., 
147  U.  S.  282,  13  S.  Ct.  361,  37  L.  ed.  170 
(1893). 

58.  §§  345  et  seq. 

59.  Johnson  v    Freeport,   etc.,   R.   Co.,   Ill 
111.  413   (1884). 

60.  Lafayette    v.    Xagle,    113    Ind.   425,    15 
X.  E.   1    (1888)  ;   Lee  v.  Pindle.   12  Gill  &  J. 
(Md.)   288   (1842)  ;  Springfield,  etc..  R.  Co.  v. 
Calkins.  90  Mo.  538,  3  S.  \V.  82   (  1886). 

-  61.  Atty.-Gen.  v.  Cross,  3  Meriv.  524,  17 
Rev  Rep  121  (1817) 

62.  Atty.-Gen.   v     Cross,   3    Meriv.   524,    17 
Rev    Rep    121    (18171. 

This  is  more  important  than  a  considera- 
tion of  the  particular  class  of  persons  to 
which  the  observer  belongs.  Blizzard  v.  Ap- 
plegate,  61  Ind.  368  (1878). 

63.  Princeton  Town  v.  Gienske,  93  Ind.  102 
(1884):   Aldrich  v.  Grand  Rapids  Cycle  Co., 
61  Minn    531.  63  X.  W.  1115   (1895). 

64.  Johnson    v.    Chicago,    etc .    R.    Co.,    37 
Minn.  510.  35  X   W.  438   (1887). 

65.  Stevens  v   City  of  Minneapolis,  42  Minn. 
136,  43  X.  W.  842   (1889). 

66.  Wood  v.  Barker.  49  Mich    295.  22  Am. 
Law    Reg.     (N.    S)     323     (1882).     See    also 
Turnbull  v    Richardson,  69  Minn.  400,  37  XT. 
W.  499   (1888). 


67.  3  Chamberlayne,  Evidence,  §  2175a. 

68.  Thornton    v.    Campton,    18    N.    H.    20 
(1845):    Huntington    v.    Attrill,    118    N.    Y. 
365,  23  X*.  E.  544   (1890)  :  Mayberry  v.  Lilly 
Mill  Co.    (Tenn.  1905),  85  S.  W.  40*1    (corn)". 

69.  Involuntary    sales. —  Where    the    sale 
has  been  a  forced  one,  especially  when  accom- 
panied by   other  circumstances  calculated  to 
defeat  the  full  and  fair  competition  by  bid- 
ders,  the   prices   realized   may   constitute   no 
adequate    criterion    of    value    and    be,    there- 
fore, rejected  as  irrelevant  for  that  purpose. 
Rickards  v.  Bemis   (Tex.  Civ.  App.  1903),  78 
S    W.  239    (execution  sale).     Still,  the  price 
realized  at  a  sheriff's  sale  of  goods  has  teen 
received,  though   by  no  means  conclusive  be- 
tween  the   parties,   as   some   evidence   of   the 
age,    condition,    etc.,    of    the    articles    sold. 
Corey  v.  Penney  (Ala.  1910),  51  So.  624.     See 
Goodman   v.   Baumann,  43  Misc.  Rep.  83,  86 
N.  Y.  Suppl.  287   (1904). 

70.  Brook?  v..  Hazen,  3  G.  Greene    (Iowa) 
553   (1852)  :   Pierce  v.  Boston  City.  164  Mass. 
92,  41  X.  E.  227   (1895). 

71.  Where  cost  is  relied  on  to  show  value, 
depreciation  by  use  and  natural  causes  may 
be  proved.     Utz   v.   Orient   Ins.  Co.,   139  Mo. 
App.  552.  123  S    W.  538   (1909).     Factors  to 
be   considered   in    estimating   the   value   of   a 
public  service  plant,  see  Murray  v.  Public  Util- 
ities  Comm..  27   Idaho   603.   150   Pac.   47.  L. 
R.  A.  1916  F  756;  Oshkosh  Waterworks  Co.  v. 
Railroad  Comm.,  161  Wis.  122,  152  XT.  W  859, 


VALUE. 


592 


elements  of  value  of  the  property  72  or  the  financial  condition  of  a  company 
issuing  securities.73  Even  offers  to  buy  or  sell  property  are  sometimes  con- 
sidered if  made  in  good  faith  and  accompanied  by  a  present  ability  to  carry 
out  the  oifer.74  The  physical  condition  of  the  property  ">:>  and  its  rental 
value  7C>  may  also  be  considered.  The  price  paid  for  the  property  although  not 
conclusive  77  is  always  some  evidence  of  value  7S  whether  of  real  estate  7<J  or 
personal  property  80  and  even  sales  of  similar  property  may  be  used  both  as 
to  personal 81  and  real 82  property.  The  charge  usually  made  for  similar 


L.  R.  A.  1916  F  592  (1915).  The  value  of  a 
water  right  may  be  shown  by  the  cost  of 
acquiring  it,  but  other  elements  must  also  be 
considered  in  estimating  its  market  value. 
Murray  v.  Public  Utilities  Com.,  27  Idaho 
603,  150  Pac.  47,  L.  R.  A.  1916  F  756  ( 1015). 
See  also  Oshkosh  Waterworks  Co.  v.  Railroad 
Comm.,  161  Wis.  122,  152  N.  W.  859,  L.  R. 
A.  1916  F  592  (1915). 

72.  The  ''  market  value  "  of  property  is  the 
price  which  it  will  bring  when   it  is  offered 
for  sale  by  one  who  desires,  but  is  not  obliged, 
to  sell  it,  and  is  bought  by  one  who  is  under 
no  necessity  of  having  it.     In  estimating  its 
value  all  the  capabilities  of  the  property,  and 
all  uses  to  which  it  may  be  applied,  are  to  be 
considered.     Seaboard  Air  Line  Ry.  v.  Chamb- 
lin,  108  Va.  42,  60  S.  E.  727   (1908). 

73.  Halper  v.  Wolff,  82  Conn.  552,  74  Atl. 
890  (1909)  ;  Green-Grieb  Sherman  Co.  v.  John 
C.  Quinlen  Co,  148  III.  App.  1    (1909);  Diel 
v.  Kellogg   (Mich.   1910),  128  N.  W.  420,  17 
Detroit  Leg.  N.  891. 

74.  Muller  v.  Southern  Pac.  Branch  R.  Co., 
83   Cal.   240,   23   Pac.   205    (1890);    Faust  v. 
Hosford,   119  Iowa  97,  93  N.  W.  58    (1903)  ; 
Cottrell    v.   Rogers,   99   Tenn.   488,   42   S.   W. 
445  (1897)  ;  Fox  v.  Baltimore,  etc.,  R.  Co.,  34 
W.  Va   466,  12  S.  E.  757   (1890).     Authority 
is,  however,  to  be  found  to  the  opposite  effect. 
Southern  Ry  Co.  v.  Parnell,  37  So.  925  (1904) 
(two   years    before)  ;    Watson   v.   Milwaukee, 

etc.,  R.  Co.,  57  Wis.  332,  15  N.  W.  468  ( 1883)  ; 
Sharpe  v  U  S..  191  U.  S.  341,  24  R.  Ct.  114, 
48  L.  ed  211  (1903). 

75.  McAvoy     v.     Wright,     137     Mass.     207 
(1884)  :   McLennan  v.  Minneapolis,  etc.,  Ele- 
vator Co.,  57  Minn.  317,  59  N.  W.  628  (1894). 

76.  Senglaup  v.  Acker  Process  Co.,   105  N. 
Y.    Ruppl.    470,    121    App     Div.    49     (1007). 
Evidence  of  the  value  of  an  article  is  admis- 
sible  as   having   some   bearing   on   the   value 
of  its  use.     Carey  Coal  Co.  v.  Bebee  Concrete 
Co.,  88  Kan.  515,   129  Pac.   191,  44  L.  R.  A. 
(N.  S.)   499   (1913). 


77.  Miller    v.    Bryden,    34    Mo.    App.    602 
(1889).     Where  market  yalue  can  be  shown, 
price  is  not  material.     Chicago,  R.  I.  &  G    Ry. 
Co.  v.   Rogers    (Tex.  Civ.  App.   1910),   129  S. 
W7.   1155. 

78.  Blanchard    v.    New    Jersey    Steamboat 
Co.,  59  N.  Y.  292    (1874);   Gulf,  etc.,  R.  Co. 
v.  Lowe,  2  Tex    App.  Civ.  Cas    §  648   (1885). 

79.  West  Skokie  Drainage  Dist.  v.  Dawson, 
243  111.  175,  90  N.  E.  377   ( 1909)  ;  In  re  Man- 
hattan Terminal  of  the  New  York  and  Brook- 
lyn  Bridge,    120   N.   Y.   Suppl.   465    (1909); 
American  States   Security  Co.  v.  Milwaukee 
Northern  Ry.   Co.    (Wis.    1909),    120   N.   W. 
844. 

Forced  sales. —  Prices  realized  at  forced 
sales  possess  but  slight  evidentiary  weight. 
West  Skokie  Drainage  Dist.  v.  Dawson,  243 
111.  175,  90  N.  E.  377  (1909)  (foreclosure 
proceedings)  ;  W7.  T.  Rickards  &  Co.  v.  J.  H. 
Bemis  &  Co.  (Tex.  Civ.  App.  1903),  78  S.  W. 
239. 

80.  Jelalian  v.  New  York,  N.  H.  &  H.  R. 
Co.,  119  X.  Y.  Suppl.  136,  134  App.  Div.  381 
(1909)    (clothing,  oriental  rug)  ;  De  Groat  v. 
Fulton  F.  Ins.  Co.,  4  Rob.  504'  ( 1867 ) . 

81.  Aken  v.  Clark   (Iowa,  1909),  123  N.  W. 
381    (cattle)  ;  Dean  v.  Van  Nostrand,  101  N. 
Y.   621,  4  N.  E.   134    (1886);   Kean  v.   Lan- 
drum,    72    S.    C.    556,   52    S.    E.    421     (1905) 
(timber  on  adjacent  land).     See  also  James 
H.  Rice  Co.  v.  Penn.  Plate  Glass  Co.,  117  111. 
App.  356  (1904). 

82.  Paine  v.   Boston,  4   Allen    (Mass.)    168 
(1862)  ;  Galway  v.  Metropolitan  El.  R.  Co.,  13 
N.  Y.  Suppl.  47    (1890);   Belding  v.  Archer, 
131    N.   C.   2S7,   42   S.    E.   800    (1902).     Evi- 
dence may  be  excluded  of  the  sale  of  neigh- 
boring property  where  the  sale  was  practically 
forced    as    the    owners    had    failed    to    make 
payments    due    and    a    foreclosure    suit    was 
then    pending.     Lewisburg    &    N.    R.    Co.    v. 
Hinds,  134  Tenn.  293.  193  S.  W.  985.  L    R.  A. 
1916  E  420    (1916).     The  value  of  property 
may   be    shown    by    sales    but   the   price   at 


593 


FACTOKS 


EXPEKT. 


§   763 


services  is  however  so  uncertain  a  test  as  seldom  to  be  of  probative  quality.83 
The  expert  may  always  state  the  specific  uses  to  which  property  may  be  put.84 


which  it  is  estimated  in  an  exchange  is  not 
satisfactory  evidence.  Epp  v.  Hinton,  91 
Kan.  513,  138  Pac.  576,  L.  R.  A.  1*J15  A  07o 
(11114).  Evidence  of  the  sale  of  neighboring 
property  may  be  excluded  when  the  sale  took 
place  two  years  before  and  extensive  improve- 
ments had  taken  place  in  the  meanwhile,  in 
the  immediate  neighborhood.  Lewisburg  & 
N.  R.  Co.  v.  Hinds,  134  Tenn.  293,  183  S.  W. 
985,  L.  R.  A.  1916  E  420  (1916).  An  offer 
of  sale  may  well  be  excluded  where  it  ap- 
pears that  when  it  was  made  the  property 
was  dead  and  a  park  and  boulevard  had  not 


been  built  where  these  improvements  greatly 
enhanced  the  value  of  the  land.  Lewisburg  & 
>,.  U.  Co.  v.  Hinds,  134  Tenn.  293,  163  S.  W. 
985,  L.  R.  A.  1916  E  420  (1916). 

83.  McKnight    v.    Detroit    &    M.    Ry.    Co. 
(Mich.  1904),  97  X.  W.  772,  10  Detroit  Leg. 
X.  777. 

84.  Russell    v.    St.    Paul,    etc.,    R.    Co.,    33 
Minn.  210,  22  N.  W.  379  (1885)  ;  Ohio  Valley 
R.,  etc.,  Co.  v.  Kerth,  30  Ind.  3,14,  30  N.  E. 
298    (1891);   Forsyth  v.  Doolittle,  120  U.  S. 
73,  7  S.  Ct.  408,  30  L.  ed.  586  (1877) ;  Chan- 
dler v.  Geraty,  10  S.  C.  304  (1878). 


CHAPTER  XXXI. 

HANDWRITING. 

/ 

Proof  by  direct  evidence,  764. 

Proof  by  secondary  evidence;  circumstantial,  765. 

1  'tract eristics  of  handwriting,  766. 
.  .    .lomena  of  documents,  767. 

who  are  qualified  as  witnesses,  768. 
age  of  alterations,  769. 
inference  from  observation,  770. 

Ordinary  observer;  qualifications;  seeing  person  ivrite,  771. 
adoption  in  course  of  business,  772. 
special  experience,  773. 

Skilled  observer;  qualifications  required,  774. 
Comparison  of  hands,  775. 

qualifications  must  be  affirmatively  proved,  776. 
requirements,  777. 
English  rule,  778. 
American  rule,  779. 

witness  to  comparison  rejected,  780. 
witness  to  comparison  accepted,  781. 
statutory  modifications,  782. 
proof  of  standard,  783. 
proof,  784. 

testing  on  cross-examination,  785. 
proof  in  criminal  cases,  786. 
standardizing  document,  787. 
Probative  weight  of  the  inference,  788. 
function  of  the  court,  789. 
inference  a  reasoned  one,  790. 
tests  furnished  by  cross-examination,  791. 

§  764.  Proof  by  Direct  Evidence.1 —  The  genuineness  of  handwriting,  includ- 
ing under  this  broad  term  marks,  figures,2  or  signs,  may  be  proven  as  a  fact  by 
the  direct  evidence  of  persons  who  saw  it  made.  Nothing  could  well  be  more 
satisfactory  than  this.:{  "  The  general  rule  seems  to  be,  that  the  best  evidence 

1.  3  Chamberlayne,    Evidence,   §   2177.  v.   Benham,  4  Hill    (N.  Y.)    129,  40  Am.  Dec. 

2.  Stone  v.  Hubbard,  7  Cush.    (Mass.)    ofl5       271    (1843). 

(1851)  ;  Kux  v.  Central  Michigan  Sav.  Bank,  3.  The  most  obvious  proof  of  handwriting 

93  Mich.  511,  53  N.  W.  828  (1892)  ;  Sheldon       is  the  testimony  of  a  witness  who  saw  the 

594 


595  SECONDARY  EVIDENCE.  §§  765-767 

of  handwriting  is  a  witness  who  actually  saw  the  party  write  it."  4  Evidence 
such  as  this  presents  no  peculiarity  for  the  consideration  of  judicial  ad- 
ministration. Transaction  witnesses  are,  however,  comparatively  rare.  Sel- 
dom does  it  happen  in  practice  that  the  actual  writing  of  a  disputed  specimen 
of  chirography  has  been  witnessed.  The  primary  evidence  being  thus  absent, 
administration  is  obliged  to  rely  upon  proof  of  facts  of  a  secondary  grade. 
The  latter  may  be  one  of  two  kinds.  (1)  Circumstantial  evidence,  (2)  In- 
ferences of  competent  observers  testifying  from  the  resemblance  of  a  disputed 
writing  to  a  mental  standard  created  by  means  which  the  law  deems  adequate. 
The  use  of  these  species  of  secondary  evidence  will  be  considered  in  the  order 
indicated. 

§  765.  Proof  by  Secondary  Evidence;  Circumstantial.5 — Circumstantial  evi- 
dence of  handwriting  may  be  used  6  and  may  be  extrinsic  as  from  the  fact  that 
one  was  seen  to  enter  a  room  containing  writing  materials  and  left  leaving  a 
document  behind  him,  or  it  may  be  intrinsic  as  from  the  paper,  ink,  spelling,' 
and  handwriting  8  of  the  document  itself.  Where  other  evidence  fails  letters 
may  sometimes  be  authenticated  by  their  contents  as  where  letters  sent  by  an 
illiterate  were  shown  to  relate  to  the  account  in  question  and  they  referred  to 
checks  and  corresponding  checks  were  produced.9 

§  766.   [Proof  by  Secondary  Evidence] ;   Characteristics  of   Handwriting.10— 

In  a  broad  sense,  the  entire  reasoning  as  to  the  genuineness  of  handwriting 
from  resemblance  is  a  study  of  the  characteristics  displayed  by  the  writer. 
The  probative  force  rests  upon  moral  uniformity,11  the  proposition  of  experi- 
ence that  a  person  who  has  done  a  given  thing  at  one  time  will  do  it  at  another. 

§  767.  [Proof  by  secondary  Evidence] ;  Phenomena  of  Documents.12 —  In  de- 
paper  or  signature  actually  written.  In  the  kins,  89  Wash.  168,  154  Pac.  155,  L.  R.  A.  1916 
absence  of  such  proof  the»best  evidence  is  the  D  635  (1916).  As  to  genuineness  of  hand- 
information  of  witnesses  acquainted  with  the  writing.  See  note,  Bender  Ed.,  82  X.  Y.  Book, 
supposed  writer,  and  who  from  seeing  him  42. 

write  have  acquired  a  knowledge  of  his  hand-  9.  Fayette  Liquor  Co.  v.  Jones,  75  W.  Va. 

writing.     Tarnofker    v.    Grissler,    108    X.    Y.  119,  83  S.  E.  726. 

Suppl.  696    (1908).  10.  3  Chamberlayne,  Evidence,  §  2179. 

4.  Redford   v.   Peggy,   6   Rand.    (Va.)    316,  11.  ''The  theory  upon  which   these  expert 
328    (1828).  per  Carr,  ,T.     Nee  also  State  v.  witnesses    are    permitted    to    testify    is    that 
Witherspoon,    231    Mo.    706,    133    S.    W.    323  handwriting   is   always    in    some   degree   the 
(1910).  reflex    of    the    nervous    organization    of    the 

5.  3  Chamberlayne,   Evidence.   §   2178.  writer,  which,  independently  of  his  will  and 

6.  Shaffer    v.    U.    S.,    24    App.    D.    C.    417  unconsciously,  causes  him  to  stamp  his  indi- 
(1904).  viduality  in  his  writin?.     I  am  convinced  that 

7.  Brookes     v.     Tichborne,     5     Exch.     929  this  theory  is  sound."     Gordon's  Case.  50  X. 
(1850),    per    Parke,    B.     It    is    evidence    of  J.  Eq.  397,  422.  26  Atl.  268    (1893).  per  Mc- 
forgery  that  the  signature  of  the  will  of  an  Gill.  Ch.     Attempts  at  disguise  in  handwrit- 
uneducated  man  not  given  to  much  writing  is  ing  seldom  eradicate  those  peculiarities  which 
exactly  the  same  as  that  of  an  authenticated  indicate  the  real  author.     MeGarry  v.  Healey, 
copy  of  it.  even  though  the  will  antedates  the  78  Conn.  365.  62  Atl.  671   (1905). 
authenticated    signature.     Connolly    v.    Hop-  12.  3  Chamberlayne,     Evidence,     §     2180. 


I  768  HANDWRITING.  596 

termining  the  identity  of  the  writer  of  a  disputed  document,  much  aid  may 
occasionally  be  gained  by  an  inspection  of  the  paper  itself,  attention  being 
directed  not  primarily  to  the  thought  conveyed  but  to  the  structure  or  other 
peculiarity  of  the  vehicle  employed.  Embedded  in  the  paper  or  on  its  surface 
may  be  many  phenomena  of  documents,  genuine  or  disputed.  These  indica- 
tions may  be  relevant  upon  issues  other  than  that  of  genuineness,  the  identity 
of  a  writer.  As  to  this  alone  it  is,  however,  proposed  to  consider  the  subject 
at  the  present  time.  The  work  of  the  jury  on  this  point  may  be  assisted  by 
the  alert  observation  and  trained  reasoning  of  skilled  witnesses.13  The  latter 
may  point  out  the  physical  indications  shown  by  a  document  and  the  inferences 
fairly  to  be  deduced  from  them. 

Preliminary  Detail  of  Fact. —  Sound  judicial  administration  may  well  re- 
quire that  the  witness,  as  a  preliminary  to  giving  his  inference,  should  detail 
to  the  jury  with  such  particularity  as  he  reasonably  can,  the  constituent  facts 
upon  which  he  bases  it  14  and  the  lines  of  reasoning  by  which  it  is  reach- 
ed. 

Typewriting. —  The  characteristics  of  work  done  on  various  typewriters  may 
be  examined  and  pointed  out  to  the  court  when  relevant.15 

§  768.  [Proof  by  secondary  Evidence] ;  Who  are  qualified  as  Witnesses.™ —  A 
witness  qualified  by  experience,  commonly  superimposed  upon  natural  endow- 
ment, is  the  only  person  whom  the  court  will  probably  regard  as  helpful.  The 
matters  covered  by  the  testimony  must  be  those  of  special  skill  or  knowledge  not 
shared  by  ordinary  men.17  Otherwise,  no  reason  is  suggested  for  invading 
the  province  of  the  jury.  In  this  connection,  persons  acquainted  with  rhe 
handling,18  inspection  19  or  examination  of  writings  will  usually  be  found  to 
possess  the  required  experience.  Special  knowledge  as  of  a  bank  officer  of 

13.  Withee  v.   Rowe,   45   Me.   571    (1858)  ;  ment  having  or  possessing  a  defect  or  peculi- 
Demerritt  v.  Randall,  116  Mass.  331    (1874);  arity    the    identity    of    the    instrument    may 
Dubois  v.  Baker.  30  X.  Y.  355  (  1864)  ;  Calkins  be  established  by  proving  the  identity  of  the 
v.  State,  14  Ohio  St.  222  (1863).  defects  or  peculiarities  which  it  impresses  on 

14.  May  v.  Dorsett.  30  Ga    116   (1860).  different    papers.     People    v.    Storrs.    207    N. 

15.  Where   certain    defects    in    a   typewrit-  Y.    147,   100  X.   E.  730,  45  L.  R.   A.    (N.  S.) 
ten  sheet  were  shown  an  expert  mathematic-  860   (1912) 

ian  may  not  be  asked  what  the  chances  are  16.  3  Chamberlayne.  Evidence.  §  2181 

of  a  recurrence  of  all  these  defects  in  another  17.   It    is    error    to   permit    a    witness    not 

machine.     The  court   seems  to  lay  down  the  shown    to    possess    expert    knowledge   on    the 

proposition  that  mathematical  calculations  of  subject  to  give  his  opinion  that  a  copy  of  a 

probability   are    not    admissible    in    evidence.  letter  is  on  stationery  different  from  that  in 

People  v.  Risley.  214  N.  Y.  75.  108  N.  E    200  use  at  a  certain  hotel.     State  v    Denny    I  N* 

Where   forgery   of   a   will    is   charged   and   it  D.  1008),  117  X    W    860 

becomes  vital   to   know   on   which   typewriter  18.  Glover  v.  Gentry.   104  Ala.  222.   16  So 

it    is    written    specimens    of    the    work    done  38   (1803). 

on    the    instrument    with    which    the   will    is  19.  Hadcock   v.   O'Ronrke.   6   X    Y.   Suppl. 

alleged  to  be  written  are  admissible  for  com-  540   (1880)    (order  of  additions  to  paper). 

parison  only  in  the  same  way  that  where  an  Duhois  v.  Baker,  30  X.  Y7.  355   (1864)    (bank 

impression   is  made  on   paper,   wood,   leather  cashier). 

or  any  other  plastic  material  by  an  instru- 


597 


SECONDAKY  EVIDENCE. 


i§  769,770 


bank  notes  is  always  a  qualification.20  Such  a  duly  qualified  witness  may 
testify  as  to  the  meaning  of  abbreviations  21  or  figures  22  or  illegible  portions  23 
of  a  writing  provided  that  he  testifies  to  something  beyond  the  apparent  knowl- 
edge of  the  jury.24 

§  769.  [Proof  by  secondary  Evidence] ;  Age  or  Alterations.25 —  A  witness 
whom  the  trial  judge  regards  as  qualified  may  state  from  the  appearances  of 
documents  submitted  to  his  inspection  his  inference  regarding  their  age,2ti  or 
alterations.27  The  jury  may  make  their  own  deductions  from  prominent 
features  of  a  writing  as  which  of  two  words  was  writeii  over  the  other28  but 
where  necessary  the  skilled  witness  may  testify  as  to  the  handwriting,29  inks,30 
pens  31  and  even  the  peculiarities  of  typewritten  matter.32 

§  770.  [Proof    by    secondary    Evidence] ;    Inference    from    Observation.33 — 

Handwriting  is  a  matter  of  inference  from  observation.34  There  is  here  no 
field  for  the  expert  as  such  as  the  skilled  witness  testifies  almost  invariably 
from  personal  observation  and  not  from  facts  established  by  others  or  in 
response  to  hypothetical  questions.  His  opinions  need  not  be  given  with 
certainty  35  but  a  mere  claim  of  a  witness  to  familiarity  with  a  certain  hand- 
writing may  be  enough  to  qualify  him  36  and  only  a  skilled  witness  may  give 
his  opinion.37  The  original  of  the  document  should  always  be  produced  in 


20.  Hadcock   v.   O'Rourke,   6   N.    Y.    Suppl. 
549    (1889)     (order   of  additions  to  paper). 

21.  Sheldon  v.  Benham,  4  Hill  (N.  Y.)   129, 
40  Am.  Dec.  271    (1843). 

22.  Stone  v.  Hubbard,  7  Cush.   (Mass.)   595 
(1851)    (date). 

23.  Stone  v   Hubbard,  7  Cush.  (Mass.)  595 
(1851)      (decipher    date);     Kux    v.    Central 
Michigan  Sav.  Bank,  93  Mich.  511,  53  N.  W. 
828    (1892)     (bank    pass    book);    New   York 
Mut.  L.  Ins.  Co.  v.  Baker,  10  Tex.  Civ.  App. 
515,  21  S.  W.  1072   (1895)    (date).     See  also 
People    v.    King,    125    Cal.    369,    58    Pac.    19 
(1899). 

24.  Collins    v.    Crocker,    15    111.    App.    107 
(1884)     (cancellation);    Dresler   v.   Hard.   57 
N.   Y.    Super.    Ct.    192,   6    X.   Y.    Suppl.    500 
(1889);    Bridgman    v.    Corey,    62    Vt.    1,    20 
Atl.  273   (1889)  ;  Beach  v.  O'Riley,  14  W.  Va. 
55   (1878). 

25.  3  Chamberlayne,     Evidence,    §§    2182- 
2185. 

26.  Eisfeld  v.  Dill,  71   Iowa  442,  32  X.  W. 
420    (1887). 

27  Rass  v.  Sebastian,  160  111  602.  43  X.  E 
708  (1S96)  [affirming  57  Til  App.  417]: 
Hawkins  v  Grimes,  14  B.  Mon.  (Ky.)  257 
(1852);  Dubois  v.  Baker.  40  Barb.  (X.  Y.) 
558  (1864).  Should  the  witness  be  one 


skilled  in  the  phenomena  of  documents,  his 
opinion  on  the  subject  may  properly  be  re- 
ceived. State  v  Owens,  73  Mo.  441  (1881)  ; 
State  v.  Tompkins.  71  Mo.  617  (1880)  ;  Wag- 
ner v.  Jacoby,  26  Mo.  531  (1858). 

28.  Morse  v.   Blanchard,   117   Mich.   37,  75 
X.  W.  93   (1898) 

29.  Shaffer  v.  Clark,  90  Pa.  94   (1879). 

30.  Glover  v.  Gentry,  104  Ala.  222,  16  So. 
38   (1893);    (practical  experience  sufficient); 
Porell   v.   Cavanaugh,  69  X.   H.  364,  41   Atl 
860    (1898):    Ellingwood  v.  Bragg.  52  X.  H. 
488    (1872):   Dubois  v    Baker,  40  Barb.    (X. 
Y.)    556    (1S64):    Com.  v.  Pioso,   18  Lane    L. 
Pvev.  27    (1899). 

31.  Com.  v.  Webster,  5  Cush    (Mass.)   295, 
52  Am.  Dec.  711    (1850). 

32.  Huber  Mfg.  Co.  v.  Claudel  (Kan.  1905), 
80  Pac.  960. 

33.  3  Chamberlayne,     Evidence,     §§     21S6- 
2198. 

34.  Washington    v.   State    (Ala.    1905),   39 
So    38S. 

35.  Stevens    v.    Seibold,    5    X.    Y.    St.    258 
(1886). 

36.  Brown  v.  McBride,  129  Ga.  92,  58  S.  E. 
702    il907). 

37.  Forgery  may   be   shown   either   by  the 
evidence  of  the  person  whose  name  is  claimed 


§  771  HANDWRITING.  '        598 

court,  when  it  is  available  but  if  not  the  handwriting  can  be  proved  by  the 
evidence  of  one  who  has  had  an  opportunity  of  seeing  the  original  and  com- 
paring it  with  a  specimen  conceded  to  be  genuine.38  The  witness  may  be  re- 
quired to  state  the  facts  on  which  he  bases  his  opinion.39  The  basis  of  the 
opinion  of  the  witness  must  be  in  all  cases  a  mental  standard  created  in  the 
mind  of  the  witness  either  by  seeing  the  person  write  or  by  comparison  of 
recognized  examples  of  his  handwriting.40  In  all  cases,  the  skill  of  the  witness 
must  be  commensurate  with  the  subtlety  of  the  inference  which  he  is  asked  to 
draw.41  Evidently,  the  various  qualifications  of  the  witness  who  proposes  to 
testify  from  a  mental  standard, —  (1)  seeing  the  person  write,  (2)  having 
corresponded  in  course  of  business,  (3)  acquired  familiarity  by  experience 
and,  (4)  comparison  by  juxtaposition, —  present  an  increasing  proportion  of 
this  element  of  pure  reasoning.  His  qualifications  may  be  of  various  kinds 
as  from  instruction  in  handwriting  42  or  from  practical  experience  in  examina- 
tion of  hands.43  Specimens  of  penmenship  will  be  preferred  when  made  ante 
litem  mot  am.44 

§  771.  Ordinary  Observer;  Qualifications;  Seeing  Person  write.45 — An  early 
qualification,  procedural  in  its  nature,46  enables  an  ordinary47  observer  to 
testify  to  his  inference  48  if  he  has  formed  any  49  as  to  the  genuineness  of  a 
disputed  specimen  of  A's  handwriting  if  he  has  ever  seen  him  write50  under 
such  'circumstances  as  to  be  able  to  gain  some  knowledge  as  to  his  style  of 
handwriting.51 

to  be  forged  or  by  a  skilled  witness.     Royce  may  often  attach  to  the  trustworthiness  of 

v.  Gazan,  76  Ga.  79   (1885);  Abat  v.  Riou,  9  any   qualiri'-ntion    "ninod   l>v   a    \vitutv-s    t'rmn 

Mart.   (La.)   465,  466   (1821)  ;  Smith  v.  Val-  having  seen  A  write  at  a  time  after  the  date 

entine,  19  Minn.  452,  454   (1873)  ;  McCully  v.  of  the  disputed  signature.     Keith  v.  Lothrop, 

Malcom,  9  Humph.  187,  192   (1848);  Osborne  10  Cush.    (Mass.),  453    (1852). 
v.  State,  9  Yerg.  488  (1836).  45.  3  Chamberlayne,    Evidence,     §§    2199- 

38.  Hammond   v.   Wolf.    78    Iowa    227.  2207. 

39.  State   v.   Ryno,    (      Kan.    348,   74   Pac.  46.  A  discredited  rule. —  It  is  not  surpris- 
1114   i  1904)  ;  Keith  v.  Lothrop,  10  Cush.  457  ing,   in   view   of  the   growth   of   rational   ad- 
(1852).  ministration,  to  find   judges  questioning,  the 

40.  Allen  v.  State,  3  Humph.  368  (1842).  value  of  a  rule  so  archaic  and  blindly  pro- 

41.  Com.    v.    Xefus,    135    Mass.    533,    534  cedural.     Wilson   v.   Van   Leer,    127   Pa.   337, 
(1883).     See   also    Powers    v.    McKenzie,    90  17   Atl.   1097    (1889):    Doe  v    Suckermore,  5 
Tenn.  167,  16  S.  W.  559   (1891).  A.  &  E.  720   (1836).  per  Williams,  J. 

Qualifications     should     be     substantial. —  47.  Moon  v.  Crowder,  72  Ala.  79    (1882): 

Other  witnesses  not   so  qualified  will  be  re-  Kendall  v.  Collier,  97  Ky.  446,  30  S.  W.  1002, 

jected.     Winch  v.   Norman,   65   Iowa   186,  21  17    Ky.    L.    Rep.    337     (1895);    Williams    v. 

N.   W.   511    (1884).  Deen,   5   Tex.   Civ.    App.   575,   24   S.   W.    536 

42.  Buchanan  v.  Buckler,  8  Ky.  L.  Rep.  617  (1893). 

(1887)  :    Heffernan   v.   O'Neill.   1   Nebr.    (Un-  48.  Bruyn  v.  Russell,  52  Hun.   17,  4  N.  Y. 

off.)  363..  96  N.  W.  244  ( 1901  )  Suppl.  784    (1889) . 

43.  Fonrery  v.   Cambridge  City  First  Nat.  49.  Putnam  v.  Wadley,  40  111.  346   (1806). 
Bank,  66  fnd.  123  (1879)    (bank  manager).  50.  Nagle  v.  Schmadt,  239  111.  595,  88  N.  E. 

44.  Pate  v.   People.  8  HI.  fi44    (1846)  :  Ter-  178    (1909). 

ritorv  v.  O'Hare.  1   X    D.  30.  44  N.  W.  1003  51.  Rowt's  Adm'x  v.  Kile's  Adm'r,  1  Leigh 

(1890)  ;  Reese  v   Reese,  90  Pa.  St.  89.  35  Am.       225    (1829). 
Rep.  634    (1879).     Some  degree  of  suspicion 


599  ORDINARY  OBSERVER.  £   772 

Thai  the  qualification  is  procedural,  i.e.,  a  matter  of  substantive  law  relating 
to  procedure,  appears  froin  the  fact  that  the  creation  in  the  mind  of  the  wit- 
ness of  a  satisfactory  mental  standard,  to  which  the  genuineness  of  the  writing 
can  be  referred,  need  not  be  affirmatively  shown.  The  witness  is  not  required 
to  have  seen  A  write  on  more  than  one  occasion  52  and  it  will  be  enough  that 
he  believes  the  signature  in  question  to  be  his,53  but  the  witness  must  have 
seen  the  writing  done  ante  litem  motam.54  The  witness  may  refresh  his 
memory  by  inspection  of  other  writings  55  but  may  consider  the  writing  only 
and  not  base  his  opinion  on  the  moral  or  other  qualities  of  the  writer.5t{  The 
witness  must  have  been  near  enough  to  see  what  was  written  5T  and  must  have 
himself  been  able  to  read.58  A  sound  modern  limitation  on  this  rule  is  that 
the  witness  must  be  able  to  show  a  reasonably  satisfactory  acquaintance  with  the 
handwriting  in  dispute.09  The  witness  cannot  state  the  undisclosed  author 
of  a  disputed  document.60  The  weight  of  this  species  of  evidence  depends  on 
the  frequency  for  observaton  of  the  witness  and  his  skill.61 

§  772.  [Ordinary  Observer] ;  Adoption  in  Course  of  Business."2 —  Even  from  a 
standpoint  of  technical  procedure,  as  established  later,  it  was  not  absolutely 
necessary  that  a  witness  as  to  the  genuineness  of  handwriting  should  ever  have 
seen  the  person  in  question  actually  write.  He  may  also  testify  that  he  has 
received  letters  which  purport  to  be  written  by  A  in  the  regular  course  of 
correspondence63  acted  on  as  A's  writing64  and  approved  by  A65  ante  litem 
motam™  So  where  a  letter  is  sent  to  A  and  it  appears  that  he  acted  upon  it 
by  a  letter  in  reply  this  latter  letter  will  be  used  as  a  standardizing  document.67 

52.  Com.  v.  Xefus,  135  Mass.  533  (1883).  N.  E.  1066    (1896)  ;  Magie  v.  Osborn,  1  Rob. 

53.  Fash  v.  Blake,  38  111.  363  (1865).  (N.    Y.)     689     (1863);    Allen    v.    State,    3 
Cross-examination. —  Questions     on     cross-       Humphr.    (Tenn.),  367    (1842). 

examination  have  been  permitted  tending  to  60.  Neall  v.  U.  S.,   118  Fed.  699,  56  C.  C. 

develop    the   extent    of   the   confidence   which  A.  31   (1902). 

the  witness-  has  in  the  correctness  of  his  own  61.  Rogers  v.  Ritter,  12  Wall.   (U.  S.)   317, 

estimate.     Thus,  he  may  be  asked  whether  he  20   L.  ed.  417    (1870). 

would  act  upon  a  certain  note  as  genuine  were  62.  3  Chamberlayne,  Evidence.  §  2208. 

the  instrument  presented  to  him  in  an  ordi-  63.  State  v.  Goldstein.  65  Atl.  1119  (1907). 

nary  business   transaction.     Holmes  v.  Gold-  64.  "  The  mere  receipt  of  letters  purporting 

smith.  147  U.  S.  150,  163,  13  Sup.  288,  37  L.  to   be   from   a    person   never   seen,   and   with 

ed.   118    (1893).  whom  no  subsequent  relations  existed  which 

54.  Keith  v.  Lothrop.  10  Tush.  457   (1852)  :  were  based  on  them  as  genuine,  has  no  value 
Ratliff  v.  Ratliff,  131  X.  C.  425.  42  S.  E.  887  as  means  of  knowledge.     Where  there  is  no 
(1902)  :  Porter  v.  Wilson,  13  Pa.  646  (1850).  direct  knowledge  of  handwriting,  there  must 

55.  Bedford  v.  Peggy,   6   Rand.    (Va.)    316  be  something  which  assures  the  recipient  of 
(1828).  the  letters  in  a  responsible  way  of  their  gen- 

56.  Daoosta    v.    Pym.    Peake    X     P.     144  uineness."     Pinkham  v.  Cockell.  77  Mich.  272, 
U7H7).  43  X.  W.  921    (1889),  per  Campbell.  J. 

57.  Brigham    v.    Peters,    1    Gray     (Mass  )  65.  Coffey's  Case.  4  City  Hall  Rec.   (X*.  Y.) 
139    (1854).  52  (1819)    (paid  checks  drawn  by  the  persons 

58.  People    v.    Corey,    148    X".    Y.    476,    42  in  question). 

X.  F..  1066   (1895K  66.  Hynes  v.  McDermott.   82  X.  Y.  41.  37 

59.  Xelms  v.  State.  91  Ala.  97.  9lSouth.  193       Am.    Rep.    538     (1880).     See   also    Territory 
(1890)  ;  People  v.  Corey,  148  N.  Y.  476,  42      v.  O'Hare,  1  X.  D.  30,  44  N.  W.  1003  (1890). 


§§   773,774  HANDWRITING.  600 

Even  clerks  in  an  office  which  received  A's  letters  in  the  regular  course  of 
business  are  competent  to  testify  to  it.08 

§  773.  [Ordinary  Observer;  Qualifications];  Special  Experience. "<J — Leaving 
the  procedural  qualiiications  of  seeing  a  person  write  and  adoption  in  the 
course  of  business,  one  breathes  a  more  rationally  stimulating  atmosphere. 
Quite  in  accordance  with  the  methods  of  modern  judicial  administration,  the 
broad  rule  is  announced,  in  case  of  an  ordinary  observer,  that  any  person  who 
can  be  affirmatively  shown,  to  the  satisfaction  of  the  trial  court,  to  have  acquired 
a  mental  standard  as  to  A's  handwriting,70  to  such  an  extent  as  will  enable  him 
to  give  the  jury  an  inference  likely  to  be  helpful  to  them  may  testify  on  an 
issue  as  to  handwriting.  Xo  limitation  is  imposed  as  to  the  precise  method 
by  which  the  requisite  mental  certainty  is  acquired.  In  other  words,  a  witness 
who  has  sufficient  knowledge  of  the  handwriting  of  another  may  give  his 
opinion  as  to  the  genuineness  of  a  disputed  specimen.71  Such  a  witness  may 
point  out  by  comparison  the  similarities  between  the  authentic  and  the  disputed 
specimens  72  but  cannot  give  his  opinion  directly  from  comparison  of  hands.73 
So  one  familiar  with  ancient  document,  74  from  the  proper  custody  75  or  with 
signatures  on  official  documents  76  ante  litem  motam  77  or  tellers  in  a  bank  deal- 
ing with  checks  "8  may  testify  to  the  genuineness  of  the  signature. 

§  774.  Skilled  Observer;   Qualifications  required.79 — Handwriting  may   well 

67.  Violet  v.  Rose,  39  Nebr.  660,  58  N.  W.          71.  State  v.  Witherspoon,  231  Mo.  706,  133 
216    (1894).  S.  W.  323   (1910). 

68.  District  of  Columbia. —  Tyler  v.  Mutual  72.  Martin    v.    Knight     (N.    C.    1908),    61 
D.    M.    Co.,    17    D.    C.   App.    85,    93    (1900).  S.  E.  447. 

"  The  knowledge  may  have  been  acquired  by  73.  Griffin     v.     Working    Woman's     Home 

the  witness  having  seen  letters  or  other  docu-  Ass'n  (Ala.  1907),  44  So.  605;  Ware  v.  Burch, 

ments   professing   to   be   the   handwriting   of  (Ala.  1906),  42  So.  562. 

the  party,  and  having  afterwards  communi-  74.  Jackson    v.    Brooks,    8    Wend.    431,    15 

cated  personally  with  the  party  upon  the  con-  Wend.    112    (1832)     (deeds);    R.    v.    Barber, 

tents  of  those  letters  or  documents,  or  hav-  1  C.  &  K.  436    (1844). 

ing   otherwise   acted   upon    them   by   written  75.  Tuttle  v.  Rainey,  98  N.  C.  514,  4  S.  E. 

answers  producing  further  correspondence  or  475    (1887)     (an  accompanying  photograph), 

acquiescence  by  the  party  in  some  matter  to  76.  Sill  v.  Reese,  47  Cal.  294   (1874)  ;   Rog- 

which  they  relate,  or  by  the  witness  transact-  ers  v.  Ritter,  12  Wall.   (U.  S. )   317,  20  L.  ed. 

ing  with   the  party  some  business  to  which  417    (1870).                                                   • 

they   relate,   or   by  any  other   mode   of   com-  Maps,  plans,  etc. —  One  familiar,  as  a  sur- 

munication  between  the  party  and  the  witness  veyor,  with  all  the  maps  and  plans  on  record 

which  in  the  ordinary  course  of  the  transac-  in  a  public  office  may  testify  to  the  genuine- 

tions  of  life  induces  a  reasonable  presumption  ness  of  a  signature  which  he  has  frequently 

that  the  letters  or  documents  were  the  hand-  seen  on  these  papers.     Hamilton  v.  S-~iith,  74 

writing  of   the   party."     Doe   v.   Suckermore,  Conn.  374,  50  Atl.  884    (1901). 

5  A.  &  E.  727    (1836),  per  Patteson,  J.  77.  Goodyear    v.    Vosburgh,    63    Barb.    154 

69.  3  Chamberlayne,     Evidence,     §§    2209-  (1872). 

2213.  78.  State  v.  Tutt,  2  Bailey,  44,  21  Am.  Dec. 

70.  Ppottiswood   v.   Weir,   80   Cal.   448,   22  508     (1830)      (bank    president):     Brooks    v. 
Pac.    289     (1889);    Slaymaker    v.    Wilson,    1  State,    57   Tex.    Cr.    R.   251,    122    S.    W.    386 
Penr.  4  W.    (Pa.)   216    (1829).  (1909). 

79.  3  Chamberlayne,  Evidence,  §  2214. 


601  COMPARISON  OF  HAXDS.  §§   775, 776 

be  a  matter  of  special  knowledge.  Xatural  endowments  enriched  by  skill  and 
added  powers  of  coordination,  may  well  produce  a  witness  capable  of  acquiring 
and  holding  a  clear  and  definite  mental  standard  of  handwriting.  This  he 
may  do.  to  an  extent  impossible  to  the  ordinary  observer.  Undoubtedly,  the 
trained  witness  is  capable,  to  an  exceptional  extent,  of  rendering  assistance  to 
the  jury,  and  through  them  to  the  cause  of  justice,  in  the  matter  of  hand- 
writing. Where  the  inference  as  to  resemblance  is  a  technical  one,  some  ade- 
quate qualification  must  be  shown.80  The  qualifications  of  the  expert  are  de- 
termined as  a  preliminary  matter  by  the  judge81  either  on  the  voir  dire  or  on 
the  cross-examination. 

§  775.  "  Comparison  of  Hands."  82 —  The  difficulty  which  technical  procedure 
experienced  in  securing  to  judicial  administration  the  benefit  of  the  skilled 
observer  as  to  handwriting  was  obvious.  Seldom  would  it  be  found  to  happen 
that  an  observer  sufficiently  skilful  in  the  matter  to  make  his  inference  helpful 
to  the  jury  would  either  have  seen  the  person  in  question  write  or  have  received 
business  communications  from  him  under  conditions  which  would  make  them 
available  as  standardizing  documents.  It  would  even  be  highly  improbable 
that  the  skilled  witness  should  have  acquired  from  any  source  an  antecedent 
familiarity  with  the  penmanship  of  a  particular  writer.  The  difficulty  was 
obviated  by  letting  the  witness  examine  specimens  of  A's  handwriting  proved 
by  others  or  admitted  to  be  genuine  and  upon  a  juxtaposition  of  the  genuine 
with  the  disputed  writing  known  as  *'  a  comparison  of  hands  "  the  witness  was 
allowed  to  give  his  opinion.  The  term  "  comparison  of  hands "  in  early 
times  had  a  broader  significance  than  this  and  meant  all  evidence  of  handwriting 
except  where  the  witness  sees  the  document  written.83  Popular  opposition  to 
this  species  of  evidence  was  engendered  in  England  through  its  use  by  the 
notorious  Judge  Jefferies  in  the  judicial  murder  of  Colonel  Sidney  in  1683  84 
and  it  was  excluded  after  the  Revolution  of  1688  and  was  also  banned  in  the 
Colonies.  Yet  reason  won  in  the  end  and  "  comparison  by  handwriting  "  is 
now  firmly  established. 

§  776.  ["Comparison  of  Hands"];  Qualifications  must  be  affirmatively 
proved.1"5 —  Unless  an  administrative  assumption  as  to  qualification  may  rea- 
sonably be  made  as  a  preliminary  matter,  the  proponent  of  the  inference  of  a 
skilled  observer  must  affirmatively  establish,  to  the  satisfaction  of  the  presiding 

80.  In  re  Thomas'  Estate,  loo  Cal.  488.  101  82.  3  Chamberlayne,  Evidence,  §  2214a. 
Pac.    708    (1909)  -.    In    re   Lord's    Will    (Me.  83.  Doe  v.  Suckermore.  5  A.  &  E.  703,  730. 
190!)),  75  Atl.  286;  In  re  Burbank's  Will,  IS.',  7   L.   J.   Q.   B.   33,   2   N.   &   P.    16,   W.   W.   & 
X    Y    559.  77  X.  E.  1183   (1906);   Berkley  v.  D.  405,  31  E.  C.  L.  791    (1836). 

Maurer,  41  Pa.  Super.  Ct.  171    I  1909).  84.  Algernon  Sidney's  Trial,  9  How.  St.  Tr. 

81.  Forgey   v    Bank,   66   Ind.    125    (1879).       851.864   (1683). 

Expert    testimony    as    to  handwriting.     See          85.  3  Chamberlayne,    Evidence,    §§    2215- 

note.   Bender  Ed.,   127   X  Y.   242.     Proof   of       2220. 

handwriting   expert.     See  note.    Bender    Ed., 
127  X.  Y.  242. 


HANDWRITING.  602 


judge,  that  the  proposed  ivitness  is  capable  of  giving  an  estimate  reasonably 
helpful  to  the  jury.  The  proponent  must  fairly  show,  as  he  would  be  re- 
quired to  do  in  case  of  other  observers,  that  the  trained  or,  so-called,  "  expert  " 
witness  has  had  reasonable  opportunities  for  observation  and  possesses  the 
mental  powers  necessary  to  coordinate  the  phenomena  in  such  a  way  as  to 
advance  the  search  for  truth.  An  unskilled  witness  will,  therefore,  necessarily 
be  rejected  in  case  of  "  comparison  of  hands."  80  Qualifications  may  be  based 
on  special  technical  study  8T  or  instruction  in  the  art  88  or  on  practical  ex- 
perience 89  as  in  clerical  positions  90  and  his  intelligence  and  opportunities 
for  observation  may  be  shown.91  Even  the  fact  that  the  witness  claims  to 
have  adequate  knowledge  on  the  subject  may  be  allowed  to  weigh  with  the 
court  to  a  prima  facie  extent.92 

§  777.  ["  Comparison  of  Hands  "]  ;  Requirements.93  —  Apparently,  l<  compari- 
son of  hands  "  or,  as  it  may  be  called  in  its  more  restricted  modern  meaning, 
comparison  by  juxtaposition,94  was  at  all  times  a  simple  and  valuable  method 
of  eliciting  the  opinion  of  the  skilled  witness.  In  modern  times,  this  method 
of  proving  handwriting  is  received  by  the  practically  unanimous  action  of  every 
English  speaking  jurisdiction.  "  Comparison  of  hands  ''  at  the  present  day 
implies-  juxtaposition,  placing  side  by  side  authentic  or  standardizing  docu- 
ments with  that  in  dispute,  for  use  by  one  who  has,  up  to  that  time,  acquired 
no  mental  standard  on  the  subject.95  The  phrase  refers,  in  other  words,  to  a 
particular  method  of  creating  the  mental  standard.  From  resemblance  to  this, 
the  skilled  witness  respecting  handwriting  anuoTinces  his  inference  or  estimate 
as  to  whether  the  disputed  writing  is  authentic.  The  witness  is  in  all  cases  an 
observer  and  not  an  expert  as  the  term  is  used  in  this  work. 

86.  Strother  v    Lucas,  6   Pet    766    (1832).          94.  Comparison  by  juxtaposition  defined.  — 

87.  Forgey   v.    Cambridge   City    First   Nat.  "  Comparison  of   handwriting  "   has  been  de; 
Bank,  66  Ind.  123  (1879).  fined  as  "a  comparison  by  the  juxtaposition 

88.  Buchanan  v.  Buckler,  8  Ky.  L.  Rep   617  of  two  writings,  in  order,  by  such  comparison, 
(1887);    Heffernan  v.  O'Neill,   1   Nebr.    (Un-  to  ascertain   whether    both   were    written   by 
off.)    363.  96  X.  \V.  244    (1901).  the  same  person.     A  method  of  proof  resorted 

89.  Lyon    v.    Lj-man,    9    Conn.    55     (1837)  to  where  the  genuineness  of  a  written  docu- 
i  cashier).  ment   is  disputed;    it   consists   in   comparing 

90.  Clerk   of   Court.  —  State   v    David,    131  the  handwriting  of  the  disputed  paper  with 
Alo   380,  33  S.  VV.  28   (  1895)  ;  Yates  v.  Yates,  that  of  another  instrument  which  is  proved  or 
76  X.  C    142    (1877).  admitted   to  be  in   the   writing  of  the  party 

91.  Hyde  v.  \\oolfolk,  1  Iowa  159    (1855).  sought  to  be  charged,  in  order  to  infer,  from 
Having   seen    the    person    write   may    not   be  their   identity   or   similarity   in   this   respect, 
sufficient    qualification     in    this     connection  that  they  are  the  work  of  the  same  hand  " 
IVople  v.  Collins,  57  X.  Y.  App    Div    2.i~,  6S  Black   Law  Diet.     See  also  Burdick  v    Hunt, 
X    Y.  Suppl.  151,  15  X    Y.  Cr.  305   (1901).  43  Ind    381,  386   (1873)  :  Woodman  v    Dana, 

92.  State  v.  DeO  rod,  113  X.  C.  688.  18  S.  E.  52   Me.   9,    14    (I860):    Travis   v.    Brown,   43 
r.()7    (18931.     Comparison     to     prove     hand-  Pa.  St.  9,  12,  82  Am.  Dec.  540   (1862);  Com. 
writing.     See    note.    Bender    Ed.,    129    X.    Y  v.  Smith,  6  Serg.  &  R.  (Pa  )  568.  571   (1819); 
352:   148  X.  Y.  476,  506.  Hanley  v.  dandy,  28  Tex.  211,  91  Am   Dec  315 

93.  3  Chamberlayne,    Evidence,    §§    2221-  (1866). 

2224.  95.   Rowt's  Adm'x  v.  Kiles,  Adm'r.   I  Leigh 

(Va.)    222    (1829). 


603  COMPARISON  OF  HANDS.  §§   778,771) 

§  778.  ["Comparison  of  Hands"];  English  Rule.90 — Prior  to  the  statute  of 
1854,  it  was  well  established  in  the  common  law  courts  of  Eugiand  during 
the  first  half  of  the  nineteenth  century  that  comparison  by  juxtaposition  could 
not  be  received.  The  jury  were  permitted  to  compare  with  the  disputed  writ- 
ing documents  already  properly  in  evidence  for  other  purposes  97  upon  the  some- 
what naive  theory  that  so  much,  at  least,  could  not  well  be  prevented.9*  But 
even  authentic  writings,  properly  veritied  by  proof  or  admission,  could  not  be 
introduced  into  evidence  or  used  by  the  skilled  witness  for  the  purpose  of 
enabling  the  latter  to  testify  from  resemblance  "  or  the  jury  to  make  their 
comparison.1  Some  opposition  to  such  a  view,  which  clearly  prevented  the 
cause  of  justice  from  receiving  the  aid  of  well-recognized  scientific  skill  in  an 
important  branch  of  litigation,  was  not  entirely  lacking.2  But  the  more  liberal 
view  could  scarcely  be  said  to  have  become  firmly  established.3  Final  relief  wras 
obtained  only  by  the  passage  of  the  statute  of  1854,4  which  permitted  compari- 
son of  a  disputed  writing  with  any  writing  proved  to  the  satisfaction  of  the 
judge  to  be  genuine.  It  is  not  necessary  under  this  statute  that  the  standard- 
izing document  be  itself  relevant  to  the  case.5 

§  779.  ["Comparison  of  Hands";  American  Rule].6— Even  without  the  aid 
of  an  enabling  statute.  American  courts  have  conceded  exceptional  privileges 
to  both  court  and  jury  in  the  use  of  ;<  comparison  of  hands."  Genuine  docu- 
ments already  in  the  case  for  some  other  purpose  might  freely  be  compared  by 
judge  or  jury  with  the  disputed  writing,  for  the  purpose  of  determining  the 
identity  of  the  writer.7  The  practice  on  this  point,  therefore,  is  substantially 
the  same  in  the  United  States  as  in  England.  Writings  which  have  no  rele- 
vancy to  any  issue  in  the  case  cannot,  it  is  said,  be  introduced  into  evidence 
for  the  purpose  of  allowing  the  court  and  jury  to  institute  comparisons  with 
a  disputed  specimen  of  handwriting.8  Certain  courts,  disregarding  minor 

96.  3  Chamberlayne,     Evidence,     §§     2225-  3.  Even    Lord    Kenyon,    however,    was    as- 
2228.  sumed  to  have  recanted  in  other  cases  decided 

97.  Cobbett   v.   Kilminster,   4   F.  &   F.   490  by  him.     Carey  v.  Pitt,  Peake,  Add.  Cas.  131 
note    (1865)  ;   Doe  v.  Wilson,  10  Moore  P.  C.  (1797)  ;  Stanger  v.  Searle.  1  Esp.  14  (1793). 
502.   14  Eng.  Reprint  581    (1855).  4.  Stat.    17    &    18    Viet.,    chap.    125,    §    27 

98.  "The   real   ground   is  that   comparison  (1854). 

in    such   a    ease   is   unavoidable.   .  .  .  Xo   hu-  5.  Birch    v.    Ridgway.    1     Falc.    4    F.    270 

man  power  can  prevent  the  jury  from  forming  I  1858).     See  also  Roupell  v.  Haws,  3  F.  &  F. 

some  opinion,  .  .  .  and  consequently  when  the  784   (  1863)  ;   Cresswell  v.  Jackson,  4  F.  A  F. 

mind  of  the  jury  must  be  so  employed,  it  is  I,  $    I  1864)  :    Cresswell   v.   Jackson,   2    F.   A 

better  for  the  Court  to  enter  into  the  consid-  F.  24    (1860). 

eration."     Doe    v.    Newton,    1    Xev     &    P     1  6.  3  Chamberlayne,     Evidence.     §§     2229- 

i  1S36) ,  per  Denman,  L.  C.  J.  2235. 

99.  R.  v.  Shepherd.  1  Cox  Cr    237    (1845K  7.  Rogers  v.  Tyley.   144  111.  652,  32  X.  E. 
per  Erie.  J. ;  Fitzvralter  Peerage  Case,  10  Cl.  393   (1892). 

&  F.  193   (1843).  8.  White  Sewing  Mach.  Co.  T.  Gordon,  124 

1.  Hughes  v.  Rogers,  10  L.  J.  Exch.  238,  8  Ind.  495,  24  N.  E.  1053,  19  Am.  St.  Rep.  109 
M.  &  W.  123  (1841)  (1890). 

2.  R.  v.  Cator,  4  Esp.  117   (1802). 


§   780  ,     HANDWRITING.  604 

distinctions,  have  laid  down  the  broad  rule  that  documents  otherwise  irrelevant 
may  be  introduced  into  evidence  for  the  use  of  the  court  or  jury  in  forming  a 
standard  of  comparison  should  the  genuineness  of  the  standardizing  specimens 
be  proved  or  conceded.9 

The  danger  of  presenting  to  the  jury  collaterial  issues  to  confuse  them  has 
been  a  strong  argument  against  the  receipt  of  such  documents  but  they  are 
always  admitted  where  admitted  by  the  party  to  be  genuine  10  or  where  the 
objection  is  waived.11  ISpecial  rules  on  the  subject  prevail  in  various  states.12 

§  780.  ["  Comparison  of  Hands"];  Witness  to  Comparison  rejected.13 — In  the 
absence  of  statutory  regulations,  many  American  states  declined  to  allow  a 
skilled  witness  to  testify  as  to  his  inference  or  conclusion  regarding  the  authen- 
ticity of  a  handwriting  from  its  resemblance  to  a  mental  standard  previously 
or  contemporaneously  created  in  his  mind  by  the  examination  of  genuine  docu- 
ments.14 That  the  authorship  of  a  forgery  cannot  be  established  ill  this  way 
is  the  conclusion  which  has  been  reached  in  several  cases.15  There  are,  how- 
ever, a  large  number  of  decisions  which,  either  directly  or  by  inference,  sustain 
the  contrary  view.16 

Prominent  among  the  anticipated  evils  of  this  species  of  evidence  is  the  fear 
of  raising  collateral  issues  to  confuse  the  jury  17  but  even  in  States  which  reject 
this  evidence  it  may  be  received  where  the  danger  of  collateral  issues  is  elimi- 
nated by  a  concession  that  the  standardizing  document  is  genuine  18  or  the 
opponent  is  estopped  to  deny  its  genuineness.19 

Like  other  evidence  of  a  secondary  character,  evidence  by  "  comparison  of 
hands  "  has  been  received  to  corroborate  other  evidence  even  where  its  proba- 

9.  Costelo  v.  Crowell,  139  Mass.  588,  2  X.  E.       him.     This  would   introduce  many  collateral 
698   (1895).  issues  into  the  case  but  it  seems  that  such 

10.  Dietz    v.    Grand    Rapids    Fourth    Nat.  testing    of    the    witness    should    be    allowed 
Bank,  69  Mich    287,  37  X.  W.  220   (1888).  within  proper  limits.     Fourth  National  Bank 

11.  Moon  v.  Crowder,   72  Ala.   79    (1882)  ;  v.  McArthur,  168  N.  C.  48,  84  S.  E.  39.     One 
People  v.   Gale,   50  Mich.  237,   15   N.   W.   99  may  qualify  as  an  expert  on  the  handwriting 
(1883).  of  a  lost  letter  who  has  been  in  the  banking 

12.  Hockey's  Estate,    155   Pa.  453.   456,   26  business   for   about   fourteen   years   and   who 
All.  656  (1893)  :  Weaver  v.  Whilden,  33  S.  C.  had    never    seen    the    party    write    and    had 
190,  11  S.  E.  086   (1890).  never  seen  any  of  his  handwriting  except  the 

13.  3  Chamberlayne,    Evidence,     §§     2236-  alleged  letter  and  had  never  seen  the  plaintiff 
2239.  write  and  was  not  acquainted   with   his  sig- 

14.  Rockey's   Estate,    155    Pa.    St.   453,    26  nature  at  the  time  he  received  a  letter  from 
Atl.  656   (1893).  him.     It    is    sufficient    if    he    is    shown     his 

15.  Powers  v.  McKenzie,  90  Tenn.   179,   16  admitted   handwriting  and   can   then   say  by 
S.   W.   559    (1890).  comparison  that  the  letter  was  the  handwrit- 

16.  Tower  v.  Whip,   53   W.  Va.   158,  43  S.  ing  of  the  party.     Cochran  v.  Stein.  1 18  Minn. 
E.   179.  63  L.  R    A.  937    (1903).  323.  136  N.  w!  1037,  41  L.  R.  A.   (N.  S.)   391 

17.  McDonald   v.    McDonald,    142    Ind     55,  (1912). 

70.  41   N.   E.  336    (1895).     A  non-expert  wit-  18.  Morrison   v.   Porter.   35   Minn.   425,   29 

ness   as  to  handwriting  cannot  be   asked   on  N.  W.  54,  59  Am.  Rep.  331    (1886). 

cross-examination     to     pass     upon     the     au-  19.  State  v.  Noe,  119  N.  C.  849,  25  S.  E.  812 

thenticity  of  various  signatures  presented  to  (1896). 


605  COMPAKISON  OF  HANDS.  §§  781, 782 

live  quality  has  been  denied.20  In  some  cases  even  where  there  was  no  danger 
of  raising  collateral  issues  as  where  the  comparison  was  sought  with  documents 
already  in  the  case  21  the  comparison  was  nevertheless  excluded  on  the  ground 
that  his  handwriting  might  change  or  that  fraud  might  be  committed. 

§  781.  ["  Comparison  of  Hands  "] ;  Witness  to  Comparison  accepted.22 —  Other 
courts  have  gone  even  further  in  the  admission  of  *'  comparison  of  hands  "  than 
is  indicated  by  some  of  the  decisions  we  have  referred  to.  Contrary  to  the 
English  common-law,  they  have  permitted  the  use  of  otherwise  irrelevant  writ- 
ings for  the  creation  of  a  mental  standard  on  the  part  of  a  skilled  witness  from 
which  to  estimate  the  genuineness  of  a  disputed  handwriting. 2y 

The  tendency  of  the  American  courts  has  been  to  regard  the  raising  of  col- 
lateral issues  as  the  chief  objection  to  this  sort  of  evidence  and  therefore  it  has 
been  readily  admitted  where  referred  to  documents  admittedly  genuine  or  al- 
ready in  the  case  24  or  where  the  other  side  was  estopped  to  deny  their  genu- 
ineness,25 or  where  the  paper  was  already  on  file.26  The  rationalizing  ten- 
dencies of  judicial  administration  have,  in  several  jurisdictions,  led  to  the 
admission  into  evidence  of  documents  in  the  disputed  handwriting  which  were 
otherwise  irrelevant.  The  purpose  of  this  has  been  to  enable  a  suitably  skilled 
witness  to  state  an  inference  from  resemblance  to  a  mental  standard  as  to 
whether  an  alleged  specimen  of  the  handwriting  in  question  was  or  was  not 
genuine.27 

§  782.  ["  Comparison  of  Hands "] ;  Statutory  Modifications.28 —  Into  this 
marked  diversity  of  rules  of  practice,  to  which  the  rigid  adherence  to  the  doc- 
trine of  stare  decisis,  characteristic  of  technical  procedure,  had  given  the 
force  of  law,  came  a  series  of  unifying  statutes.  These  followed,  in  a  large 
degree,  the  model  furnished  by  the  English  statute  of  1854,  permitting  of  com- 
parison by  juxtaposition  by  witnesses  with  specimens  of  the  disputed  handwrit- 
ing shown  to  the  satisfaction  of  the  court  to  be  genuine.  Similar  statutes,  in 
code  revisions  or  independently,  have  been  passed  in  many  American  states. 

It  scarcely  needed  an  express  decision  to  establish  the  fact  that  such  statutes 
are  not  violative  of  the  constitutional  provisions  guaranteeing  a  trial  by  jury. 
The  jury  are  still  the  ultimate  judges  of  the  issue  of  genuineness.  Properly 
construed,  a  statute  permitting  "'  comparison  of  hands  "  requires  the  jury  to 

20.  Commonwealth    Bank    v.    Haldeman,    1       Co.,   198  Mass.  306,  84  N.  E.  469    (1908). 
Penr.   &   W.    (Pa.)    161    (1829);    Graham   v.  24.  Appeal   of   Anderson,   222   Pa.    182,   70 
Nesmith,   24   S.   C.   285    (1885);    Benedict  v.       Atl.  1005   (1908). 

Flanigan,    18    S.    C.    506,   44    Am.    Rep.    583  25.  Kennedy     v.     Upshaw,     64     Tex.     411 

(1882).  (1885). 

21.  State  v.  Woodruff,  67  N.  C.  91   (1872)  ;  26.  Tower  v.  Whip,  53  W.  Va.  158,  44  S.  E. 
Otey  v.  Hoyt,  3  Jones  L.  410  (1856)  ;  Outlaw  179,   63   L.   R.   A.   937    (1903). 

v.  Hurdle,  1  Jones  L   165  (1853).  27.  State  v.  Thompson,  80  Me.  194,  13  Atl. 

22.  3  Chamberlayne,    Evidence,     §§     2240-       892,  6  Am.  St.  172    (1888). 

2243.  28.  3  Chamberlayne,     Evidence,    §§    2244- 

23.  Reed    v.    Mattapan    Deposit    &    Trust       2262. 


•^§   7S3,  784  HANDWRITING. 

make  the  ultimate  decision  concerning  the  authenticity  of  the  standard  with 
which  the  disputed  writing  is  compared.  It  leaves  to  the  court  only  the  de- 
termination of  the  preliminary  question  whether  sufficient  proof  has  been  given 
that  the  papers  are  genuine  so  as  to  authorize  their  submission  to  the  jury.29 
The  ordinary  common  law  function  of  the  trial  judge  in  passing  upon  the 
genuineness  of  the  standardizing  specimens  or  as  to  the  qualifications  of  the 
witness  to  aid  the  jury  do  not  appear  to  have  been  materially  enlarged.30  The 
old  procedural  qualifications  of  seeing  a  person  write,  adoption  in  course  of 
business  or  the  like,  are  still  available  to  a  proponent.31 

Irrelevant  documents. —  It  is  not  essential,  under  these  statutes,  that  the 
standardizing  documents  should  be  relevant  for  any  other  purpose  in  the  case. 
Except  for  their  influence  in  creating  the  standard,  the  writings  may  be  entirely 
irrelevant.32 

§  783.  ["  Comparison  of  Hands  "] ;  Proof  of  Standard.33 —  Both  at  common 
law  and  under  the  statute,  whether  comparison  was  to  be  made  by  the  court  and 
jury  or  by  the  aid  of  witnesses,  the  ever  present  administrative  danger  of  rais- 
ing collaterial  issues  was  to  be  eliminated,  so  far  as  possible.  As  a  practical 
matter,  this  could  only  be  done  either  by  such  clear  proof  of  the  genuineness  of 
the  standardizing  document  that  no  reasonable  conflict  on  the  point  could  well 
arise ;  or  by  the  exhibition  of  such  a  state  of  affairs  that  the  party  alleging  the 
falsity  of  the  disputed  document  could  not,  under  the  rules  of  procedure  or 
substantive  law,  be  heard  to  object. 

This  may  be  done  either  by  an  admission  of  the  party,  whose  chirography  is 
in  dispute  by  his  statement 34  or  by  his  conduct  in  regard  to  it.35  There  may 
also  be  an  estoppel 3rt  as  where  the  opposite  party  is  himself  claiming  rights 
under  the  document  offered  as  a  standardizing  document.37 

§  784.  ["  Comparison  of  Hands  "] ;  Proof.38 —  Proof  of  the  genuineness  of  a 
standardizing  document  must  be  clear  and  positive  and  to  the  satisfaction  of 
the  presiding  judge.  It  is,  therefore,  addressed  to  him,30  rather  than  to  the 
jury.  Old  writings  or  documents  over  thirty  years  of  age,  coming  from  the 

29.  People  v.  Molineux,   168  X.  Y.  264,  61  37.  Himrod  v.  Oilman,  147  III   293.  35  X.  E. 
X.  E.  286.  152  L   R    A.  193   (1901).  373    (1893)    [affirming  44   111.   App.  516]. 

30.  People  v    Molineux.   168  X'.   Y.  264.  61  38.  3  Chamherlayne.     Evidence.    §§     2265- 
X'.   E.   286.  62   L.    R.   A.   193    (1901).  2270. 

31.  McKay  v.  Lasher,  121  X.  Y.  482,  24  X.  39.  Hall  v.  Van  Vranken.  28  Hun    (X.  Y.) 
E.  711    (1890).  403.   64   How.   Pr.    (X.   Y.)    407    (1882). 

32.  Peck  v.  Oallaghan,  95  X.  Y   73   (1884).  Resemblance    excluded. —  The    genuineness 

33.  2  Chamberlayne,     Evidence.     §§     2263-  of  the  standardizing  document  cannot  be  itself 
2264.  established   by   its   similarity   to  another   au- 

34.  State  v.  Xoe,   119  X.   C.  849,  25  S    E.  thenticated  by  the  opinion   of  a   skilled   \vit- 
812    (1896)  ness.     Sankey  v.  Cook.  82  Towa  125,  47  X".  W. 

35.  Cunningham    v.    Bank,    21    Wend.    560  1077     (1891);    Contra    People    v.    Molyneux, 
(1830).  per  Bronson,  J.  168   X    Y.   264,   61    X.   E.  286,   62   L.   R.   A. 

36.  Williams   v.   Conger.    125   U.   S.  397,   8  193    (1901). 
S.  Ct.  933,  31  L.  ed.  778    (1888). 


60' 


COMPARISON  OF  HANDS. 


proper  custody,40  will,  in  the  absence  of  circumstances  of  suspicion,  be  re- 
ceived in  evidence  as  standards  of  the  handwriting  which  they  contain  without 
further  proof  of  genuineness.41 

The  fact  that  the  document  of  similar  handwriting  was  found  on  the  person 
of  the  alleged  author  may  be  a  ground  for  receiving  it 42  and  in  any  event  the 
evidence  must  be  positive  and  clear.43  Magnified  drawings  of  the  document 
may  be  used  to  assist  in  illustrating  it  44  and  the  standardizing  document  must 
always  be  produced  in  court.45 

§  785.  ["  Comparison  of  Hands  "] ;  Testing  upon  Cross-Examination.46 —  Ac- 
cording to  the  better  opinion,  the  requirements  for  proof  of  genuineness  of 
handwriting,  or  as  to  the  identity  of  the  writer  of  a  disputed  specimen  or  the 
maker  of  a  signature,47  apply  equally  upon  cross-examination  48  as  on  that 
which  is  direct.  A  different  view,  however,  is  not  without  authority  to  sus- 
tain it.49 

The  testing  of  a  skilled  witness  is  a  matter  of  administration  and  there  is 
no  objection  to  testing  him  on  cross-examination  by  reference  to  documents 
admittedly  genuine50  produced  in  court51  but  the  courts  have  commonly  re- 
fused to  allow  efforts  to  trap  a  witness52  as  by  submitting  to  him  specimens 
some  of  which  are  not  genuine.53 


40.  Bell  v.   Brewster,   44  Ohio   St.   690,   10 
X.   E.  679    (1887). 

41.  U.  S.  v.  Ortiz,  176  U.  S.  422.  20  Sup. 
466    (1899)     (ancient   Mexican    official   docu- 
ments). 

42.  Crosby's   Case.   12  Mod.   72    (1695). 

43.  Renner   v.   Thornburg,   111    la.   515,   82 
N.   \V.   950    (1900). 

44.  Howard  v.   Russell,  75  Tex.   171,   12  S. 
W    525   (1889). 

45.  People  v  Dorthy,  50  N.  Y.  App.  Div.  44, 
63    X.    Y.    Suppl.    592,    14    X.    Y.     Cr.  545 
(1900). 

46.  3  Chamberlayne,     Evidence,     §§     2271, 
2272. 

47.  Richardson     v.      Xewcomb,     21      Pick. 
(Mass.)    315    (1838). 

It  is  error  to  strike  out  an  admission  by  a 
handwriting  expert,  made  upon  cross-exam- 
ination, that  he  had  been  mistaken  as  to  sig- 
natures which  he  had  pronounced  genuine, 
although  the  trial  judge  might,  in  his  discre- 
tion, have  excluded  an  effort  to  secure  such 
admission  in  the  first  instance.  Hoag  v. 
Wright.  174  X.  Y.  36.  63  L.  R.  A.  163  (1903). 

48.  Gaunt   v.   Harkness,   53    Kan.   405.    36 
Pac.  739.  42  Am.  St.  Rep.  297    (1894):  Mas- 
sey  v.  Virginia  Farmer's  Xat.  Bank,  104  111. 
327    (1882);    Pierce  v.   Northey,    14  Wis.    9 
(1861). 


49.  Thomas  v.  State,  103  Ind.  419,  2  N.  E. 
808   (1885). 

50.  Young  v.  Honner,   2   Moo.  &   Rob.   536 
(1840). 

One  already  in  evidence. —  Xeal  v.  Xeal, 
58  Cal.  287  ( 1881 )  ;  Thomas  v.  State,  103 
Ind.  439,  2  N.  E.  808  (1885)  ;  Harvester  Co. 
v.  Miller,  72  Mich.  272,  40  X.  W  429,  16 
Am.  St  Rep.  536  (1888);  Brown  v.  Cheno- 
weth,  51  Tex.  477  (1879). 

51.  See  O'Brien  v.  McKelvey  (Wash.  1910), 
109   Pac.  337. 

52.  Use  of  documents  of  doubtful  authen- 
ticity excluded. — Pierce  v.  Xorthey,  14  Wis. 
9    (1861):   Griffits  v.   Ivery,   11   A.  &   E.  322 
(Q.   B.)     (1840)      See  also  Wilmington  Sav. 
Bank  v.  Waste   (Vt.  1904),  57  Atl    241. 

The  line  of  inquiry  has  been  allowed. 
Johnson  Harvester  Co.  v.  Miller,  72  Mich.  265, 
40  X.  W.  429,  16  Am.  St.  Rep.  536  (1888). 
See  also  Doe  v.  Suckermore,  11  A.  &  E.  124 
(1839). 

53.  State   v.    Griswold,    67    Conn.    290,    34 
Atl.  1046,  33  L.  R.  A    227   (1896)  :  Massey  v. 
Farmers'  Bank,  104  111.  332  (1882)  -.  Ardrews 
v.  Hayden's  Adm'r,  88  Ky.  455,  459.  11  S.  W. 
428   (1889)    ("deceiving  the  minds  of  honest 
men  " ) . 

Contra:  Browning  v.  Gosnell.  91  la  448, 
456,  59  X.  W.  340  (1894)  ;  Hornellsville  First 


jjsj   780,787  HANDWRITING.  608 

§  786.  ["  Comparison  of  Hands  "] ;  Proof  in  Criminal  Cases.54 —  Subsequent  to 
Colonel  Sidneys  trial  and  until  the  nineteenth  century  "'  comparison  of  hands  " 
while  received  in  civil  cases  was  excluded  in  criminal  cases  °3  but  the  modern 
use  of  reason  in  matters  of  evidence  has  eliminated  the  distinction  56  which 
does  not  appear  in  the  enabling  statutes,  passed  to  admit  such  testimony. 

The  pririlege  against  self-incrimination  does  not  extend  so  far  as  to  render 
inadmissible,  in  a  criminal  case,  as  the  standard  of  comparison,  specmens  of 
defendant's  handwrting  obtained  before  any  definite  charge  had  been  made 
against  him.  Nor  is  it  important  in  this  connection  that  the  accused  knew 
that  he  was  suspected  of  being  the  perpetrator  of  a  discovered  crime.  It  is 
equally  unimportant  that  the  defendant  was  at  the  time  in  attendance  upon  the 
hearing  under  compulsory  process.57 

§  787.  ["  Comparison  of  Hands  "] ;  Standardizing  Documents.58 —  One  whose 
handwriting  is  in  dispute  cannot  write  out  standardizing  specimens  of  his  own 
hand  3S)  but  specimens  may  be  received  though  written  post  lit  em  motam  if 
written  in  the  regular  course  of  business  or  under  other  circumstances  which 
seem  to  remove  the  element  of  self-interest60  and  in  general  the  standardizing 
document  should  always  be  written  without  knowledge  that  it  is  to  be  so  used  ni 
except  that  one  who  denies  the  genuineness  of  a  specimen  may  always  be  asked 
to  write  in  the  presence  of  the  jury.62 

The  standardizing  document  must  be  proved  genuine 63  so  that  it  is  no 
longer  a  question  for  the  jury,  and  the  judge  can  rule  that  it  is  genuine  as  a 
matter  of  law.64  It  must  in  short  be  proved  to  the  satisfaction  of  the  judge  65 
who  may  test  it  by  mechanical  means  as  by  magnified  drawings  or  measure- 
ments, microscopes  66  or  photographs.67 

Nat.  Bank  v.  Hyland.  53  Hun    (N.  Y.)    108,  453  (1852)  ;  Bridgman  v.  Corey,  62  Vt.  1,  20 

6  N.  Y   Suppl.  87  (1889).  Atl.  273   (  1889)  ;  Hickory  v.  U.  S..  151  U.  S. 

Information  refused.— Where  this  test  is  303,  14  S.  Ct.  334,  38  L   ed.  170  (1893) 

permitted,  neither  the  witness  nor  the  oppos-  62.  Allen  v.  Gardner,  47  Kan.  3:57.  27  Pac. 

ing  counsel  is  entitled  to  know  what  writings  982    (1891)  ;   Chandler  v.  Le  Barren,  45   Me. 

will   be  used  for  these  purposes,  or  whether  534   (1858);   Bronner  v.  Loomis,  14  Hun    (X. 

they  are  genuine  or  not,  or,  by  whom  they  Y.)  341   (1878)  :  Sprouse  v.  Com.,  81  Va.  374 

were    written.     Traveler's    Ins.    Co.    v.    Shep-  (1886). 

pard,  85  Ga    751,  12  S.  E.  18   (1890).  63.  Martin  v   Maguire.  7  Gray  177   (1S56>. 

54.  3  Chamberlayne.  Evidence,  §  2273.  While  great  care  should   be   taken   in  deter- 

55.  Trial  of  the  Seven  Bishops,  12  How.  St.  mining  whether  the  standard  of  comparison  ia 
Tr.  466   (1688).  genuine,  the  usual  rule  as  to  a  fair  balance 

56.  Xee  Ausmus  v.  People.  47  Colo.  167,  107  of  testimony  applies.     Bowell  v.  Fuller,  59  Vt. 
Pac.  204   (1910).  688,    10  Atl.    853    (1887). 

57.  People  v    Molineux,  168  N.  Y.  264.  61  64.  Sankey    v.   Cook,   82    Iowa    125,   47    X. 
N.  E.  286,  62  L.   R.  A.   193    (1901).  W    1077    (1891). 

58.  3  Chamberlayne,     Evidence,    §§    2275-  65.  University   of   Illinois    v.    Spalding,   71 
2283-  X.  H    16:?.  51   Atl.  731    (1902) 

59.  Hickory  v.  U.  S..  151  U.  S  303,  14  S.  Ct.  66.  White    Sewinsr    Maoh     Co.    v.    Gordon, 
334,  38  L.  ed.  170   (1893).  124  Ind    495.  24  X.  E    1053,  19  Am.  St.  Rep' 

60.  Sanderson  v  Osgood,  52  Vt.  312  (1880).  109   (1890):   Indiana  Car.  Co.  v.  Parker,  100 

61.  Keith    v    Lothrop,    10    Cush.    (Mass.)  Tnd.    181    (1884);    Morse   v.    Blanchard,    117 


609  WEIGHT  OF  INFERENCE.  §§  788, 789 

§  788.  Probative  Weight  of  the  Inference;  A  Question  for  the  Jury.68 — The 
probative  force,  belief -compelling  quality,  of  the  inference  of  the  identity  of  a 
given  writer  from  the  resemblance  of  the  disputed  specimen  to  a  mental  stand- 
ard created  in  the  observer,  presents  a  question  entirely  for  the  jury.69  They 
are  to  judge  both  as  to  genuineness  of  the  standardizing  documents,  and  as  to 
the  correctness  of  the  inference  which  the  skilled  witness  draws  from  them.70 
They  may  themselves,  as  has  been  seen,  institute  comparisons  between  the  dis- 
puted writings  and  specimens  which  they  find  to  be  genuine,  using  the  results 
of  their  observation  as  part  of  the  basis  of  their  final  judgment.  Their  action 
must,  however,  be  reasonable. 

They  may  consider  the  education  of  the  witness,71  the  vividness  of  his  im- 
pression 72  and  other  circumstances  as  whether  the  specimen  was  made  before 
the  witness  had  acquired  a  mental  standard  of  the  handwriting.73 

§  789.  [Probative  Weight  of  the  Inference] ;  Function  of  the  Court.74 —  Sound 
administration  receives  all  evidence  necessary  to  the  proponent's  case  on  which 
the  jury  could  reasonably  act.  The  action  of  the  court,  therefore,  in  admit- 
ting the  testimony  of  witnesses  in  regard  to  handwriting  in  no  way  controls  the 
exclusive  right  of  the  jury  to  judge  of  the  weight  of  the  testimony.75  So  long 
as  the  jury  may  reasonably  find  in  favor  of  the  inferences  of  skilled  witnesses 
as  to  handwriting  it  is  no  part  of  the  duty  of  the  trial  court  to  reject  such  evi- 
dence when  tendered  or  to  instruct  the  jury  that  it  is  "  intrinsically  weak,  and 
ought  to  be  received  and  weighed  by  the  jury  with  great  caution."  7C  It  is 
equally  true  that,  should  the  evidence  be  such  that  the  jury  could  not  draw  a 
rational  inference  from  it  which  would  be  relevant  to  the  existence  of  a  fact  in 
the  res  yesice  it  will  be  rejected.77 

The  use  of  this  species  of  testimony  is  now  firmly  grounded  in  our  practice  78 
but  there  is  still  much  unfavorable  comment  as  to  it.79 

Mich.   37,   75   X.   W.   93    (1898):    Kannon   v.  74.  3  Chamberlayne,     Evidence,     §§    2286- 

Galloway,  2  Baxt.   (Tenn.)   230   (1872).  2288. 

67.  Maroy  v.  Barnes,  16  Gray  (Mass.)   161,  75.  Pinkham  v.  Cockrell,  77  Mich    265,  43 
77  Am.  Dec.  405    (I860);   Frank  v.  Chemical  X.    W.    921     (1889);    State    v.    Hastings,   53 
Nat.   Bank.  37   X    V.  Super.  Ct.  26    (1874);  N    H.  452    (1873):   Rowell  v.  Fuller,  59  Vt. 
Howard   v.    Russell,   75    Tex.    171,    12   8.    W.  688.   10  Atl.   853    (1887);   State  v.  Ward,  39 
525    (18891  ;   Rowell  v.  Fuller,  59  Vt.  688.  10  Vt.  225    (1867). 

Atl.    853     (1887).  76.  Coleman  v.  Adair,  75  Miss.  660,  23  So. 

68.  3  (hamherlayne.     Evidence.     §§     2284.       369    (1898). 

22*5.  77.  McC'onnell  v.  Playa  de  Oro  Min.  Co..  59 

69.  In  rr  Thomas'  Estate.  155  Cal.  488.  101       X     Y.    Suppl     368    (IS!)!)). 

Pac.   7!>8    (1909).  78.  Green     v.     Terwilliger.     56     Fed.     384 

70.  State  v.  Hastings.  53  X.  H.  452   (1873).  (1892) 

71.  17  Cyc  p.  183;  U.  S.  v.  Gleason,  37  Fed.  79.  Jackson  v    Adams,  100  Iowa  163,  69  X. 
331    (1889).  W    427   (1896):  U.  S.  v.  Pendergast,  32  Fed. 

72.  Green     v.     Terwilliger,     56     Fed.     384       198    (1887).     See  also   Whitaker  v.   Parker, 
(1892).  42  Iowa  585  (1876). 

73.  Ratliff  v.  Ratliff.   131  X.  C.  425,  42  S. 
E    887.  63  L.  R.  A.  963    (1902). 


§§  790,  791  HANDWRITING.  610 

§  790.  [Probative  Weight  of  the  Inference];  Inference  a  reasoned  One.80— 
While  the  element  of  intuition  can  scarcely  be  said  to  be  entirely  absent  from 
the  result  of  an  observation  in  regard  to  handwriting,  its  influence  is  com- 
paratively slight.  Any  person,  however  unskilled,  may  become  conscious  of  the 
sense-impressions  which  are  presented  to  his  mind  by  the  written  characters. 
Tims  far,  intuition  serves  all  observers  alike.  What  they  mean  in  terms  of 
identity  of  the  writer  is  a  matter  of  inference,  of  reasoning.  Intelligent  ap- 
preciation implies  the  existence  of  a  previously  created  standard  in  the  mind. 
By  this  the  observed  phenomena  of  the  writing  are,  as  it  were,  to  be  measured. 
Standard  and  measuring  alike  are  mental  concepts.  The  element  of  reasoning 
when  compared  to  that  of  observation  is,  therefore,  a  large  one  in  such  an 
inference. 

§  791.  [Probative  Weight  of  the  Inference] ;  Tests  furnished  by  Cross-Exami- 
nation.81—  The  probative  force  of  an  inference  from  "  comparison  of  hands  " 
may  be  greatly  strengthened  or  weakened  by  the  results  of  cross-examination. 
Such  is  apparently  the  result  of  all  testing.  Breaking  or  even  bending  under 
the  application  of  a  given  strain  creates  distrust.  Successful  resistance  in- 
spires confidence.  In  the  case  of  a  statement,  it  tends  to  create  belief.  Among 
the  various  tests  furnished  by  cross-examination,  few  are  specifically  applied  to 
handwriting.  They  furnish,  in  general,  the  usual  probing,  rebutting  or  sup- 
plementing which  are  characteristic  of  cross-examination.82 

Thus  it  may  be  shown  that  the  skilled  witness  reached  an  opposite  conclu- 
sion at  another  time  83  or  had  no  adequate  opportunities  for  observation,84  or 
the  witness  may  be  shown  a  portion  of  a  document  and  asked  who  wrote  it.85. 
In  an  important  matter  strong  corroboratiou  has  been  thought  necessary86 

80.  3  Chamberlayne,  Evidence,  §  2289.  84.  Herrick  v.  Swomley,  56  Md.  439  ( 1881 ) 

81.  3  Chamberlayne,  Evidence,  §  2890.  (where  witness   first   saw  the  writing). 

82.  Best     on      Ev.      ( Chamberlayne's     3rd  85.  Kirksey  v.  Kirksey.  41  Ala.  626  ( 1868) . 
Amer.  ed.)   p.  602.  86.  In  re  Taylor's  Will,  10  Abb.  Prac.   (N. 

83.  Hoag  v.   Wright,   174  N.  Y.  36,  66  N.  S.)  300  (1871). 
E.  579,  63  L.  R.  A.  163   (1903). 


CHAPTER  XXXII. 

CONCLUSION  FROM  OBSERVATION;  FACT. 

Conclusions  from  observation,  792. 

administrative  requirements;  necessity,  793. 

relevancy ;  preliminary  detail  of  facts,  794. 
Conclusions  of  fact;  when  admitted,  795. 

sufficiency,  796. 

bloodli ounds  tracking  criminal,  797. 

utility,  798. 

voluminous  data,  799. 

when  rejected;  conduct,  800. 

inferences,  801. 

suppositions,  802. 

§  792.  Conclusions  from  Observation.1 —  Midway  between  Inferences  on  the 
one  hand,  and  Judgments  on  the  other,  stand  Conclusions  from  Observation. 
From  the  former  the  difference  lies  in  a  decreased  proportion  of  the  element  of 
intuition  or  specific  observation,  while  the  proportion  of  reasoning  may  be, 
and  frequently  is,  much  greater.  Conclusions  from  Observation  are  distin- 
guished from  Judgments  by  a  greater  influence  of  the  element  of  observation, 
which,  in  its  specific  relation  to  the  act  of  reasoning,  entirely  disappears,  and 
by  a  decreased  proportion  of  pure  ratiocination.  In  other  words,  as  has  been 
pointed  out,  Inference,  Conclusion  and  Judgment  stand  in  a  progressive  series, 
varying  with  the  amount  of  reasoning  involved.  In  Conclusions,  the  element 
of  specific  observation  is  not  lacking.  The  basis  of  the  reasoning  contains 
much  beside  it,  past  experience,  information  from  others,  even  general  knowl- 
edge. Conditions  may  arise  when,  even  with  these  additions,  the  basis  on 
which  the  mind  acts  is  so  simple  and  so  little  controverted  that  the  result  is 
spontaneous,  automatic.  Tn  such  cases,  judicial  administration  receives  the 
statement  without  difficulty,  as  a  matter  of  course.  The  characteristic  conclu- 
sion, however,  presents  so  large  an  element  of  reasoning  and  the  actual  basis  of 
the  mental  processes  are  so  numerous  and  obscure  that  an  adequate  necessity 
must  be  shown  for  invading  the  special  province  of  the  jury,  that  of  reasoning 
from  general  propositions  of  experience.  If  this  is  not  done,  the  conclusion  is 
rejected.2 

1.  3  Chamberlayne,     Evidence,     §§     2291-       O'Donnell,  213  111.  545,  72  N.  E    1133   (1904) 
2293.  [affirming  judgment  114  111.  App.  345]. 

2.  Chicago    Terminal    Transfer    R.    Co.    v. 

611 


§§  793-705  CONCLUSION  FKOM  OBSERVATION;  FACT. 

In  dealing  with  conclusions,  the  work  is  largely  administrative.  No  hard 
and  fast  rule,  so  dear  to  the  heart  of  formal  or  technical  procedure,  can  well  be 
applied.  The  question  is  one  as  to  the  degree  in  which  the  reasoning  is  simple 
and  the  facts  easily  understood.  The  border  line  between  reasoned  inference 
and  fairly  obvious  conclusion  is  one  hazy  and  difficult  to  draw.  The  reasoning 
is  less  closely  correlated  to  the  phenomena  observed,  there  is  a  larger  basis  of 
assumed  or  undisclosed  fact,  and  that  is  the  most  which  can  be  said.  In  pro- 
portion, however,  as  the  reasoning  bulks  more  largely  and  the  basis  of  assumed 
or  undisclosed  knowledge  or  experience  grows  wider  and  more  material,  does 
the  hesitancy  of  administration  become  more  acute  against  admitting  state- 
ments which  so  nearly  substitute  the  witness  for  the  jury. 

§  793.  [Conclusions  from  Observation];  Administrative  Requirements;  Neces- 
sity.3—  That  which  judicial  administration  views  with  alarm  and  is  slow  to 
accept  is  reasoning.  Not  that  of  judges  or  jurors;  upon  them  it  is  imposed. 
Reasoning  by  witnesses  is  objectionable  because  it  tends  to  supplant  the  jury 
to  whose  judgment  the  parties  are  entitled.  Should  it  happen,  therefore,  that 
the  element  of  inference  or  reasoning  is  present  to  an  extent  not  justified  by  any 
administrative  necessity  the  mental  act  will  be  rejected.4  Witnesses  must  not 
intrude,  by  their  conclusions,  upon  the  special  field  of  the  jury.5  Where  all 
constituent  facts  can  fully  be  placed  before  the  jury,  the  conclusion  of  the  wit- 
ness must  be  rejected,6  no  necessity  for  receiving  it  having  been  shown. 

§  794.  [Conclusions  from  Observation  1 ;  Relevancy;  Preliminary  Detail  of 
Facts.7 —  In  connection  with  conclusions,  as  in  other  relations  which  involve 
the  use  of  the  reasoning  faculty  upon  physical  or  psychological  phenomena,  the 
trial  judge  may  well  require  from  the  witness  a  preliminary  detail  of  the  con- 
stituting facts  upon  which  he  grounds  his  opinion.8  By  this  means,  a  ready 
test  is  furnished  for  judging  of  the  opportunities  for  observation  enjoyed  by  him 
and  regarding  his  mental  ability  to  coordinate  these  into  an  act  of  reasoning 
helpful  to  the  jury.  Under  the  administrative  canon  which  secures  to  the 
parties  the  use  of  reason,  the  judge  will  exclude  a  conclusion  where  it  appears 
that  it  could  not  rationally  be  reached  upon  the  facts  enumerated  by  the 
witness.9 

§  795.  Conclusions  of  Fact;  When  admitted.10 — As  is  abundantly  illustrated 

3.  3  Chamberlayne,      Evidence,      §§      2294,  7.  3  Chamberlayne,     Evidence,     §§     2296- 
2295.  2300. 

4.  M.   S.   Huey   Co.  v.   Rothfeld,  84  N.   Y.  8.  Talladega  Ins.  Co.  v.  Peacock,   67   Ala. 
Suppl.    883    (1903)     (doing   business    in   the  253   ( 1880)  ;  Tremaine  v.  Weatherby,  58  Iowa 
state).  615,   12  X.  W.  609    (1882);   Jones*  v.  Merri- 

5.  Scott  v.  Sovereign  Camp  of  Woodmen  of  mack  River  Lumber  Co.,  31  X.  H.  381   (1855). 
the  World  ( Iowa  1910),  129  N.  W.  302  (infer-  9.  Gray   v.   Brooklyn   Heights   R.   Co.,    175 
ence  of  suicide).  N.  Y.  448,  67  X.  E.  899  [reversing  72  X.  Y. 

6.  City   of  Macon   v.   Humphries,   122  Ga.  App.  Div.  424,  76  X.  Y.  Suppl.  20]   (1903). 
800,  50  S.  E.  986  (1905).  10.  3  Chamberlayne     Evidence,     §§     2301- 

2309. 


613 


CONCLUSIONS  OF  FACT. 


§   795 


by  the  decisions,  the  fact  that  a  given  mental  act  assumes  the  phraseology  ap- 
propriate to  a  conclusion  is  by  no  means  sufficient  to  insure  its  rejection.  Ad- 
ministration looks  not  only  at  the  appearance  but  penetrates  through  that  into 
the  reality,  the  essential  nature  of  that  which  it  is  proposed  to  submit  to  the 
tribunal.  It  will  scrutinize,  not  the  form  of  language,  but  the  nature  of  the 
subject  matter  with  which  the  reasoning  deals,  in  what  ways  these  are  related 
to  the  province  of  the  jury  or  of  the  court  and  how  largely  a  matter  of  specula- 
tion or  guess  work  the  so-called  opinion  quoted  is.  Should  the  facts  involved, 
the  observations  made,  be  comparatively  few  and  simple  and  lead,  in  the  judg- 
ment of  all  reasonable  men,  to  but  one  necessary  inference,  the  conclusion  will 
be  received,11  whatever  may  be  the  language  in  which  it  is  couched.  It  is,  in 
main,  a  matter  of  fact  and  will  be  so  treated. 

The  witness  will  ordinarily  be  allowed  to  state  his  conclusions  as  to  causa- 
tion, the  cause  and  effect  of  certain  phenomena,12  and  the  conclusion  presented 
from  certain  conditions  will  be  received  where  the  conclusion  is  a  necessary 
one  13  as  in  case  of  financial 14  or  physical  condition  15  or  where  the  witness 
states  that  certain  things  were  necessary.16  So  the  conclusions  of  the  witness 
as  to  negative  facts  may  be  admitted,17  and  the  possibility  of  certain  acts  may 
be  shown  where  the  witness  is  qualified  to  give  an  opinion.18  So  an  odor  may 
be  described  by  comparing  it  with  another  odor.19 


11.  Pierson   v.    Illinois    Cent.    R.    Co.,    149 
Mich.  167,  112  N.  W.  923,  14  Detroit  Leg.  N. 
405  ( 1907)    (resisted  as  long  as  he  could). 

12.  A  witness  who  was  present  just  before 
a   building   fell,    and   who    had    observed   in- 
dications of  the  impending  collapse,  and  ex- 
amined  it   immediately   after   its   fall,   could 
testify  as  to  the  physical  cause  thereof.     The 
impression  made  upon  his  mind  at  the  time 
was  in  the  nature  of  a  physical  fact,  he  being 
obviously  unable  to  portray  to  the  jury  all  the 
facts    tending    to     produce     it.     Walker     v. 
Strosnider    (W.  Va.  1910),  67  S.  E.  1087. 

13.  Rearden  v.   St.  Louis  &   S.   F.   Ry.   Co. 
(Mo.  1908),  114  S/W.  964   (health)  :  Roberts 
v.   Virginia-Carolina   Chemical   Co.,   84   S.   C. 
283,  66  S.  E.  208   (1909)  ;  Houston  &  T.  C.  R. 
Co.   v.   Haberlin    (Tex.   Civ.   App.   1910).   125 
S.  W.  107  (boiler  appeared  safe). 

14.  Sloan  v.  New  York  Cent.  R.  Co..  45  N. 
Y.   125    (1871). 

15.  Kimball  v.  Xorthern  Electric  Co.   (Cal. 
1911),    113    Pac.    156:    State    v.    Vanela.    40 
Mont.  326,  106  Pac.  346    (1910)    (very  nerv- 
ous) ;  Gulf,  C.  &  C.  F.  Ry.  Co.  v.  Wafer  (Tex. 
Civ.  App.  1910),  130  S.  W.  712.     Conclusions 
of   fact  are  not   always   inadmissible   and   so 
far  as  they  relate  to  collateral  facts  not  di- 
rectly in  issue  save  much  delay  and  circum- 


locution. The  same  is  true  of  leading  ques- 
tions. To  refuse  to  permit  a  witness  to  testi- 
fy that  one  appeared  "  frightened  "  or  "  in- 
solent "  has  the  effect  merely  of  shutting 
out  the  testimony  of  all  witnesses  of  these 
conditions  who  have  not  extraordinary  pow- 
ers of  observation  and  description.  Cross- 
examination  will  in  most  cases  sufficiently 
disclose  what  basis  the  witness  has  for  his 
conclusion.  Schultx  v.  Frankfort  Marine  Ac- 
cident, etc.,  Co.,  151  Wis.  537,  139  X.  W. 
386,  43  L.  R.  A.  (N.  S.)  520  (1913).  A  wit- 
ness may  state  that  the  relations  between 
two  men  were  friendly.  This  is  a  case  where 
mere  descriptive  language  is  inadequate  to 
convey  to  the  jury  the  fact  friendly  relations 
did  exist.  State  v.  Cooley,  19  X.  M.  91,  140 
Pac.  1111,  52  L.  R.  A.  (N.  S.)  230  (1914). 

16.  Gulf,  etc..  R.  Co.  v.  Richards.  S3  Tex. 
203,    18    S.    W.    611     (1892)     (taking   land). 
Scheffer  v.  Anchor  Mut.  F.  Ins.  Co.,  113  Iowa 
652,  85  X.  W.  985    (1901):   Miller  v.  Meade 
Tp..  128  Mich.  !>S.  87  X.  W.  131    (1901). 

17.  State    v.    McDaniel.    39    Oreg.    161,    65 
Pac.   520    (1901):    Burleson   v.   Reading,    110 
Mich.  512.   68  X.  W.   294    (1896);   Missouri, 
K.  &  T.  Co.  of  Texas  v   Rich   (Tex.  Civ.  App. 
1908),  112  S.  W.  114. 

18.  Lake  Erie,  etc.,  R.  Co.  v.  Juday,  19  Ind. 


§§  796,797  CONCLUSION  FEOM  OBSERVATION;  FACT.  614 

§  796.  [Conclusions  of  Fact] ;  Sufficiency.20 —  An  observer  who  has  had  sat- 
isfactory opportunities  for  noticing  given  phenomena  21  and  establishing  for  him- 
self a  capacity  to  blend  them  into  a  helpful  inference,  may  be  permitted  to 
state  his  conclusion  as  to  the  relation  of  sufficiency  which  may  exist  between 
two  things.  Unless  ability  and  opportunity  are  shown  to  combine  in  the  wit- 
ness, his  conclusion  will  be  rejected.22 

This  sufficiency  may  be  of  light,23  means  to  an  end,24  opportunity,25  space  26 
or  time.27 

§  797.  [Conclusions  of  Fact] ;  Bloodhounds  Tracking  Criminal —  Conclusions 
of  fact  are  sometimes  drawn  even  from  the  action  of  animals  as  in  case  of 
tracking  a  criminal  by  bloodhounds.  The  weight  of  authority  seems  to  be  in 
favor  of  the  admissibility  of  such  evidence  28  though  there  is  a  very  respect- 
able minority  holding  to  what  seems  the  sounder  view.29  The  evidence  is  not 
only  very  dangerous  on  account  of  the  superstitious  weight  given  to  it  by  many 
jurymen  but  also  on  account  of  the  impossibility  of  testing  the  dog.  It  is  im- 
possible to  cross-examine  the  dog  and  ascertain  just  what  caused  him  to  take 
the  course  he  did  and  just  how  sure  he  felt  of  the  correctness  of  his  action, 
how  many  mistakes  he  had  made  in  the  past,  whether  he  felt  any  bias  towards 
the  person  he  tracked,  whether  he  knew  him  before  and  whether  he  tracked 
him  with  the  hope  of  receiving  a  bone  or  of  avenging  past  insults  and  whether 
he  was  surprised  at  the  result  of  his  following  certain  smells.  There  is  no 
way  of  putting  in  evidence  the  workings  of  what  is  called  the  brain  of  the  dog. 

The  jurisdictions  which  receive  this  evidence  do  attempt  to  safeguard  it 

App.  436,  49  1ST.  E.  843  (1898)  ;  Aidt  v.  State,  26.  Kansas  City,  etc.,  R.  Co.  v.  Lackey,  114 

2   Ohio    Cir.    Ct.    18,    1    Ohio   Cir.   Dec.    337  Ala.  152,  21  So.  444  ( 1896)  ;  Brunker  v.  Cum- 

(1886)  ;  Bluman  v.  State,  33  Tex.  Cr.  43,  21  mins,  133  Ind.  443,  32  N.  E.  732  (1892). 

S.  W.  1027,  26  S.  W   75   (1893).  27.  McCrohan   v.   Davison,    187   Mass.   466, 

19.  On  an  issue  as  to  whether  a  person  had  73  N.  E.  553  (1905)    (cross  the  street). 

been  poisoned  a  witness  may  be  asked  whether  28.  McDonald  v.  State,  165  Ala.  85  (1910)  ; 

certain  medicine  given  her  had  an  odor  like  Padgett  v.  State.  125  Ark.  471   (1916)  ;  Davin 

a    certain    poisonous    preparation.     An    odor  v.  State,  46  Fla.  137  (1903);  Harris  v.  State, 

can  only  be  described  ordinarily  by  compari-  17  Ga.  App.  723   (1916)  ;  State  v.  Adams,  85 

son  with  some  familiar  odor.     State  v.  Buck,  Kan.  4.35    (1911)  ;   Pedigo  v.  Commonwealth, 

88  Kan.   114,   127  Pac    631.  42  L.  K.  A.    (X.  103  Ky.  41  (1898)  ;  Carter  v.  State,  106  Miss. 

S.)   854   (1912)  507     (1914);    State    v.    Rasco,    239    Mo.    535 

20.  3  Chamberlayne,     Evidence,     §§     2310-  (1912);    State  v.  Dickerson.  77   Ohio  St.   34 
2315.  (19071:    State   v.   Wiggins,    171    N.   Car.    813 

21.  Chamberlain    v.    Platt,    68    Conn.    126,  (19)6):    Commonwealth    v.    Hoffman,   52    Pa 
35  Atl.  780  (1896).  Super.  Ct.  272    (1913):   State  v.  Brown,   103 

22.  Chamberlain  v.  Platt,  68  Conn.  126.  35  S.  Car.  437,  88  S.  E.  21.  L.  R.  A.  1916  B  1295 
Atl.  7SO  (1806)  (1916):   Parker  v.  State,  46  Tex.  Cr.  R.  461 

23.  Chamberlain  v.  Platt,  6S  Con.   126.  35  (1904). 

Atl    780  (1896)  :  Colorado  Mortg.,  etc.,  Co.  v.  29.  People    v.    Pfanschmidt.    262    111.    411, 

Rees.  21  Colo.  435.  42  Pac.  42   (1895).  104  N.  E.  804    (1914)  :    Ruse  v.   State    (Ind. 

24    Chamberlain  v.  Platt,  68  Conn.  126,  35  1917),  115  N.  E.  778.  L.  R.  A.   1917  E  726; 

Atl.  780   (1896).  Brott  v.  State,  70  Neb.  395   (1903). 

25.  Montague  v.   Chicago  Consol.  Traction 
Co.,  150  111    App.  288   (1909). 


615  CONCLUSIONS  OF  FACT.  §§  798-800 

by  requiring  that  it  be  shown  that  the  dogs  have  been  trained  and  are  experi- 
enced in  trailing  human  beings  and  were  started  on  a  trail  at  a  point  where 
the  guilty  party  had  been.  The  surrounding  circumstances  may  also  be 
shown  including  weather  conditions  and  the  time  elapsed. 

In  all  the  cases  where  it  was  admitted  it  was  corroborated  by  other  evidence 
and  in  one  case  it  was  held  that  such  corroboration  was  necessary.30 

§  798.  [Conclusions  of  Fact];  Utility.31 — A  witness  of  sufficient  experience 
and  observation  may  state  his  conclusion  as  to  the  usefulness  of  certain  things 
presented  to  his  attention.  Thus,  he  may  give  his  opinion  as  to  whether  certain 
supplies  are  or  are  not  useful  to  a  township.32 

§  799.  [Conclusions  of  Fact] ;  Voluminous  Data.33 —  A  unique  forensic  situa- 
tion in  which  the  summary  or  conclusion  of  a  witness  customarily  is  received 
is  where  a  very  large  number  of  entries,34  records  or  separate  documents  of 
any  sort  or  kind  35  are  submitted.  Under  such  circumstances,  a  competent 
witness  is  permitted  to  state,  from  his  observation  and  examination,  his  conclu- 
sion as  to  what  the  papers  show.  For  the  expediting  of  trials  a  presiding 
judge  may  well  be  justified  in  economizing  the  court's  time  by  receiving  the 
conclusion  of  the  witness.36 

§  800.  [Conclusions  of  Fact];  When  rejected;  Conduct.37 — In  many,  perhaps 
most,  instances  of  conclusions  of  fact,  the  reasoning  is  rejected  as  obnoxious 
to  the  rule  excluding  opinion  evidence.  More  specifically,  the  objection  may 
be  that  the  basis  of  the  reasoning  is  not  disclosed,  that  it  tends  to  substitute  the 
witness  for  the  jury  38  or  in  some  other  way  to  evade  the  province  of  the  latter. 
Thus,  a  statement  by  a  witness  that  a  given  person  is  professionally  skilful 
may  be  one  which  the  judge  is  well  warranted  in  withdrawing  from  the  con- 
sideration of  the  jury.39  The  conclusion  also  that  certain  conduct  is  "  pru- 

30.  The     fact     that     trained     bloodhounds  over  the  same  ground  and  the  court  suggest 

trailed   from   the  scene  of  the  crime   to   thfe  that  it  is  highly  speculative  whether  the  dog 

accused  may  be  a  circumstance  to  be  consid-  was  following  the  old  trail  or  some  more  re- 

ered   in   connection   with   other   evidence   but  cent  tracks. 

alone  and  unsupported  it  is  insufficient,  but  31.  3  Chamberlayne,  Evidence.  §  2316. 
there  must  be  other  and  human  testimony  to  32.  Litten    v.    Wright    School    Tp..    1    Ind. 
convict.     Carter  v.   State,   106  Miss.   506.   64  App.  92,  27  X.  E.  329   (1891)    (township  sup- 
So    215.   50  L.   R.   A.    (X.   S.)    1112    (1914).  plies). 

In  People  v.  Whitlock,  171  X.  Y.  Suppl.  109  33.  3  Chamberlayne.  Evidence.  §  2317. 

(1918),  the  court  assumes  that  under  proper  34.  Von    Sachs    v.    Kretz,    72    X.    Y.    548 

conditions    such    evidence    is   admissible   but  M878). 

hold  that  it  is  not  enough  to  show  that  the  35.  Boston  &  \V.  R.  Co.  v.  Dana,  1  Gray  83, 

dog  was  a  German  police  dog  which  had  been  89.  104    (1854)    i  sales  of  tickets), 

trained  to  track   his  master   by   smelling  of  36.   Rollins  v.   Board,  33  C.   C.   A.   181,   90 

liis     handkerchief    and    for     exhibition     per-  Fed   575   (1898). 

formances  as  this  does  not  show  that  the  dog  37.  3  Chamberlayne.  Evidence.  §  2318. 

had   had   any   experience   in    tracking   stran-  38.  Churchill   v.  Jackson,   132  Ga.   666,   64 

gers.     In  this  case  there  had  been  two  rains  S.   E    691    (1909)     (proper  person  to  raise  a 

since  the  crime  before  the  dog  went  over  the  child) 

trail  and  many  other  persons  had  since  been  39.  Hoener    v.    Koch,    84    111.    408     (1877) 


§§  801,802  CONCLUSION  FROM  OBSERVATION;  FACT.  616 

dent  "  may  so  clearly  invade  the  right  of  the  jury  to  reason  with  regard  to  facts 
which  they  are  capable  of  understanding  as  to  warrant  its  rejection.40  Wit- 
nesses should  not  be  permitted  to  testify  that  one  party  or  the  other  is  an 
unfit  and  improper  person  to  serve  as  guardian  as  this  is  opinion  evidence  based 
on  facts  which  should  be  submitted  to  the  court.41 

§  801.  [Conclusions  of  Fact] ;  Inferences.42 —  Under  the  administrative  canon 
which  .protects  the  province  of  the  jury  from  reasoning  by  witnesses,  a  fact  in 
issue  or  one  material  thereto  does  not  constitute  the  proper  subject  of  a  con- 
clusion. This  may  be  the  case  with  inferences  as  to  the  necessity  of  certain 
conduct,43  or  the  possibility  of  certain  results  44  or  probability  45  or  the  suf- 
ficiency of  certain  things  for  a  given  end.46 

§  802.  [Conclusions  of  Fact] ;  Suppositions.47 —  The  propriety  of  rejecting  a 
mere  supposition  is,  in  most  cases,  obvious.  The  jury  can  never  safely  be 
allowed  to  wander  far  from  actuality,  true  existence  has  disclosed  in  the  realm 
of  matter  or  in  that  of  mind.  Speculation  or  conjecture  is,  therefore,  to  be 
excluded  upon  detection.  As  a  rule,  a  witness  will  not  be  allowed  to  state  his 
conclusion  as  to  what  would  have  taken  place  if  a  certain  thing  which  actually 
occurred  had  not  happened,48  or  what  he  supposes  would  have  been  the  result 
if  an  event  had  come  into  being  which,  in  fact,  failed  to.49  Should  the  con- 
clusion, however,  be  a  simple  and  necessary  one.  dependent  upon  well  known 
physical  laws  or  obvious  and  controlling  motives  of  human  conduct,  the  ele- 
ment of  conjecture  may  be  present  in  such  slight  proportions  as  to  warrant  the 
reception  of  the  act  of  reasoning.50 

(malpractice)  :    Woeckner    v.    Erie    Electric          45.  May  v.  Breunig,  120  N".  Y.  Suppl.  98 

Motor  Co.,  187  Pa.  St.  206,  41  Atl.  28   (1898)  (1909)    (expected  profits), 
(motorman).  46.  Bohr  v.  Xeuenschwangder,  120  Ind.  449, 

.  40.  Card  v    Columbia  Tp.,  191  Pa.  St.  254,  22  N.   E.  416    (1889)    (drain  land). 
43  Atl.  217   (1S!)!»)  47.  3  Chamberlayne,  Evidence,  §  2324. 

41.  Milncr  v.  G&tlin,  143  Ga.  816,  85  S.  E.  .   48.  Kochmann    v.    Baumeister,    73    N.    Y. 
1045,  L.  K.  A.  1916  B  977   (1915)  :  Churchill  App.  Div.  309,  76  N.  Y.  Suppl.  769    (1902) 
v.   Jackson,    132   Ga.   066.   64   S.    E.    691,   49  (how  many  goods  a  salesman  would  have  sold 
L.  R.  A.   (X.  S.)   875    (1909).  if  he  had  not  been  discharged).     Cogdell  v. 

42.  3  Chainberlayne,     Evidence,     §§     2319-  Wilmington,  etc.,   R.   Co.,   130  N.  C.   313,   41 
2323.  S.  E.  541    (1902)    (persons  could  have  stood 

43.  Illinois  Southern  Ry  Co.  v.  Hayner,  225  on  a  platform  if  it  had  not  been  unsound). 
Til    613,  SO  X.  E.  316    (1907)    (conditions  at  49.  People  v.  Rodawald,  177  N    Y.  408,  70 
crossing)  N.   E.    1    (1904)     (known   that  a  person   had 

44.  Peck  v.  New  York  Cent.,  etc.,  R.   Co.,  been  in  prison) 

165  N.  Y   347,  59  N.  E.  206   (1901)    (set  fires  50.  TTowland  v.  Oakland  Consol.  St.  R.  Co., 

by  sparks).  115  Cal.  487,  47  Pac.  255   (1896). 


CHAPTER  XXXIII. 

CONCLUSIONS  FROM  OBSERVATION;  LAW. 

Conclusions  of  law,  803. 
legal  reasoning,  804. 
when  admitted,  805. 

intrusion  upon  the  function  of  the  court,  806. 
when  conclusion  is  received,  807. 

§  803.  Conclusions  of  Law.1 —  If  the  conclusion  of  fact,  considered  in  the  last 
chapter,  be  obnoxious  to  judicial  administration  as  inconsistent  with  the  right 
of  a  party  to  have  the  reasoning  of  a  jury  rather  than  that  of  a  witness  applied 
to  the  facts  of  his  case,  the  conclusion  of  law  is  still  more  objectionable.2  In 
case  of  the  latter,  the  witness  is  asked  to  take  a  further  step,  far  into  the  center, 
as  it  were,  of  the  jury's  position.  He  is  called  upon  to  apply  the  rule  of  law 
to  the  facts  of  the  case.  More  than  this,  the  witness  takes  it  upon  himself  to 
determine  what  the  rule  of  law  actually  is.  Here  is  an  invasion  of  the  prov- 
ince of  the  presiding  judge. 

For  these  sufficient  reasons,  that  it  usurps  the  functions  both  of  the  jury  and 
of  the  judge,  a  conclusion  of  law,  when  these  two  considerations  are,  or  either 
of  them  is,  operative,  should  be  rejected.3 

§  804.  [Conclusions  of  Law];  Legal  Reasoning.4 — Whatever  may  be  the  pro- 
priety, in  a  juridical  sense  of  permitting,  and,  indeed,  requiring,  the  jury  to  do 
legal  reasoning,  a  question  upon  which  certain  observations  are  elsewhere  made, 
the  right  of  a  party  litigant,  in  most  cases,  to  insist  that  the  jury  should  apply 
the  rule  of  law  to  the  constituent  facts  is  unquestionable.  Against  this  prin- 
ciple of  judicial  administration,  protecting  the  party  in  his  right  to  a  jury 
trial,  the  conclusion  of  law  seriously  offends,  in  proportion  to  the  amount  of 
legal  reasoning  which  it  involves.  This  may  be  slight,  the  statement,  in 
essence,  being  merely  a  convenient  method  of  announcing  a  fact.  On  the  other 
hand,  the  right  of  a  proponent  to  prove  his  case  may  require  that  a  conclusion 

1.  3  Chamberlayne.   Evidence.   §   2325.  where  the  latter  involves  a  mixed  question  of 

2.  Where    the     only     effect    of     testimony  law   and   fact.     Houston   &   T    C.   R.    Co    v. 
sought  to  be  adduced  is  to  elicit  the  witness'  Roberts    (Tex     1008).    108    S.    W.    808. 
opinion  on  a  question  of  law  and  not  of  fact.  3.  Trenton  Potteries  Co.  v.  Title  Guarantee, 
it  should  be  excluded.     Connor  v    Hodges,  7  etc..  Co.,  176  X.  Y.  60,  68  N.  E.  732    il!W:]) 
Ga    App.  153,  66  S.  E.  546    (Ifl09).     That  a  (what  ought  to  have  been  done  in  issuing  an 
witness  may  possess  greater  knowledge  as  to  insurance  policy). 

the  existence  of  facts  entering  into  an  inquiry  4.  3  Chamberlayne,     Evidence,     §§     2326- 

than   the   jury  would   be   supposed   to   have,       2328. 
does    not    render    his    conclusion    admissible 

617 


§   8U5 


CONCLUSION  FROM  OBSERVATION;  LAW 


618 


of  law  on  the  part  of  a  witness  be  received.  Where  such  is  the  case,  the  court, 
alert  to  protect  the  rights  of  the  opponent  to  the  reasoning  of  the  jury,  will  re- 
quire that  the  former  establish  to  its  satisfaction  a  forensic  necessity  which 
shall  justify  the  reception  of  evidence  so  fraught  with  possible  mischief  to 
the  opposing  interest. 

A  negative  fact  embodies  less  o£  legal  reasoning  than  a  positive  one  and  will 
be  more  readily  received  5  but  a  psychological  fact  will  be  excluded  in  most 
cases  like  a  physical  fact.6 

§  805.  [Conclusions  of  Law] ;  When  admitted.7 —  The  rules  of  evidence  can- 
not be  safely  extended  so  far  as  to  exclude  every  question  to  which  the  answer 
might  possibly  involve  a  matter  of  law.  Conclusions  of  law  are  frequently 
admitted.8  Administrative  considerations  or  the  absence  of  administrative  ob- 
jections may  warrant  their  reception. 

The  existence  of  agency  may  be  a  mere  statement  of  fact  and  hence  admis- 
sible 9  and  questions  of  damages  may  involve  so  many  complicated  elements 
that  primary  evidence  cannot  be  laid  before  the  jury  10  especially  where  the 
legal  rule  for  assessing  damages  is  simple.11  So  conclusions  as  to  indebted- 
ness are  often  received  in  complicated  cases  12  and  the  same  result  is  often 
reached  in  questions  of  ownership  1:{-  or  possession.14 

But  where  the  question  is  largely  a  matter  of  law  as  often  in  cases  of 

gard  to  them.     Hayes  v.  Ottawa,  etc.,  R.  Co., 
54  111.  373  (1870)    (depot  near  land). 

11.  Blaney  v.  Salem,  160  Mass.  303,  35  N. 
E.  858  (1894). 

12.  Owen  v.  McDermott  (Ala.  1906),  41  So. 
730;  Richards  v.  Herald  Shoe  Co.  (Ala.  1905), 
39   So.   615;    Harrison   Granite  Co.   v.   Penn- 
sylvania  R.   Co.,    145   Mich.   712,    108   N.   W. 
1081,  13  Detroit  Leg.  N.  631   (1906).     It  may 
be  a  necessary  and  obvious  fact.     Shrimpton 
v.    Brice,    109   Ala.    640,   20   So.    10    (1896); 
Plank  v.  Indiana  Mut.  Bldg.,  etc.,  Assoc.,  28 
Ind.  App.  259,  62  N.  E.  652    (1902)  ;   Stude- 
baker  Bros.  Mfg.  Co.  v.  Endon,  50  La.  Ann. 
674,    23    So.    872     (1808);    Greene    v.    Tally, 
39  S.  C.  338,  17  S.  E.  779   (1893)  ;  Miller  v. 
George,  30  S.  C.  526,  9  S.  E.  659  (1889). 

Collective  facts. —  That  a  given  person 
"  owed  "  another  may  be  merely  a  collective 
fact.  Owen  v.  McDermott  (Ala.  1906),  41 
So.  730. 

13.  Bunke  v.  Now  York  Telephone  Co.,  188 
N.  Y.  600,   81   N.   E    1161    (1907).  affirming 
jndciment  97  N.  Y.  Suppl.  66,  110  App.  Div. 
241    (1905),  which  affirmed  judgment  91  N. 
Y    Suppl.  390   (1904)    (wires). 

14.  Knight  v.  Knight,  178  111.  553,  53  N.  E. 
306  (1899^  :  Fisher  v.  Bennehoff,  121  111.  426, 
13  N.  E.  150  (1887). 


5.  Sewell  v.  Chicago  Terminal  Transfer  R. 
Co.,   177   111.  93,  .32  X.   E.  302    (1898);    Beck 
v.  Pennsylvania,   Poughkeepsie  &   Boston  R. 
Co.,  148  Pa.  St.  271,  23  Atl.  900,  33  Am.  St. 
Rep.   822    (1892)    statement  that  was  no  in- 
jury to  property. 

6.  Binkley  v."  State    (Tex.  Cr.  App.   1907), 
100    S.    \V.    780. 

7.  3  Chamberlayne,     Evidence,     §§     2329- 
2360. 

8.  Spencer   v.    Xew   York,   etc.,  R.   Co.,   62 
Conn.  242,  25  Atl    350    (1892)     (way  of  ne- 
cessity)      Knight  v.  Knight.  178  111.  553,  53 
X.    E.    306     (1899)      ("control");     Paul    v. 
Conwell,  51  111.  App   582   (1893)    (was  super- 
intendent ) . 

9.  Clark    v.    Hoffman,    128    111.    App.    422 
(1906)    (concerning  a  partnership). 

10.  Bee    Pub     Co.    v.    World   Pub.    Co.,   59 
Kebr.  713,  82  X.  W.  28    (1900);   Lazarus  v. 
Ludwig,  45   X.   Y.   App.  Div    486,   61   N.   Y. 
Suppl.  365  (1899). 

Benefits. —  The  same  administrative  prin- 
ciples are  applied  by  the  court  to  proof,  in 
mitigation  of  damages,  of  benefits  received. 
Should  the  minute  and  complicated  phenom- 
ena observed  by  the  witness  evade  effective 
statement  in  detail,  they  may  be  given  by  him 
in  the  secondary  form  of  his  conclusion  in  re- 


619 


FUNCTION  OF  COURT. 


806 


agency  15  or  damages  16  for  personal  injury  17  or  breach  of  contract 1S  or  the 
fact  of  indebtedness  19  or  the  fact  of  justification  for  conduct 20  or  the  legal 
effect  of  transactions  21  or  the  existence  of  legal  rights  22  or  liability  23  or  neg- 
ligence,24 ownership,25  possession20  or  relations  between  parties2'  the  conclu- 
sions of  law  of  the  witness  are  properly  rejected. 

§  806.  [Conclusions  of  Law];  Intrusion  upon  the  Function  of  the  Court.28 — A 
witness  will  not  be  permitted  to  intrude  his  conclusion  into  the  province  of  the 
court.29  A  judicial  trial  involves,  in  its  very  nature,  the  unimpaired  perform- 
ance by  the  presiding  judge  of  the  functions  of  his  office.  Therefore,  a  wit- 
ness will  not  ordinarily  be  permitted  to  apply  a  legal  standard  or  rule  of  law 
or  practice  to  the  facts  which  he  details  and  then  state  the  conclusion  to  which 
he  arrives.30  Such  a  process  is  administratively  objectionable,  because  it 
covers  a  double  danger.  (1)  The  witness  may  be  employing  facts  as  part  of 
his  reasoning  which  are  known  only  to  himself  and  not  even  consciously  to 
him.  (2)  The  rule  of  law  is  to  be  announced  by  the  judge  and  applied  by  him 
or  by  the  jury  according  to  the  situation  of  the  case.  To  this  orderly  exercise 
of  functions,  the  parties  litigant  are  entitled.  Hence  a  witness  will  not  be 


15.  Beaucage  v.  Mercer,  206  Mass.  492,  92 
X.  E.  774    (1910)  ;  Rice  v.  James,   193  Mass. 
458,  79  N.  E.  807   (1907)    (recognized  and  au- 
thorized agent ) . 

16.  Bragan    v.    Birmingham    Ry.,   Light   & 
Power  Co.   I  Ala.  1909),  51  So.  30  (consequen- 
tial damages)  ;  Central  of  Georgia  Ry.  Co.  v. 
Keyton    (Ala.    1906),  41   So.  918;    St.  Louis, 
etc.,  R.  Co.  v.  Hall,  71  Ark.  302,  74  S.  W. 
293     (1903)      (fire);     Parish    v.    Baird,    160 
X.  Y.  302,  54  N.  E.  724    (1899);   Wilson  v. 
Southern  R.  Co.,  65  S.  C.  421,  43  S.  E.  964 
(1903)     (fire). 

17.  Whipple  v    Rich,  180  Mass.  477,  63  N. 
E.  5   (1902). 

18.  Profits.—  A  witness  should  not  be  per- 
mitted to  testify  as  to  what  would  have  been 
plaintiffs'  profits  if  they  had  been  allowed  to 
perform  a  contract.     This  is  a  mere  conclu- 
sion.    He  should  be  confined  to  a  statement 
of  fact  showing  what  it  would  cost  to  do  the 
work.     Hardaway     Wright    Co.    v.     Bradley 
Bros.   (Ala.  1909),  51  So.  21. 

19.  Campbell,  etc.,  Co.  v.  Ross,  187  111.  553 
58   N.   E.   596    (1900);    Hollst   v.   Bruse,   69 
111.   App 

20.  State  v    Babcock,  25  R.  I.  224,  55  Atl. 
685  (1903). 

21.  Boyd  v.  New  York  Security,  etc.,   Co., 
176   X.   Y    556,   613,   68   X.   E.    1114    (1903) 
( "  know   of    any   lien    given   by   you   to   any 
odby  "  on   a   certain  fund). 

22.  Chicago,  etc.,  R.  Co.  v.  Kuckkuck,  197 


111.   304,  64   N.   E.   358    (1902)     (enter   rail- 
road premises ) . 

23.  Quincy  Gas.  etc.,  Co.  v.  Bauman,   104 
111.  App.  600,  affirmed  in  203  111.  295,  67  N. 
E.  807   (1902)  ;  Sheldon  v.  Bigelow,  118  Iowa 
586,  92  X    W.   701    (1902)  ;   Sisson  v.  Yost, 
12    N.   Y.    Suppl.   373    (1890);    Berryhill   v. 
McKee,  1  Humphr.   (Tenn.)  31   (1839). 

24.  State  v.  Campbell,  82  Conn.  671.  74  Atl. 
927    (1910). 

25.  Hamilton  v.   Smith,   74  Conn.   374,  50 
Atl.   884    (1902)     (boundaries). 

26.  Arents  v.  Long  Island  R.  Co.,  156  N.  Y. 
1,  50  N.  E.  422   (1898). 

27.  Boye  v.  Andrews   (Cal.  App.  1909)   102 
Pac.  551    (''confidential  relation"). 

28.  3  Chamberlayne,     Evidence,     §§    2361- 
2365. 

29.  Lightman  Bros.  &  Goldstein  v.  Epstein 
(Ala.   1909),  51   So.   164    (reasonable  price): 
People  v.  Xewton,  11  Cal.  App    762,  106  Pac. 
247  (1909)    (officer's  opinion  as  to  his  duty)  ; 
Hirch  &  Co.  v.  Beverly,  125  Ga.  657,  54  S.  E. 
678  (1906)    (lien). 

.  30.  Evans  v.  Dickey,  117  111.  291,  7  N.  E. 
263  (1886)  (employment):  Gall  v.  Dicky, 
91  Iowa  126,  58  X.  W.  1075  (1894)  (forfeit- 
ure) ;  Western  Xat.  Bank  v.  Flannagan,  14 
Mi>c.  317.  35  X.  Y.  Suppl.  84S  H895)  (au- 
thority) ;  Dean  v.  Fuller.  40  PR.  St.  474 

(1861)  (undue  influence):  Elrod  v.  Alexan- 
der, 4  Heisk,  342  (1871)  (contraband). 


§  807  CONCLUSION  FROM  OBSERVATION;  LAW  620 

allowed  to  state  the  legal  effect  of  documents  31  or  of  spoken  language  32  or  the 
meaning  of  contracts.33 

§  807.  [Conclusions  of  Law] ;  When  Conclusion  is  received.34 —  Rejection  of 
the  conclusion  of  a  witness  as  to  the  meaning  of  an  oral  contract  is  not  a  neces- 
sary outcome  of  the  administrative  situation.  Should  the  element  of  reasoning 
involved  be  slight,  the  inference  one  about  which  reasonable  men  could  not 
well  differ  in  opinion,  the  conclusion  of  a  witness  may  amount  merely  to  a 
shorthand  statement  of  a  fact,  the  constituents  of  which  are  obvious.  Under 
these  circumstances,  especially  where  the  fact  inferred  is  not  intimately  con- 
nected with  the  province  of  the  jury,  the  conclusion  may  be  received.35 

Under  recognized  conditions,  the  understanding  of  a  witness  as  to  the  effect 
of  spoken  language  will  be  received.  The  evidence  is,  of  course,  admissible 
in  the  absence  of  objection.36  Even  where  the  opponent  contends  that  the 
conclusion  is  inadmissible,  it  may  still  be  admitted. 

But  the  meaning  of  ordinary  English  words  is  a  matter  of  common  knowledge 
concerning  which  evidence  will  be  rejected  37  and  so  of  figures  38  or  phrases  39 
unless  they  are  technical.40 

31.  Kankin  v.  Sharpies,  206  111.  301,  69  N.    *      36.  Carlisle  v.  Humes,  111  Ala.  672,  20  So. 
E.  9   (1903)    (sufficiency  of  a  patent  license).  462    (1896). 

32.  Brown  v.  Carson,  132  Mo.  App  371,  111  37.  National  Fire  Ins.  Co.  v.  Hanberg,  215 
S.  W.  1181   (1908)    (certain  persons  "admit-  111.    378,    74    N.    E.    377    (1905)     r  net    re- 
ted"),  ceipts"). 

33.  Freeman  v.  Macon  Exch.  Bank,  87  Ga.  38.  Harris   v.    Ansonia,   73   Conn.   359,   47 
45,    13    S.    E.    160    (1891)     (indorsement   on  Atl.  672   (1900). 

note).  39.  Lawrence  v.  Thompson,  26  N.  Y.  App. 

34.  3  Chamberlayne,     Evidence,     §§     2366-      Div.  308,  49  N.  Y.  Suppl.  839   ( 1898) . 

2370.  40.  Richard  P.  Baer  &  Co.  v.  Mobile  Cooper- 

35.  Lozier  v.  Graves,  91  Iowa  482,  59  N.  W.  age  &  T  tx  Mfg.  Co.   (Ala.  1909),  49  So.  921 
285    (1894)  ;  Frost  v.  Benedict,  21  Barb.   (N.  ("mill  culls,"  "shipping  culls")  ;  Garrity  v. 
Y.)  247  (1855)  ;  Ives  v.  Newbern  Lumber  Co.,  Catholic  Order  of  Foresters,  148  111.  App.  189 
61  S.  E.  70  (1908).  (1909),   judgment  affirmed  243   111.   411,  99 

N.  E.  753    (1910). 


CHAPTER  XXXIV. 

JUDGMENTS  OF  EXPERTS. 

Judgments,  808. 

an  obvious  administrative  danger  —  field  of  the  expert,  809. 
admissibility  a  question  of  administration,  810. 
illustrative  instances  of  judgments,  811. 

medicine,  812. 

mining  matters,  813. 

railroad  matters,  814. 

trolley  and  street  railways,  815. 

§  808.  Judgments.1 —  In  passing  from  Conclusions  to  Judgments  a  signifi- 
cant change  occurs.  The  series  of  progressive  mental  operation,  which  has 
been  considered  in  its  administrative  relation  to  the  so-called  "  opinion  evi- 
dence rule,1'  Inference,  Conclusion,  Judgment,  has  witnessed  the  gradual  in- 
volution of  the  element  of  Reasoning.  As  the  witness  has  been  permitted  to 
do  more  and  more  of  this,  the  jury  have  done  correspondingly  less.  At  the 
same  time,  part  passu,  the  proportion  of  t\te  element  of  observation,  intuitive 
action  of  the  mind  upon  the  presentation  of  sense  perception,  has  steadily  di- 
minished. Controlling  in  the  intuitive  inference,  somewhat  less  so  in  the 
reasoned  one,  the  influence  of  Observation  has  been  brought  to  the  vanishing 
point  in  case  of  the  Conclusion.  As  the  field  of  the  Expert.  Judgment,  is 
reached.  Observation  entirely  disappears.  The  expert  observes  nothing.  His 
proper  work  is  that  of  pure  reasoning.  Taking  the  facts  as  observed  by  other 
witnesses  and  enumerated  by  them,  it  is  his  function  to  present  to  the  jury 
the  2  proper  conclusion  which  they  indicate.  To  the  jury  themselves  is  re- 
served the  question  of  credibility,  whether  the  facts  detailed  to  the  expert  in 
the  form  of  a  so-called  hypothetical  question  actually  exist. 

Criminal  cases. —  The  law  is  the  same  in  criminal  3  as  in  civil  cases. 

§  809.  [Judgments] ;  An  Obvious  Administrative  Danger  —  Field  of  the  Ex- 
pert.4—  The  plain  administrative  objection  to  employing  the  expert  is  that  his 
reasoning  has  a  tendency  to  supplant  that  of  the  jury.  Each  litigant  is  en- 
titled to  insist  not  only  that  reason  should  be  applied  to  the  facts  of  his  case, 
but  also  that  the  application  be  made  by  the  jury,  so  far  as  the  latter  are  com- 

1.  3  Chamberlayne,  Evidence,  §  2371.  3.  State  v.  Webb.  18  Utah  441,  56  Pao.  150 

2.  Nunes  v.  Perry.  113  Mass.  274    (1873);        (1899). 

Com.  v.  Williams,  105  Mass.  62   (1870).  4.  3  Chamberlayne,     Evidence,     §§     2372- 

2374. 
621 


§§  810,  811  JUDGMENTS  OF  EXPERTS.  622 

petent  for  the  work.  The  clear  danger  that  a  trial  by  jury  may  become  one 
by  experts  is  regarded  with  apprehension  by  judicial  administration.  A  clear 
warrant  will  be  required  at  the  hands  of  the  proponent  for  receiving  such  testi- 
mony. In  general,  this  is  found  in  the  technical  nature  of  the  reasoning 
which  is  demanded  of  the  witness.  .-A  countervailing  advantage,  as  compared 
with  the  judicial  use  of  conclusion,  is  to  be  placed  to  the  credit  of  judgment. 
An  expert  may  be  said  to  be  a  skilled  witness  who  testifies  upon  the  basis  of 
assumed  facts  stated  in  a  hypothetical  question.  The  definition  is  confessedly 
arbitrary,  intended  to  segregate  witnesses  who  testify  from  assumed  facts  as  a 
class  by  themselves. 

§  810.  Admissibility  a  Question  of  Administration.5 —  Whether  any  subject  is 
so  far  a  matter  of  science,  art  or  trade,  as  to  afford  reasonable  ground  for  be- 
lief that  the  jury  will  be  aided  by  the  opinion  of  an  expert  is  a  preliminary 
question  for  the  trial  judge.  Within  limits  prescribed  by  reason,  the  admis- 
sibility  of  the  judgments  of  experts  is  a  matter  of  administration.  Practically, 
this  is  equivalent  to  saying  that  no  uniform  rule  can  be  laid  down  upon  the 

subject. 
J 

The  expert  witness  was  originally  called  in  by  the  presiding  judge  to  assist 
him  6  and  the  court  still  has  wide  control  over  the  number  and  use  of  experts. 

An  adequate  forensic  necessity  must  be  found  for  the  introduction  of  the 
expert  to  assist  the  reasoning  powers  of  the  jury,7  and  the  testimony  must  be 
relevant  both  objectively  and  subjectively.8  He  must  have  adequate  knowledge 
and  suitably  trained  reasoning  powers  9  and  he  must  do  more  than  hazard  a 
mere  conjecture  10  as  in  case  of  claims  of  speculative  damages.11  He  may 
augment  the  force  of  his  opinions  by  stating  his  reasons  for  them.12 

§  811.  Illustrative  Instances  of  Judgments.13 —  Among  the  various  instances 
of  expert  testimony  it  may  be  expedient  to  take  up  for  consideration  certain 
ones  which  occur  most  frequently  in  practice  or  tend  most  strongly  to  illus- 
trate the  methods  of  judicial  administration  in  dealing  with  the  subject. 

5.  3  Chamberlayne,     Evidence,     §§     2375-  Missouri. —  Muller  v.  Gillick,  66  Mo.  App. 
2381a.  500   (1896). 

6.  Buller  v.  Crips,  6  Mod.  30    (1703).  ~New  Hampshire. —  Burnham  v.  Aver.  36  N. 

7.  "In  matters  of  science  no  other  witness  H.  182   (1858). 

can  be  called."     Falkes  v.  Chadd,   3  Dougl.          New  York. —  McKerchnie  v.  Standish,  6  N. 

157,  26  E.  C.  L.  Ill  (1782).  Y.  Wkly.  Dig.  433   (1878). 

8.  Turner  v.  Cocheco  Mfg.  Co.  (N.  H.  1910)  Wisconsin. —  Nichols  v.   Brabazon,  94  Wis. 
77  Atl.  999.  549,  69  N.  W.  342  (1896). 

9.  Mere  casual  observation,  superficial  read-  11.  Klernochan    v.   New   York   El.    E.    Co., 
ing  or  slight  oral   instruction   is   insufficient  130  N.   Y.   651,   29   N.   E.   245,    14   L.   R.   A. 
to  render  one  competent  as  an  expert  witness  673    (1891),   reversing   57   N.   Y.   Super.   Ct. 
on  a  particular  subject.     Conley  v.  Portland  434,  8  N.  Y.  Suppl.  770  (1890). 

Gaslight  Co.,  99  Me.  57,  58  Atl.  61   (1904).  12.  Koplan    v.    Boston    Gaslight    Co.,    177 

10.  Idaho.—  Kelly  v.  Perrault,  5  Ida.  221,      Mass.  15,  58  N.  E.  183    (1900). 

48  Pac.  45    (1897).  13.  3  Chamberlayne,    Evidence,    §§    2381b- 

2412. 


623 


EXAMPLES. 


§  811 


The  correct  test  is  whether,  assuming  no  counteracting  danger  to  be  met  with, 
the  court  would  be  aided  by  the  knowledge  of  the  expert.14  Even  in  the  lim- 
ited instances  by  which  this  method  is  illustrated,  little  by  way  of  uniformity 
of  decision  is  to  be  expected.15  Agreement  upon  the  fundamental  rules  by 
which  administration  is  guided  seems  fairly  apparent.  Which  of  them,  how- 
ever, shall  be  deemed  decisive  in  any  particular  case  may  depend  much  upon 
considerations  for  which  it  is  difficult  to  make  specific  allowance. 

Experts  are  commonly  used  in  cases  involving  technical  questions  concern- 
ing carpentering  and  building,10  commercial  matters,17  engineering  problems,18 
even  every  day  matters  when  complicated  so  that  the  expert  may  be  helpful ltt 
as  in  regard  to  crops,20  stock  21  or  farm  structures  22  or  operations,23  insur- 
ance, whether  tire,24  life  25  or  marine,26  and  problems  in  law,27  manufactur- 
ing,28 marine  ~'J  or  the  mechanic  arts.30 


14.  Young  v.   Johnson,   123   N.   Y.  226,   25 
N.  E.  363    (1890). 

15.  "  It   is  doubtful   whether  all  the  cases 
can   be   harmonized,   or   brought   within   any 
general    rule    or    principle."     Muldowney    v. 
Illinois  Cent.  R.  Co.,  36  Iowa  462,  473  (1873). 

16.  Architects. —  Benjamin  v.  Metropolitan 
St.  R.  Co.,  50  Mo.  App.  602  ( 1892)  ;  Chamber- 
lain v.  Dunlop.  5  Silv.  Supreme    (N.  Y.)   98, 
8  N.  Y.  Snppl.  125   (1889). 

Builders. —  Montgomery  v.  Gilmer,  33  Ala. 
116,  70  Am.  Dec.  562  (1858)  (mason):  Bet- 
tys v.  Denver,  115  Mich.  228,  73  N.  \V.  138 
(1897)  (bridge)  ;  Cobb  v.  St.  Louis,  etc.,  R. 
Co.,  149  Mo.  609,  50  S  W.  894  (1899) 
(bridge)  ;  Fox  v.  Buffalo  Park.  21  X.  Y.  App. 
Div.  321.  47  X.  Y".  Suppl.  788  (1897). 

17.  Moschowitz  v.   Flint,  33  Misc.    (X.  Y.) 
480,  67  X.  Y.  Suppl.  852  (  1900). 

18.  Egger  v.   Rhodes    (Cal.   1894).  37   Pac. 
1037  (civil  and  hydraulic) . 

19.  Laughlin   v.   Grand  Rapids  St.  R.  Co., 
62  Mich.  220,  2S  X.  W.  873  (1886).     Whether 
leaving  a   horse  unhitched  under  given   con- 
ditions is  negligent,  may  be  a  fit  subject  for 
the  judgment  of  an  expert.     Stowe  v.  Bishop. 
58   Vt.    498,    3    Atl.    404.    56    Am.   Rep.    569 
(1886). 

20.  Van  Werden  v.  Winslow,  117  Mich.  564. 
76  X.  W.  87  (1898)    (celery)  ;  Lane  v.  Wilcox, 
55  Barb.  (X.  Y.)   615  (1864). 

Diseases  of  vegetable  life. —  Special  skill 
and  experience  may  not  be  required  to  infer 
the  existence  of  a  particular  form  of  disease 
incident  to  vegetable  life,  ^.  g.,  the  cause  of 
the  destruction  of  trees.  State  v.  Main,  69 
Conn.  123.  37  Atl.  80  (1897). 

21.  Oakes   v.   Weston,   45  Vt.  430    (1873) 


(overloading  is  one  of  those  matters  of  com- 
mon knowledge  where  an  expert  is  not 
needed ) . 

22.  Armstrong    v.    Chicago,    etc.,    R.    Co., 
45  Minn.  85,  47  N.  W.  459    (1890)    (stable's 
use). 

23.  The  proper  time  to  burn  brush  is  a 
matter   of    common    knowledge    as    to    which 
the  non-expert  may  speak.     Krippner  v.  Biebl, 
28  Minn.  139.  9  X.  W.  671    (1881)  ;   Wells  v. 
Eastman,  61  X.  H.  507    (1881). 

24.  Joyce  v.  Maine  Ins.  Co.,  45  Me.  168,  71 
Am.    Dec.    536    (1858);    Luce    v.    Dorchester 
Mut.  F.  Ins.  Co.,  105  Mass.  297,  7  Am.  Rep. 
522   (1870)  ;  Lyman  v.  State  Mut.  F.  Ins.  Co., 
14    Allen     (Mass.)     329     (1867);    Morris    v. 
Farmers'  Mut.  F.  Ins.  Co.,  63  Minn.  420,  65 
X.  W.  655   (1896)    (steam  in  threshing)  ;  Jef- 
ferson Ins.  Co.  v.  Cotheal,  7  Wend.    (X.  YT.) 
72,    22    Am.    Dec.    567     (1831)     (inclosing   a 
boiler  previously  detached ) . 

25.  The  practice  of  the  courts  with  regard 
to  expert  evidence  as  to  life  insurance  ques- 
tions is  practically  the  same  as  in  those  re- 
lating to  assurance  against  loss  by  fire.     In 
both  relations,  a  double  reason  may  exist  for 
rejecting  the  judgment  when  tendered.      ( 1 ) 
It  may  relate  to  a  matter  of  common  knowl- 
edge which  the  jury  are  competent  to  handle. 
(2)    The  fact  may  be  one  of  a  res  gestae  or 
constituent   nature  material   to  the  ultimate 
action  of  tb-  jury.     For  example,  the  expert 
will    usually   be   forbidden   to   state   whether 
certain  facts  which  the  insured  has  omitted 
to    mention    were    material    to    the    risk    as- 
sumed by  the  company.     Xew  Era  Assoc.  v. 
Mactavish    (Mich.    1903),   94   X.   W.   509. 

26.  Leitch  v.  Atlantic  Mut.  Ins.  Co.,  66  X. 


812 


JUDGMENTS  OF  EXPEBTS. 


624: 


§  812.  [Illustrative  Instances  of  Judgments] ;  Medicine.31 —  Medical  experts 
are  often  used  to  help  the  jury  in  medical  questions  32  when  properly  qualified.33 
Insanity  can  only  bo  shown  by  a  witness  specially  skilled  in  mental  diseases  34 
although  a  practicing  physician  may  be  used  where  the  case  is  one  of  the  com- 
mon variety. is 

A  medical  expert  may  testify  as- to  proper  human  food,30  as  to  the  effect  of 
certain  occurrences  on  the  body  37  or  the  cause  of  mental  troubles  38  or  the  per- 


V..  100   (1876)  ;  McLanahan  v.  Universal  Ins. 
L'o.,  1  Pet.   (U.  S.)    170,  7  L.  ed.  98  (1828) 

27.  Artz    v.    Robertson,    50    111.    App.    27 
(1892)     (whether  services  of  attorney  neces- 
sary).    Armstrong  v.  Histeau,  5  Md    256,  59 
Am.  Dec.   115    (1853)     (ejectment). 

28.  Whitaker  v.  Campbell,  187  Pa.  St.  113, 
U  Atl.  38    (1898)    (latent  danger). 

29.  Ogden  v.  Parsons,  23  How.  (U.  S.)  167, 
16  L.  ed.  410  (1859)    (ship  has  a  full  cargo)  ; 
Beckwith   v.   Sydebotham,    1   Campb.    116,   10 
Rev.  Rep.  652  (1807).     A  shipbuilder  may  be 
?alled  as  a  witness  to  give  his  opinion  of  the 
seaworthiness  of  a   ship   on   facts   stated   by 
)thers.     Thorton  v.   Royal   Exch.   Assur.  Co., 
Peake  37    (1790).     See  Ilfrey  v.  Sabine,  etc., 
K.  Co.,  76  Tex.  63,  13  S.  W.  165  (1890)    (size 
>f  waves ) . 

30.  Ouillette   v.    Overman    Wheel   Co.,    162 
Mass.  305,  38  N.  E.  511    (1894);   St.  Louis, 
>tc.,  R.  Co.  v.  Farr,  56  Fed.  994,  6  C.  C.  A.  211 
[1893). 

Work. —  The  opinion  of  an  expert  may  prop- 
trly  be  given  as  to  the  right  method  of  doing 
vork  and  as  to  the  tools  and  appliances  nec- 
(ssary  where  such  matters  are  not  of  common 
mowledge  and  could  not  readily  have  been 
nade  intelligible  to  the  jury.  Morris  v.  Wil- 
iams,  143  111.  App.  140  (1908).  One  may 
five  his  opinion  as  to  what  shell  caused  a 
vound  which  he  has  examined  where  he  testi- 
ies  that  he  has  often  used  shells  of  this  kind 
:nd  has  observed  their  effect  although  he  has 
lever  seen  one  fired  at  a  human  body.  Byrd 
'.  State,  142  Ga  633,  83  S.  E.  513,  L.  R.  A. 
915  B  1143  (1914). 

31.  3  Chamberlayne,    Evidence,    §§     2413- 
!429. 

32.  "  Medical  testimony  is  of  too  much  im- 
lortance  to  be  disregarded.     When  delivered 
rith   caution,  and  without  bias   in   favor  of 
ithor   party,   or   in   aid   of  some  speculation 
nd    favorite   theory,   it   becomes   a    salutary 
neans   of   preventing  even    intelligent    furies 
rom  following  a  popular  prejudice,  and  de- 
iding  a  cause  on  inconsistent  and  unsound 


principles.  But  it  should  be  given  with  great 
care  and  received  with  the  utmost  caution, 
and,  like  the  opinions  of  neighbors  and  ac- 
quaintances, should  be  regarded  as  of  little 
weight  if  not  well  sustained  by  reasons  and 
facts  that  admit  of  no  misconstructions,  and 
supported  by  authority  of  acknowledged 
credit."  Clark  v.  State,  12  Ohio  483,  491,  40 
Am.  Dec.  481  (1843). 

33.  Copeland  v.  State,  58  Fla.   26,  50  So. 
621   (1909).     A  physician  testifying  as  an  ex- 
pert must  first  be  shown  to  be  qualified  either 
by  actual  experience  in  similar  cases  to  the 
one  put  to  him  or  by  such  careful  and  delib- 
erate study  as  enables  him  to  form  a  definite 
opinion    of    his    own    with    reference    to    the 
matter    under    consideration.     Hildebrand    v. 
United  Artisans  (Or.  1907),  91  Pac.  542.     On 
a  subject  as  to  which  there  is  little  or  no  gen- 
eral   knowledge    like    post   mortem    digestion 
the  jury  must  be  guided  by  expert  testimony. 
Flege  v.  State,  93  Neb.  610,  142  N.  W.  276, 
47   L.   R.  A.    (N.   S.)    1106    (1913). 

34.  Arkansas. —  Green  v.  State,  64  Ark.  523, 
43   S.   W.   973    11898). 

Delaware. —  State  v.  Windsor,  5  Harr.  512 
(1851). 

Missouri. —  State  v.  Wright,  134  Mo.  404, 
35  S.  W.  1145  (1896) 

New  York. —  Matter  of  Jacott,  2  Silv.  Su- 
preme 544,  6  N.  Y.  Suppl.  122  (1889)  ;  Lake 
v.  People,  1  Park.  Cr.  495  (1954):  Peo- 
ple v.  Thurston.  2  Park.  Cr.  49  (1852) 

West  Virginia. —  Kerr  v.  Lunsford,  31  W. 
Va.  659,  8  S.  E.  493,  2  L.  R.  A.  668  (1888). 

35.  People  v.   Schuyler,   106  X.  Y.  298,   12 
N.  E.   783    (1887)  ;   Koenig  v.  Globe  Mut.  L. 
Ins.  Co.,  10  Hun  558   (1877). 

36.  Branson  v.  Turner,  77  Mo.  489    (1883) 
(sore  on  neck  of  an  ox  as  unfitting  it  for  hu- 
man food ) . 

37.  O'Mara  v.  Com,  75  Pa.  St.  424   (1874) 
(flow  of  blood) . 

38.  Bliss  v.  Xew  York  Cent.,  etc.,  R.  Co., 
160  .Mass.  447,  36  X.  E.  65,  39  Am.  St.  Rep. 
504   (1894)  ;  Anthony  v.  Smith,  4  Bosw.   (N. 


625 


EXAMPLES. 


813 


manence  of  diseased  conditions.39  The  medical  witness  may  not,  however, 
simply  guess  at  his  conclusions,4"  but  may  state  probabilities  based  on  fact 
and  experience. 

He  may  also  state  the  cause  of  death41  or  the  symptoms  of  disease42  and 
what  they  mean  and  also  of  injuries  43  and  psychological  conditions.44 

The  ordinary  test  in  most  cases  of  mental  capacity  is  the  ability  to  transact 
ordinary  business.45  The  expert  medical  witness  will  not,  however,  be  al- 
lowed to  intrude  on  ,the  province  of  the  jury  by  stating  his  judgment  on  the 
legal  standard  of  ability 46  unless  the  facts  are  simple  so  that  the  expert's 
judgment  will  not  be  likely  to  mislead  the  jury. 

The  weight  of  the  opinion  of  the  expert  witness  is  likely  to  be  much  greater 
than  that  of  the  ordinary  practicing  physician  4T  and  in  a  peculiar  or  compli- 
cated case  the  latter  will  be  excluded  entirely.48 

§  813.  [Illustrative  Instances  of  Judgments] ;  Mining  Matters.49 —  The  busi- 
ness of  mining  furnishes,  especially  in  certain  sections,  a  prominent  subject  of 
litigation.  In  this  connection,  much  use  is  necessarily  made  of  the  judgments 
of  those  who,  in  the  opinion  of  the  court,  are  sufficiently  qualified  by  scientific 
training  or  practical  experience  50  to  aid  the  deliberations  of  the  jury.  Knowl- 

Lake,  71  X.  H.  90,  51  Atl.  260  (1901)    (proper 
treatment) . 

44.  Bever  v.  Spangler,  93  Iowa  576,  61  N. 
W.  1072   (1895)    (senile)  ;  State  v.  Feltes,  51 
Iowa   495,    1    N.    W.    755    (1879)     (delirium 
tremens ) . 

45.  Poole  v.  Dean,  152  Mass.  589,  26  N.  E. 
406   (1891);  Torrey  v.  Burney,  113  Ala.  496, 
21   So.  348    (1897);   Mayville  v.  French,  246 
111.    434,    92    N.    E.   919    (1910);    Curtice   v. 
Dixon  (N.  H.  1907),  68  Atl.  587. 

46.  Schneider  v.  Manning,  121   111.  376,   12 
X.   E.   267    (1887).     An  expert  medical  wit- 
ness may  be  allowed  to  state  a  judgment  that 
the  testatrix  was  insane  but  not  that  at  a 
given  time  she  was  incapable  of  executing  a 
valid  will.     Garrus  v.  Davis,  234  111.  326,  84 
X.  E    924   (1908). 


Y.)   503    (1859);   Dejarnette  v.  Com.,  75  Va. 
867    (1881). 

39.  Taylor   v.    Ballard,    24    Wash.    191,    64 
Pac.  143   (1901). 

40.  Huba  v.   Schenectady   R.  Co.,  85  X.  Y. 
App.  Div.  199,  83  N.  Y.  Suppl.  157   (1903). 

41.  Where  no  direct  evidence  exists  as  to 
the  actual  res  gestce  of  a  transaction  and  inex- 
perienced persons  might  be  misled  into  wrong 
conclusions,  competent  skilled  witnesses  may 
be  allowed  to  testify  as  to  the  actual  cause  of 
death  but,  even  here,  the  inquiry  may  prop- 
erly be  limited  to  what  might  have  produced 
this  result  rather  than  what  actually  did  so. 
Goddard  v.  Enzler,  123  111.  App.  108   (1005), 
judgment  affirmed  222  111.  462,  78  N.  E.  805 
(1906). 

St.   Paul   City  R.   Co.,   70 
W    157    (1897):    Haviland 
Suppl.    898 


42.  Donnelly 
Minn.  278.  73  X 

v.    Manhattan   R.    Co.,    15    X.   Y 
(1891). 

Objective  and  subjective  symptoms.  — 
Where  the  symptoms  detailed  to  the  expert 
are  only  in  part  subjective,  bis  judgment  on 
them  may  be  received.  Eckels  v.  Muttschall, 
230  111.  462,  82  X'.  E.  872  (1907).  A  fortiori, 
where  the  basis  of  the  medical  opinion  is  en- 
tirely objective  it  will  be  admitted.  City  of 
Chicago  v.  McXally,  227  111.  14,  81  X.  E.  23 
(1007). 

43.  Galveston,  etc..  R.  Co.  v.  Parrish   (Tex. 
Civ.   App.    1897),   43   S.   W.   536;    Challis  V. 


47.  Mayville  v.  French,  246  111.  434,  92  N. 
E.  919    (1910). 

48.  Hutchins  v    Ford.  82  Me.  363,   19  Atl. 
832    (1890);   Com.  v.  Rich,  14  Gray   (Mass.) 
335    (1859);    Russell  v.   State,   53   Miss.   367 
(1876):   McLeod  v.   State,  31   Tex.   Cr.   331. 
333,  20  S.  W.  749   (1892). 

49.  3    Chamberlayne,    Evidence,    §§    2430- 
2434. 

50.  McXamara  v.  Logan,  100  Ala.  187,  14 
So.    175    (1893)     (miner):    Hedlum   v.   Holy 
Terror  Min.  Co.,  16  S.  D.  261,  92  N.  W.  31 
(1902). 


814 


JUDGMENTS  OF  EXPERTS. 


626 


edge  "  entirely  theoretical "  51  may  not  be  sufficient  upon  which  to  found  a  sat- 
isfactory judgment.  The  matter  is  largely  one  of  administration,  that  is, 
within  the  "  discretion  "  of  the  trial  judge.52 

The  testimony  may  relate  to  the  cause  and  effect  of  certain  conditions,53  to 
the  possibilities  of  the  situation  54  or  the  propriety  5r>  or  safety  °';  of  certain 
operations. 

§  814.  [Illustrative  Instances  of  Judgments] ;  Railroad  Matters.57 —  Expert 
witnesses  are  frequently  of  service  as  to  questions  of  railroad  construction, 
equipment  and  operation.58  The  witness  must  be  shown  to  have  gained  hia 
experience  in  a  department  of  railroad  affairs  involved  in  the  pending  in- 
quiry.50 

The  propriety  of  railroad  construction  cu  is  a  proper  matter  for  expert  tes- 
timony unless  the  facts  are  so  simple  that  the  jury  needs  no  expert  assistance.61 
The  railroad  expert  may  state  his  inference  as  to  the  general  condition  of  a 
railroad,  appliances  62  and  their  value  °3  unless  the  matter  is  within  the  com- 
mon knowledge  of  the  jury.64  He  may  also  state  the  cause  and  effect  of  acci- 
dents,65 the  danger  of  certain  railroad  operations,66  the  ability  of  the  operating 


51.  Lineoski  v.  Susquehanna  Coal  Co.,   157 
Pa.  St.  153,  27  Atl.  577   (1893). 

52.  Czarecki  v.  Seattle,  etc.,  R.,  etc.,  Co.,  30 
Wash.  288,  70  Pac.  750   (1902). 

53.  Alabama    Conaol.    Coal   &    Iron    Co.    v. 
Heald  (Ala.  1910),  53  So.  162. 

54.  Hedlun  v.  Holy  Terror  Min.  Co.,   16  S. 
D.  261,  92  N.  W.  31    (1902);   Sloss-Sheffield 
Steel  &  Iron  Co.  v.  Sharp  (Ala.  1908),  47  So. 
279   (gas  explosion ). 

55.  McXamara  v.  Logan,   100  Ala.   187,   14 
So.    175     (1893)     (cross    entries);    Smuggler 
Union  Min.  Co.  v.  Roderick,  25  Colo.   16,  53 
Pac.   169,  71  Am.  St.  Rep.   106    (1898)    (car- 
rying up  a  slope)  ;    Island  Coal  Co.  v.  Neal. 
15    Ind.    App.    15,    42    N.    E.    953,   43    N.    E. 
463    (1896)    (propping  and  capping  a  roof)  ; 
Tanner's  Adm'r  v.  W.   A.  Wickliffe  Coal  Co. 
(Ky.    1908),  32   Ky.   Law   Rep.   1304.   108   S. 
W.  351   (timbering  entry). 

56.  McXamara  v    Logan,   100  Ala.   187,  14 
So.   175    (1893)    (width  of  cross  entry  in  a 
coal  mine) . 

57.  3    Chamberlayne,    Evidence,    §§    2435- 
2446. 

58.  Budge  v.  Morgan's  Louisiana,  etc.,   R., 
etc.,   Co.,    108   La.   349.   32   So.   535    (1902): 
Seaver  v   Boston,  etc.,  R.  Co.,  14  Gray  (Mass.) 
466    (1860)     (machinist);   McCray  v.  Galves- 
ton,   etc.,   R.   Co..   89  Tex.   168,   34   S.   W.   95 

(1896)  :  Ft.  Worth,  etc.,  R.  Co.  v  Thompson. 
75  Tex.  501,  12  S.  W.  742  (1889)  (brake- 
man)  . 


59.  Florida  East  Coast  Ry.  Co.  v.  Lassiter 
(Fla.  1910),  52  So.  !>75. 

60.  Colorado  Midland  R.  Co.  v.  O'Brien.  16 
Colo.  219,  27  Pac.  701    (1891)    (transporting 
laborers)  ;    Galveston,    etc.,    R.    Co.    v.    Pitts 
(Tex.  Civ.  App.   1897),  42  S.  W.  255  how  it 
can   be  made  most  safe)  ;    Guinn   v.   Iowa  & 
St.   L.   R.   Co.,   125   Iowa  301,    101   N.   W.  94 
(1905)     (ditching). 

61.  Cattle  Guards.—  Cleveland,  etc.,  R.  Co. 
v.   De  Bolt.   10   Ind.   App.   174,  37   N.  E.  737 
(1894);   Pennsylvania  Co.  v.  Lindley,  2  Ind. 
App.  Ill,  28  N.  E.  106  (1891). 

62.  Atchison,  etc.,  R.  Co.  v.  Osborn.  58  Kan. 
768,  51  Pac.  286   (1897). 

63.  Louisville,  etc  .  R.  Co.  v.  Hall,  87  Ala. 
708,  6  So.  277,   13   Am.  St.  Rep.  84,  4  L.  R. 
A.  710    (18SS)    (whipping  straps);   Mobile  <&J 
M.  R.  Co.  v.  Blakely,  59  Ala.  473,  481   (1877) 
(stopping  train) . 

64.  Keller  v.  New  York  Cent.  R.  Co.,  2  Abb. 
Dec.    (X.  Y.)   480,  24  How.  Pr.    (X    Y.)    172 
(1861)  ;  Nutt  v.  Southern  Pac.  Co.,  25  Oreg. 
291,  35  Pac.  653   (1894). 

65.  Brownfield  v.  Chicago,  etc.,  R.  Co.,  107 
Iowa   254,    77    X.    W.    1038    (1899)     (broken 
axle)  ;  Seaver  v.  Boston,  etc.,  R.  Co..  14  Gray 
(Mass.)    466    (1860)     (derailment):    Hoyt   v. 

R.  Co.,  57  N.  Y.  678  (1874)  ;  Missouri,  etc., 
R.  Co.  v.  Sherman  (Tex.  App.  1899),  53  S. 
W.  38fi  (explosion  of  locomotive)  ;  Ft.  Worth, 
etc.,  R.  Co.  v.  Thompson,  75  Tex.  501,  12  S. 
W.  742  (1889). 


627 


RAILWAYS. 


815 


force67  and  their  proper  performance  of  duty68  except  that  familiar  railroad 
operations  may  be  such  that  the  jury  will  not  need  the  help  of  the  expert.69 

§  815.  [Illustrative  Instances  of  Judgments] ;  Trolley  and  Street  Railways.70 — 
So  in  questions  involving  street  railways  a  witness  properly  qualified  ' l  may 
testify  as  to  the  construction/-  equipment  '"  and  operation  74  of  such  railways. 


Reasonableness  of  regulation. —  For  exam- 
ple, the  reasonable  nature  of  the  given  regula- 
tion, in  view  of  the  practical  dangers  which 
it  is  intended  to  prevent,  may  be  stated. 
Freemont  v.  Boston  &  M.  R  H.,  98  X.  Y. 
Suppl  179,  111  App.  Div.  831  (1906)  (coup- 
ling cars) . 

66.  Coins  v.  Chicago,  etc.,  R.  Co.,  47  Mo. 
App.   173    (1891);    Texas  &   X.  O.  R.   Co.   v. 
McCoy  (Tex.  Civ.  App    1909),  117  S.  W.  446. 

67.  Louisville,  etc.,  R.  Co  v.  Davis,  99  Ala. 
593,    12   So.   786    (1892)     (one-armed   brake- 
man)  . 

68.  Missouri  Pac.  R.  Co.  v.  Mackey,  33  Kan. 
303,  6  Pac.  291    (1885)    (firemen);   Reeves  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.    (S    D.   1909), 
123  X.  W   498  (position  of  rear  brakeman  on 
approaching  station )  ;  St.  Louis  Southwestern 
Ry.  Co.   of  Texas  v.  Boyd    (Tex.   Civ.   App. 
1909),   119   S.   W.    1154    (position  of  switch- 
man )  ;   Long  v.  Red  River,  T.  &   S.  Ry.   Co. 
(Tex.  Civ.  App.  1905),  85  S.  W.  1048  (brake- 
man). 


69.  Gray  v.   Chicago,  etc.,  R.   Co.,   189   111. 
400,  59  X.  E.  930    (1901);   Fordyce  v.  Low- 
man,  62  Ark.  70,  34  S.  W.  255   (1896)  ;  Mul- 
downey  v.  Illinois  Cent.  R.  Co.,  36  Iowa  462 

(1873). 

70.  3    Chamberlayne,    Evidence,    §§    2447- 
2450. 

71.  Bliss  v.  United  Traction  Co.,  75  N.  Y. 
App.  Div.  235,  78  X.  Y.  Suppl    18  (1902). 

72.  Carpenter  v.  Central  Park,  etc.,  R.  Co., 
4  Daly   (X.  Y'.)    550,  11  Abb.  Pr.  X    S.    (N. 
Y.)  416   (1872). 

73.  Fisher  v   Waupaca  Electric  Light  &  Ry. 
Co.,   141   VVis.  515,  124  N.  VY.   1005    (1910); 
Richmond   &  P.    Electric   Ry.   Co.   v.    Rubin, 
102  Va.  809,  47  S.  E.  834  (1904). 

74.  Koenig  v.  Union  Depot  R.  Co..  173  Mo. 
698,  73   S.   \V.  637    (1903)     (failure  to  stop 
car )  ;  Xolan  v.  Newton  St.  Ry.  Co.,  206  Mass. 
384,  92  N.  E.  505   (1910)    (operating  particu- 
lar form  of  controller). 


CHAPTER  XXXV. 

HYPOTHETICAL  QUESTIONS. 

The  hypothetical  question,  816. 
Conclusion  and  judgment,  817. 
Form  of  question,  818. 

Must  include  all  facts  essential  to  some  relevant  hypothesis,  819. 

must  include  all  undisputed  material  facts,  820. 

facts  must  be  plausibly  proved,  821. 

general  assumptions,  822. 

administrative  details,  823. 

§  816.  The  Hypothetical  Question.1 —  Under  the  nomenclature  adopted  in  the 
present  treatise,  the  expert  and  the  Hypothetical  Question  are  intimately  con- 
nected. A  skilled  witness  who  testifies  in  answer  to  such  a  form  of  inter- 
rogatory is  defined  as  being  an  expert.  Conversely,  the  only  proper  form  of 
interrogating  an  expert  is  by  means  of  the  hypothetical  question.  As  used  in 
the  law  of  evidence,  this  form  of  inquiry  is  one  which  assumes  the  existence 
of  certain  facts  to  have  been  established  by  the  evidence  2  and  asks  a  witness 
skilled  in  the  relevant  science,  art,  trade  or  calling,  what  the  proper  inference 
from  them  is.3  In  other  words,  it  is  admirably  designed,  when  properly 
handled,  to  supplement  the  reasoning  powers  of  the  jury  on  matters  with  which 
they  are  not  familiar,  while  leaving  them  entirely  free  to  find  the  truth  of  the 
facts  themselves.4  Whether  the  circumstances  which  the  proponent  postulates 
are  actual  existences,  the  expert  makes  no  attempt  to  decide.  To  draw  that  in- 
ference is  within  the  province  of  the  jury  alone. 

The  necessity  which  administration  experiences  for  admitting  the  hypo- 
thetical question,  so  called,  is  an  obvious  one.  To  permit  the  witness  to  con- 
clude from  the  evidence  what  facts  are  established  as  true  would  be  to  place 
him  in  the  seat  of  the  jury. 

§  817.  Conclusion  and  Judgment.5 —  The  distinction  between  Conclusions  and 
Judgments,  as  these  terms  are  employed  in  the  present  treatise,  is  well  marked. 

1.  3     Chamberlayne,     Evidence,     §§     2451-  ask  a  question  based  thereon,  and  not  to  ask 
2453.  a   question    in    the   form    of   a    recitation    of 

2.  Com    v.  Buhnis,  107  Pa.  St.  542,  47  Atl.  actual   facts.     Shau^hnessy  v.   Holt,  236   111. 
748    (1901).  485,  80  X.  E.  256  (1908).     Propriety  of  hypo- 

3.  CJillman   v.   Media,  M.   A.  &  C.   Electric  thetical   questions,   see^  note.   Bender   ed.,   97 
Ry.  Co.,  224  Pa.  267,  73  Atl.  342   (1909).  N.  Y.  507.     Sufficiency  of  hypothetical  ques- 

4.  The    proper    practice    in    examining   an  tions,  see  note,  Bender  ed.,  121  N.  Y.  250. 
expert    is    to    state    hypothetically    the    case          5.  3    Chamberlayne,    Evidence,    §§    2454- 
which  it  is  believed  has  been  proved,  and  to  2458. 

628 


629  FOKM.  §  818 

In  proportion  as  the  element  of  observation  is  large,  and  that  of  reasoning 
small,  the  statement  of  a  witness  is  one  of  fact  and  readily  admissible.  As  the 
admixture  of  reasoning  increases,  however,  the  line  of  Conclusion  is  reached, 
the  matter  being  one  of  imperceptible  gradations.  From  the  work  of  the  expert 
the  element  of  observation  is  eliminated.  A  judgment,  as  has  been  said,  is  an 
act  of  pure  reasoning,  unaffected  by  the  intuition  of  sense-perception. 

There  is  a  certain  loss  of  probative  force  in  dropping  entirely  the  element 
of  observation  as  is  done  in  case  of  Judgment  and  this  has  led  in  many  juris- 
dictions to  the  use  of  the  mixed  hypothesis  based  on  both  observation  and 
hypothesis,"  based  in  some  cases  in  part  on  real  evidence  present  in  court,7  but 
the  answer  cannot  be  based  in  part  on  facts  outside  the  evidence  intro- 
duced.8 

§  818.  Form  of  Question.9 —  The  hypothetical  question  being  in  aid  of  the 
reasoning  of  the  jury,  its  form  has  been  largely  affected  by  the  action  of  the 
courts  in  individual  cases.  Essentially  considered,  the  form  of  this  species  of 
interrogatory  is  a  matter  of  administration.10  Much  indulgence,  not  to  say 
laxity,  has  been  permitted  in  this  respect.11  In  certain  jurisdictions,  however, 
a  standard  form  has  become  established  in  practice,  from  which  variations  are 
permitted  only  upon  good  cause  being  shown.  Speaking  generally,  the  great 
weight  of  authority  is  simply  to  the  effect  that  the  question  addressed  to  the 
expert  should  contain  the  facts  proved  by  the  evidence  upon  which  his  judg- 
ment is  to  be  based  12  or  any  portion  of  them  relied  on  by  the  proponent.13  It 
is  axiomatic  that  only  relevant  facts  may  be  enumerated  in  a  hypothetical 

6.  People   v.    Koerner,    191    N.   Y.   528,    84  18  X.  Y.  534.     Expert  not  base  opinion  upon 
X.  E.  1117  (1908).  testimony  of  another  witness,  see  note,  Ben- 

7.  McJuerty  v.   Hale,   161  Mass.  51,  36  X.  tier  ed.,  136  X.  Y.  12.     Admissibility  of  expert 
E.    682    (1804)     (whether   certain   person    in  testimony  —  specific  instances,  see  note,  Ben- 
court  is  a  suitable  person  to  work  on  a  cer-  der  ed.,  108  X.  Y.  60,  68. 

tain  machine) .  9.  3     Chamberlayne,     Evidence,     §§     2459- 

8.  Raub   v.    Carpenter,    187   U.   S.    159,   23      2463. 

S.  Ct.  72,  47  L.  ed.  119  (1902).  10.  Missouri  &  X.  A.  R.  Co.  v.  Daniels 
Observer.— Where  the  functions  of  the  ex-  (Ark.  1911),  136  S.  W.  651  Scurlock  v.  City 
pert  and  the  observer  are  united  or,  to  speak  of  Boone  (Iowa  1909),  120  X.  VV.  313. 
more  properly,  where  a  skilled  observer  tes-  Facts  added. —  It  has  been  said  that  the 
tines  also  as  an  expert,  he  will  not,  as  a  administrative  power  of  the  court  in  regulat- 
rule,  be  permitted  to  take  as  part  of  the  basis  ing  the  form  of  the  question  does  not  extend 
of  his  judgment  as  called  for  by  the  hypo-  so  far  as  to  permit  the  witness  to  include  as 
thetical  question  facts  of  observation  which  part  of  the  basis  of  his  answer  facts  which 
he  is  not  called  upon  to  enumerate.  Such  a  he  has  gleaned  elsewhere  than  from  the  hypo- 
witness,  for  example,  will  not  be  permitted  to  thetical  question  itself  Cobb  v.  United  En- 
form  his  opinion  "  from  all  the  evidence  you  gineering  &  Contracting  Co.,  191  X.  Y.  475. 
had  before  you  there  at  that  time."  Foster  84  X.  E.  395  ( 1908 ) . 

v.   F.   &   C.   Co.,   99   Wis.   447.   75    X.   W.   69  11.  Jones  v.  R.  Co.,  43  Minn.  281,  45  X.  H. 

(1898).     The  hypothetical  form  of  interroga-  444  (1890). 

tion  may,  however,  be  required  in  such  cases.  12.  Barber's  Appeal,  63  Conn.  393,  27  Atl. 

Green  v.  Water  Co..  101  Wis.  258.  77  X.  W.  973.  22  L   R.  A.  90   (1893). 

722  (1898).     Expert  evidence  which  is  merely  13.  Chicago  &  E.  I.  R.  Co.  v.  Wallace,  202 

speculative  inadmissible,  see  note,  Bender  ed.,  111.  129,  66  N.  E.  1096  (1903). 


§  819  HYPOTHETICAL  QUESTIONS.  630 

question.14  Those  .whose  relevancy  is  slight,  whose  bearing  is  remote,  will 
seldom  be  received.15  For  still  stronger  reasons,  facts  of  no  relevancy  what- 
ever are  rejected.16 

Substantial  correctness  required. —  The  evidence  need  not  be  precisely  the 
same  as  the  facts  incorporated  in  a  hypothetical  question  to  an  expert.  It  is 
sufficient  if  the  question  represents,  in  its  enumeration  of  facts,  the  evidence 
with  substantial  correctness.17  . 

The  typical  interrogatory  to  the  expert,  as  to  what,  assuming  certain  facts 
detailed  in  evidence  to  be  true,  his  judgment  upon  them  would  be,  is  readily 
moulded  by  the  administrative  power  of  the  court  to  meet  the  exigencies  of 
particular  cases.18  Should  no  rational  ground  appear  for  believing  that  the 
jury  have  been  misled,  a  wide  variety  of  forms  will  be  deemed  permissible,19 
the  error,  if  any,  involved  in  their  use,  being  regarded  as  harmless.  The  hypo- 
thetical question  addressed  to  the  expert  should  contain  such  an  enumeration 
of  facts  as  will  enable  him  to  form  them  into  a  reasonable  act  of  judgment.20 
In  other  words,  it  follows  from  the  nature  and  office  of  the  hypothetical  ques- 
tion that  sufficient  facts  must  be  placed  before  the  expert  to  make  it  possible 
for  him  to  form  an  opinion  which  will  be  rationally  helpful  to  the  jury.21 
Conjecture  or  mere  speculation  must  be  excluded.22  Whatever  may  be  the 
facts  assumed  in  the  question  to  be  true,  the  answer  of  the  witness  is  neces- 
sarily limited  to  and  based  upon  them.23 

§  819.  [Form  of  Question] ;  Must  include  all  facts  essential  to  some  relevant 
Hypothesis.24 —  Should  no  rule  as  to  the  form  of  the  hypothetical  question  be 
established  in  a  given  jurisdiction,  it  may  fairly  be  said  that,  speaking  gen- 
erally, the  interrogatory  must  include  all  facts  essential  to  some  aspect  or  part 

14.  Rivard  v.  Rivard,  109  Mich.  98,  66  N.  21.  Van   Wycklen   v.   Brooklyn,   118   N.   Y. 
W.  681,  63  Am.  St.   Rep.  566    (1896);   Neu-       424,  24  N.  E.  179   (1890). 

deck  v.  Grand  Lodge  A.  O.  U.  W.,  61  Mo.  App.  22.  Illinois  Silver  Min.,  etc.,  Co.  v.  Raff,  7 
97  (1894);  Dilleber  v.  Home  L.  Ins.,  87  N  X.  1  36,  34  Pac.  544  (1893)  ;  Galbraith  v. 
Y.  79  (1881).  It  follows  that  it  is  not  com-  Philadelphia  Co.,  2  Pa.  Super.  Ct.  359  (1896). 
petent  upon  the  examination  of  a  medical  23.  Rio  Grande  Western  R.  Co.  v.  Ruben- 
expert  to  inquire  of  him  with  respect  to  the  stein,  5  Colo.  App.  121,  38  Pac.  76  (1894). 
meaning  of  terms  applicable  to  an  injury  not  Practical  Suggestions. —  Counsel  should  be- 
Bhown  to  have  been  sustained.  City  of  Chi-  fore  going  to  court  be  sure  he  has  in  mind  the 
cago  v.  Carlson,  138  111.  App.  582  (1908).  exact  form  of  hypothetical  questions  per- 

15.  Carter  Rice  &   Co.  v    Aubin,    172   Fed.  mitted  in  his  jurisdiction.     In  the  celebrated 
916,  97  C.  C.  A.  274   (1909)    (too  general).  Thaw  murder   case   in   New   York   the   hypo- 

16.  People  v.  Harris,  136  N.  Y.  423,  33  N.  thetical   question   asked   the  medical   experts 
E.  65  ( 1893) .  amounted  to  a  digest  of  the  evidence  and  took 

17.  Kemendo  v.   Fruit  Dispatch   Co.    (Tex.  some  hours  to  read.     The  District  Attorney 
Civ.  App.  1910),  131  S.  W.  73  had  all  his  experts  sworn  at  once  and  then  the 

18.  Choice  v.  State,  31  Ga.  468   (1860).  question  was  read  to  them  all  together  and 

19.  Kempsey   v    McGinness,   21    Mich.    139  they  were  then  asked  to  give  their  answer. 
(1870);  McCollum  v.   Seward,  62  N.  Y.  318  24.  3    Chamberlayne,    Evidence,    §§    2464- 
(1875).  2466. 

20.  Berry  v.  Baltimore  Safe  Deposit,  etc., 
Co.,  96  Md.  45,  53  Atl.  720   (1902). 


631  FORM.  §|   8^0,821 

of  the  hypothesis  maintained  by  its  proponent  25  or  tend  to  prove  the  existence 
of  some  separate  fact  included  in  it.2*5 

hi  some  states  the  question  may  be  based  on  the  whole  or  any  part  of  the 
facts.27 

§  820.  [Form  of  Question] ;  Must  include  all  undisputed  material  Facts.28 — 
To  certain  courts  it  has  seemed  unduly  lax  administration  to  permit  a  pro- 
ponent to  put  to  the  expert  any  question  which  he  regards  as  calculated  to 
elicit  the  appropriate  reasoning  in  aid  of  some  particular  branch  of  his  hypoth- 
esis, provided  only,  he  is  able  to  show  that  there  is  some  rational  evidence  in 
favor  of  the  facts  upon  which  it  is  based.  So  wide  an  indulgence  has  been 
thought  likely  to  mislead  the  jury  and  to  prejudice  the  interests  of  justice. 
In  the  view  of  the  courts  which  entertain  this  opinion,  a  more  suitable  question, 
one  better  designed  to  make  the  skill  of  the  expert  conducive  to  the  attainment 
of  its  highest  usefulness,  would  include  all  material  facts,  not  controverted,  by 
whomever  introduced  into  evidence  regardless  of  the  respective  hypotheses  of 
the  parties.29 

§  821.  [Form  of  Question] ;  Facts  Must  Be  Plausibly  Proved.30 —  In  order 
that  a  fact  may  be  admitted  into  the  enumeration  as  part  of  a  hypothetical 
question,  it  must  be  so  far  established  in  the  evidence  that  a  jury  might  31 
rationally  find  that  it  existed.32  A  tendency  to  prove  a  fact  will,  if  exhibited 
by  the  evidence,  be  sufficient  for  admissibility.33  The  trial  court  cannot  ar- 

25.  People  v.  Krist,  168  X.  Y.  19,  60  X.  E.          In  Indiana  the  question  may  assume  dis- 
1057,  15  X.  Y.  Cr.  532  ( 1901) .  puted  facts  to  be  as  claimed  by  the  proponent 

26.  Gottlieb  v.  Hartman,  3  Colo.  53  (1876)  :  of  the  question.     Nave  v.  Tucker,  70  Ind.  15 
McDonald   v.   Illinois  Cent.   R.   Co.,   88   Iowa  (1880). 

345.  55  X.  W.  102  (1893).  30.3     Chamberlayne.    Evidence,    §§   2472- 

27.  The  facts  enumerated  must  be  "  within      2479. 

the   possible   or    probable   range   of   the    evi-  31.  Something  must  be  left  to  the  presiding 

dence."     Harnett    v.    Garvey,    66    X.    Y.    641  judge.     Oliver   v.   R.   Co.,    170  Mass.  222,  49 

(1876).     Hypothetical  questions  to  an  expert  X.  E.  117   \  IS:,.  , . 

need  not  cover  all  the  undisputed  facts  in  the  32.  McLean  v.  Lewiston,  8  Ida.  472,  69  Pac. 

case  but  if  any  are  omitted  the  remedy  is  for  478    (1902)  ;    Kelly   v.   Perrault,   5   Ida.   221, 

the  other  side  to  repeat  the  questions  with  48  Pac.  45    (1895)    ("tends  to  prove,"  "  con- 

the    omitted    facts    included      State    v.    An-  jecture "  excluded). 

gelina,  73  W    Va.  146,  80  S.  E.  141.  51  L.  R.  33.  Taylor  v.  McClintock   (Ark.  1908).  112 

A.    (XT.  S.)    877    (1913).                                  ,  S.    W.    405:     Spiers    v.    Hendershott     (Iowa 

28.  3    Chamberlayne,    Evidence,   §§    2467-  1909),   120  XT.  W.   1058;   Carr  v.  Locomotive 
2471.  Co.   (R.  I.  1908).  70  Atl.  196.     Technical  ac- 

29.  Levinson    v.    Sands,    81    111.    App.    578  curacy  is  not  required.     Long  Distance  Tele- 
1898);    Smith  v.  Minneapolis  St.   R.  Co,  91  phone    &    Telegraph    Co.    v.    Schmidt     (Ala. 
Minn.  239,   97   X.   W.   881    (1904);    State  v.  1908) .  47  So.  731.     The  hypothetical  question 
Thompson,  153  X".  C.  618,  69  S.  E.  254  (1910).  may    properly    contain    "any    state    of    facts 

The    same   rule    is    laid    down    in    Kansas  which  the  evidence  directly,  fairly,  and  rea- 

[ Wichita  v.  Coggshall,  3  Kan.   App.  540.  43  sonably  tends  to  establish  or  justify."     De^ 

Pac.    842    (1890)]    and   Missouri.     Mammer-  ver  &  R.  G.  R.  Co.  v.  Roller,  41  C.  C.  A.  2° 

berg  v.  Metropolitan  St.  R.  Co.,  62  Mo.  App.  100  Fed.  738  (1900). 
563   (1895). 


§   822  HYPOTHETICAL  QUESTIONS.  632 

bitrarily  exclude  a  question  on  the  assumption  that  the  fatts  on  which  it  is 
based  are  not  fully  proved.34 

This  rule  applies  at  every  stage  of  the  proceedings,35  although  new  facts  may 
be  brought  out  in  cross-examination.30  Controverted  facts  may  be  included  3T 
and  the  exclusion  of  immaterial  facts  is  not  fatal  to  the  regularity  of  the  pro- 
ceedings.38 The  facts  must  be  proved  by  legal  evidence ;i9  whatever  its 
weight40  and  even  facts  admitted  de  bene  may  be  included.41  The  witness 
may  however  be  tested  by  asking  him  any  questions  if  permitted  by  the  court 
whether  supported  by  the  evidence  or  not.42 

§  822.  [Form  of  Question] ;  General  Assumptions.43 —  The  temptation  pre- 
sented to  judicial  administration  to  permit  the  use  of  general  expressions 
which  may  do  away  with  the  detailed  narration  of  facts  in  a  hypothetical  ques- 
tion is  undoubtedly  a  strong  one.  The  enumeration  of  minute  facts  claimed 
by  the  proponent  to  have  been  established  by  the  evidence  is,  in  many  instances, 
greatly  consumptive  of  time.  The  presiding  judge,  in  such  cases,  seldom  be- 
comes unconscious  of  the  fact  that  it  is  an  important  part  of  his  administrative 
duty  to  expedite  trials.  The  burden  of  preparing  and  putting  the  hypothetical 
question  in  its  unobjectionable  form  apparently  presses  at  times  upon  counsel, 
as  a  monotonous  hardship.  These  considerations,  as  well  as  others,  lend  force 
to  the  suggestion  of  permitting  the  witness  to  give  his  opinion,  more  or  less 
completely,  upon  some  general  reference  to  the  evidence,  with  which  all  persons 
connected  with  .the  trial  are  familiar  or  upon  some  broad  assumption  as  to 
what  the  evidence  proves. 

Hence  courts  have  sometimes  permitted  expert  witnesses  to  be  asked  their 

34.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Powers      Hagadorn   v.   Connecticut   Mut.   L.   Ins.    Co., 
(Tex.  Civ.  App.  1909),  117  S.  W   459.  22  Hun   (N.  Y.)   249   (1880). 

35.  Conway  v.  State,  118  Ind.  482,  21  N.  E.          A  single  witness  is  sufficient  to  establish, 
285   (1888).  in  most  cases,  the  existence  of  a  fact.     Nolan 

36.  People  v.  Schuyler,   106  N.   Y.  298,   12  v.  Newton  St.  Ry.  Co.,  206  Mass.  384,  92  N.  E. 
N.  E.  783  ( 1887 ) .     Where,  however,  the  range  505   ( 1910) . 

of  cross-examination  is  limited  to  testing  the          40.  Oliver   v.    North   End   St.    R.    Co.,    170 

statements  of  the  witness  made  upon  direct  Mass.  222,  49  N.  E.  117   (1898). 
examination  the  interrogation  of  experts  will  41.  As  the  supreme  judicial  court  of  Massa- 

be  restricted  in  a  similar  way      Carr  v.  Amer-  chusetts  says,  he  "  in  many  cases  must  rely 

ican  Locomotive  Co.  (R.  I.  1908),  70  Atl.  196;  to   a   great   extent  upon   the   good    faith   of 

Hussong   Dyeing   Mach.    Co.   v.    Philadelphia  counsel  in  their  statements  as  to  what  they 

Drying  Machinery  Co,   173  Fed    236    (1909).  expect   the    evidence    will   be."     Anderson    v. 

37.  Bourbonnais  v.  West  Boylston  Mfg.  Co.,  Alberstamm,    176    Mass.    87,    57    N.    E.    215 
184  Mass.  250,  68  X.  E.  232   (1903).  (1900).     See    also    Delaney    v.    Framingham 

38.  Frankfort    v.    Manhattan    R.    Co.,    12  Gas  Fuel  &  Power  Co..  202  Mass.  359,  88  N. 
Misc.   (N.  Y.)   13,  33  X.  Y.  Suppl.  36   (1895)  :  E.  773  (1909). 

Stearns  v.  Field,  90  N.  Y.  040    (1882);  Cow-  42.  Williams  v.  Great  Xorthern  R.  Co..  68 

ley  v.  People,  83  N.  Y.  470   (1880).  Minn     55,   70   N.   W.    860,    37   L.   R.    A.    199 

39.  In  re  James,  124  Cal.  053,  57  Pac.  578,       (1897). 

1008   (1899):  Sauntman  v.  Maxwell,  154  Ind.          43.  3    Chamberlayne,    Evidence,    §§    2480- 
114,  54  N.  E.  397  ( 1899)  :  State  v.  Hyde  (Mo.      2487. 
1911),    136    S.   W.   316    (implied    hearsay); 


633 


FORM. 


823 


judgment  "  upon  the  evidence  "  44  in  the  case  where  tne  facts  are  few  and 
unambiguous  45  and  the  witness  has  heard  all  the  evidence.46  The  weight  of 
authority  however  seems  against  the  practice 4T  as  it  is  impossible  to  know 
whether  the  jury  believes  the  facts  detailed  in  the  testimony  and  there  is  no 
way  of  knowing  whether  the  case  on  which  the  opinion  was  given  was  the  same 
as  that  found  by  the  jury.48  Other  indefinite  assumptions  49  as  the  recollection 
of  the  witness  of  what  another  witness  has  stated  50  cannot  be  used  as  the  basis 
for  the  opinion  of  the  expert. 

§  823.  [Form  of  Question] ;  Administrative  Details.51 —  The  court  should 
exercise  its  administrative  powers  to  prevent  the  introduction  into  the  evi- 
dence of  irrelevant  facts  52  or  questions  of  undue  complexity  and  length  53  or 
which  are  unfair  to  the  witness  54  or  inaccurate.55  Misleading  questions  are 
also  to  be  avoided  which  overstate  or  understate  the  evidence  56  or  omit  ma- 
terial facts57  or  are  ambiguous58  or  argumentative59  or  tend  to  give  color 

44.  "  An  expert  witness  cannot  be  asked  to  together,  when  they  are  very  complicated  or 

give  an  opinion  founded  on  his  understanding  involve  much  detail."     Howes  v.  Colburn,  165 

of  the  evidence,  against  the  objection  of  the  Mass.  385,  388,  43  N.  E.  125   (1896). 

other  party,  except  in  cases  where  the  evi-  54.  Kahn  v.  Triest-Rosenberg  Cap.  Co.,  139 

dence  is  capable  of  but  one  interpretation."  Cal.  340,  73  Pac.  164  (1903)  ;  Baltimore  Safe 


Stoddard  v.  Winchester,  157  Mass.  567,  575. 
32  N.  E.  948   (1893). 

45.  Schneider  v.  Manning,  121  111.  376,  12 
N.  E.  267  (1887). 

46.  State  v.  Privitt,  175  Mo.  207,  75  S.  VV. 
457    (1903). 

47.  Illinois  Cent.  R.  Co.  v.  McCollum,  130 
111.  App.  267    (1906). 

48.  U.  S.  v.  McGlue,  1  Curtis  C.  C.  1  ( 1851) . 

49.  What    he    has    heard    of   the    case. — 
Champ   v.   Cob.,   2   Mete.    (Ky.)    27    (1859); 
Connell  v.  McXett,  109  Mich.  329,  67  N.  W. 
344    (1896);   Malynak   v.   State.  61   N.  J.  L. 
562,  40  Atl.  572    (1898):   Sanchez  v    People. 
22  X.  Y.  154  (1860)  ;  Lake  v.  People.  1  Park 
Cr.   C.   557    (1854).     The  question   has.  how- 
ever,  been   received.     Swanson   v.   Mellen.   66 
Minn.   486,   69   X.   W.   620    (1897):    State  v. 
Privitt    (Mo.   1903),  75  S.  \V.  457:   State  v. 
Hayden,  51  Vt.  299.  306  (1878) . 

50.  People  v.  Bowen    (Mich.  1911),  130  X 
W    706,  18  Detroit  Leg.  X   201  ;  Bedford  Belt 
R.  Co.  v.  Palmer,  16  Ind.  App.  17.  44  X.  E. 
686  (1896)  :  Tibbitts  v.  Phipps,  30  X.  Y   App. 
Div.  274.  51  X.  Y    Suppl.  054   (1898). 

51.  3    Chamberlayne,    Evidence.    §§    2488- 
24fl7. 

52.  Rusohenberjj    v.    Southern    Electric    R. 
Co..  161  Mo.  70.  61  S.  W.  626  (1901). 

53.  Forsyth  v.  Doolittle.  120  U.  S.  73.  78. 
7    S.    Ct.    408,    30   L.    ed.    586    (1887)       "It 
might  be  wiser  to  exclude  such  questions  al- 


Deposit,  etc.,  Co.  v.  Berry,  93  Md.  560,  49 
Atl.  401  ( 1901 )  ;  Dallas  Consol.  Electric  St. 
R.  Co.  v.  Rutherford  (Tex.  Civ.  App.  1904), 
78  S.  W.  558;  Brown  v.  Third  Ave.  R.  Co., 
19  Misc.  (N.  Y.)  504,  43  N.  Y.  Suppl.  1094 
(1897). 

55.  Some  blending  of  inaccuracy  in  restat- 
ing the  effect   of  the  evidence  for  the   pur- 
poses of  the  hypothetical  question  may  well  be 
tolerated  in  the  absence  of  proof  of  prejudice 
Atlanta  R.,  etc.,  Co.  v.  Monk,  118  Ga.  449,  45 
S.  E.  494  (1903)  ;  Turnbull  v.  Richardson,  69 
Mich.  400;  37  X.  W.  499   (1888)  ;  Thompson 
v.  Knickerbocker  Ice  Co.,  6  X.   Y.  Suppl.   7 
(1889). 

56.  It    has    even   been   held   that   where   a 
question   embraces  a   single  material  fact  of 
which  there  is  no  evidence  it   should  be  ex- 
cluded.    Xorthern  Cent.  Ry.  Co.  v.  Green,  112 
Md   487,  76  Atl.  90   (1910)  ;  State  v   Hanley, 
34  Minn.  433,  26  X    W.  397   (1886)  :  El  Paso 
Electric  Ry.  Co.  v.  Bolgiano  (Tex.  Civ.  App. 
1908).  109  S   W.  388. 

57.  Davis  v.  State.  38  Md.  40,  44   (1873); 
Hand  v.  Brookline.  126  Mass.  326  ( 1879) . 

58.  Horton  v.  U.  S.,  15  App.  Cas.    (D.  C.) 
310  (1899)  ;  Baltimore  Safe  Deposit,  etc.  Co. 
v.    Berry.   93    Md.    560,    49    Atl.    401    (1901) 
("  misconception  ") . 

59.  Taylor  v.  McClintock    I  Ark    1908).  112 
S.  W.  405:  Houston  &  T.  C.  R.  Co.  v.  John- 
son (Tex.  Civ.  App.  1909),  118  S.  W.  1150. 


823 


HYPOTHETICAL  QUESTIONS. 


634 


to  the  evidence 60  or  which  state  a  controverted  fact  as  if  it  were  proved.61 
The  province  of  the  jury  as  the  final  arbiters  of  the  facts  must  be  protected 
and  the  expert  will  not  for  example  be  allowed  to  state  how  far  the  evidence 
tends  to  prove  any  fact  in  controversy. e2  As  the  receipt  of  hypothetical  ques- 
tions is  an  administrative  matter  the  action  of  the  trial  court  will  oe  sustained 
unless  it  is  unreasonable  or  an  abuse  of  the  discretion  of  the  court.03  Failure 
to  object  to  the  form  of  the  question  at  the  time  will  be  deemed  a  waiver.64 


60.  Slaughter   v.   Heath,    127    Ga.    747,   57 
S.  E.  69   (1907). 

61.  Chalmers   v.    Whitmore   Mfg.   Co.,    164 
Mass.  532,  42  N.  E.  98  (1895). 

62.  Ringlehaupt  v.  Young,  55  Ark.  128,  17 
S.  W.  710  (1891)  ;  Barber's  Appeal,  63  Conn. 
393,    27    Atl.    973,   22   L.    R.    A.    90    (1893); 
Walker  v.  Fields,  28  Ga.  237    (1859)  ;  Texas 
Brewing  Co.  v.  Walters  (Tex.  Civ.  App.  1897), 
43    S.    W.    548.     An    expert   witness    may    be 
asked  to  give  his  opinion  on  certain  facts  set 


out  in  a  hypothetical  question  although  they 
involve  the  issues  in  the  case  as  the  jury  are 
not  obliged  to  accept  as  true  the  facts  set  out 
in  the  hypothetical  question.  Jones  v.  Cald- 
well,  20  Idaho  5,  116  Pac.  110,  48  L.  R.  A. 
(N.  S.)  119  (1913). 

63.  Pensacola  Electric  Co.  v.  Bissett   (Fla. 
1910),  52  So.  367. 

64.  Ragland  v.  State,   125  Ala.   12,  27  So. 
983    (1899)  ;  Howland  v.  Oakland  Consol.  St. 
R.  Co.,  115  Cal.  487,  47  Pac.  255   (1896). 


CHAPTER  XXXVI. 

PROBATIVE  FORCE  OF  REASONING. 

Element  of  observation,  824. 

how  weight  is  tested;  detail  of  preliminary  facts,  825. 

qualifications  of  witness,  826. 
Inferences  tested;  when  tests  are  applied,  827. 

Probative  force  of  inferences  from  observation;  stage  of  rebuttal,  828. 
Probative  force  of  judgments;  how  enhanced;  use  of  text-books,  829. 

how  tested  on  cross-examination,  830. 

stage  of  rebuttal,  831. 

Use  of  standard  treatises;  deliberative  effect,  832. 
Weight  of  inferences;  a  question  for  the  jury,  833. 

reason  essential  and  sufficient,  834. 

comparison  between  inferences  from  observation  and  reasoning  from 

assumptions,  835. 
Weight  of  judgments;  a  field  of  conjecture,  836. 

§  824.  Element  of  Observation.1 —  In  ascertaining  the  probative  force  to  be 
accorded  to  the  statement  of  a  witness  based  directly  upon  observation  the  court 
and  jury  will  be  apt  to  have  in  mind  certain  obvious  considerations.  Prominent 
among  these,  is  the  circumstance  that  the  statements  and  other  acts  of  a  wit- 
ness, indeed  of  anybody,  are  judicially  regarded  as  trustworthy  in  proportion 
as  they  are  involuntary.  With  the  entrance  of  volition,  is  thought  to  come  the 
operation  of  self-interest,  reflections  as  to  how  proposed  conduct  will  effect  a 
certain  end. 

Adequate  Knowledge. —  In  the  second  place  the  test  of  adequate  knowledge 
on  the  part  of  the  witness  juay  always  be  applied,  equally  by  judge  or  jury. 
''  The  extent  of  the  witness's  acquaintance  with  the  subject  may  always  be 
inquired  into,  to  enable  the  jury  to  estimate  the  weight  of  his  evidence.'' 

Mental  Powers. —  Aside  from  the  general  confidence  which  administration 
reposes  in  the  accuracy  of  intuitive  'observation,  it  may  be  said  of  statements 
of  fact  when  compared  to  those  in  which  the  proportion  of  reasoning  is  high, 
that  perhaps  the  most  essential  point  in  connection  with  estimating  the  proba- 
tive force  of  results  of  perception  is  that  the  opportunities  for  observation  are 
much  more  carefully  to  be  scrutinized  than  are  the  mental  powers  of  the 
observer.  In  the  case  of  Conclusion  and  Judgment,  the  reverse  is  more 
nearly  true. 

1.  Chamberlayne,  Evidence,  §  2499. 

635 


§§  825,826 


PROBATE  FOECE  OF  REASONING. 


636 


§  825.  [Element  of  Observation]  How  Weight  is  Tested;  Detail  of  Preliminary 
Facts.2 —  As  frequently  observed  in  connection  with  the  element  of  observation 
in  its  various  aspects  previously  considered,  a  most  valuable  aid  in  determining 
the  probative  force  3  properly  to  be  accorded  to  the  mental  result  lies  in  the 
enumeration  by  the  witness  of  such  of  the  facts  at  the  basis  of  his  inference  as 
admit  of  effective  individual  statement.4  Any  facts  which  tended  to  fix  the 
attention  of  the  witness,5  his  opportunities  for  observation 6  and  his  mental 
powers  of  observation  7  can  be  shown  and  he  may  be  tested  by  the  inferences 
of  other  observers  8  or  by  showing  the  possibility  of  different  causes  for  the 
results  noticed.9 

§  826.  [Element  of  Reasoning;  How  Weight  is  Tested] ;  Qualifications  of  Wit- 
ness.10—  An  unquestionably  sound  proposition  is  to  the  effect  that  the  eviden- 
tiary weight  of  the  judgment  of  a  skilled  witness  is  largely  dependent  upon 
qualifications  possessed  by  him,  his  knowledge  of  the  facts  and  principles  of 
his  art,  the  skill  and  experience  which  he  has  acquired  and  the  experiments  or 
researches  which  he  has  made.11  The  qualifications  of  a  skilled  witness  may 
be  affirmatively  established  and  the  probative  force  of  his  act  of  reasoning 
directly  enhanced  by  the  indorsements  of  his  skill  and  ability  given  by  others  12 
including  experts.13  The  witness  may  also  be  tested  by  showing  his  general 
knowledge  14  or  lack  of  it 15  and  the  reasoning  powers  of  the  witness,  whether 


2.  Chamber layiie,  Evidence,  §  2500. 

3.  "The  qualification   that  the   opinion   of 
the    non-expert    must    be   accompanied    by    a 
statement  of  the  facts  on  which  it  is  based 
is  not  very  important;  since,  whether  the  wit- 
ness be  an  expert  or  a  non-expert,  the  grounds 
of  his  belief  and  his  opportunities  of  observa- 
tion may  always  be  elicited;  and,  whether  the 
witness  be  of  the  one  class  or  the  other,  his 
testimony   should  be  rejected   by  the  Court, 
where  it  consists  of  a  mere  naked  declaration 
of  opinion  with  neither  learning,  observation, 
nor   acquaintance   to   support   it."     Wood   v. 
State,   58   Miss.    743    (1881),   per   Chalmers, 
C.  J. 

4.  Scott  v.  Hay,  90  Minn.  304,  97  N.  W. 
106  (1903). 

5.  '•  Is  your  recollection  refreshed,  or  your 
attention    called   to    that   from   any    circum- 
stance,  any  accident  that  happened  there?" 
O'Hagan  v   Dillon,  76  N.  Y.  170,  173   (1879). 

6.  Columbus  &   R.   R.   Co.  v.  Christian,  97 
Ga.  56,  25  S.  E.  411  (1896). 

7.  McGuerty  v.  Hale,   161  Mass.  51,  36  N. 
E.  682  (1894)  ;  Gahagan  v.  R.  Co.,  1  All.  190 
(1861):    Frazier  v.   R.   Co.,  38  Pa.   104,   111 
(1860). 

8.  Connecticut  Mut.  L.  Ins.  Co.  v.  Ellis,  89 
111.  516   (1878). 


9.  People  v.   Knight    (Cal.    1895),  43   Pac. 
6:    Com.    v,    Mullins.    2    Allen     (Mass.)     29". 
(1861):    Bathrick  v.   Detroit  Post,  etc.,   Co, 

50  Mich.  629,  16  N.  W.  172,  45  Am.  Rep.  63 
(1883). 

10.  Chamberlayne,  Evidence,  §  2505. 

11.  Carr  v.  Northern  Liberties,  35  Pa.  St. 
324,  78  Am.  Dec.  342  (1860)  :  State  v.  Ward, 
39  Vt.  225    (1867). 

12.  Tullis    v.    Kidd,    12    Ala.    650     (1847) 
(physician). 

13.  State  v.  Maynes,  61  la.  120,  15  N.  W. 
864    (1883);    Martin   v.   Courtney,   75  Minn. 
255,  77  N.  W.  813  (1899)  ;  Laros  v.  Com.,  84 
Pa.  St.  200   (1877). 

This  practice  seems  objectionable  to  some 
courts  as  being  confusing  and  likely  to  con- 
fuse the  issue.  Birmingham  R.  &  E.  Co.  v. 
Ellard,  135  Ala.  433.  30  So.  276  (1903)  :  De 
Phue  v.  State,  44  Ala.  32  (1870);  Tullis  v. 
Kidd,  12  Ala.  648  (1847);  Foroheimer  v. 
Stewart,  73  Iowa  216,  35  N.  W.  148  (1887)  ; 
Brabo  v.  Martin,  5  La.  177  (1832)  (confus- 
ing the  issues)'. 

14.  People  v.   Youngs,   151    N.   Y.   210,  45 
N.  E.  460  (1896). 

15.  Washington  v.  Cole,  6  Ala  214  (1844). 


637  TESTS.  §  827 

unskilled  or  expert 16  and  by  showing  also  what  facts  the  witness  is  using  in 
addition  to  those  in  evidence  as  the  basis  of  his  inferences  or 'his  judgments.17 
Common  knowledge  is  the  basis  for  the  inferences  of  the  unskilled  observer  18 
while  the  expert  witness  measures  the  enumerated  facts  in  terms  of  his  art. 

§  827.  Inferences  Tested;  When  Tests  are  Applied.19 — As  a  matter  of  ad- 
ministration, tests  are  applied  to  probative  force,  occasionally  at  the  stage  of 
voir  dire,  more  often  at  that  of  cross-examination-in-chief.  The  normal  range 
of  the  examination  is  subject,  in  the  usual  way,  to  the  administrative  power 
of  the  judge  20  and  is  as  extensive  as  is  permitted  by  the  regular  rule  of  prac- 
tice which  obtains  in  the  particular  jurisdiction.21  Speaking  generally,  within 
these  double  limitations,  the  range  permitted  is  a  wide  one.22  Thus,  where 
this  rule  of  practice  or  procedure  limits  the  cross-examination  to  the  points 
investigated  or  referred  to  in  connection  with  the  direct  examination  of  the 
witness  and  does  not  allow  the  adverse  party  to  cross-examine  him  for  the  pur- 
pose of  eliciting  facts  in  support  of  his  own  affirmative  hypothesis,  the  same 
limitation  is  imposed  upon  counsel  who  cross-examine  with  regard  to  the 
probative  force  of  an  act  of  reasoning.23  Thus  cross-examination  may  cover 
the  damages,24  the  knowledge  of  the  witness,25  provided  it  is  not  calculated  to 
mislead  the  jury,26  or  his  qualifications.2'  Cross-examination  as  to  credit  may 
go  to  great  lengths  28  even  using  the  testimony  in  other  suits,29  and  the  cross- 
examining  counsel  has  a  substantive  right  to  test  the  expert  by  hypothetical 
questions  based  on  his  view  of  the  facts  30  or  even  on  imaginary  facts.31 

16.  State  v.  Kelly,   77  Conn.  266.  58  Atl.          25.  Lake  v.   People,   1    Park.   Cr.    (N.  Y.) 
705   (1904).  495   (1854). 

17.  Batten   v.   State,   80  Ind.   394    (1881)  ;  26.  McMahon  v.  Chicago  City  Ry.  Co.,  239 
Graham  v.  Pennsylvania  Co.,  139  Pa.  St.  149,  111.  334,  88  N.  E.  223  (1909). 

21  Atl.  151,  12  L.  R.  A.  293  (1891).  27.  Birmingham  R.,  etc.,  Co.  v.  Ellard,  135 

18.  Chicago,  etc.,  R.   Co.  v.  Truitt,  68  111.  Ala.  433,  33  So.  276   (1902);  Davis  v.  State, 
App.  76   (1896)    (gate).  35  Ind.  496,  9  Am.  Rep.  700   (1871);  Hutch- 

19.  Chainberlayne,  Evidence,  §  2510.  inson  v.   State,   19  Nebr.  262,  27   N.  W.   113 

20.  Carr   v.   American   Locomotive  Co.,   26  (1886). 

R.  I.  180.  58  Atl.  678  ( 1904)    (valve  stem).  28.  Alabama  Great  Southern  R.  Co.  v.  HiH, 

Imaginary    questions. —  Expert    witnesses  93  Ala.  514,  9  So.  722,  30  Am.  St.  Rep.  65 

may  be  cross-examined  on  purely   imaginary  (1890). 

and  abstract  questions,  in  order  to  get  their  29.  Brooks   v.   Rochester   R.   Co.,    10   Misc. 

opinions   on   all   the  possible  theories  of  the  (X.  Y.)   88,  31  N.  Y.  Suppl.  179   (1894). 

case,  and  that  the  value  and  accuracy  of  their  30.  Louisville,   etc.,    R.    Co.    v.    Lucas.    119 

opinions    may    be    fairly    tested.     Parrish    v.  Ind.  583,  21  N.  E.  968,  6  L.  R.  A.  193  ( 1889)  ; 

State,  139  Ala.  16,  36  So.  1012  (1904).  Conway  v.  State.  118  Ind.  482,  21  X.  E.  285 

21.  Maure   v.    Gould   &   Eberhardt    (X.    J.  (1889):  Louisville,  etc.,  R.  Co.  v.  Wood.  113 
190o),  60  Atl.  1134   (1905).  Ind.  544.  14  X.  E.  572,  16  X.  E    197   (1888); 

22.  McMahon  v.  Chicago  City  Ry.  Co.,  239  Louisville,    etc.,   R.   Co.   v.    Falvey.    104    Ind. 
111.  334,  88  X.  E.  223   (1909)    ("interest).  409.  3  X.  E.  389.  4  X.  E.  908   (1886)  :  Davis 

23.  Amos  v.  State.  9f>  Ala.  120,  It  So.  424  v.  State,  35  Ind.  496.  9  Am.  Rep.  760  (1871)  : 
(1891)  :  Gridleyv.  Bogus.  62  Cal.  190  (1882)  :  Kearney   v.    State,   68   Miss.    233.    8    So.   292 
Rice  v.  Des  Moine*.  40  Iowa  638   (1875).  (1890):    People    v.    Thurston,    2    Park.    Cr. 

24.  Barry  v.   Second   Ave.   Pv.   Co.,   1   Misc.  (X.  Y.)  49  (1852). 

(N.  Y.)  502,  20  X.  Y.  Suppl.  871  (1892).  31.  Bever  v.  Spangler,  93  Iowa  576.  61  N. 


§§  828, 829  PROBATE  FORCE  OF  SEASONING.  638 

§  828.  Probative  Force  of  Inferences  from  Observation;  Stage  of  Rebuttal.32— 
In  using  the  tests  as  to  the  probative  force  of  observation  which  are  created  by 
cross-examination,  the  adverse  party  is,  as  a  matter  of  course,  frequently  en- 
gaged in  securing  material  for  an  effective  rebuttal.  When  this  stage  arrives 
for  him,  the  opponent  may  properly  follow  up  his  attack  upon  the  probative 
force  of  an  adverse  inference  through  the  breaches  which  his  cross-examination 
may  be  supposed  to  have  created.  In  respect  to  the  force  of  observation,  the 
adverse  party  may  show,  if  he  can,  that  the  witness  did  not,  in  point  of  fact, 
observe  correctly.  A  fortiori,  he  is  at  liberty  to  establish  that  the  alleged 
observer,  by  reason  of  his  physical  condition,33  the  position  in  which  he  was 
placed  or  the  like,  could  not  have  noticed  the  phenomena  which  he  says  he 
perceived.  He  may  seek  to  show  that  the  facts  detailed  by  the  witness  as  the 
basis  of  his  inference  have  no  objective  existence.34  Clearly,  in  order  that 
the  inference  of  the  observer  should  retain  probative  force,  it  is  necessary  that 
the  proponent  should  maintain,  at  all  hazards,  the  substantial  actuality  of  these 
constituent  phenomena.35  The  testimony  of  the  witness  may  be  contradicted 
by  other  witnesses.86 

§  829.  Probative  Force  of  Judgments;  How  Enhanced;  Use  of  Text-Books.37— 

As  part  of  his  original  case,  a  proponent  may  be  permitted  to  reinforce  the 
probative  weight  of  the  judgment  of  his  expert,  even  before  an  attack  has  been 
made  on  it  by  his  adversary.  In  this  way,  the  superior  nature  of  his  qualifica- 
tions, the  length  and  variety  of  his  experience,  the  extent  of  his  reading,  the 
responsibility  of  the  positions  which  he  has  held,38  and  other  facts  of  a  similar 
nature  may  properly  be  shown.  To  the  same  effect,  evidence  that  the  expert's 
mental  operations  are  characterized  by  accuracy  39  or  promptness  in  reaching 
correct  conclusions  may  be  established  in  the  evidence.  Still  more  natural  is  it 
that  the  proponent  should  desire  to  show  the  correctness  of  the  reasoning 
adopted  by  his  witness  in  the  particular  case.40  Like  other  deliberative  facts, 
however,  much,  in  deciding  as  to  whether  evidence  of  this  class  should  be 
used,  is  necessarily  dependent  upon  the  administrative  instinct  of  the  judge. 

W.  1072   (1895);  Williams  v.  Great  Northern  35.  Frost    v.    Milwaukee,    etc.,    R.    Co.,    96 

R.  Co,  68  Minn.  55.  70  X.  W.  860,  37  L   R.  A.  Mich.   470,   56    X.    W.    19    (1893);    Clark   v. 

199   (1897)  ;  Dilleber  v.  Home  L.  Ins    Co.,  87  State,  12  Ohio  483,  40  Am.  Dec.  481    (1843)  ; 

N.  Y    79    (1881)  :   La  Beau  v    People,  34  X.  Easton  First  Xat.  Rank  v.  Wireback,  106  Pa. 

Y.   223    (1SGO).     Xo   obligation   rests  on  the  St.    37    (1884):    Foster   v.   Dickerson,   64  Vt. 

court    to    receive    such    testimony.     Root    v.  233.  24  Atl.  255  (1891) 

Boston   El    R.   Co.,   183  Mass    418,  67  X.   E.  36.  Lake   Erie.   etc..    R.   Co.    v    Mugj?,    132 

365    (1903).  Ind.  168,  31  X.  E.  564   (1892). 

33.  Fairchild     v.     Bascomb,     35     Vt.     398  37.  Chambcrlayne,  Evidence,  §  2524 
(1862)  :   In  re  Mullin,  110  Cal.  252,  42  Pac.  38.  Thompson  v.  Ish.  99  Mo.  160.  12  S    W. 
645   (1895).  510,   17   Am.   St.  Rep.   552    (1889);   Laros  v 

34.  Kirsher   v.   Kirsher,   120  Town   337.   94  Com.,  84  Pa.  St.  200   (1877). 

N.    W.    846    (1903);    Union    Pac.    R.    Co.    v.  39.  Com.   v.   Buccieri.   153   Pa.   St.   535,  26 

Stanwood  (Xebr.  1904),  98  X.  W  656:  Quinn  Atl.  228    (1893)    (promptness  of  testimony), 

v.   Ripens,   63   Wis.   664,   24  X.   W.  482,   53  40.  O'Xeill    v.    Beland,    133    111.    App.    594 

Am.  Rep.  305  (1885).  (1907). 


039 


TEXT-BOOKS. 


829 


So  all  kinds  of  corroborative  facts  41  or  the  results  of  experiments  42  may  be 
put  in  evidence  to  enhance  the  value  of  the  expert.  The  facts  added  by  the 
witness  to  those  stated  in  his  preliminary  enumeration  may  also  be  shown  in 
testing  him.43 

Standard  text-books  are  inadmissible  as  hearsay44  but  the  witness  may  be 
permitted  to  corroborate  himself  by  showing  that  his  statement  is  in  accord 
with  the  text-books  on  the  subject.45  Standard  treatises  on  matters  of  common 
knowledge  however  may  be  in  a  different  class  and  like  mortality  tables  40  may 
be  used  to  refresh  the  memory  as  to  facts  which  are  potentially  known.47 
Statutes  in  some  states  have  provided  that  standard  works  may  be  received  as 
proof  of  the  facts  asserted.48  In  putting  hypothetical  questions  the  attorney 
may  adopt  the  language  of  the  text-books  49  which  the  expert  may  ratify  50  and 
the  expert  may  even  be  allowed  to  refresh  his  memory  by  reference  to  the 
text-book51  which  cannot  however  be  used  in  its  assertive  capacity52  and 


41.  Mover  v.  New  York  Cent.,  etc.,  R.  Co., 
98  N.  Y.  645   (1885). 

42.  People  v.  Thompson,  122  Mich.  411,  81 
X.  W.  344    (1899).     The  testimony  of  an  ex- 
pert with  respect  to  a  test  made  by  reflex  ing 
the   knees   of   the   plaintiff  did   not   refer   to 
subjective  symptoms,  no  words  or  statements 
of   plaintiff   being   given,   and    was    therefore 
competent  in  an  action  for  personal  injuries. 
Hirch   v.   Chicago    Consol.   Traction    Co.,    146 
111.  App.  501    (1909). 

43.  Cobb  v.  United  Engineering  &  Contract- 
ing Co.,  191  X.  Y.  475,  84  X.  E.  395    (1908). 

44.  "  The  substantial  objection  is  that  they 
are   statements   wanting  the   sanction    of   an 
oath,    and    the    statement    thus    proposed    is 
made  by   one   not   present  and   not   liable  to 
cross-examination."     Ashworth    v.    Kittredge, 
12  Cush.  194   (1853),  per  Shaw,  C.  J. 

45.  Healy  v.  Visalia,  etc.,  R.  Co.,  101  Cal 
585,  36  Pac.  125   (1894)  ;  State  v.  Winter,  72 
Iowa    627,    34    X.    W.    475    (1887);    State   v. 
Baldwin,    36    Kan.    1,    12    Pac.    318    (1886); 
People  v.  Vanderhoof,  71  Mich.  158,  39  X.  W. 
28    (1888).     A   contrary   view  has,   however, 
been   expressed.     Link   v.    Sheldon,    18  X.   Y. 
Suppl.  815   (1892). 

Recorded  cases. —  As  a  practical  matter, 
this  corroboration  consists  in  many  instances 
in  the  statement  by  the  text-book  author  of  a 
number  of  recorded  cases  upon  which  the 
expert  relies  in  aid  of  his  opinion.  Healy  v. 
Visalia.  etc,  R.  Co.,  101  Cal.  585.  36  Pac. 
125  (1894)  :  Brodhead  v.  Wiltse,  35  Iowa  420 
(1872)  ;  Huffman  v.  Click.  77  X.  C.  55 
(1877).  Although  medical  books  are  not  com- 
petent in  evidence  still  experts  may  refer  in 
giving  their  opinions  to  the  medical  author- 


ities and  state  in  substance  the  result  thereof. 
Fidelity  &  Casualty  Co.  v.  Meyer,  106  Ark. 
91,  152  S.  W.  995,  44  L.  R..A!  (N.  S.)  493 
(1912),  citing  text. 

46.  Pearl  v.  Omaha,  etc.,  R.  Co.,  115  Iowa 
535,  88  X.  W.  1078   (1902). 

47.  A  civil  engineer  who  has  testified  to  the 
cause  of  the  fall  of  a  building  may  verify  his 
results  by  reading  from  tables  of  recognized 
authority  a  record  of  the  tests  which   show 
the  strain-resisting  capacity  of  various  build- 
ing materials.     Western  Assur.  Co.  v.  J.   H. 
Mohlman  Co..  83  Fed.  811,  28  C.  C.  A.   157, 
40  L.  R.  A.  561    (1897). 

48.  California.— C.  C.  P.  §  1944    (1872). 
Idaho.—  Rev    St.  §  5990   (1887). 
Montana.— C.  C.  P.  §  3227   (1895). 
Nebraska.—  Comp.  St.  §  5916   (1899). 
Oregon.— C.  C.  P.  §  758  (1892). 
I'tah.—  Rev.  St.  §  3400   (1898). 

49.  Connecticut. —  Tompkins    v.    West,    56 
Conn.  478,  485,  16  Atl.  237    (1888). 

Illinois. —  Connecticut  Mut.  L.  Ins.  Co.  v. 
Ellis,  89  111.  516,  519  (1878). 

Kentucky. — Williams  v  Xalley,  45  S.  W. 
874.  20  Ky.  L.  Rep.  244  (1898). 

South  Carolina.— State  v.  Coleman,  20  S. 
C.  441  (1883). 

Tennessee. —  Byers  v.  Xashville,  etc.,  R.  Co., 
94  Tenn.  345,  29  S.  W.  128  (1894). 

50.  Chesapeake  &  O.  Ry.  Co.  v.  Wiley   (Ky. 
1909),  121  S.  W.  402:  Soquet  v.  State.  72  Wis. 
066.  40  X.  W.  391    (1888). 

51.  Huffman  v.  Click.  77  X.  C    55   (1S77)  ; 
Rowley  v.  London,  etc..  R    Co.,  L.  R    8  Exch. 
221    (1873). 

52.  Foggett  v.  Fischer,  23  N.  Y.  App.  Div. 
207,  48  X.  Y.  Suppl.  741   (1898). 


§§  830,  831  PROBATE  FORCE  OF  REASONING.  640 

care  must  also  be  used  to  see  that  the  rule  against  the  use  of  text-books  as 
evidence  is  not  evaded.53  One  of  the  commonest  and  best  methods  of  enhanc- 
ing the  value  of  the  testimony  of  the  skilled  witness  is  by  calling  on  him  to 
explain  his  reasoning.54  The  counsel  may  also  elicit  from  an  adverse  witness 
an  admission  of  the  eminence  of  his  own  witness.55 

§  830.  [Probative  Force  of  Judgments] ;  How  Tested  on  Cross-Examination.56— 
An  appropriate  field  for  cross-examination  is  as  to  the  knowledge  and  experience 
gained  by  the  reading  and  training  of  an  adverse  witness  in  connection  with 
the  subject  as  to  which  he  claims  to  possess  expert  skill.57  The  general  qualifi- 
cations, however  acquired,  may  properly  be  tested  at  this  time,58  recognizing 
that  an  unsuccessful  attempt  to  discredit  may  be  a  most  powerful  method  of 
enhancing  the  probative  efficiency  of  an  adverse  witness. 

Standard  treatises  may  also  be  used,  not  as  evidence  in  themselves,59  but  by 
reference  for  the  purpose  of  testing  the  statements  of  the  witness,60  and  where 
the  expert  has  stated  that  he  relies  on  the  authorities  to  some  extent  it  may  be 
shown  that  the  standard  books  are  not  in  accord  on  the  question/51  and  the 
position  taken  by  various  authors  on  a  certain  point  may  be  brought  out  on 
cross-examination,62  and  such  books  provide  frequent  material  for  framing 
questions.03 

§  831.  [Probative  Force  of  Judgments] ;  Stage  of  Rebuttal.154 —  As  has  been 
seen  at  an  earlier  place,  the  process  of  testing  an  adversary's  case  mav  take 

53.  Hall  v.  Murdock,  1 14  Mich.  233,  72  N.          57.  West  Chicago  St.  R.  Co.  v.  Fishman,  169 
W.  150  (1897)  ;  Marshall  v.  Brown,  50  Mich.      111.  196,  48  X.  E.  447  (1897). 

148,  15  N.  W.  55  (1883;  Byers  v.  Nashville,  58.  Birmingham  R.,  etc.,  Co.  v.  Ellard,  133 
etc  ,  R.  Co.,  94  Tenn.  345,  29  S.  W.  128  ( 1895).  Ala  433,  33  So.  276  ( 1902)  ;  Davis  v  State, 
The  rule  has  been  thus  stated:  A  party  35  Ind.  496,  9  Am.  Rep.  700  (1871)  ;  Hutch- 
calling  an  expert  medical  witness  cannot  read  inson  v.  State,  19  Xebr.  262,  27  X.  W.  113 
from  medical  works  on  inductive  science,  and  (1886). 

ask  his  witness  if  he  agrees  with  the  state-  59.  Chicago  Union  Traction  Co.  v.  Ertrach- 

ment  of  the  authority,  or  if  it  accords  with  ter,  228  III.  114,  81  X.  E.  S16   (1907)    (state 

his  experience.     In  re  Hock's  Will,  129  X.  Y.  of  authorities)  ;  Dean  v.  Wabash  R.  Co.   (Mo. 

Suppl.   196   (1911).  1910),  129  S.   W.  953;    Beadle  v.   Paine    (Or. 

54.  Louft  v.  C.  &  J.  Pyle  Co.    (Del.  Super.  1905),  80   Pac.  903;   Egan  v.  Dry  Dock,  etc., 
1910),  75  Atl.  619;  State  v.  Collins   (Del.  O.  R    Co,    12   X.   Y.   App    Div.    556,   42   X.   Y. 
&    T.    1903),    62    Atl.    224;    Chicago    Union  Suppl.   188    (1896). 

Traction   Co.   v.   Ertrachter,  228  111.    114,  81  60.  State   v.   Moeller    (Md.    1910),    126   X. 

X.  E    816    (1907);   Cooper  v.  Harvey    (Kan.  W.   568    (credibility);   Gulf.   C.  &   S.   E.  Rv. 

1908),    94    Pac.    213;    State   v.    Ryno    (Kan.  Co    v.  Dooley    (Tex.  Civ.  App.   1910),   131   S. 

1904).  74   Pac.   1114    (handwriting).     Where  W.  831. 

an  expert  opinion   i*  competent,  the  reasons  61.  Xew   Jersey   Zinc,    etc.,   Co.    v.    Lehiirh 

upon  which  such  reasoning  is  based  are  like-  Zinc,  etc,  Co.,  59  X.  J.  L.   189,  35  Atl    911 

wise  received      Quincy  Gas  &  Electric  Co   v.  (1R06). 

Schmitt,  123  111.  App.  647    (1906).  62.  Brodhead     v      Wiltse.     35     Iowa     429 

55.  Dean    v.    Wabash    R.    Co.    (Mo.    1010),  (1872):   Sale  v.  Eichberg,  105  Tenn.  333.  59 
129  S.  WT.  953;  Sullivan  v.  Charlestown  &  W.  S   W.  1020  '1900). 

C,  Ry.  Co,  85  S.  C   532,  67  S   E.  905   (1910).  63.  State  v.  Wood.  53  X.  H.  495   (1873). 

56.  Chamberlayne,  Evidence,  §  2535.  64.  Chamberlayne,  Evidence,  §  2541. 


641  TREATISES.  §  832 

place  not  only  at  the  stage  of  cross-examination  but  upon  that  of  rebuttal.  In 
other  words,  the  deliberative  or  testing  facts  may  be  introduced  into  the  case 
by  the  direct  testimony  of  friendly  witnesses  or  by  the  cross-examination  of 
those  which  were  originally  produced  by  one's  adversary.  Possibly,  the  most 
obvious  and  frequent  line  of  attack  made  at  the  stage  of  rebuttal  upon  the 
judgment  of  an  opposing  expert  is  an  attempt  to  establish  the  claim  that  the 
facts  assumed  in  the  hypothetical  question  do  not  in  reality  exist,65  that  the 
phenomena  said  to  have  been  observed  were  never  actually  perceived  or,  at 
least,  have  not  been  established  by  the  evidence.06  The  result  of  the  reasoning 
faculty  is  inevitably  discredited  should  it  appear  to  have  operated  upon  an 
erroneous  basis  of  fact.67  So  an  adverse  witness  may  be  discredited  by  showing 
that  he  has  at  other  times  made  inconsistent  statements  68  or  acted  in  a  manner 
inconsistent  with  his  present  testimony.69  So  it  may  be  established  that  the 
explanation  given  by  the  witness  of  the  facts  is  not  the  only  one  70  and  facts 
showing  that  the  expert  is  lacking  in  qualifications  71  or  is  biased  72  or  has 
been  mistaken  on  other  occasions  73  are  also  admissible. 

§  832.  Use  of  Standard  Treatises;  Deliberative  Effect.74 — It  has  thus  been 
seen  that,  even  under  modern  conditions,  the  office  of  a  text-book,  though  of 
the  highest  authority,  is,  in  the  absence  of  statute,  deliberative.  Such  benefit 
as  the  community,  represented  in  its  courts,  gains  from  scientific  text-books,  it 
thus  acquires  by  indirection.  Across  the  path  to  direct  consultation  stands  the 
rule  against  hearsay.  This  difficulty  is  obviated  in  many  cases  by  using  these 
books  as  an  aid  to  judicial  knowledge.  The  hearsay  rule  was  established  be- 
fore science  was  of  importance  and  it  has  been  suggested  that  an  additional 

65.  Quinn  v.  Higgins,  63  Wis.  664,  24  N.  W.  69.  Peterson  Bros.  v.  Mineral   King  Fruit 
482,  53  Am.  Rep.  305  I  1885)       An  expert,  for      Co.   (Cal    1903),  74  Pac.  162. 

example,  who  testifies  that,  in  his  judgment,  a  70.  Lincoln  v.  Taunton  Copper  Mfg.  Co.,  9 
train  running  at  a  certain  rate  of  speed  could  Allen  (Mass.)  181  (1864). 
have  been  stopped  within  a  given  distance,  71.  Carley  v.  New  York,  etc.,  R.  Co.,  1  N. 
speaks  with  but  little  effect  should  it  appear  Y.  Suppl.  63  (1888).  See,  however,  Buck- 
that  the  train  was  in  point  of  fact,  proceed-  man  v.  Missouri,  etc.,  R.  Co.,  100  Mo.  App. 
ing  at  a  much  higher  rate  of  speed.  Frost  30,  73  S.  W.  270  (1903)  ;  Adams  v.  Sullivan, 
v.  Milwaukee,  etc,  R.  Co.,  96  Mich.  470.  56  100  Ind.  8  (1884). 

X.  W.  19  (1893).  72.  New  Jersey  Zinc,  etc.,  Co.  v.  Lehigh 
Contradiction  by  the  event  may  be  shown  Zinc,  etc.,  Co.,  59  N.  J.  L.  189,  35  Atl.  915 
on  rebuttal.  Thus,  an  event  which  the  ex-  (1896);  Metropolitan  St.  Ry.  Co.  v.  Hough- 
pert  said  was  impossible  may  be  affirmatively  ton  (Tex.  Civ.  App.  1911),  134  S.  W.  422. 
shown  actually  to  have  occurred.  Com.  v.  73.  Papers  containing  false  signatures 
Leach.  156  Mass.  9'.).  30  N.  E  163  (1S92).  which  were  pronounced  genuine  at  a  former 

66.  Bristed    v.    Weeks,    5    Redf.    Surr.    (N.  trial  by  experts  called  at  the  second  trial  may 
Y.)    529   il8«2).  be  introduced  in  evidence  for  the  purpose  of 

67.  Clark   v.    State.    12   Ohio   483.   40   Am.  showing  the  former  mistake,  and  thereby  af- 
Dec.  481    (1843).  fecting  the  weight   of  their  opinions.     Hoag 

68.N  People  v.  Donovan,  43  Cal.  162  H«72)  :  v.   Wright,    174   X.   Y.   36,   66   X.   E.   579,   63 

Miller  v.  Mutual   Ben.  L.   Ins.   Co..   31    Iowa  L.  R.  A.  163    (1903). 
216,   7   Am.   Rep.   122    (1871);    Sanderson  v.  74.  Chamber layne,  Evidence,  §  2547. 

Nashua.  44  X.  H.  492   0863). 


§   833  PROBATE  FORCE  OF  REASONING.  642 


exception  to  the  hearsay  rule  be  established  in  favor  of  scientific  treatises  7E 
but  there  is  much  danger  in  the  practical  workings  of  this  suggestion  and  with 
the  wide  use  of  judicial  knowledge  there  seems  no  practical  necessity  for  the 
change.  For  purposes  of  corroboration,  the  proponent  of  the  inference  com- 
monly makes  use  of  the  text-book  statements  at  the  stage  of  examination-in- 
chief.  Testing  by  means  of  them  usually  takes  place  on  cross-examination. 
In  either  event,  reception  is  a  matter  of  administration.  The  parties  have  few, 
if  any,  rights  in  the  matter  beyond  that  of  the  use  of  reason.  Even  the  delibera- 
tive use  of  the  statement  of  a  text-book  may  seern  to  the  court  unreasonable. 
For  example,  a  work  on  topography  though  consisting  of  assertions  and  other 
facts  largely  deliberative  has  been  rejected.70  Should  the  evidence  be  offered 
in  its  deliberative  capacity,  but  danger  exists  lest  it  be  taken  as  evidence  of 
the  facts  asserted,  e.g.,  where  a  parliamentary  text-book  is  offered  to  show  that 
an  assembly  was  properly  conducted  77  or  a  bank  note  detector  is  tendered  for 
the  purpose  of  showing  the  worthlessuess  of  a  particular  bank  note 78  the 
evidence  has  been  excluded. 

§  833.  Weight  of  Inferences;  A  Question  for  the  Jury.79 — The  admissibility 
of  opinion  evidence  is  for  the  court,  its  value  is  for  the  jury.80  As  exemplified 
in  many  connections,  the  probative  force  of  the  reasoning  by  witnesses  i*  a 
question  of  fact  for  the  jurors.81  In  large  measure  this  follows  from  the  cir- 
cumstance that  the  qualifications  of  witnesses,  as  well  as  the  credibility  of 
their  stories,  is  decided  by  the  latter.  The  ultimate  decision  as  to  the  belief- 
carrying  quality  of  the  judgment  of  an  expert  is,  therefore,  for  them.  The 
action  of  the  court  in  the  matter  at  the  stage  of  roir  dire  is  entirely  provisional. 
It  confers  merely  that  measure  of  quasi-indorsement  which  is  to  be  found  in 
the  implied  statement  that  the  witness  is  capable  of  aiding  the  jury,  i.e.,  that 
the  latter  might,  as  reasonable  men,  properly  follow  the  reasoning  which  the 
witness  will  give  them.  The  jurors,  however,  are  at  liberty,  with  certain 
obvious  restrictions,  to  do  as  they  see  fit  as  to  crediting  the  witness.  The 
opponent,  on  his  part,  may  well  contend  that,  although  the  court  has  permitted 
the  witness  to  testify,  neither  his  qualifications  nor  his  evidence  are  such  as  to 
entitle  him  to  credit.82  The  form  in  which  the  reasoning  of  the  witness  has 
been  placed  by  him  makes  no  difference  in  the  application  of  the  general 
administrative  rule  that  the  probative  weight  of  a  mental  act  is  for  the  jury. 
The  principle  is  as  true  in  case  of  the  inference  or  conclusion  of  an  observer  s3 

75.  Timothy  v.  State.   130  Ala.   6«,  30  So.  80.  Landrum   v.  Swann    (Ga.   App.    1910), 
339   (1901)    (powder  marks).  68  S.  E    682 

76.  Spalding    v.     Hedges,    2    Pa.     St.    240  81.  Card  v.  Moore,  173  N.  Y.  598,  68  N.  E. 
(1845).  1105    (1903) 

77.  Cranfill   v.   Harden,  22  Tex.   Civ    App.  82.  Blough   v.  Parry,   144   Ind.   463,  ,40  N 
656,  55  S.  W.  805   (1000K  E    70.  43  NT.  E.  560    (1896):  Davis  v.  State, 

78.  Payson  v.  Everett,  12  Minn.  216  (1867).  35  Tnd.  4516.  0  Am.  Rep.  760  (1871). 

79.  Chamherlayne.  Evidence,  §  2551.  83.  Prentiss  v.  Bates,  93  Mich.  234,  53  N. 

W.  153.  17  L.  R.  A.  494   (1892). 


643  WEIGHT.  §  834 

as  of  the  judgment  of  an  expert.  The  position  of  the  expert  has  of  ten.  been 
said  to  be  advisory  merely.84  The  jury  is  to  decide  which  of  the  enumerated 
facts  submitted  to  the  expert  exist s5  and  may  also  discredit  the  reasoning  of  the 
witness,  or  they  may  discredit  the  facts  offered  and  still  follow  the  conclusion 
of  the  witness.  Within  the  limitations  prescribed  by  reason,  the  right  of  the 
jury  to  weigh  the  evidence  is  unfettered.  It  is,  therefore,  unsound  administra- 
tion for  a  presiding  judge  to  rule  that  a  skilled  observer  is. entitled  to  greater 
credit  than  the  ordinary  witness,86  that  the  expert  evidence  of  a  skilled  witness 
is  not  entitled  to  confidence 87  or  that  the  probative  force  of  a  judgment  is 
gauged  by  the  power  of  the  expert,  judging  by  the  laws  of  mind,  to  reach  a 
valid  conclusion.88  Even  so  simple  and  apparently  harmless  a  formulary  as 
that  the  weight  of  the  judgment  of  an  expert  is  dependent  upon  the  correspond- 
ence of  the  facts  stated  to  him  to  those  established  by  the  evidence  has  been 
regarded  as  not  a  proper  rule  by  which  to  limit  the  freedom  of  the  jury.89  For 
the  same  reason  the  judge  cannot  adopt  the  theory  of  the  witnesses  of  one  side 
and  then  decline  to  permit  the  adverse  party  to  testify  and  argue  in  favor  of 
another  hypothesis.90 

§  834.  [Weight  of  Inferences] ;  Reason  Essential  and  Sufficient.81 —  The  proba- 
tive force  of  the  judgment  of  an  expert  will  be  largely  determined  by  the 
validity  of  the  grounds  which  he  assigns  for  it.92  Should  no  reasons  be  ad- 
vanced for  the  mental  result,  it  may  be  irrational  for  the  jury  to  follow  it.93 
It  also  may  be  irrational  for  the  jury  to  refuse  to  follow  the  uncontradicted 
testimony  of  the  expert  in  a  matter  about  which  they  know  nothing,94  although 
the  jury  may  choose  between  two  rational  views,95  but  they  cannot  follow  a 

84.  F.    W.    Brockman    Commission    Co     v.  91.  Chamberlayne,  Evidence,  §  2559. 
Aaron   (Mo.  App.   1910),  130  S.  W.  116;  Me-  92.  Randolph    v.    Adams,    2    W.    Va     519 
Donald  v.  Metropolitan  St.  Ry.  Co.,  219  Mo.  (1868);    Knowlton    v.    Oliver,    28    Fed.    516 
468,  118  S.  W.  78   (1909)  ;  Price  v.  Connecti-  (1886). 

cut  Mut   L.  Ins.  Co.,  48  Mo.  App.  281   (1892):  93.  Randolph    v.    Adams,    2    W.    Va.    519 

Spooner  v.  Kornarens,  113  N.  Y.  Suppl.  483  (1868). 

(1908).  94.  Leitch  v.  Atlantic  Mut.  Ins    Co.,  66  X. 

85.  People  v.  Barber.  115  X    Y.  475,  22  X.  Y.  100   (1876)    (materiality  of  circumstances 
E.  182  (18S9):  Wendell  v   Troy.  39  Barb.  329  affect   the   ri^k   in   insurance).     See,    for   ex- 
(1862)  -.    People  v.  Thurston,  2  Park    Cr.  49  ample,  Hart  v.  Brooklyn,  31  X.  Y.  App.  Div. 
(1852).  517.  520,  52  X.  Y.  Suppl.  113   (1898). 

86.  Carpenter  v    Calvert.  83  Til    62   (1876)  A  skilled  observer  may  stand  in  the  same 
(mental  capacity)  position    as    an    expert    in    this    connection. 

87.  Pannell  v   Com  .  86  Pa.  St.  260  (1878).  Davis  v   School  Dist.  of  City  of  South  Omaha, 

88.  Rloujrh  v.  Parry,  144  Ind    463,  40  X.  E.  84  Xeb.  858,  122  X    W.  38   (1909)    (value  of 
"0.  43  X.  E.  560   (1895)  architect's  services). 

89.  Rloujrh  v   Parry.  144  Ind.  463.  40  X   E  95.  Gorman    v.    St.    Louis    Transit    Co..   96 
70.  43  X    E    r>fiO   (1895)  :  Hall  v.  Rankin.  87  Mo    App.  6O2.  70  S.  W    731    (1902)  :   Hurley 
Iowa  261.  54   X.   W.  217    (1893)       See.  how-  v     Xew    York,    etc.    Brewing   Co..    13    X    Y. 
ever,    In  re  Richmond.   206    Pa     St.   219.   55  App.  Div.   167.  43  X.  Y.  Suppl.  259    (1897); 
Atl.  970   (1903)  Jones  v.  Roberts,  96  Wis.  427,  70  X    W.  685, 

90.  Fox     v     Peninsular    White    Lead,    etc.,  71  X.  W.  883  ( 1897) . 
Works.  84  Mich    67R.  48  X    W.  203    (1891). 


§§  835,836  PKOBATE  FORCE  OF  REASONING.  644 

small    minority    of    the    testimony    in    the   face   of   salient    and    irrefragible 

facts."" 

§  835.  [Weight  of  Inferences] ;  Comparison  between  Inferences  from  Observa- 
tion and  Reasoning  from  Assumptions.97 — To  attempt  any  classification  of  the 
probative  value  of  the  reasoning  of  witnesses  except  in  the  most  general  way  is 
a  task  as  difficult  as  its  results  are  valueless.  In  broad  outline,  however,  certain 
general  distinctions  are  to  be  observed.  It  is  not,  for  example,  questionable  that 
on  a  matter  essentially  technical  in  its  nature,  the  inference  or  conclusion  of  a 
skilled  observer  is*  more  powerful,  other  things  being  equal,  in  producing  belief 
than  similar  mental  acts  by  witnesses  not  possessed  of  the  appropriate  skill 
and  experience.98  For  example,  the  evidence  of  eye-witnesses  that  a  certain 
event  actually  occurred  is  not  readily  off-set  by  the  inference,  conclusion  or 
judgment  of  a  witness,  skilled  or  unskilled,  that  it  could  not  have  done  so." 
While  the  inference  or  conclusion  of  the  ordinary  or  skilled  observer  is  second- 
ary evidence  as  compared  to  the  constituent  facts  themselves,  and  the  judgment 
of  the  skilled  observer  or  expert  is  secondary  to  the  judgment  of  the  jury,  no 
relationship  of  primary  and  secondary  exists  as  between  the  various  mental  acts, 
inferences,  conclusions  or  judgments.1  That  is  to  say,  receiving  the  opinion 
of  an  expert  is  not,  for  example,  to  be  postponed  until  it  is  made  to  appear  that 
the  inference  or  conclusion  of  an  observer  cannot  be  obtained.2  Testimony 
from  Judgment  may  be  superior  to  Inference  and  Conclusion  as  the  hypo- 
thctically  stated  question  purports  to  be  exact  and  inference  and  fact  are  thus 
clearly  separated,  but  in  many  cases  the  observed  phenomena  cannot  be  placed 
before  the  expert  in  their  entirety  3  and  the  hypothetical  question  may  be  based 
on  facts  incompletely  proved  and  the  expert  furthermore  lacks  the  warmth  and 
intimacy  of  the  observer's  connection  with  the  original  phenomena.4 

§  836.  Weight  of  Judgments;  A  Field  of  Conjecture.5 — The  use  of  expert 
testimony  is  one  of  the  weak  points  in  the  administration  of  justice.  Judges 
seem  intuitively  to  distrust  it,  yet  scarcely  to  know  how  present  difficulties  can 
best  be  met  and  overcome.  The  favorite  field  of  the  expert  is  that  of  the 
inexact  sciences,  noticeably  medicine.  Here  theory  takes  the  place  of  fact 

96.  McMullen  v.  City  of  New  York,  93  X.  its,  are  deemed  entitled  to  have  an  opinion  of 
Y.  Suppl    772,  104  A  pp.  Div.  337   (1905).  their  own.     Andrews  v.  Frierson.  39  So.  512 

97.  Chamberlayne,  Evidence,  §  2563.  (1905)     (services  of  auctioneer)  ;   Denison  v. 

98.  St.  Louis,  etc.,  R.  Co.  v.  Brown,  62  Ark.  Shawmut  Min.  Co.,  135  Fed.  864    (1904). 
254,  35  S.  \V.  225   (1896).  3.  Porter  v.   Pequonni'c  Mfg.   Co.,   17  Conn. 

99.  Southern  Ry    Co.  v.  Ward,  131  Ga.  21,  249,   256    (1845):    Cadwell   v.    Arnheim.    152 
61   S.  E.  913   (1908).  N.  Y.  182,  46  X.  E.  310    (1897^  :  Pease  Fur- 

1.  People  v.  Gonzales,  35  N.  Y.  49   (1866).  nace  Co.  v.  Kesler,  21   N.  Y.  App.  Div.  631, 
See  also  Elliott  v.  Van  Buren,  33  Mich.  49,  47  X.  Y.  Suppl    473   (1897)  :  Weber  v.  Third 
20  Am.  Rep.  668   (1875).  Ave.  R.  Co..  42  X.  Y.  Suppl.  789  (1896). 

2.  Value. —  In    many,    perhaps    most,    in-  4.  Cadwell  v.   Arnheim,  152  X.  Y.  182,  46 
stances,   the  value  of  property  is  a   subject  X.  E.  310  (1S97K 

upon  which  the  jury,  within  reasonable  lim-  5.  Chamberlayne,  Evidence,  §  2568. 


645  WEIGHT.  §  836 

and  conjecture  usurps  that  of  reasoning.6  One  difficulty  with  expert  opinion 
is  the  faulty  method  of  their  selection  as  those  only  are  selected  whose  opinions 
are  favorable  to  the  side  which  produces  them  so  that  even  if  their  opinions 
are  honest  the  result  does  not  present  to  the  court  in  most  cases  the  real  state 
of  expert  opinion  of  the  subject  but  only  those  who  are  willing  to  testify  as 
desired.7  The  suggestion  has  been  frequently  made  that  the  judge  should 
select  the  experts8  but  the  practical  difficulties  of  doing  this  are  great  as  the 
court  has  neither  the  time  or  machinery  to  discover  the  unbiased  expert  or  to 
test  him  when  produced.9  Expert  testimony  is  therefore  subject  to  much 
criticism  u>  but  has  its  warm  admirers  ll  especially  in  technical  matters  where 
it  seems  absolutely  necessary. 

6.  Roberts   v.    New   York   El.   R.   Co.,    128           9.  Thorn  v.  Worthing  Skating  Rink  Co.,  6 
N.  Y.  455,  465,  474,  28  N.  E.  486,  13  L.  R.  A.       Ch.  D.  415  note,  416  note  (1876). 

499   (1891).  10.  Goodwin    v.    State,    96    lud.    550,    572 

7.  Thorn  v.  Worthing  Skating  Rink  Co.,  6       (1884). 

Ch.  D.  415  note,  416  note   (1876).  11.  State  v.  Reidell,  9  Houst.    (Del.)    470, 

8.  Grigsby  v.  Clear  Lake  Water  Works  Co.,      14  Atl.   550    (1888) ;    Young  v.   Earner,  27 
40  Cal.  396   (1870).  Gratt.  (Va.)  96  (1876). 


CHAPTER  XXXVII. 

UNSWORN  STATEMENTS;  INDEPENDENT  RELEVANCY. 

Hearsay  rule  as  a  distinctive  anomaly ;  scope  of  the  anomaly,  837. 
Independent  relevancy  of  unsworn  statements;  meaning  of  the  res  gestae,  838. 

distinct  criminal  offences,  839. 

extra-judicial  statements  part  of  the  res  gestae,  840. 
existence  of  the  statement  itself,  841. 
evidence  is  primary,  842. 
forms  of  statements,  843. 

extra-judicial  statements  as  probative  facts,  844. 
bodily  sensation,  845. 
identification,  846. 
mental  condition,  847. 

intent  and  intention,  848. 

illustrative  instances,  849. 
knowledge,  850. 
illustrations,  851. 

extra-judicial  statements  as  deliberative  facts,  852. 
form  of  statement;  oral,  853. 
reputation,  854. 

libel,  etc.,  855. 
administrative  details,  856. 

§  837.  Hearsay  Rule  as  a  Distinctive  Anomaly;  Scope  of  the  Anomaly. —  The 
exclusionary  rule  which  forbids  the  reception  in  evidence  of  unsworn  state- 
ments used  in  their  assertive  capacity  is  the  distinctive  anomaly  of  the  English 
law  of  evidence.1  Reserving  for  discussion  at  another  place  2  the  general  argu- 
ments assigned  in  support  of  the  hearsay  rule,  which  a  large  body  of  authorita- 
tive professional  opinion  still  regards  as  a  salutary  one,  it  may  be  here  stated 
that  the  mischief  attendant  upon  the  exclusion  of  hearsay  statements  is 
greatly  limited  by  the  narrow  scope  of  the  anomaly.  Only  to  the  unsworn 
statement  when  used  in  its  assertive  capacity,  i.e..  as  proof  of  the  truth  of  the 
facts  asserted,  does  the  rule  against  hearsay  apply.3  Wherever  the  existence 

1.  4  Chamberlayne,  Evidence,  §  2574.  3.  People  v.  Lem  You,  97  Cal    224,  32  Pac. 

2.  Infra,    §§    866    et   seq.;   4   Chamb.,   Ev.,  11    (1895);   Shaw  v    People.  3  Him    (X.  Y.) 
§§  -2711  ft  Keq.     See  also  discussion  of  reasons  272,  5  Thomps.  &  C.  430    (1874)  ;   4  Chamb., 
for   the   anomaly,   4    Chamb.,    Ev.,    §§    2575,  Ev  .  §  2578.  n.   1.     See  Jennings  v.  Rooney, 
2576,  2577.  183  Mass.  577,  67  N.  E.  665  (1903). 

646 


647  RES  GESTAE.  §  838 

of  a  statement  is  independently  relevant,4  i.e.,  by  reason  of  its  mere  existence, 
an  unsworn  statement  is  a  relevant  fact;  the  hearsay  rule,  so  called,  has  no 
application.  All  inferences  which  may  logically  be  drawn  from  the  existence 
of  an  unsworn  statement,  save  only  that  the  statement  asserts  the  truth,  may, 
if  relevant,  be  relied  upon  by  the  proponent.  The  inference,  that  the  facts 
asserted  in  an  unsworn  statements  actually  exist  is  placed  under  the  ban  of 
the  rule  against  "  hearsay,''  5  and  is  accordingly  rejected.  Only  to  the  un- 
sworn statement  when  tendered  in  its  assertive  capacity  does  the  hearsay  rule 
apply.0  The  present  chapter  will  be  devoted  to  the  independent  relevancy  of 
unsworn  statements,  which  may  be  constituent,  probative  or  deliberate. 

§  838.  Independent  Relevancy  of  Unsworn  Statements;  Meaning  of  Ees 
Gestae.7 —  The  independent  relevancy  of  "an  unsworn  statement  may  be'  con- 
stituent.8 This  occurs  where  the  extra-judicial  declaration  is  one  of  the  res 
gestae,  a  relevancy  of  such  facts  being  constituent  of  the  right  or  liability 
asserted  in  the  action.  When  so  employed,  the  existence  of  a  statement  is 
treated  simply  as  a  fact,  and,  being  relevant,  is  deemed  admissible,  in  the 
current  phrase,  as  relevant  per  se.9  In  its  English  or  restricted  meaning,  res 
gestae  imports  the  conception  of  action,  by  some  person  producing  the  effects 
for  which  liability  is  sought  to  be  enforced  in  the  action.10  In  the  prevailing 
English  view,  "  Facts  which  constitute  the  res  gestae  must  be  such,  as  are  so 
connected  with  the  very  transaction  or  fact  under  investigation  as  to  constitute 
a  part  of  it."  u  In  a  marked  degree,  this  is  true  of  the  criminal  liability  of' 
a  defendant.12  In  America,  the  phrase  res  gestae  is  by  no  means  limited  in 
meaning,  as  by  the  better  opinion  in  England,  to  actual  series  of  world  hap- 
penings out  of  which  the  right  or  liability  necessarily  arises,  if  at  all.13  It 
goes  much  further  and  covers  all  relevant  facts  necessary  to  the  specific  proof 
of  the  res  gestae,  properly  so-called.14  The  American  use  of  the  term  is  ap- 

4.  Independent  relevancy  may  he  defined  8.  Supra,  §  640;  3  Chamb.,  Ev..  §  1713. 
as  that  form  of  relevancy  which  is   not  de-  9.  4  Chamberlayne.  Evidence,  §  2581. 
pendent  upon  the  truth  or  falsity  of  the  fact  10.  "  It  is  no  doubt  true,  as  is  said   in   1 
asserted      A    statement    is    said    to    be    inde-  Phillips   on    Evidence,    152,    10th    ed.,    words 
pendent  ly  relevant  when  the  mere  fact  of  its  and  declarations  are  properly  admissible  when 
existence  has  an  evidential  value.  they  accompany  some  act,  the  nature,  object  or 

5.  Hearsay   may   be   shortly   defined   as  an  motives  of  which  are  the  subject  of  inquiry." 
extra-judicial    statement  offered   as  proof   of  Hyde  v.  Palmer.  3  B.  &  S.  657.  32  L.  .T.  Q.  B. 
the  facts  asserted  in  it.  126.  7  I..  T.  823,  11  W.  R    433   (1863). 

6.  People  v.  Hill,  123  Cal.  571,  56  Pac.  443  11.  Haynes  v.   Com.,   28   Cratt.    (Va.)    942 
(1899)  ;  Mallery  v.  Younjr,  94  Ga.  804,  22  8.  (1877). 

E.  142  (1894)  ;  Com.  v.  Fajjan,  108  Mass.  471  12.  R.    v.    Bedingfield.    14    Cox   Cr.    C.   341 

(1871):    Birge    v.    Bock,    44    Mo.    App.    69  ( 1879)  :  4  Chamb.,  Ev..  §  2582. 

(1890);  Mooney  v.  New  York  El    R.  Co.  16  13.  Tt  necessarily  results  that  a  larore  num- 

Daly   145,  9  X.  Y.  Supp.   522    ( 1S90)  :   West-  her  of  facts  are  classed  as  res  fiestrp  under  the 

lake  v.  Westlake,  34  Ohio  St.  621.  32  Am.  Rep.  American  view,  which  are  simply  treated  as 

397    (1878)  :  4  Chamb.,  Ev..  §  2579.  n.  2      A  probative  facts  under  the  English.     4  Chamb., 

futile  distinction,  see  4  Chamb..  Ev..  §  2580.  Ev  ,  §  2583,  n.  1. 

7.  4     Chamberlayne,     Evidence,     §§     2581-  14.  Rows   v.   Manhattan   L.   Tns.   Co.,   138 
2587.  Cal.    285.    71    Pac.    348    (1903);    'Barrow    r. 


838 


PROBATE  FORCE  OF  REASONING. 


648 


parently  broad  enough  to  cover  any  probative,  certainly  any  material,  fact 
within  the  entire  range  of  the  evidence,  where  the  proof  is  circumstantial.15 
Under  such  circumstances,  it  may  be  held  to  embrace  not  only  occurrences  at 
the  stage  of  action,  but  any  relevant  facts  at  that  of  preparation,  such  as  facts, 
in  a  criminal  case,  showing  motive,  design  or  purpose,  the  procuring  of  the 
means  employed  in  the  commission  of  an  offense,16  and  the  like.17  In  the 
same  way,  it  covers  relevant  acts  done  or  events  occurring  at  what  may  be 
called  the  stage  of  escape,  the  concealment,18  change  of  name,  subornation  of 
perjury  in  witnesses,  and  so  forth.19  So  comprehensive  is  the  American  use 
of  the  term  that,  to  borrow  an  expression  from  pleading,  precisely  the  same 
phrase  is  used  to  designate  the  alleged  facts  and  the  evidence  by  which  they  are 
to  be  circumstantially  established.20  Still  further,  it  is  customary  for  certain 
courts  to  speak  of  any  fact  which  is  for  some  procedural  reason  admissible,  as 
part  of  the  res  gesfae.  Under  this  practice  the  admissions  of  a  party,21  or 
those  of  an  agent,22  will  be  received  in  evidence  as  part  of  the  res  gestae. 
No  Implication  of  Action. —  Under  this  broad  American  definition  of  res 
gestae  the  conception  or  implication  of  action  is,  in  large  measure,  eliminated. 
The  res  gestae  fact,  in  the  American  view,  may  be  simply  an  attendant  cir- 


State,  80  Ga.  191,  5  S.  E.  64  (1887)  ;  Baird 
v.  Jackson,  98  111.  78  (1881);  State  v.  Fitz- 
gerald, 130  Mo  407,  32  S.  VV.  1113  (1895); 
Nugent  v.  Breuchard,  91  Hun  12,  36  X  Y 
%Supp.  102  (1895);  Crooks  v  Bunn,  136  Pa. 
368,  20  Atl  529  (1890);  4  Chamb.,  Ev., 
§  2583,  n.  2. 

15.  Hall  v.  Connecticut  River  Steamboat 
Co.,  13  Conn.  319  (1839)  ;  Place  v.  Baugher, 
159  Ind.  232,  64  X.  E.  852  (1902)  ;  Evans  v. 
Montgomery,  95  Mich.  497,  55  N.  W.  362 
(1893)  ;  Faulcon  v  Johnston,  102  N.  C  264, 
9  S.  E.  394  (1889);  Prentiss  v  Strand,  116 
Wis.  647,  93  N.  W.  816  (1903)  ;  Kerr  v.  M. 
W.  of  A.,  117  Fed.  593,  54  C.  C.  A.  655 
(1902)  :  4  Chamb.,  Ev.,  §  2583,  n  4,  and  cases 
cited  in  last  preceding  note.  In  an  action  for 
assault  on  the  plaintiff  the  cries  of  the  mob 
at  the  time  are  clearly  competent  as  part  of 
the  res  gestve.  Saunders  v.  Gilbert,  156  X.  C. 
463,  72  S.  E.  610,  38  L  R.  A  (X  S. )  404 
(1911).  The  words  of  a  frightened  child 
made  within  thirty  seconds  after  a  crime 
"  the  bums  killed  pa  with  a  broomstick"  are 
admissible  as  part  of  the  res  gesttp.  The 
strictness  of  the  old  English  rule  that  the 
words  must  be  entirely  contemporaneous  has 
been  relaxed  in  this  country  and  the  words 
wilf  be  admitted  where  they  proceed  from 
natural  overwhelming  impulse.  The  old  Eng- 
lish rule  that  a  mere  bystander's  remark  is 
inadmissible  is  also  overturned  in  this  country 


as  standing  on  no  reason.  Furthermore  the 
fact  that  the  child  only  four  years  old  was 
too  young  to  be  a  witness  does  not  shut  out 
his  statement  as  the  growl  of  a  dog  or  the 
neighing  of  a  horse  would  also  be  competent. 
State  v.  Lasecki,  90  Ohio  St.  10,  106  N.  E. 
660,  L.  R.  A.  1915  E  202  (1914). 

16.  Smith   v.   State,   88   Ala.    73,   7    So.   52 
(1889);    State   v.    Gainor,   84   Iowa    209,   50 
X.   W.  947    (1892);   4   Chamb.,  Ev.,  §   2583, 
n.  5. 

17.  State  v.  Lucey,  24  Mont.  295,  61  Pac. 
994  (1900)  ;  State  v.  Thompson,  132  Mo.  301, 
34  S.  \V.  31    (1896). 

18.  State  v.  Phillips,  118  Iowa  660,  92  N. 
W.  876   (1902)  ;  State  v.  Vinso,  171  Mo.  576, 
71  S.  W.  1034   (1903). 

19.  People  v.  Chin  Hane,   108  Cal.  597,  41 
Pac    697    (1895);    Thorpe  v.   Wray,   68   Ga. 
359  (1882)  ;  State  v.  Brooks.  1  Ohio  Dec.  (Re- 
print)   407    M851);    4   Chamb.,   Ev.,   §   2583, 
n.  8,  and  cases  cited  in  last  preceding  note. 

20.  4  Chamberlayne,  Evidence,  §  2583,  n.  9. 

21.  Keyes  v    State,  122  hid.  527,  2.3  X    E. 
1097     (1889);    O'Mara    v.    Com.,   75    Pa.    424 
(1874)  ;  4  Chamb.,  Ev.,  §  2583,  n.  10. 

22.  Louisville,  etc.,  R.  Co.  v.  Landers,  135 
Ala.    504,    33    So.    482     (1902);    Haggart    v. 
California    Borough,    21    Pa.    Super.    Ct.    210 
(1902).     Certainly  the   breaking  down   of   a 
valuable  phrase  of  established  meaning  could 
hardly  be  more  complete. 


(349 


RES  GESTAE. 


§  838 


cumstance  in  the  case,  exerting  no  influence  on  the  actual  res  gestae,  i.e.,  the 
transaction  itself.23  Thus,  in  a  criminal  case,  the  personal  appearance  of  the 
accused,24  his  physical  condition,25  or  that  of  some  other  person,215  have  b.een 
spoken  of  as  part  of  the  res  gestae.  In  the  same  way,  the  condition  of  the 
ground  around  a  given  place,27  or  of  certain  articles  of  clothing,28  has  been 
similarly  classified.29  Even  a  purely  explanatory  circumstance  may  be  desig- 
nated by  the  courts  as  part  of  the  res  gestae.30 

Contemporaneousness  Xot  Demanded. — It  is  by  no  means  essential,  in  the 
American  view  of  the  scope  of  the  res  gestae,  that  the  probative  or  otherwise 
admissible  fact  so  designated  should  bear  any  intimate  or  indeed  any  special 
relation  in  point  of  time  to  the  res  gestae  properly  so-called.31  Such  a  proba- 
tive fact  may  precede,  even  by  a  considerable  interval,  the  principal  transac- 
tion, may,  indeed,  be  a  mere  preliminary.32  On  the  other  hand,  it  may  follow 
the  happening  of  the  actual  res  gestae,33  even  by  a  considerable  time.34  Of 
this  nature,  may  be  said  to  be  facts  ascertained  by  searches  instituted  for  the 
discovery  of  incriminating  evidence.35  Into  the  same  category  would  seem 
to  fall  any  emotion,36  or  lack  of  it,37  shown  by  one  accused  of  crime.38  Mere 


23.  People  v.   Majors,   65   Cal.   138,   3   Pac. 
597,  52  Am.  Rep.  295   (1884)  ;  Travelers'  Ins. 
Co.    v.    Sheppard,    85    Ga.    751,    12    S.    E.    18 
(1890)  ;   Chicago,  etc.,  R.  Co.  v.  Kinnare,  76 
111.   App.    394    (1898);    Com.   v.    Holmes,    157 
Mass.  233,   3   X.   E    6,  34  Am.   St.    Rep.   270 
(1892)  ;  State  v.  Fitzgerald.  130  Mo.  407,  32 
S.  W.  1113    (1895)  ;   People  v.  Fitzgerald,  20 
App.  Div.  139,  46  N.  Y.  Supp.  1020   (1897)  ; 
Com.    v.    Twitchell,     1     Brewst.     (Pa.)     551 
(1869)  ;  4  Cbamb.,  Ev.,  §  2584,  n.   1. 

24.  People  v.  Foley,  64  Mich.  148,  31  X.  W. 
94     ( 1887 )  ;    State   v.    Ramsey,    82    Mo.    133 
(1884)  ;  dough  v.  State,  7  Xeb.  320   (1878)  ; 
People  v.  Fitzgerald,  supra ;  Com    v.  Twitch- 
ell,  supra;  4  Chamb.,  Ev.,  §  2584,  n.  2. 

25.  Com.- v.  Holmes,  supra;  Garner  v.  State 
(Tex.  Cr.  App.   1901),  64  S.   \V.   1044;    Bar- 

bour  v    Com.,  80  Va.  287   (1885). 

26.  People  v.  Majors,  supra;  People  v.  Rob- 
inson, 2  Park.  Cr.   (X.  Y.)   235  (1855)  ;  Com. 
v.  Mudgett,  174  Pa.  211,  34  Atl.  588   (1896). 

27.  Davidson  v.  State,  135  Tnd.  254,  34  X. 
E.   972    (1893);    State   v.   Fitzgerald,  supra: 
People    v.    Minisci,    12    N.    Y.    St.    Rep.    719 
(1887). 

28.  People  v.  Majors,  supra. 

29.  It  is  evident,  however,  that  no  right  or 
liability  could  arise  out  of  such  facts  and  that 
they  are,  at  least,  merely  probative  as  to  what 
were  the  actual  res  gestas. 

30.  Jackson  v.    State,   177  Ala,   12,  59   So. 
171    (1012):    Welker   v.    Appleman,   44   Ind. 
App.    609.    90    X.    E.    35    (1909);    Thomas  V. 


Macon  County,  175  Mo.  68,  74  S.  W.  999 
(1903)  ;  Hoffman  v.  Edison  Elec.  111.  Co.,  87 
App.  Div.  371,  84  X.  Y.  Supp  437  (1903); 
Shannon  v.  Castner,  21  Pa.  Super.  Ct.  294 
(  1902)  ;  4  Chamb.,  Ev.,  §  2584,  n.  7. 

31.  McMahon  v.  Chicago  City  Ry.  Co.,  239 
111.  334,  88  X.   E.  223    (1909),  aff'g  143  111. 
App.  608   (1908). 

32.  Rogers  v.  Manhattan  L.  Ins.  Co.,  supra; 
McMahon  v.  Chicago  City  R.  Co.,  supra;  Com. 
v.  Hayes,  140  Mass.  366,  5  S".  E.  264   ( 1886)  ; 
Shaefer  v.  Missouri,  etc.,  R.  Co.,  98  Mo.  App. 
445,  72  S.  W.  154    (1902);   Kenney  v.  South 
Shore  Xatural   Gas  &  Fuel   Co.,    119   X.   Y. 
Supp.  363,  134  App.  Div.  859   (1909)  ;  Keho« 
v.  Com.,  85   Pa.,  127    (1877);  4  Chamb.,  Ev., 
§  2585,  n.  3. 

33.  People    v.    Winthrop,    118   Cal.    85,   50 
Pac.   390    (1897):    Mitchell  v.   State.   71   Ga. 
128   (1883)  ;   People  v.  Stewart,  75  Mich.  21, 
42   X.   \V    662    (1889);   People  v.  Buchanan, 
145  X.   Y.   1,  39  X.  E.  846    (1895)  :   State  v. 
McCourry,  128  X.  C-  594,  38  S.  E.  883  ( 1901 )  : 
Com.    v.   Mudgett.   supra;   4   Chamb.,    Ev.,    § 
2585,  n.  4. 

34.  Stiles  v.  State,  57  Ga.  183   (1876). 

35.  People  v.   Winthrop^   supra:  People   v. 
Long.   44   Mich.    296,   6    X.   W.   673    (1880); 
Com.  v.  Mudsrett.  supra. 

36.  People  v.  Buchanan,  supra. 

37.  Greenfield  v.   People,  85  N.  Y.   7o.  39 
Am.  Rep.  636  (1881). 

38.  These  -ire,  properly  speaking,  probative 
facts  which  tend  to  throw  light  backward  as 


§  838 


PROBATE  FORCE  OF  REASONING. 


650 


narrative  when  not  spontaneous  is  strictly  excluded39  as  in  case  of  reports  of 
employees  as  to  an  accident  40  but  statements  made  while  the  fact  in  issue  is  in 
progress  are  generally  admitted.41 

Contiguity,  Intimate  Relation,  etc.,  Excused. —  Contiguity  or  nearness  in 
point  of  space  to  the  locus  of  the  real  res  yestae  is  not  required  under  the 
American  definition  of  the  phrase.  The  acts  may  have  been  done  or  the 
events  occurred  at  widely  separated  points,42  yet  both  be  equally  part  of  the 
res  gestae.4*  The  actor  or  declarant  in  the  probative  transaction  may  have 
taken  no  part  whatever  in  the  actual  res  yestae.44  Every  relevant  fact  is,  ipso 
facto,  part  of  the  res  yestae.  This  test  is  single  and  universal.45  Not  only  is 

4  Chamb., 


it  were  upon  the  true  res  gestce. 
Ev.,  j$  2.M.V 

39.  Where  the   plaintiff   was   lying   on   the 
ground  and  a  friend  bent  over  him  and  asked 
him  how  it  happened  and  he  replied  that  the 
ladder  bent  this  is  not  admissible  as  part  of 
the  res  gestie  as  it  is  narrative  and  not  spon- 
taneous     Greener  v.  General  Electric  Co.,  209 
X.  Y.  135,  102  X    E.  527,  46  L.  R.  A.  (N.  S.) 
975   (1913).     The  exclamation  of  an  operator 
when  an  accident  occurs  "  the  damn  thing  was 
about  wore  out  anyhow  and  they  would  keep 
running  it  until  they  killed  somebody  "  is  not 
admissible  as  part  of  the  res  yestce  as  it  must 
be  the  spontaneous  product  of  immediate  sen- 
sual  impressions.     This  declaration   in   ques- 
tion   was    not    describing    the    accident    but 
merely    a    condition    he    had    previously    ob- 
served.    Illinois    Central    K.    Co.    v.    Lowery, 
184  Ala.  443,  03  So   952,  49  I..  K.  A.   (N.  S.) 
1149    (1913).     Declarations  merely  narrative 
inadmissible   as   res  gestce,   see   note,   Bender 
ed.,  17  X.  Y    131. 

40.  Statements  by  the  conductor  of  a  train 
made  half  an  hour  after  the  accident  are  not 
admissible  as  part  of  the  res  gestce  as  they 
were  not  spontaneous  but  were  mere  narra- 
tive.    (  allahan     v      Chicago.     Burlington     & 
Quincy  R.   Co.,  47   Mont.   401.   133    Par   687, 
47  L.  R.  A    (X.  S.)   f>87   (1913).     Statements 
by  the  conductor  of  a  train  as  to  what  caused 
the  accident  made  two  hours  after  the  acci- 
dent may  be  admitted  as  part  of  the  res  gestfc 
in   the  discretion  of  the  trial   judge.     State- 
ments may  be  put  in  if  they  arise  naturally 
without    evidence    of    premeditation    and    di- 
rectly tend   to   characterize   the   act    in   ques- 
tion.    Walters    v.    Spokane    International    R. 
Co.,  58  Wash.  293,  108  Pac.  593,  42  L    R.  A. 
(X.  S.)  017   (1910).     The  report  of  a  station 
agent  that  a  fire  had  been  set  by  one  of  the 
defendant's  engines  is  not  admissible  either  as 
part  of  the  res  gestce  or  as  he  was  performing 


a  duty  as  the  defendant  cannot  be  held  bound 
by  the  reports  of  its  agents  unless  it  adopts 
them.  Warner  v  Maine  Central  R.  Co.,  Ill 
Me.  149,  88  Atl.  403,  47  L.  R  A.  (N.  S.)  830 
(1913). 

41.  Declarations   made   by   a   woman   while 
under  treatment  for  abortion  and  before  the 
final  operation   as  to   who   was   treating  her 
and  what  he  was  doing  for  her  are  admissible 
against  the  doctor  as  part  of  the  res  gestce. 
State  v.  Hunter,   131  Minn.  252.  154  N.  W. 
1083,   L.    R.   A.    1916   C  566    (1915).     In   an 
action    by    an    employee    against    his    fellow 
workmen    for   wrongfully   obtaining   his   dis- 
charge a  letter  of  recommendation  written  to 
him  by  his  employer  at  the  time  of  his  dis- 
charge is  admissible  as  part  of  the  res  gestce 
The  letter  was  contemporaneous  with  the  dis- 
charge  and   was   a   part   of   the   transaction 
tending  to   illustrate  and   explain   it.     Baus- 
bach  v.  Reiff,  244  Pa.  559,  91  Atl.  224,  L.  R. 
A.  1915  D  785    (1914).     In  a  prosecution  for 
obtaining  money  on  false  pretences  by  means 
of  a  worthless  check  the  telegram  of  the  bank 
on  which  the  check  was  drawn  stating  that 
the  drawer   had   no  money   in   the  bank  and 
that  he  was  a  fraud  is  not  evidence  as  it  is 
mere  hearsay  and   is  not  a  part   of  the  res 
(/estfp.     Rogers    v.    State,    97    Neb.    180,    149 
N    W.  318.  L.  R    A.  1915  B  1125   (1914). 

42.  State   v.   McLaughlin.    149   Mo     19,   50 
S.  W.   315    (1899);   Com.  v.  Eaton,  8  Phila. 
(Pa.)    428    (1869). 

43.  State  v.  Sexton,  147  Mo.  89,  48  S.  W. 
452  (1898). 

44.  Oakley  v.  State,  135  Ala.  15,  33  So.  23 
(1902);    Beckham   v.    State    (Tex.   Cr.    App 
1902),  69  S.  W.  534. 

45.  People     v.     Henderson,     28     Cal.     465 
(1865)  ;  Cox  v.  State,  64  Oa.  374,  37  Am.  Rep. 
76    (1879):    State   v.   Hoffman,    78   Mo.    256 
(1883);    Stewart   v.   State,    19   Ohio   302,   53 
Am.  Dec.  426   (1850);  Com.  v.  Mudgett,  174 


051  RES  GESTAE.  §  839 

it  said  of  every  relevant  fact  that  it  is  part  of  the  res  gestae,  but  the  statement 
is  frequently  reversed  and  the  negative  form  of  assertion  employed,  it  being 
said  of  any  fact  deemed  irrelevant  that  it  is  not  part  of  the  res  yestae,  or  per- 
haps, that  it  is  no  part  of  the  res  gestae.48  It  may  fairly  be  said  therefore  that 
res  gestae  and  relevant  are  equivalent  expressions  in  the  usage  of  the  American 
states  adopting  the  extended  scope  of  the  phrase.47 

§  839.  [Res  Gestae] ;  Distinct  Criminal  Offenses —  Whatever  may  be  the  scope 
of  the  res  yestae,  the  right  to  establish  them  is  unfettered  in  at  least  one 
direction.  It  is.  in  general,  no  ground  for  excluding  proof  of  a  legitimate  res 
gestae  fact  that  the  evidence  also  incidentally  tends  to  prove  that  the  actor  sub- 
jected himself  to  other  liability.48  In  a  criminal  case,  for  example,  assuming 
that  the  accused  is  not  required  to  criminate  himself,  it  is  no  sufficient  ground 
for  rejecting  unsworn  statements  or  other  facts  classified  as  res  gestae  that 
they  tend  to  establish  the  commission  of  a  distinct  offense  other  than  the  one 
under  consideration.49  Two  distinct  offenses  may  be  so  inseparably  connected 
that  the  proof  of  one  necessarily  involves  proving  the  other,  and  in  such  a  case 
on  a  prosecution  for  one  evidence  proving  it  cannot  be  excluded  because  it  also 
proves  the  other.50  An  accused  person  is  not  furnished  with  immunity  from 
the  consequences,  of  a  crime  because  he  has  probably  committed  another.51 
Sufficient  administrative  necessity  for  exposing  the  accused  to  being  convicted 
of  having  committed  one  offense  upon  evidence  that  he  has  perpetrated  another, 
must,  however,  be  shown  to  exist,  and  no  valid  reason  can  well  be  assigned  for 
rejecting  it.  Certainly  this  is  the  rule  when  a  fact  can  satisfactorily  be 
proved  in  no  other  way.52  Where  proof  of  guilt  is  circumstantial, —  and  these 

Pa.  211,  34  Atl.  588  (1896)  ;  4  Chamb  ,  Ev.,  §  1049,  40  L.  R.  A.  269   (1897)  ;  Lyons  v.  Peo- 

2586,  n.  4.  pie,  137  111.  602,  27  X.  E.  677   (1891)  ;  State 

46.  Murphy  v.  People,  9  Colo.  435,  13  Pac.  v.  Dooley,  89  Iowa  584,  57  X.  W.  414  (1894)  ; 
528    (1887);   Collins  v.   People,   194   111.   506,  Com.   v.   Sturtevant,   117  Mass.    122,   19   Am. 

62  X.  E.  902   (1902)  ;  State  v.  Hudspeth,  159  Rep.   401    (1875)  ;    State  v.   Taylor,    118   Mo. 
Mo.  178,  60  S   W.  136   (1900)  ;  Lyon  v.  Lyon,  153,  24  S.  W.  449  (1893)  ;  People  v.  Pallister, 
197  Pa.  212,  47  Atl.   193    (1900)  ;   4  Chamb.,  138  X  Y.  601,  33  X.  E.  741   (1893)  ;  Brown  v. 
Ev,  §  2586,  n.  5.  Com.,  76  Pa.  319    (1874);   4  Chamb.,  Ev.,  § 

47.  Webb  v.  State,  135  Ala.  36,  33  So.  487  2588,  n.  2. 

(1903)  :  Wood  v.  State,  92  Ind.  269   (1883)  ;  50.  People  v.  Marble,  38  Mich.  117   (1878)  ; 

Shaefer  v.  Missouri  Pac.  R.  Co.,  98  Mo.  App.  State   v.    Roberts,    15    Or.    187,    13    Pac     896 

45,  72  S.   W.   154    (1903);   Stewart  v.   State,  H887):   Reed  v.  Com.,  98  Va.  817,  36  S.  E. 

supra;   Com.   v.   Mudgett,   supra;   4    Chamb.,  399   (1900);  4  Chamb.,  Ev.,  §  2588.  n.  3. 

Ev.,  §  2586,  n.  6.     For  partial  explanations  of  51.  Johnson  v.  State,  88  Ga.  203,  14  S.  E. 

this   extension   in   the   meaning   of   the   term  208   (1891);  Cora.  v.  Scott,  123  Mass.  222,  25 

res  gestae,  see  4  Chamb.,  Ev.,  §  2587  Am.  Rep.  81   (1877)  ;  People  v.  Lewis,  62  Hun 

48.  People  v.  Oleason,  127  Cal.  323,  59  Pac  622,  16  X.  Y.  Supp.  881    (1891),  alT'd  136  X. 
592  (1899)  ;  Williams  v.  People,  196  111.  173,  Y.  633,  32  X.  E.  1014;  4  Chamb.,  Ev.,  §  2588, 

63  X.  E.   681    (1902)  :   State  v.  Madijran,  57       n.  4. 

Minn.  425,  59  X.  W.  490    (1894):    People  v.  52.  State   v.   Sanders,   76   Mo'    35    (1882); 

Van    Tassel,    156    X.    Y.    561.    51    X.    E.    274  Reed   v.   Com.,   supra;  State  v.   Craemer.   12 

(1898)  ;  ShafTner  v.  Com.,  72  Pa    60,  13  Am.  Wash.   217,  40  Pac.  944    (1895);   4  Chamb., 

Rep.  649   ( 1S72)  :  4  Chamb  ,  Ev..  §  2588,  n.  1.  Ev.,  §  2588,  n.  5. 

49.  People  v.  Ebanks,  117  Cal.  652,  49  Pac. 


PROBATE  FORCE  OF  REASONING.  652 

are  the  cases  in  which  distinct  offenses  are  most  often  incidentally  proved,53 — 
it  would  greatly  impair  the  cogency  of  the  incriminating  proof  to  attempt  the 
elimination  of  evidence  of  statements  or  other  acts  tending  to  show  that  the 
crime  in  question  was  not  the  only  one  committed  by  the  accused  at  or  about 
the  same  time/'4  But  the  other  offenses  must  be  connected  in  some  logical  or 
casual  relation  with  the  liability  sought  to  be  enforced  in  the  proceeding  itself. 
An  entirely  separate  and  disconnected  offense  is  not  admissible  merely  because 
it  occurred  at  or  about  the  same  time  as  the  res  gestae  of  the  offense  on  trial.55 
It  is  not,  however,  required  that  the  proof  of  the  additional  offenses  should  be 
involved  in  the  direct  establishment  of  the  crime  on  trial  and  relevant  for  that 
purpose.  Should  it  be  relevant  for  a  legitimate  collateral  deliberative  object, 
as,  for  example,  to  corroborate 56  or  contradict 5T  a  witness,  to  explain  an 
apparent  conflict  in  the  testimony,58  or  the  like,  it  will  be  regarded  as  sufficient. 

Assault. —  Perhaps  the  most  common  instance  of  the  incidental  proof  of  an 
additional  offense  while  establishing  the  res  gestae  of  a  case  on  trial  is  in  con- 
nection with  assault.  Thus,  homicide  is  frequently  accompanied  by  an  as- 
sault on  the  deceased  or  upon  some  third  person.59  Rape  involves,  in  many 
cases,  an  assault  on  the  injured  woman  or  upon  some  one  else.6u  The  collateral 
offense  may  be  robbery.01  Alany  crimes  involving  serious  personal  violence 
include  and  embrace  the  offense  of  a  simple  assault.62  Such  incidentally 
proved  crimes  may  be  either  simple  or  coupled  with  circumstances  of  aggrava- 
tion, e.g.,  the  use  of  duress,""'  attempt  to  kill  "4  or  the  like.65 

Homicide. —  To  establish  the  res  gestae  of  a  particular  homicide,  it  may  be 
necessary  to  prove  other  homicides.  This  may  occur  either  where  the  evidence 
is  circumstantial"'1  or  direct."7  It  may  happen  in  connection  with  affirmative 
proof  of  the  res  gestae  of  the  offense  6S  or  where  the  effort  of  the  proponent  is 
to  negative  some  theory  advanced  by  the  defence/'9 

53.  Walker    v.    Com,    1    Leigh    (Va.)    574  61.  State  v.  Taylor,  supra ;  Harris  v.  State, 
(1829).  32  Tex    Cr.  279.  22   S.   W.    1037    (1893). 

54.  State  v   Craemer,  supra.  62.  People  v.  Chin  Bing  Quong,  79  Cal.  553, 

55.  People  v.   Lane,   100  Cal.   379,  34  Pac.  21    Pac.   951    (1889);    State  v.   McCahill,   72 
856  (1893)  ;  Farris  v.  People,  129  111   521,  21  Iowa  111,  30  N.  W.  553,  33  N.  W  599  (1887). 
X.    E.    821    (1889):    Brown   v    Com.,   supra;  63.  Britt  v.   State,  9  Humphr.    (Tenn.)    31 
4  Chamb.,  Ev..  §  2588.  n.  9.  ( 1848). 

56.  Toll  v.   State.  40  Fla.   169,  23   So.  942  64.  State  v.  Sanders,  supra. 

(1898).  65.  Pritchett  v.  State,  92  Ga.  65,  18  S.  E. 

57.  State   v    Harris,    100   Iowa    188.   09   X.       536   (1893). 

W   413   (1806)  :  4  Chamh  .  Ev  .  §  2588.  n    12.  66.  Lyons  v.  People,  supra;  Com.  v.  Sturti- 

58.  Re<r.    v.    Chambers,    3    Cox    C.    C.    92  vant,  supra;  People  v    Foley,  64  Mich.   148, 
(1848).  31  X.  W.  94   (1887)  :  Brown  v.  Com.,  supra; 

59.  People   v.   Oilmore,    17    Cal.    App.   737,  4  Chamb.,  Ev.,  §  2590,  n.  1. 

121  Pac.  697  H912)  :  State  v.  Sanders,  supra;  67.  People  v.  Prantikos,   164  Cal.   113,  127 

People  v    Pallister,  supra;  4  Chamb.,  Ev.,  §  Pac.   1029    (1912). 

2589,  n.  1.  68.  Logston  v.  State,  3  Heisk.   (Tenn.)   414 

60.  Thompson   v.    State,    11    Tex.   App.    51  (1872). 

(1881).  69.  Smart  v.  Com.,   10  Ky.  L.  Rep.    1035, 

11  S.  W.  431  (1889). 


653  RES  GESTAE.  §  840 

Larceny. — In  making  proof  of  the  res  gestae  of  a  particular  larceny,  it  may 
be  natural  and  even  practically  unavoidable  to  show  that  other  offenses  were 
committed  at  or  about  the  same  time.70  If  so  the  court  will  receive  evidence 
of  them.  In  like  manner,  proof  of  one  burglary  may  involve  the  establishment 
of  another.71  The  crimes  of  obtaining  property  by  false  pretences,72  of  em- 
bezzlement,73 receiving  stolen  goods  7i  or  robbery  70  stand  in  the  same  posi- 
tion. 80  of  forgery,70  and  uttering  forged  documents.77 

Dissimilar  Offenses. —  .Naturally,  the  collateral  otfeuse,  incidentally  estab- 
lished, may  be  dissimilar  in  nature  to  that  for  which  liability  is  claimed  in  the 
action.78  Arson,  for  example,  is  often  found  in  combination  wth  robbery  79 
or  burglary.80  Burglary,  if  successful,  naturally  leads  to  larceny;.81  if  dis- 
covered or  opposed,  to  assault82  and  even  to  homicide.83  Homicide  is  fre- 
quently accompanied  by  larceny  84  and  frequently  grows  out  of  an  attempt  to 
accomplish  unlawful  ends.85  Any  meeting  between  those  whose  interests  are 
opposed,  though  the  original  object  with  which  the  interview  was  sought  may 
have  been  a  comparatively  innocent  one,8"  may  culminate  in  murder  or  other 
serious  crime.  Robbery  itself  involves  an  assault  and  is  frequently  accom- 
panied by  a  battery,87  or  by  aggravated  circumstances,  as  an  attempt  to  kill,88 
rape,8"  or  obstruction  of  an  officer  in  the  execution  of  his  duty.90  The  last 
would  occur  as  naturally  as  the  gathering  of  a  mob  leads  to  rioting  or  the 
doing  of  malicious  mischief.91 

§  840.  [Res  Gestae  1 ;  Extra-judicial  Statements  Part  of  the  Res  Gestae. — 
Using  the  phrase  res  gestae  in  its  restricted  or  English  sense.92  the  rule  with 
regard  to  unsworn  statements,  so  far  as  these  are  not  considered  as  proof  of 

70.  Starr  v.  State,   160  Ind.  661,  67  N    E.  80.  Id. 

527   I  1903)  ;  Com.  v.  Hayes,  140  Mass.  366,  5  81.  State  v.  Robinson,  supra. 

N.  E.  264  (1886)  ;  Haskins  v.  People,  16  N.  Y.  82.  Williams  v.  State.  42  Tex.  Cr.  602,  61 

344  (1857)  ;  4  Chamb.,  Ev.,  §  2591,  n.  1  S.  W.  395,  62  S.  W.  1057    (1901). 

71.  State   v.    Robinson,    35    S.    C     340,    14  83.  People  v.   Rogers^  71  Cal.  565,   12  Pac. 
S.  E.  766   (1892).  679    (1887);    State   v.    Wagner,   61    Me.    178 

72.  Com.  v.  Eastman,  1  Cush.   (Mass.)    189,  (1873). 

48  Am.  Dec.  596    (1848)  ;  Com.  v.  Daniels,  2  84.  Kennedy  v.   State,   107   Ind.    144,  6   N. 

Pars.  Eq.  Cas.   (Pa.)   332   (1847).  E.  305,  57  Am.  Rep.  99   (1886). 

73.  People  v.  Van  Ewan,  111  Cal.   144,  43  85.  State  v.  McCahill,  supra. 
Pac.  520    (1896).  86.   Id. 

74.  Copperman    v.    People,    56    N.    Y.    591  87.  State  v.  Nathan.  5  Rich.  L    (S.  C.)  219 
(1874).  (1851). 

75.  People  v.  Nelson,  85  Cal.  421,  24  Pac  88.  Richards  v.  State,  34  Tex.  Cr.  277.  30 
1006    (1890);   Britt  v.  State,  supra.  S.   W.  229    (1895) 

76.  Cross   v.    People,    47    111.    152,    95    Am  89.  State  v    Taylor,  118  Mo.  153,  22  S.  W. 
Dec.  474   (1868)  ;  4  Chamb.,  Ev.,  §  2591.  n.  7.  806.  24  S.  W.  449    (1893). 

77.  People  v.   Kemp,   76  Mich.  410,  43   N.  90.  State  v.  Guy,  46  La.  Ann.  1441,  16  So 
W.  439   (1889).  404   (1894). 

78.  Powers   v.   State,   4   Humphr.    (Tenn.)  91.  Gallagher  v.  State,  101  Ind.  411  (1884). 
274    (1843).  92.  See  ante,  §  838. 

79.  Mixon  v.  State    (Tex.  Cr.  App.   1895), 
31  S.  W.  408. 


§   841  PROBATE  FORCE  OF  SEASONING.  654 

the  fact  asserted,  is  a  ve,ry  simple  one.  Such  extra  judicial  declarations  are 
admissible,  when  relevant,  like  any  other  fact.93  In  other  words,  a  verbal  act, 
in  this  connection,  differs  in  no  essential  particular  from  other  acts.94  No 
special  conditions  are  imposed  upon  the  statement  simply  because  it  is  a  state- 
ment.95 That  a  given  declaration  was  made  is  simply  a  fact  which  should  be 
allowed  to  give  rise  to  any  relevant  inference  which  may  properly  be  drawn 
from  its  existence.  The  rule  is  the  same  in  criminal  cases.90  In  tine,  within 
the  range  of  the  res  yestae,  what  was  said  by  any  person  including  a  bystander  9< 
may  be  admitted  in  evidence. 

Constituent  Facts. —  Extrajudicial  statements  may,  a  fortiori,  be  proved 
when  they  are  constituent  °8  facts.  As  to  their  admissibility,  little  question 
can  be  raised.  In  fact,  they  are  frequently  said  to  be  relevant  per  se." 
Thus,  on  an  indictment  for  perjury  the  fact  that  the  defendant  spoke  the  words 
now  said  to  be  false  has  no  proper  connection  with  the  rule  against  hearsay. 
It  is  simply  a  verbal  act  which  assists,  with  other  facts,  to  constitute  the  liabil- 
ity with  which  the  accused  is  charged.1  As  such,  evidence  of  this  character  is 
admissible  as  a  matter  of  course,  a  res  yestae  or  constituent  fact.  So,  in  a 
trial  of  a  civil  action  on  an  oral  contract  any  material  extrajudicial  statement 
made  by  either  of  the  parties  during  the  period  of  negotiation  in  which  an 
agreement  is  said  to  have  been  reached  is  merely  a  res  gestae  or  constituent 
fact  and  is  admissible  to  show  the  exact  contract,  if  any,  between  the  part- 
ies.2 

§  841.  Extrajudicial  Statements  Part  of  the  Res  Gestae;  Existence  of  Statement 
Itself.3—  The  existence  of  an  unsworn  statement  may  be  a  constituent  fact. 
Under  such  circumstances,  the  rule  against  hearsay  has  no  application  —  it 
being  of  little  immediate  consequence  whether  the  statement  as  made  be  true  or 
false.  It  is  simply  received  as  a  fact.4  The  testimony  is  only  admissible  as  to 
the  existence  of  the  statement  as  a  constituent  fact  forming  part  of  the  res 
yestae.  As  such  it  is  admissible,  just  as  any  other  constituency  relevant 
physical  occurrence  would  be.5  The  statements  may  take  the  connected  form 
of  a  conversation.  In  such  a  case  the  reporting  witness  is  debarred  from 
stating  that  portion  of  it  which  he  says  he  heard  and  remembers  because  there 

93.  Commonwealth  v.  Bond,  188  Mass.  91.  1.  People  v.  Lem  You,  97  Cal.  224,  32  Pac. 
74  N    E.  293   (1905).  11    (1893). 

94.  Viberg  v.    State,    138   Ala     100,   35   So.  2.  Green  v.  Crapo,  181  Mass.  55,  62  N.  E. 
53,  100  Am    St.  "Rep   22   (1903).  856  (1902). 

95.  Mitchell   v.  Colgla/ier,   106   Ind    464,  7  3.  4  Chamberlayne,   Evidence,   §   2595. 

N.  E    199    (  1886).  4.  People  v.  Lem  You,  97  Cal.  224,  32  Pac. 

96.  Wood  v.  State,  92  Ind.  269   (1883).  11    (1893);   Stainbrook  v.  Drawyer,  25  Kan. 

97.  State  v    Lasecki,   90  Ohio  St.   10,   106  383   (1881)  ;  Shaw  v    People.  3  Hun    (N.  Y.) 
N.  S.  660,  L    R.  A.  1915  E  202   (1914).  272,  5  Thomps.  &  C    (X,Y.)  439  (1874).     See 

98.  Soe  §  844  also  Jennings  v.   Rooney,   183   Mass.   577,  67 

99.  Cowen  v    Blopmberg,  69  N.  J.  L.  462,  N.  E    665    (1903). 

55  Atl.  36  (1903).  5.  State  v.  Horton,  33  La.  Ann.  289,  290 

(1881). 


655  RES  GESTAE.  §§   842,  843 

may  have  been  other  additional  conversations  which  he  did  not  hear  or  does  not 
recollect.6 

§  842.  [Extra judicial  Statements  Part  of  the  Kes  Gestae] ;  Evidence  Is  Pri- 
mary.7—  The  evidence  furnished  by  the  independently  relevant  res  gestae 
declaration  is  primary.  Where  the  extrajudicial  unsworn  statement  is  used 
as  evidence  of  the  facts  asserted,  a  superior  grade  of  evidence  is  possible,  i.e., 
the  testimony  of  the  original  declarant  on  the  subject.  No  better  or  more  con- 
vincing evidence  of  the  existence  of  a  statement  can  be  given  than  the  testimony 
of  the  reporting  witness  who  says  that  he  heard  it  made.  In  other  words,  while 
the  reporting  witness,  in  both  cases,  testifies  directly  to  the  declaration  itself, 
he  states  a  fact  when  the  unsworn  statement  is  to  be  used  as  hearsay  which 
tends  to  establish  the  truth  of  the  facts  asserted  only  in  a  circumstantial  way. 
Superior  to  this,  is  the  direct  testimony  of  the  original  observer  whose  state- 
ment is  reported  to  the  tribunal.  The  fact,  however,  that  the  statement  was 
made  is  provable  by  the  primary  evidence  of  any  person  who  heard  it.  The 
statement  itself  must  be  relevant  8  and  must  be  proved  by  competent  evidence 
and  not  by  hearsoy.9 

§  843.  [Extrajudicial  Statements  Part  of  the  Res  Gestae] ;  Forms  of  State- 
ments.1"- -  The  independently  relevant  statement  may  be  that  of  a  bystander,11 
or  creating  agency.12  or  as  to  the  existence  of  a  bailment,13  or  claim  14  although 
a  narrative  of  past  facts  is  incompetent  15  but  even  a  claim  to  real  esate  may 
be  thus  established  16  or  as  to  its  boundaries  17  by  one  in  possession  1S  in  any 
form  1!l  if  the  statement  possesses  objective  relevancy.20  The  extrajudicial 
statement  may  constitute  a  claim  to  personal  property21  or  disclaimer22  as 

6.  People  v.   Daily,   135  Cal.    104,   67   Pac.  905;  Faulkner  v.  Rocket,  335  R.  I.  152,  80  Atl 
16    (1901).  380   (1911). 

7.  4   Chamberlayne,   Evidence,   §   2506.  17.  Keefe  v.   Sullivan  County  R    R.,  75  N. 

8.  Dodge  v.  vYeill,  158  X.  Y.  346,  53  X.  E.  H.   116,  71  Atl.  379   (1908). 

33    ( 1 899 )  18.  Possession  authorized  by  declarant. — 

9.  Xourse     v.      Xourse,      116      Mass.      101       The  objection  that  declarations  as  to  the  char- 
(1874).  acter  of  possession  are  admissible  only  from 

10.  4  Chamberlayne,     Evidence,     §§     2597-  one  exercising  it  is  removed  where  it  appears 
2623.  that  though  the  property  was   in  possession 

11.  Weller  &  Co.  v.  Camp,  169  Ala.  275,  52  of   another,    such    possession    was   authorized 
So    029    (1910);    State   v.    Lasecki,   90   Ohio  by  the  declarant.     Illinois   Steel  Co    v.   Pac- 
St.   10,  106  X.  E.  660,  L    R.  A.   1915  E  202  zocha,  139  Wis.  23,  119  X.  W.  550  (1909). 
(1914).  19.  Walker  v.  Hughes,  90  Ga.  52,  15  S.  E. 

12.  Moore  v.  Machen,  124  Mich.  216,  82  N.  912    (1892)  :    Xodle  v.   Hawthorne,   107   Iowa 
YV.  802    (1000).  380,  77  X.  W.  1062   (1809). 

13.  Greer  v    Davis  Mercantile  Co.,  86  Kan.  20.  Remy  v.  Lilly,  22  Ind    App.  109,  53  X. 
680.  121  Pac    1121   (1012).  E.  387   (1809)  ;  Doe  v.  Jauncy.  8  C   &  P.  99, 

14.  Lindsley  v.  McGrath,  62  X.  J.  Eq    478.  34  E    C.  L.  631    (18371  :   Holden  v    Cantrell, 
50  Atl.  236   (1001).  88  S.  C.  281,  70  S.  E.  81. V  M911  >  :   Stacy  v. 

15.  Collins  v.  Lynch,  167  Pa.  St.  635,  31  Atl.  Alexander.  143  Ky   152.  136  S.  YY.  150  ( 1911 ) . 
921    (1895).  21.  Traylor  v.  Hollis.  45  Ind.  App.  680.  91 

16.  Hampe  v.  Sage    (Kan.  1912),  125  Pac.  X.   E    567    (1910).     Declarations   by   one  in 
53;   Allen  v.  Morris    (Mo.   1912),  148  S.  W.  possession  of  personal  property  claiming  title 


§  843 


PROBATE  FOBCE  OF  REASONING. 


656 


in  case  of  creditors'  claims.23  In  some  jurisdictions  such  evidence  has  been 
confused  with  res  gestae  and  such  a  declaration  must  be  spontaneous.24  A 
conspiracy  25  or  a  contract  26  may  be  proved  by  such  statements  as  by  letters 
or  telegrams 27  when  the  entire  correspondence  must  be  produced 2H  while 
covering  the  term  of  negotiations.29  The  statements  to  prove  a  contract  may 
be  those  of  an  agent 30  but  none  of  these  statements  are  admissible  when 
merely  narrative,  made  after  the  transaction.31  They  may  prove  a  dedica- 
tion 32  or  a  demand  33  or  a  denial  34  or  disclaimer  35  or  a  libel  36  or  revoca- 
tion 3T  or  sales 38  or  representations  39  as  the  basis  of  a  sale. 


may  be  admissible  when  the  nature  of  the  pos- 
session is  in  question  but  according  to  the 
weight  of  authority  they  are  not  otherwise 
admissible  as  part  of  the  res  gestae.  They 
are  self-serving  and  hearsay  and  would  enable 
a  man  to  manufacture  evidence  for  himself. 
Freda  v.  Tischbein,  174  Mich.  35)1,  140  N.  W. 
502,  49  L.  R.  A.  (  N.  S.)  700  (1913)  ;  Hopkins 
v.  Heywood,  86  Vt.  486,  86  Atl.  305,  49  L. 
K.  A.  (N.  S.)  710  (1913). 

22.  Martin  v.  Martin,  174  111.  371,  51  N.  E. 
691,   66  Am.   St.   Rep.  290,  affirming   74  111. 
App.  215   (1898). 

23.  Should  both  title  and  possession  have 
been  parted  with,  the  declarations  of  the  ven- 
dor are  incompetent.     Fiske  v.  Small,  25  Me. 
453    (1845). 

24.  Kentucky.—  Gurley  v   Starr,  30  Ky.  L. 
Rep.  974,  99  S.  W.  972  ( 1907) . 

Maine  —  Wilson  v.  Rowe,  93  Me.  205,  44 
Atl.  615  (1899). 

Massachusetts  —  Holmes  v.  Turners  Falls 
Co.,  150  Mass.  535,  23  X.  E.  305,  6  L.  R.  A. 
283  (1890), 

A'eto  Hampshire. —  Lawrence  v.  Tennant, 
64  X.  H  532,  15  Atl  543  (1888). 

A'etc  Jersey. —  Curtis  v.  Aaronson,  49  N.  J. 
L.  68,  7  Atl.  886,  60  Am.  Rep.  584  (1886). 

Pennsylvania. —  Bender  v.  Pitzer,  27  Pa. 
St.  333  (1856). 

Vermont. —  Child  v.  Kingsbury,  46  Vt.  47 
(1873). 

United  States. —  Hunnicut  v.  Peyton,  102 
U.  S.  333,  363,  26  L.  ed.  113  (1880). 

25.  Banks  v.  State,  157  Tnd.  100,  60  N.  E. 
1087   (1901)    (conversation). 

26.  Sheldon  v.   Bigelow,   118   Iowa  586,  92 
N.   W.   701    (1902)     (to  show  that  declarant 
was  a  partner) . 

27.  Clark  v.   Dales,  20  Barb.  42    (1855). 
fJIinoifi.—  Cobb  v.   Foree,   38  111.   App.  255 

isiiOi. 

28.  See   Flynn   v.   Kelly.    12   O.   L.   R.   440 
(1906).     Where    the    evidence    to    show    an 


antenuptial  contract  has  been  destroyed  by 
mutual  mistake  and  declarations  in  favor 
of  one  have  been  received  the  other  party  is 
entitled  to  show  declarations  to  the  contrary. 
Gordon  v.  Munn  (Kan.  1912),  125  Pac.  1. 
See  Georgia  R.,  etc.,  Co.  v.  Smith,  83  Ga. 
626,  10  S  E.  235  (1889). 

29.  Woods   v.   Clark.   24   Pick.    (Mass.)    35 
(1834);    Hudson  v.  Slate,  53  Tex.  Civ.  App. 
453,  117  S.  W.  460  (1909). 

Narrative  statements  excluded. —  North- 
western Redwood  Co.  v.  Dicken,  13  Cal.  App. 
689,  110  Pac.  591  (1910). 

30.  Frit/,  v.   Chicago  Grain  &  E    Co.,   136 
Iowa  699,   114  N.  W    193    (1907);   American 
Pure   Food   Co.   v.   G.   W.   Elliott  &  Co.,   151 
N.  C.  393,  66  S.  E.  451,  31  L.  R.  A.   (N.  S.) 
910  n.    (1909);   Jungworth  v.  Chicago,  M.  & 
St.  P.  Ry.   Co.,  24  S.  D.  342,   123  N.  W.  695 
(1909)  ;   Ives  v.  Atlantic  &  N.  C.  R.  Co.,  142 
N.  C.  131,  55  S.  E.  74  115  Am.  St.  Rep.  732 
(1906). 

31.  Woods   v.   Clark,   24   Pick.    (Mass.)    35 
(1834). 

32.  Poole    v.    Commissioners    of    Rehoboth 
(Del.  Ch.  1911),  80  Atl.  683. 

33.  Wallace  v.   Bernheim,  63   Ark.   108,  37 
S.   WT.    712    (1896);    Gracie  v     Robinson,    14 
Ark.  438    (1854);    Seevers  v.  Cleveland  Coal 
Co.    (Iowa   1912),   138  N.  W.  793;  Glatfelter 
v.   Mendels    (Pa.    Super.    Ct.    1911),    46    Pa 
Super.  Ct.  562   (letter)  :  Martin  v.  Tnce  (Tex. 
Civ    App.   1912).   148  S.  W    1178.     Compare 
Walleston  v.  Fahnestock,  116  X.  Y.  Suppl.  743 
(1909). 

34.  Clark  v.  Wood,  34  X.  H.  447   (1857). 

35.  Beasley    v.    Howell,    117    Ala.    499,    22 
So.   989    (1897):    Vincent   v.    State,    74    Ala. 
274    (1883);    Place  v    Gould,   123  Mass.   347 
(1877);    Davis    v.    Campbell.    23    X.    C.    482 
(1841). 

36.'  American  Pub.  Co.  v.  Gamble,  115  Tenn. 
663,  90  S.  W.  1005  (1906). 

37.  Kennedy's  Will,  53  App.  Div.   105,  65 


657  EXTEAJUDICIAL    STATEMENTS.  §§    844,  84:5 

§  844.  [Independent  Relevancy  of  Unsworn  Statements] ;  Extrajudicial  State- 
ments as  Probative  Facts.40 —  The  relevancy  of  an  extra  judicial  statement  when 
used  as  the  basis  of  some  inference  other  than  that  it  is  true  is  not,  however, 
necessarily  constituent.  It  may  equally  well  be  probative.  In  other  words, 
the  existence  of  an  unsworn  statement  may  not  only,  as  one  of  the  res  gestae 
properly  so  called,  constitute  or  assist  to  constitute  the  right  or  liability  asserted 
but  it  may  also  tend  to  prove,  in  and  of  itself,  by  reason  of  its  very  existence, 
some  mental  or  bodily  condition  or  other  fact  which  is  in  its  turn,  one  of  the 
res  gestae  —  or  tends  to  establish  the  latter.  For  example,  the  mental  state 
with  which  a  given  act  was  done  may  be  a  legitimate  component  of  a  defend- 
ant's liability.  At  some  time  not  too  remote  to  be  relevant,  the  defendant 
is  known  to  have  made  a  declaration  which  gives  a  glimpse  into  his  mind,  dis- 
closing what  the  mental  state  in  question  was.  Whether  this  statement  is 
true  or  false,  is  not  the  point.  The  hearsay  rule,  excluding  unsworn  declara- 
tions as  proof  of  the  facts  which  they  assert,  is  in  no  way  involved.  The 
mental  state  is  a  res  gestae  fact  and  the  unsworn  statement  tends  logically  to 
prove  it.  Or  again,  on  a  civil  action,  the  knowledge  of  one  of  the  parties  at  a 
given  time  may  be  a  material  fact.  The  circumstance  that  the  party  made  a 
given  statement  to  someone  or  that  someone  made  a  given  statement  to  him 
may  be  a  very  enlightening  fact  as  to  what  the  person  in  question  knew.  As 
before,  the  rule  against  hearsay  plays  no  part.  Only  a  question  of  proving  a 
material  fact  in  the  most  natural  way  possible  is  apparently  involved.  There 
seems,  however,  to  be  much  confusion  among  the  decisions  upon  this  simple 
matter. 

§  845.  [Extrajudicial  Statements  as  Probative  Facts] ;  Bodily  Sensation.41— 
Wherever  the  existence  of  a  bodily  condition  is  a  res  gestae  or  probative  fact, 
the  extrajudicial  declarations,  articulate  or  inarticulate,  which  commonly  ac- 
company, characterize  or  tend  to  establish  the  existence,  of  such  a  bodily  con- 
dition, will  be  received  in  evidence.42  The  statement  must  be  one  of  fact, 
rather  than  of  opinion. 

.4  Matter  of  Necessity. —  Apart  from  the  incompetency  of  parties  to  testify, 
which  can  hardly  be  regarded  at  the  present  day  as  an  important  consideration, 
the  chief  necessity  for  relying  on  circumstantial  evidence,  including  extra- 

N.  Y.  Suppl.  S79   (11)00).  affirmed  167  X.  Y.  1  L.  R.  A.   ( N.  S.)   386,  51  S.  E.  748   (1905); 

163,  60  N.  E.  442   (1901  i.  Smith  v.  Birge,  126  Til.  App.  596  (1906). 

38.  Kenney  v.  PhiMipy.  91   Ind.  511   (1883).  40.  4  Chamberlayne,  Evidence,  §  2624. 
Offers  to  buy  or  sell  real  estate. —  It  has  41.  4  Chamherlayne,    Evidence,    §§    2625- 

been  said  tliat  any  evidence  of  offers  for  the  2636.  Declarations  as  to  bodily  condition, 
purchase  or  sale  of  real  estate  are  hearsay.  and  admissibility  of.  See  note,  Bender,  ed., 
unless  made  by  one  under  oath  and  subject  63  X.  Y.  196.  Expression  of  pain.  See  note, 
to  cross-examination.  Helena  Power  Trans-  Bender,  ed.,  144  X.  Y.  137.  Subsequent  dec- 
mission  Co.  v.  McLean.  38  Mont.  388,  99  Pac.  larations  as  to  past  sufferings  as  res  gestae. 
1061  (1909).  See  note.  Bender,  ed.,  151  X.  Y.  282.  316. 

39.  John  Silvey  &  Co.  v.  Tift,  123  Ga.  804,  42.  Springfield  Consol.  R.  Co.  v.  Hoeffner, 

175  111.  634,  51  X.  E.  884    (1898). 


845 


PROBATE  FORCE  OF  REASONING. 


658 


judicial  statements  used  as  facts,  in  proof  of  bodily  sensation  consists  in  the 
difficulty  of  procuring  other  evidence.43 

\Vlio  May  Testify  as  to  Statements. —  The  extrajudicial  statement  of  one 
suffering  pain  or  conscious  of  other  bodily  sensation  may,  as  well  as  his  coher- 
ent or  incoherent  ejaculation  on  the  same  subject,  be  testified  to  by  any  one 
who  heard  it.44  Accordingly,  a  wife,4'"'  parent,40  daughter,4'  nurse,4*  other 
attendant,45*  or  even  a  mere  bystander  5u  is  permitted  to  detail  statements  to 
the  court.  Even  the  declarant  himself  may  testify  as  to  his  own  statements.''1 
The  statements  may  be  articulate 52  or  inarticulate,^  excluding  inference54 
and  narrative  r>5  and  must  be  made  by  the  party,00  and  their  weight  depends 
on  whether  they  are  natural  or  feigned  OT  and  consequently  their  evidentiary 
nature  seems  greater  in  proportion  to  the  spuutaneousuess  of  the  utterances. '>s 
Hence  statements  to  physicians  for  the  purpose  of  diagnosis  and  treatment 
are  of  great  probative  force 50  as  the  inducement  to  tell  the  truth  is  great, 
although  in  some  courts  such  statements  are  received  only  when  involuntary.60 


43.  '•  If  other  persons  could  not  be  permit- 
ted to  testify  to  them,   when  the  person  in- 
jured might  be  a  witness,  there  might  often 
be    a    defect    of    proof.     The    person    injured 
might   be  unable   to   recollect  or  state   them 
by  reason  of  the  agitation  and  suffering  oc- 
casioned by  it."     Kennard  v.  Burton.  25  Me. 
39,  43   Am.  Dec.  249    (1845),  per  Shepley.  J 

44.  Rupp  v.  Howard,  114  Iowa  65.  86  X.  W. 
38    (1901). 

45.  Geiselman  v    Schmidt,  106  Md    580.  68 
Atl.  202   U907). 

46.  Western  Steel  Car  &  F.  Co.  v.  Bean,  163 
Ala   255,  50  So    1012   (1909). 

47.  Sheldon  v.  Wright,  80  Vt,  298,  67  Atl. 
807    (1907). 

48.  Green  v.  Pacific  Lumber  Co.,  130  Cal 
435,  62  Pac.  747   f  1900)  ;  Brown  v   Mt   Holly, 
69  Vt.  364,  38  Atl   69   (1897). 

49.  Bagley  v.  Mason,  69  Vt.  175,  37  Atl.  287 
(1896)  ;   Drew  v.  Sutton,  55  Vt.  586,  45  Am. 
Rep.  644   (1882). 

50.  Fondren  v.  Durfee.  39  Miss  324  (1860)  ; 
Perkins    v.    Concord    K.    Co.,    44    N.    H.    223 
(1862);   Northern  Pac.   R.  Co.  v.  Urlin,  158 
U.  S.  271.  15  S.  Ct.  840?  39  L.  ed   977  (18941. 

51.  Alexandria  v.  Young,  20  Ind.  App.  672, 
51    X.    E     109    (1898). 

52.  An  exclamation  of  a  person,  when  tak- 
ing   a    dose    of    supposed    medicine,    that    it 
burns  her  stomach,  is  admissible  on  the  trial 
of  a  oharge  of  poisoning  such  person.     State  v. 
Buck   .'Kan.  1912).  127  Pac   631 

53.  Hasenlocher   v    R    Co..   99   N    Y     136, 
137.    1    \*.  E    536    (1885).  affg.  33  Hun  664 
( !904) 


54.  Southern  Anthracite  Coal  Co.  v.  Hodge, 
99  Ark.  302,  139  S.  W.  292    (1911);   Corbett 
v.   St.   Louis,   etc.,   R.   Co,   26   Mo.   App.   621 
(1887);   Williams  v.  Great  Northern  R.  Co, 
68  Minn.  55.  70  X.  W    860,  37  L.  R.  A.   199 
(1*97);    Firkins    v.    Chicago   Great   Western 
R    Co,  61   Minn.  31.  63  X.  W.   172    (1895); 
Louisville,   etc..   R.   Co.   v.   Stacker,   86   Tenn. 
343.  6  S.  W.  737.  6  Am.  St.  Rep.  840   (  1888). 

55.  West   Chicago  St    R.   Co.   v.  Carr,   170 
111.  478,  48  X.  E.  992    (1897). 

56.  "  The  declarations  of  the  party  are  re- 
ceived to  show  the  extent  of  latent  injuries 
upon    the   person,    upon   the   general   ground 
that    such    injuries    are    incapable    of    being 
shown  in  any  other  mode  except  by  such  dec- 
larations as  to  their  effect."     State  v.  David- 
son. 30  Vt   377.  383,  73  Am.  Dec.  312  (1858), 
per  Red  field,  C.  J. 

57.  Chicago  Travelers'  Ins.  Co   y.  Mosley,  8 
Wall    (LT    S.)   397,  19  L.  ed    437   (1869). 

58.  Topeka   v.    High,   6   Kan.  App.   162,  51 
Pac.  306    (1897);   Mulliken  v.  Corunna,   110 
Mich.  212,  68  X.   W.   141    (1896);   Lewke  v. 
Dry  Dock,  etc.,  R.  Co.,  46  Hun   (N.  Y.)   283, 
11  X.  Y.  St.  Rep.  510  ( 1887  )  ;  Powers  v.  West 
Troy,  25  Hun    (X    Y.)    561    (1881)  :   Baker  v. 
Griffen,  10  Bosw.   (X.  Y.)    140   (1863)  ;  Were- 
ly  v.  Persons,  28  X.  Y.  344,  84  Am.  Dec.  346 
(1863). 

59.  Greinke  v.   Chicasro   City   Ry.   Co..   234 
111.  564,  85  X.  E.  327   (1908)  ;  afflrminfj  judg- 
ment,  136   111.  App.  77    (1007K 

60.  Kennedy  v.  Rochester  City,  etc.,  R.  Co., 
130   X.   Y.    654,   29    X.    E.    141,   3    Silv.    591 
(1891). 


659 


EXTEAJUDICIAL    STATEMENTS. 


8-i6,  847 


§  846.  [Extrajudicial    Statements    as    Probative    Facts];    Identification.61 — 

Among  the  iiu^t  common  uses  to  which  an  unsworn  statement  when  employed 
in  its  independently  relevant  capacity,  may  be  put,  is  that  of  identification*'2' 
Regarded  as  proof  of  the  facts  asserted,  the  unsworn  statement  may  possess 
no  evidentiary  value.  It  may,  however,  whenever  the  fact  is  relevant,0"  serve, 
in  a  circumstantial  way,  to  identify  a  person,"4  place,''0  or  any  article  of 
property,  real lje  or  personal."7  It  may  segregate  a  particular  transaction  from 
all  others.68  Its  existence  may  be  a  proper  fact  by  which  to  nx  a  date,09  as  for 
example  to  determine  the  time  of  a  payment. Tu  Judicial  administration  may 
properly  add  the  proviso  that  evidence  of  this  class  will  be  received  when  more 
cogent  or  conclusive  proof  cannot  be  produced.71 

§  847.  [Extrajudicial  Statements  as  Probative  Facts] ;  Mental  Condition.72 — 
An  extrajudicial  statement  may  serve,  as  few  other  things  can,  to  illustrate  the 
condition  of  the  mind  of  the  speaker.73  Distinguishing,  in  the  present  con- 


61.  4   Chamberlayne,  Evidence,  §  2637. 

62.  Blodgett  v    Park   (X.  H.  1912),  84  Atl. 
42    ( testimony  of  witness ) . 

63.  Perry  v.  Smith,  22  Vt.  301    (1850). 

64.  Maryland — See  Suman  v.  Harvey,  114 
Md.  241,  79  Atl.  187    (1911). 

Rhode  Island. —  State  v.  McAndrews,  15  R. 
I.  30,  23  Atl.  304  (1885). 

Texas.—  Keck  v.  \Yoodward,  53  Tex.  Civ. 
App.  267,  116  S.  W.  75  (1909). 

United  States. —  J.  S.  Toppan  Co.  v.  Mc- 
Laughlin,  120  Fed  705  (1903).  Statements 
by  the  victim  of  a  crime  immediately  after 
the  crime  identifying  the  criminal  are  admis- 
sible in  evidence  as  considerable  latitude  is 
always  allowed  in  questions  of  identification. 
State  v.  Kindling,  123  Minn.  413,  144  X.  \V. 
142,  49  L.  R.  A.  (X.  S. )  449  (1913).  The 
statement  of  one  who  has  been  knocked  sense- 
less by  a  robber  as  to  who  had  hit  him  made 
immediately  after  he  had  regained  conscious- 
ness is  not  admissible  as  part  of  the  res 
gestae.  Rogers  v.  State,  88  Ark.  451,  115  S. 
W.  156,  41  L.  R.  A.  (X.  S.)  857  (1908).  A 
statement  by  the  deceased  made  from  five  to 
fifteen  minutes  after  the  shooting  to  a  wit- 
ness who  had  jrone  to  give  the  alarm  and  im- 
mediately returned  is  competent  as  part  of 
the  res  gestce.  State  v.  Laboon,  107  S.  C.  275, 
92  S.  E.  622,  L.  R.  A.  1917  F  896  i  1917  I . 

66.  Hoffner  v.  Custer.  237  111  64,'  86  N.  E. 
737  (1908)  :  Simpson  v.  Blaisdell,  85  Me.  199, 
27  Atl.  101.  35  Am.  St  Rep   348  (1892)  ;  Rus- 
sell v.  Werntz,  24  Pa.  St.  337  (1855). 

67.  Pool   v.   Bridsres.   4    Pick.    (Mass.)    37  S 
(1826);    People   v.    Bowling,    84    X.    C.    478 


( 1881 )  :  Parratt  v.  Watts,  47  L.  J.  C.  P.  79, 
37   L.  T.  Rep.    iX.  S.)    755    (1878). 

68.  Earle    v.    Earle,    11    Allen    (Mass.)     1 
(1865)  ;   State  v.  Ward,  61  Vt.  153,  17  Atl. 
483     (1888);     Hill    v     Xorth,    84    Vt.    604 
(1861). 

69.  Georgia. —  Harris  v.  Central  R.  Co.,  78 
Ga.  525,  3  S.  E.  355   (1887). 

Michigan. —  Grosvenor  v.  Ellis,  44  Mich. 
452,  7  XT.  W.  59  (1880). 

.\eic  Jersey. —  Browning  v.  Skillman,  24 
X.  J.  L.  351  (1854). 

Vermont. —  State  v.  Ward,  61  Vt.  153,  17 
Atl.  483  (1888). 

70.  Mitchell  v.  Ball,  2  Harr.  &  G.    (Md.) 
159    (1828);    Bewley  v.  Atkinson,   13  Ch.  D. 
283,  49  L.  J.  Ch.  153,  41  L.  T.  Rep.    (N.  S.) 
603.  28  Wkly   Rep.  638  ( 1880 ) 

71.  Martin  v.      ,:  inson,  7  Ga    22S.  50  Am. 
Dec    403    ilSiit,       The   suggestion   has   even 
been  made  that  the  declarant  must  be  affirma- 
tively   shown    to    be    dead    if    his    unsworn 
statement    is    to    be    received.     Nehring    v. 
McMurrian.  (Tex.  Civ.  App.  1898),  46  S.  W. 
369. 

72.  4   Chamberlayne,    Evidence,    §§    2638- 
2653. 

73.  The  probative  declaration'  may  follow, 
in  case  of  a  continuous  mental  condition,  the 
precise  time  of   the  transaction   in   question. 
Piercy  v.  Piercy.   18  Cal.  App.  751.  124  Pac. 
561    (1012).     This  may  be  put  into  the  form 
of    saying    that    the    illustrative    declaration 
need  not  be  part  of  the  res  gestae.     Piercy  v. 
Piercy,  18  Cal.  App.  751,  124  Pac.  561  (1912). 


§  847 


660 


nection,  the  actual  force  and  power  of  the  mind  itself  from  proof  of  its  con- 
tents, those  mental  states  which  are  also  seen  to  be  established  by  the  relevant 
utterances  to  which  they  give  rise,  it  may  fairly  be  said  that  the  actual  con- 
stitution of  the  mind  is  often  appropriately  shown  by  these  verbal  manifesta- 
tions,74 as  in  the  case  of  declarations  by  a  testator.75  In  their  assertive  capa- 
city, as  proof  of  the  facts  which  they  declare,  the  unsworn  statements  are 
hearsay ;  76  and,  in  the  absence  of  some  special  reason  for  receiving  them,  are 
to  be  rejected.  As  a  general  rule,  narrative  statements  of  past  transactions 
which  are  without  a  circumstantially  relevant  quality  are  to  be  excluded.77 
The  statement  must  have  been  made  by  the  individual  whose  condition  is  in 
question 78  either  before,79  accompanying 80  or  after 81  the  principal  event. 
In  this  way  may  be  shown  the  mental  capacity  for  resistance,*2  mental  weak- 
ness,83 (all  of  which  may  be  shown  by  other  modes  of  proof)  84  mental  states  85 
when  relevant,80  excluding  narrative 8T  as  assent 88  or  dissent 89  belief,90  dis- 


74.  Sargent  v.  Burton,  74  Vt.  24,  52  Atl.  72 
(1901)      See  also  Thorn  v.  Cosand,  160  Ind. 

566,  67  N.  E.  257   (1903). 

75.  In  re  Cooper's  Will  75  X.  J    Eq.  177, 
71  Atl   676   (1909).     Subsequent  declarations 
of  testator  to  show  undue  influence.     See  note, 
Bender,  ed.,  151  N.  Y.   111.     Declarations  of 
testator  to  show  undue  influence  and  condi- 
tion of  his  mind.     See  note,  Bender,  ed.,  151 
N.  Y.  111. 

76.  ''  When  such   an   issue    (one  of  mental 
capacity)    is  made  it  is  one  which  relates  to 
a  state  of  mind  which  was  involuntary,  and 
over  which  the  deceased  had  not  the  control 
of  the  sane  individual,  and   his  declarations 
are  admitted,   not   as   any   evidence   of   their 
truth,   but  only  because  he  made  them,   and 
that  is  an  original  fact   from  which,  among 
others,   light  is   sought   to   be   reflected   upon 
the    main    issue    of    testamentary    capacity." 
Throckmorton  v.  Holt,  180  U   S.  573,  45  L.  ed. 
663.  21  Sup.  Ct.  474   (1900),  per  Mr.  Justice 
Peckham;   quoted  in  Lipphard  v.  Humphrey, 
209  U.  S.  272,  52  L   ed.  783,'  28  Sup.  Ct    561 

(1907). 

77.  Steel  v.  Shafer,  39  Til   App.  185  (1800)  : 
Church   of  Jesus   Christ,   etc.   v.   Watson.   25 
Utah   45,   69   Pac.   531    (1902). 

78.  People    v.    Pico.    62    Cal     50     (1882); 
Smith   v.  Hickenbottom.  57   Iowa  733,   11   N. 
W.   664    (1882):    Barker   v.   Pape,   91    N.    C. 
165    (1884). 

The  fact  of  suicide  may  be  proved  by  dec- 
larations of  the  deceased  person  of  his  inten- 
tion to  commit  suicide  when  such  declaration 
Is  made  a  short  time  before  death.  Klein  v. 
Knights  &  Ladies  of  Security,  87  Wash.  179, 


151   Pac.  241,  L.   R.  A.   1916   B  816    (1915). 

79.  In  re  Goldthrop,  94  Iowa  336,  62  N.  W. 
845,  58  Am.  St.  Rep   400  (1895)  ;  Pickens  v. 
Davis,    134    Mass.    252,    45    Am.     Rep.    322 
(1883);    Dinges   v.   Branson,   14   W.  Va.    100 
(1878). 

80.  Pickens    v.    Davis,    134    Mass.    252,    45 
Am.  Rep.  322  (1883). 

81.  Iowa. —  In  re  Goldthorp,  94  Iowa  336, 
62  X.  W.  845,  58  Am.  St.  Uep.  400  (1895). 

Minnesota. —  Pinney's  Will,  27  Minn.  280,  6 
X.  W.  791,  7  X.  W.   144    (1880) 

82.  Shiler     v.     Bumstead,     99     Mass.     112 
(1868)  ;   Herster  v.   Herster,   122  Pa.  St.  239, 
16  Atl.  342,  9  Am.  St.  Rep.  95   (1887). 

83.  Wilkinson   v    Pearson,   23   Pa.    St.    117 
(1854).     See  also  Thorn  v    Cosand,  116  Ind. 
566.  67  X.  E.  257   (1903). 

84.  McRae  v.  Malloy,  93  X.  C.  154   (1885)  ; 
Rouch  v.  Zehring,  59  Pa.  St.  74  ( 1868)  ;  Chess 
v.  Chess,  1  Penr.  &  W.  (Pa.)  32,  21  Am   Dec. 
350   (1829). 

85.  State  v.  Utley,  132  X.  C.  1022,  43  S.  E. 
820   (1903)    (intelligence  notwithstanding  in- 
toxication).    Plaintiff's   declaration    of   want 
of  affection   in   breach  of  promise  case.     See 
note.  Bender,  ed..  24  X.  Y.  253. 

86.  Mack  v.  Porter,  72  Fed.  236,   18  C.  C. 
A.  527    (1896). 

87.  Flannery  v.  Van  Tassel.  127  X.  Y.  631, 
27  X    E.  393,  3  Silvernail  456    (189M. 

88.  Acceptance  of  a  gift  may  be  shown  by 
evidence  of  declarations  to  that  effect.     Sup- 
ple v.  Suffolk  Bank,  108  Mass.  393,  84  X.  E. 
432,  126  Am.  St.  Rep.  451   (1908). 

89.  Wood  v.  Fiske.  62  X    H.   173    (1882); 
Brown  v.  State  (Tex.  Cr.  App.  1894),  28  S. 


661 


EXTRA  JUDICIAL  STATEMENTS. 


§  848 


gust  91  or  annoyance,92  duress,90  fear.94  good 95  or  bad 96  faith,  hatred,97  or 
impressions  98  produced  on  the  mind  of  the  declarant  by  certain  occurrences. 

§  848.  [Extra judicial  Statements  as  Probative  Facts;  Mental  States];  Intent 
and  Intention." —  Pre-eminent  in  importance  among  mental  states  stand  intent 
and  intention.  In  connection  with  moral  conduct,  especially  that  for  which 
criminal  sanctions  are  invoked,  intent  apparently  plays  by  far  the  more  im- 
portant role,  while  intention  seems  supreme  in  the  field  of  intellect.  How- 
ever this  may  be,  both  intent  and  intention  l  may  be  shown  by  the  use  of  extra- 
judicial  statements  of  a  person  accompanying  the  doing  by  him  of  the  act  in 
question  and  which  tend  logically  to  explain  or  characterize  it.  In  this  way 
the  fact  that  persons  intended  to  enter  upon  a  journey  may  frequently  be  es- 
tablished by  their  unsworn  statements,2  proof  occasionally  extending  even  to 
facts  incidentally  asserted.3  Statements  of  the  intention  of  the  testator  made 
before  or  after  the  execution  of  his  will  are  generally  received  in  England  4  but 
not  in  this  country.5  The  admissibility  of  the  statements  may  well  depend  on 


W.  536;  Evarts  v.  Young,  52  Vt.  329   (1880). 

90.  Ferguson  v.  Boyd,  169  Ind.  537,  81  N. 
E.    71,    82   N.    E.    1064    (1907). 

91.  Kearney  v.   Farrell,  28  Conn.   317,   73 
Am.  Dec.  677    (1859). 

92.  Gloystine   v.   Com.,    33    S.    W.    824,    17 
Ky   L.  Rep.  1187   (1896). 

93.  Wills  cannot  be  impeached  by  the  sub- 
sequent declarations  of  the  testator  concern- 
ing   duress    although    his    contemporaneous 
statements  may  be  received  as  this  would  be 
allowing  revocation  in  a  way  not  permitted  by 
the  statute.     Jackson  v.  Kniffen,  2  Johns.  (X 
Y.)    37.    3    Am.    Dec.    300    (1806):    Earp    v. 
Edgington,  107  Tenn.  23.  64  S.  W   40   (1901). 

94.  Barney  v.  Quaker  Oats  Co.,  82  Atl.  113 
(1912). 

95.  Robson  v    Hamilton,  41   Oreg.   230.   60 
Pac.  651    (1902). 

96.  Goldstein  v    Morgan,  122  Iowa  27,  96 
X.    W.    897    (1903)     (fraud   in   execution   of 
bill  of  sale) 

97.  "  The   usual   expressions    of   such    feel- 
ings are  original  evidence,  and  often  the  only 
proof   of   them   which   can   be   had."     Jacobs 
v     Whitcomb,    10    Cush.     (Mass.)     255.    257 
( 1 852 ) .  per  Bigelow,  J. 

98.  Kearney   v.   Farrell,   28   Conn    317,   73 
Am.  Dec.  677   (1850)    (complaints  of  odors  in 
an  action  for  a  nuisance). 

99.  4  Chamberlayne,    Evidence,    §§     2654- 
2661. 

1.  People  v.  Conklin,  157  X.  Y.  333.  67  X. 
E.  624   (1903). 

2.  Northwestern   Redwood   Co.  v.   Dickson, 


13  Cal.  App.  689.  110  Pac.  591  (1910),  per 
Hart,  J.  A  statement  made  by  one  at  eight 
o'clock  in  the  evening  as  to  where  he  intended 
to  spend  the  night  are  not  part  of  the  res 
gestae  to  show  his  intention  in  leaving  his 
home  at  ten  o'clock  as  the  statement  is  not 
contemporaneous,  with  the  act  Foster  v. 
Shepherd,  258  111.  164.  101  X.  E.  411,  45  L. 
R.  A.  (X  S.)  167  (1913). 

3.  Inness  v.  R.  Co.,  168  Mass.  433.  47  N.  E. 
193     ( 1897 )  :    Matthews    v.    Great    Northern 
R    Co,  81  Minn.  363.  84  X.  YV.  101,  83  Am. 
St.  Rep.  383  (1900)  ;  Lake  Shore,  etc.,  R.  Co. 
v.   Herrick,   49   Ohio   St    25,   29    X    E     1052 
(1892).     But  compare  Chicago,  etc.,  R.   Co 
v.    Chancellor,    165    111.    438.    46    X.    E.    269 
(1897). 

4.  "  The  declarations  which  are  made  be- 
fore the  will  are  not,  I  apprehend,  to  be  taken 
as  evidence  of  the  contents  of  the  will  which 
is  subsequently  made  —  they  obviously  do  not 
prove  it;  and  wherever  it  is  material  to  prove 
the   state   of  a   person's   mind,  or  what   was 
passing  in  it.  and  what  were  his  intentions, 
there  you  may  prove  what   he  said,  because 
that   is   the   only   means   by   which   you   can 
find  out  what  his  intentions  were  "     Sugden 
v.  St.  Leonards,  L.  R    1  P.  D.  154.  251   (1876), 
per  Mellish,  L.  J.     See,  however,  Throckmor- 
ton  v.  Holt,  180  U    S.  552.  21   Sup.  Ct    474, 
45  L.  ed.  663   (1901). 

5.  Gordon's   Will,   50   X'.   J.    Eq     307.   424, 
26  Atl.  268   (1802)  :  Grant  v.  Grant.  1  ^andf. 
Ch     (X.  Y  )    235.  237   (1844) 

Some  American  courts  follow  the  English 


849 


PBOBATE  FORCE  OF  SEASONING. 


662 


their  probative  weight  as  whether  made  without  motive  to  falsify  6  but  may 
have  a  wide  scope  7  when  the  mental  condition  at  the  time  is  relevant 8  even 
in  criminal  eases9  and  although  self-serving10  but  excluding  narrative.11 

§  849.  [lExtra  judicial  Statements  as  Probative  Facts] ;  Illustrative  In- 
stances.12—  The  mental  state  of  intent  or  intention,  being  relevant  in  many 
connections  to  determine  the  nature,  purpose  or  quality  of  an  act,13  only  occa- 
sional instances,'  illustrative  of  the  rule  now  under  consideration,  can  well  be 
given.  Wherever  the  psychological  fact  is  admissible,  the  extrajudicial  state- 
ment fairly  indicative  of  its  existence  may  be  received  as  a  legitimate  means  of 
proving  it.  But  on  the  contrary,  should  the  mental  state  itself  be  immaterial, 
as  where  the  law  affixes  consequences  regardless  of  the  intent  or  intention  with 
which  the  act  was  done,  the  unsworn  declaration  is  rejected,14  not  because  the 
extrajudicial  statement  is  not  a  proper  method  of  proving  the  fact  but  because 
the  latter  itself  cannot  be  proved.  For  admissibility,  it  is  of  course  essential 
that  the  unsworn  statement,  oral 1B  or  in  writing10  should  constitute  a  relevant 


rule.  McDonald  v  McDonald,  142  Ind.  55, 
41  X  E.  336  (  1895)  ;  Lane  v.  Hill,  68  N.  H. 
275,  44  Atl  393,  73  Am.  St.  Rep.  591  (1895). 

6.  Rogers  v  Manhattan  L.  Ins  Co.,  138  Cal. 
285,  71  Pac.  348  ( 1903)  ;  Thorndike  v.  Boston, 
1  Mete.  (Mass.)  242  (1840)  ;  Hunter  v.  State, 
40  N    J    L.  495    (1878);   Mutual  L    Ins.  Co. 
v.  Hillmon.  145  U.  S.  285,  12  S.  Ct    909,  36 
L    ed    706    (1892). 

7.  Walker  v.  State,  85  Ala.  7,  4  So.  686,  7 
Am.  St.  Rep.  17   (1887);  Durling  v   Johnson, 
32  Ind     155    (1869);   Jones  v.   Brownfield,   2 
Pa   St  55  (1845)  ;  Glass  v.  Bennett,  89  Tenn. 
478.  14  S.  W.  1085  (1891) 

8.  Com.  v.  Felch,  132  Mass.  22   (1882). 

9.  Indiana.—  Grimes  v.  State,  68  Ind.  193 
(1879). 

Tennessee  —  Garber  v.  State,  4  Coldw.  161 
(1867). 

United  States.— \J.  S.  v.  Craig,  Fed.  Cas. 
No  14.883,  4  Wash  C.  C.  729  (1827). 

10  Wilson  v.   State,  33  Ark.  557,  34  Am. 
Rep.   52    (1878);    State  v.   Abbott,  8  W.  Va. 
741    (1875) 

11  Flannery  v.  Van  Tassel,  127  N.  Y   631, 
27  X.  E.  393,  3  Silvernail  456    (1891).     The 
purpose  of  an  employee  in  starting  a  machine 
may   not   be   shown   by   his   statement   made 
twenty  minutes  after  the  accident   while  he 
was  being  carried  to  the  hospital  as  this  is 
not  part  of  the  res  gestae.     It  is  mere  nar- 
rative and   not  spontaneous  statement.     Ber- 
nard   v    Grand   Rapids   Paper   Box   Co.,    170 
Mich   238,  136  N   W.  374,  42  L.  R.  A.   (N.  S.) 
930    (1912).     Statements  of  the  plaintiff  as 


to  why  he  was  where  he  was  prior  to  the 
accident  are  not  admissible  as  part  of  the 
res  gestae  although  made  immediately  after 
the  accident  as  they  were  not  part  of  the  ac- 
cident did  not  characterize  it  nor  throw 
any  light  upon  it,  but  were  purely  narrative 
giving  an  account  of  a  transaction  wholly 
past,  and  depending  for  their  truth  wholly 
upon  the  accuracy  and  reliability  of  the  de- 
ceased and  the  verity  of  the  witness  who 
testified  to  it.  Hobbs  v.  Great  Northern  R. 
Co.,  80  Wash.  678,  142  Pac.  20,  L.  R.  A.  1915 
D  503  (1914).  Declarations  by  one  killed 
on  the  railroad  track  that  he  would  throw 
himself  in  front  of  a  train  when  he  was 
ready  to  die  are  not  admissible  as  evidence  of 
suicide  Greenacre  v.  Filby,  276  111  294, 
114  N.  E.  536,  L.  R.  A.  1918  A  234. 

12.  4   Chamberlayne,    Evidence,    §§     2662- 
2665. 

13.  Fossion  v.  Landry,  123  Ind.  136,  '>4  N. 
E.  96    (1890);    State  v.  Cross,  68  Iowa  180, 
26   N.   W.    62    (1885);    State   v.    Shelledy,    8 
Iowa  477    (1859). 

14.  Fitzpatrick  v.  Brigman,  130  Ala.  450.  30 
So.  500   (1901);  Germain  v.  Central  Lumber 
Co.,    116   Mich.   245,   74   N.   W.   644    (1898): 
Phoenix  Mills  v.  Miller,  42  Hun  654,  4  N.  Y. 
St.  Rep.  787    (1886);  Patterson  v.  Smith,  73 
Vt   360,  50  Atl.  1106   (1901). 

15.  Zimmerman  v    Brannon,  103  Iowa  144, 
72  X.  W.  439   (1897)  ;  Haywood  v.  Foster,  16 
Ohio  88  (1847)  ;  Cullmans  v.  Lindsay,  114  Pa. 
St.  166,  6  Atl.  332  (1886). 

16.  Willingham   v.    Sterling   Cycle   Works, 


663  EXTRA  JUDICIAL  STATEMENTS.  §  850 

manifestation  of  the  particular  intent  or  intention.     Otherwise,  the  utterance 
is  irrelevant,  i.e..  is  not  evidence  at  all. 

Subject  to  these  considerations  statements  as  to  intention  have  been  received 
to  show  abandonment,17  an  act  of  bankruptcy  18  delivery  19  as  in  case  of  a 
gift,2"  or  domicile.21 

§  850.  [Extra judicial   Statements   as  Probative  Facts] ;   Knowledge.22 —  Few 

mental  states  are  of  greater  importance  in  the  view  of  the  law  than  that  of 
knowledge. 

Statement  to  A. —  Extra  judicial  statements  containing  relevant  informa- 
tion, or  capable  of  conveying  it,  which  have  been  made  to  one,  say  A,  who  sub- 
sequently acts  in  the  matter,  may  be  received  for  the  purpose  of  showing  the 
extent  of  his  knowledge  at  a  given  time.23  That  the  statement  should  have 
been  made  directly  to  A  himself  is  by  no  means  required.  The  rule  is  satis- 
fied if  it  is  shown  that  an  unsworn  declaration  covering  the  fact  in  question 
was  in  some  way  brought  to  his  attention.24 

Statements  by  A. —  Where  the  existence  of  the  psychological  fact  of  knowl- 
edge on  the  part  of  A  is  relevant  it  may  be  established  not  only  by  the  extra- 
judicial  statements  made  to  him  by  others  but  by  the  unsworn  declarations 
which  he  himself  may  make.  In  this  way,  not  only  may  A's  knowledge  but 
his  lack  of  it  25  be  shown.  The  statement  is  equally  competent,  though  shown 
to  be  false.26 

In  the  same  way  general  knowledge  on  the  part  of  A  27  or  knowledge  by 
others  2S  or  reputation  29  may  be  shown  as  evidence  of  A's  knowledge. 

113  Ga.  953,  39  S.  E.  314    (1901)  ;  Sutter  v.  X.  Y.   623,  59  X.  E.    1121    (1900)  ;   Titus  v. 

Rose,  169  111.  66,  48  X.  E.  411   (1897)  :  Kings-  Gage,  70  Vt.   13,  39  Atl.  246    (1896). 

ford  v  Hood.  105  Mass.  495  ( 1870)  ;  Raymond  24.  Boston  Woven  Hose.  etc..  Co.  v.  Kendall, 

v.  Richmond,  88  X.  Y.  671   (1882).  178  Mass.  232,  59  X.  E.  657.  51  L.  R.  A.  781. 

17.  Union  Oil  Co   v   Stewart,  159  Cal.  149,  86  Am.  St.  Rep.  478  (1901). 

110  Pac.  313   (1910).  25.  Kruter  v.  Bomberger,  82  Pa.  St.  59,  22 

18.  Cornelius   v.    State.    12    Ark.    782,   806      Am    Rep    750   (1876). 

(1852).  26.  Jones  v.  State,   103  Ala.    1,  15  So.  891 

19.  Holcomb   v    Campbell,   42   Hun   398,   4       (1894). 

X.   Y    St.   Rep.   799,  affirmed  118  N".  Y.  46,          27.  Putnam  v.  Gunning.  162  Mass    552.  39 
22  X.  E.   1107    (1886).  X    E.  347   (1895)    (circulation  department  of 

20.  Leitch  v.  Diamond  Xat    Bank  of  Pitts-      newspaper  containing  statement). 

burgh    (Pa    1912),  83  Atl    416:    Schauer  v.  28.  Knowledge  of  his  family.— Covington 

Von   Schauer    (Tex.   Civ.   App.   1910).   138  S.  v.  Geyler.   12  Ky.  L    Rep.  466    (1890);   Hart 

W.  Mr,.  v.  Xewland,  10  X   C.  122  (1824). 

21.  Matter  of  Xewcomb.  192  X.  Y    238.  84  29.  Woods    v.    Montevallo    Coal,    etc.,    Co., 
X.  E.  950    (1908).  affirming  order  107  X.  Y.  84   Ala.   560.  3   So    475,  5   Am.   St.  Rep.  J 
Suppl.  1139,  122  App  Div.  920  (1907)  (1888);     Stalling*    v     State.    33    Ala.    - 

22.  4  Chamberlayne,     Evidence,     §§     2666-  (1859):  Ward  v.  Herndon,  5  Port.  (Ala.)  382 
2670.  (1837):   Chase  v.  Lowell.   151  Mass    422,  24 

23.  State  v.  Grote.   109  Mo    345.  19  S.  W.  N.  E.  212   (1890)  :  Browning  v.  Skillman.  24 
93    (1891):   State  v.  Jones.  50  X.  H.  369.  9  X    J.   L.    351    (1854);    Adams  v.   State,   25 
Am.  Rep.  242   (1871)  ;  Darling  v.  Klock,  165  Ohio  St.  584   (1874). 


§§  851,852 


PROBATE  FORCE  OF  REASONING. 


664 


§  851.  [Extrajudicial  Statements  as  Probative  Facts] ;  Illustrations.30 —  Extra- 
judicial  statements  may  be  used  to  show  motive  as  love  or  friendship,31  mal- 
ice,32 or  other  motive  33  or  provocation  34  or  the  reasons  assigned  for  certain 
conduct.35  The  existence  and  etfect  of  undue  influence30  may  also  be  shown 
by  such  statements  or  willingness  to  do  any  particular  act.'5'. 

Such  statements  may  also  be  used  to  show  political  opinions  '^  but  moral 
qualities  can  be  proved  only  by  evidence  of  reputation  under  a  rule  of  .sub- 
stantive law.39 

§  852.  [Independent  Relevancy  of  Unsworn  Statements] ;  Extrajudicial  State- 
ments as  Deliberative  Facts.40 —  The  independent  relevancy  of  unsworn  state- 
ments may,  however,  be  not  only  constituent  or  probative  in  its  nature  but  also 
deliberative.  In  other  words,  the  extrajudicial  declaration  may  not  only 
constitute  an  element  in  the  right  or  liability  placed  in  issue  by  the  pleadings 
or  tend  to  prove  the  existence  of  a  res  gestae  fact,  but  its  office  may  be  to  assist 
the  tribunal  in  weighing  the  probative  force  of  more  individually  significant 
evidence.  Statements  or  other  facts  employed  in  this  deliberative  way  may 
come  to  the  tribunal  within  the  time  or  space  limit  of  the  res  gestae  or  in  con- 
nection with  probative  facts.  Their  relevancy,  however,  never,  on  this  account 
becomes  constituent  or  probative  but  remains  at  all  times  simply  deliberative. 
Such  statements  may  be  used  to  show  bias,41  or  to  corroborate  the  evidence 
of  the  witness42  or  to  fix  his  attention48  or  refresh  his  memorv  44  or  to  show 


30.  4  Chamberlayne,    Evidence,    §§    2671- 
2678. 

31.  McKenzie  v.  Lautenschlager,  113  Mich. 
171,  71  X   W.  489  (1897). 

32.  Knapp  v.  Wing,  72  Vt.  334,  47  Atl.  1075 
(1900). 

33.  White  v.  East  Lake  Land  Co  ,  96  Ga. 
415,  23  S.  E.  393,  51  Am.  St.  Rep    141   (1895). 

34.  People  v.   Lewis,  3   Abb.   Dec.    (X.  Y.) 
535,  3  Transcr.  App.    (N.  Y.)    1,  6  Abb.  Pr. 
N.  S.  (N.  Y.)   190,  41  How  Prac.  508  (1867)  ; 
Green  v.  Cawthorn,  15  X.  C.  409  (1834). 

35.  Wilkinson   v.   Service,   249   Til.    146,   94 
N.  E.  50,  22  Am.  &  Eng.  Ann.  Cas.  41   (1911). 
Where  a  deed  is  attacked  as  being  made  in 
fraud  of  creditors  the  statements  of  the  grant- 
ors at  the  time  the  deed  was  drawn  are  not 
admissible  in  evidence  to  show  their  purpose 
in  signing  it,  especially  when  they  can  both 
testify.     The  statements  are  not  part  of  the 
res  gestae.     Johnston  v.  Spoonheim,  19  N.  D. 
191,  123  N.  W.   830.  41   L.   R.   A.    (N.   S.)    1 
(1909). 

36.  Hagar  v.  Norton,  188  Mass.  47,  73  X.  E. 
1073   (1005). 

Declarations  of  a  beneficiary  which  are  so 
connected    with   the   making    of   the   will   in 


point  of  time  and  circumstance  as  to  give 
color  thereto  will  be  received  in  evidence  as 
part  of  the  res  gestae  upon  the  issue  of  fraud 
and  undue  influence.  James  v.  Fairall  ( Iowa 
1912),  134  N.  W.  608. 

37.  Long   v.   Rogers,   17   Ala.   540    (1850); 
Walter  v.  Victor  G.  Bloede  Co.,  94  Md.  SO,  50 
Atl.    433    (1901):    Evans   v.   Jones,   8    Yerg. 
(Tenn.)  461    (1835). 

38.  Extrajudicial    statements   indicative  of 
political  opinions  may  be  contained  in  a  ser- 
mon.    Rosewell's  Trial,  10  How.  St.  Tr.  214 
(1864). 

39.  Boies  v.  McAllister,  12  Me.  308  (.1835)  ; 
Hart    v.    Reynolds,     1     Heisk      (Tenn.)     208 
(1870).     Should  evidence  of  character  be  ir- 
relevant  or  otherwise  inadmissible,  proof  of 
•eputation  cannot  be  made.     Baldwin  v.  West- 
ern R.  R.  Corp..  4  Gray   (Mass.)    333    (1855) 
(careless) . 

40.  4  Chamberlayne,     Evidence,     §§     2679- 
2685. 

41.  Potter  v.  Brown,  197  X.  Y    288,  90  N. 
E.  812.  91  X.  E.  1119,  reversing  125  App.  Div. 
640,    109   X.   Y     Suppl.    1075    (1910). 

42.  Gill  v.  Stayer,  93  Md.  453,  49  Atl.  650 
(1901). 


665  UNSWORN  STATEMENTS.  §§   853-855 

his  good  or  bad  faith  45   or  to  identify   a   date  40   or  to   impeach   the  wit- 
ness.4' 

§  853.  [Independent  Relevancy  of  Unsworn  Statements];  Form  of  Statement; 
Oral.48 —  The  independently  relevant  statement,  i.e.,  the  extrajudieial  declara- 
tion grounding  some  other  inference  than  that  of  its  truth  may  be  accepted  by 
judicial  administration  as  is  abundantly  seen  passim,  either  in  oral  4!)  or  in 
written  form.  Included  among  these,  may  be  the  self-serving  declarations  of 
third  persons.5" 

The  statement  may  be  in  any  form,  as  in  a  record,51  or  note  52  or  even  in  a 
newspaper.53 

§  854.  [Independent  Relevancy  of  Unsworn  Statements];  Reputation.54 — As 
reputation  —  the  composite  extrajudieial  statement  in  which  the  individual 
voices  are  lost  —  may  be  treated  as  a  form  of  hearsay  as  evidence  of  the  facts 
asserted,  so  equally  it  may  be,  in  certain  connections,  regarded  as  an  extra- 
judicial  statement  independently  relevant.  For  example,  the  existence  of  a 
given  reputation  with  regard  to  a  certain  person's  habits  of  drunkenness  may 
.  be  admissible  —  as  bearing  upon  the  reasonable  nature  of  the  conduct  of  an- 
other in  employing  him  or  continuing  to  employ  him  in  a  position  of  responsi- 
bility 55  reposing  confidence  in  him,50  as  shown  by  entrusting  him  with  prop- 
erty.57 In  much  the  same  way,  the  existence  of  a  reputation  may  be  an  inde- 
pendently relevant  fact  bearing  on  the  question  as  to  whether  proper  judgment 
was  exercised  in  the  selection  of  a  trustee  5S  or  the  like.  In  short,  in  many  con- 
nections the  existence  of  a  given  reputation,  while  not  probative  as  to  its  truth, 
is  of  evidentiary  value  in  deciding  as  to  whether  one  who  knew  of  it  acted  with 
due  and  proper  care  in  doing  as  he  actually  did.59 

§  855.  [Independent  Relevancy   of   Unsworn  Statements] ;   Libel,   etc.60 —  In 

43    State   v.   Nordstrom,   7   Wash.   506.   35  Co.,   116  La.  324.  40  So.  324   (1906)    (inven- 

Pac    382    (affirmed  164  U.  S.  705,   17   S.  Ct.  tory). 
997,  41  L    ed.  1183    I  1893).  52.  McCann  v.  Preston,  79  Md.  223,  28  Atl. 

44.  Howser  v.  Com..  51  Pa.  St.  332   (1865).  1102   (1894). 

45.  Cowen  v.  Bloomberg  69  N.  J.  L.  462,  55  53.  Jewell  v.  Jewell,   1  How.    (U.  S.)    219, 
Atl.  36   (1903).  11    L.  ed.   108    (1843). 

46.  McXitt    v.    Henderson,    155    Mich.    214.  54.  4  C'hamherlayne,  Evidence.  §  2688. 
118  X.  W.  974,  15  Detroit  Leg.  X   987  H908).  55.  Fitch  v.  Woodruff,  etc.,  Iron  Works.  29 

47.  Grill   v.   O'Dell,    113   Md.    625.   77    Atl.  Conn.  82   (I860)  ;  Plummer  v.  Ossipee,  59  X. 
784   11910)  H.  55   (1879). 

48.  4  Chamberlayne.     Evidence.     §§     26S6,  56.  Monahan  v    Worcester,   150  Mass.  439, 
2687.  23  X.  E.  228.  15  Am.  St.  Rep.  226   (1890). 

49.  Dodge  v.  Weill,  158  X.  Y.  346,  53  X.  E.  57.  Ficken  v.  Jones,  28  Cal    618   (1865). 
33   (1899).                                                                            58.  Holmberg  v    Dean.  21  Kan.  73    (1878). 

50.  South  Hampton  v.  Fowler,  54  X.  H.  197  59.  People  v.  Anderson,  39  Cal.  703  (1870)  ; 
(1874).  Wormsdorf  v.  Detroit  City  R.  Co.,  75  Mich. 

51.  Darmitzer   v    German    Sav .   etc.,    Soc.,  472.    42   X.    W.    1000,    13    Am.    St.   Rep.   453 
23  Wash.  132,  62  Pac.  862  affirmed  192  U.  S.  (1889)  :   Williford  v.  State.  36  Tex.  Cr.  414, 
125,  24  Sup.  Ct.  221,  48  L.  ed.  373   (  1900)  37  S.  W.  761    ( 1896) . 

In  its  assertive  capacity,  such  a  statement          60.  4  Chamberlayne,  Evidence,  §  2689. 
is  merely  nearsav.     Melancon  v.  Phoenix  Ins. 


§  856  PROBATE  FORCE  OF  REASONING.  666 

cases  involving  injury  to  reputation  like  libel  and  slander  61  it  may  be  proved 
as  a  fact  both  to  show  libel  and  to  prove  damage ti2  and  the  defendant  in  such 
cases  may  mitigate  the  damages  by  showing  the  absence  of  a  good  reputation  6c 
or  that  it  was  already  impaired  by  unfavorable  rumors.**4 

The  court  presumes  in  the  absence  of  evidence  that  parties  have  a  good  repu- 
tation.65 Reputation  may  be  a  probative  fact  as  in  cases  of  malicious  prose- 
cution 6G  or  prosecutions  for  running  a  house  of  ill-fame.1'7 

§  856.  [Independent  Relevancy  of  Unsworn  Statements] ;  Administrative  De- 
tails.68—  There  is  great  danger  that  unsworn  statements  of  this  character  may 
be  misused  by  the  jury  as  evidence  of  the  facts  stated,  and  therefore  the  court 
may  well  refuse  to  admit  them  even  in  cases  where  they  seem  to  be  logically 
proper.69  The  court  must  also  see  before  admitting  the  statement  that  it  is 
objectively  7U  and  subjectively  relevant.  The  reporting  evidence  must  also 
be  competent,  made  by  one  with  adequate  knowledge  71  with  no  motive  to  mis- 
represent.72 

61.  The  reputation  is  the  general  standing          65.  O'Brien  v.  Frasier,  47  N.  J.  L.  349,  1 
of  the  person  affected  in  the  community  de-       Atl.  465,  54  Am.  Rep.  170  (1885). 

void  of  limitations  to  any  particular  trait  of  66.  Woodwork  v.  Mills,  61  Wis.  44,  20  N. 

character.     Leonard     v.      Allen,      11      Cush.  W.  728,  50  Am.  Rep.  135   (1884). 

(Mass.)  241   (1853).  67.  State  v.  Smith,  29  Minn.  193,  12  N.  W. 

62.  Stow  v.  Converse,  3  Conn.  325,  8  Am.  524   (1882) 

Dec.  189  (1820)  ;  Adams  v.  La wson,  17  Gratt.  "*•    4  Chamberlayne,     Evidence,     §§     2694- 

iVa.)    250,    260,   94    Am.   Dec.    455    (1867);  2697. 

Shroyer  v.  Miller,  3  W.  Va.   158    (1869).  c9.   R.   v.    Bedingfield.    14   Cox   Cr.   C.    341 

63.  Leonard  v   Allen,  11  Cush.   (Mass.)  241  (1879). 

(1853).  70.  Brannen  v.  U.  S.,  20  Ct.  Cl.  219  ( 1885) . 

64.  Holley  v    Burgess,  9  Ala.  728    (1846).  71.  Brannen  v   U.  S.,  20  Ct.  Cl.  219  (1885). 
Contra.     It  is  not  material  that  the  rumors          72.  Powell  v.  Henry,  96  Ala.  412,  11  So.  311 

are  to  the  same  effect  as  the  words  alleged  to  (1892);  Xourse  v.  Nourse.  116  Mass.  101 
be  slanderous.  Proctor  v.  Houghtaling,  37  (1874);  Crounse  v.  Fitch.  1  Abb.  Dec.  45,  6 
Mich.  41  U877).  Abb.  Pr.  (N.  S.)  185  (1868). 


CHAPTER  XXXVIII. 

UNSWORN  SXA1EAIENTS;  HEARSAY. 

Unsworn  statements;  hearsay,  857. 

antiquity  of  rule,  858. 
Hearsay  rule  stated,  859. 

a  controlling  rule;  an  absolute  bar,  860. 

statutory  exceptions,  861. 

hearsay  memoranda  refreshing  memory,  862. 

implied  hearsay,  863. 

knowledge  based  on  reputation,  864. 

y  r  , 

testimony  based  on  hearsay,  865. 
Seasons  for  hearsay  rule;  inherent  weakness,  866. 

distrust  of  the  jury;  hearsay  in  other  judicial  systems,  867. 
Scope  of  hearsay  rule,  868. 
Relevancy  of  hearsay,  869. 
objective  relevancy,  870. 
subjective  relevancy,  871. 
Form  of  hearsay,  872. 

composite  hearsay,  873. 
reputation,  874. 
rumor,  875. 
tradition,  876. 
printed,  877. 
written,  878. 

official  statements;  admissions,  879. 

§  857.  Unsworn  Statements;  Hearsay.1 — Having  considered  in  the  preceding 
chapter  the  use  in  evidence  of  the  unsworn  statement  in  its  independently  rele- 
vant capacity,  we  are  better  prepared  to  examine  the  action  of  judicial  adminis- 
tration in  dealing  with  the  Rule  against  Hearsay,  the  employment  of  the  extra- 
judicial  declaration  as  proof  of  the  facts  asserted  in  it.  No  rule  of  procedure 
in  connection  with  the  law  of  evidence  is  more  familiar  or  more  frequently 
invoked  than  that  which  excludes,  as  evidence  of  the  facts  alleged,  the  reported 
statement  of  a  person  not  sworn  as  a  witness. 

Independently  Relevant  Statements  and  Hearsay  Declarations  Contrasted. — 
The  true  distinction  between  the  two  seems  to  lie  in  the  manner  in  which  the 
subjective  relevancy  of  the  extrajudicial  statement  is  viewed  in  the  respective 

1.  4  Chamberlayne.  Evidence,  §  2698. 

667 


UNSWORN  STATEMENTS.  668 

(iuimections.  In  other  words,  as  to  the  degree  of  trust  and  confidence  which, 
we  are  called  upon  to  repose  in  the  speaker  himself,  a  necessary  line  of  demarca- 
tion is  presented.  In  case  of  the  independently  relevant  statement,  this  trust 
in  the  speaker  may  be  very  little.  The  question,  for  example,  being  as  to 
whether  A  knew  a  given  fact,  it  may  properly  be  shown  that  a  particular  state- 
ment was  made  to  him.  Whether  the  declarant  knew  anything  as  to  the  truth 
of  the  matter  is  not  material.  Reading  from  a  newspaper  by  one  utterly  igno- 
rant on  the  subject  would  be  entirely  sufficient.  When,  however,  an  effort  is 
made  to  show  that  the  assertion  made  to  A  is  true  in  point  of  fact,  a  different 
situation  is  at  once  presented.  We  are  asked  to  believe  the  declarant,  to  feel 
that  an  assertion  is  true  because  the  speaker  declares  it  to  be  so.  If  this 
mental  reliance  is  to  come  into  being,  we  must  feel  confident  on  at  least  two 
points.  (1)  The  speaker  knows  what  he  is  talking  about.  (2)  He  is  truly 
stating  the  fact  as  he  understands  it  to  be. 

§  858.  [Unsworn  Statements;  Hearsay];  Antiquity  of  Rule.2 — Until  a  com- 
paratively recent  period,  the  reception  of  extrajudicial  statements  in  proof  of 
the  facts  asserted  was  a  matter  of  course.3  This  was  conspicuously  true  of 
the  early  jurors  who  customarily  used  their  own  knowledge  drawn  in  part  from 
common  reputation,  rumors,  and  extrajudicial  declarations  of  all  kinds  sub- 
mitted by  the  parties 4  or  gathered  by  the  jurors  themselves.5 

Practically,  in  its  modern  form,  the  rule  excluding  hearsay  dates  from  the 
early  part  of  the  18th  century  6  although  occasional  rulings  to  the  same  effect 
may  be  found  somewhat  earlier.7 

Corroboration. —  The  true  administrative  position  of  hearsay,  when  relevant 
as  secondary  evidence,  was  early  recognized  in  English  practice,  that  when  a 
case  had  been  established  by  the  use  of  less  objectionable  evidence,  hearsay 
statements  could  be  received  for  purposes  of  corroboration  or  confirmation.8 

2.  4  Chamberlayne,   Evidence,   §   2699.  6.  Canning's  Trial,  19  How.  St.  Tr.  283,  3S3 

3.  The  judicial  opinion  that  the  formation  (1754);    L.   C.  Macclesfield's  Trial,   16   How. 
of  the  rule  against  hearsay  extends  "back  to  St.  Tr.  767   (1725)  ;  Bishop  Atterbury's  Trial, 
Magna  Charta,  if  not  beyond  it,"  seems  hardly  16   How.   St.   Tr.   323    (1723):    Earl   of  Win- 
justified  by  facts.     Anderson  v.  State,  89  Ala.  toun's  Trial,  15  How.  St.  Tr.  805  (1716)  :  Cap- 
12,  14.  7  So.  429   (188!)),  per  Stone,  C.  J.  tain  Kidd's  Trial.  14  How.  St.  Tr.  147  (1701). 

4.  "  It   was   regarded   as  the   right   of   the  Hearsay  is  excluded  "  on  the  principal  reason, 
parties  to  '  inform  '  the  jury,  after  they  were  that  hearsay  evidence  ought  not  to  be  admit- 
empanelled    and    before    the    trial."     Thayer,  ted.  because  of  adverse  party's  having  no  op- 
Prelim.  Treat,  on  Ev.,  p.  92.  portunity   of   cross-examining."     Annesley   v. 

5.  "Some   of   the   verdicts   that   are   given  Anglesea,  17  How.  St.  Tr.  1139,  1161    (1743). 
must  be   founded  upon   hearsay  and   floating  7.  Busby's     Trial,     8     How.     St.     Tr.     525 
tradition.     Indeed  it  is  the  duty  of  the  jurors,  (1681  )  ;  Anderson's  Trial,  7  How.  St.  Tr.  811 
so  soon  as  they  have  been  summoned,  to  make  (1680)  -.   Samson  v.  Yardly  &  Tottill.  2  Keb. 
inquiries  about  the  facts  of  which  they  will  223    (1668);    Ireland's  Trial,  7  How.  St.  Tr. 
have    to    speak    when    they   come   before    the  79    (1678). 

court.     They    must    collect    testimony,    they  8.  Fenwick's    Trial,    13    How.    St.    Tr     537 

must  weigh  it  and  state  the  net  result  in  a  (1696)  -.    fold's    Trial.    12    How.    St.   Tr.    875 

verdict."     2  Pollock  &  M.,  Hist,  of  Eng.  Law,  (1692)  ;   Lord  Russell's  Trial.  9  How.  St.  Tr. 

622.  577    (1683).     See,   also,   Braddon's   Observa- 


669 


HEARSAY  RULE. 


§  859 


Depositions. —  The  use,  in  England,  of  extrajudicial  sworn  statements,  decla- 
rations under  oath  as  to  which  the  person  against  whom  they  were  offered  had 
had  no  opportunity  of  cross-examination,  continued,  as  is  seen  elsewhere,  prin- 
cipally in  the  form  of  depositions,  somewhat  later  than  the  judicial  employ- 
ment of  hearsay  statements  where  neither  oath  nor  cross-examination  served 
as  a  guaranty  for  truth.9 

§  859.  Hearsay  Rule  Stated.10 —  The  rule  against  hearsay,  though  thus  seen 
to  be  of  but  comparatively  recent  origin,  is  the  characteristic  anomaly  of  the 
English  law  of  evidence.  Except  when  covered  by  some  recognized  exception, 
no  extrajudicial  statement  can  be  received  as  proof  of  the  facts  asserted  in  it.11 

Official  Duty. —  In  the  absence  of  special  circumstances,12  an  unsworn  state- 
ment does  not  become  admissible  merely  because  made  in  the  course  of  official 
duty.13 

Opinion. —  That  the  unsworn  statement  takes  the  form  of  an  opinion  does 
not  insure  its  admissibility.14 

Understanding. —  A  person's  understanding  in  regard  to  a  certain  matter  15 
as.  for  instance,  who  owns  certain  land  16  or  the  cause  of  another's  illness  17 
will  not  be  received. 

Telephone  Communications. —  Evidence  as  to  what  a  person  holding  a  con- 
versation over  the  telephone  told  the  witness  was  said  by  the  person  at  the 

Cas.  1121  (1911);  Pennsylvania  Iron  Works 
v.  Mackenzie,  190  Mass  61,  76  X.  E.  228 
(1906)  ;  Roche  v.  Nason,  93  X.  Y.  Suppl.  565, 
105  App.  Div.  256  (1905).  affirmed  185  X.  Y. 
128,  77  X.  E.  1007  (1906). 

12.  Official  reports  made  to  an  administra- 
tive hoard  in  pursuance  of  a  legal  duty  may 
be  received  in  evidence  upon  being  properly 
authenticated   to   the   tribunal.     Chicago.    R. 
I.  &  G.  Ry.  Co.  v.  Risley  Bros.  &  Co.,  55  Tex. 
Civ.   App.  66,   119  S.  W    897    (1909). 

13.  German  American  Ins.  Co.  v.  Xew  York 
Gas  Co.,  185  X.  Y.  581,  78  X.  E.  1103   (1906) 
affirming  93  X.  Y.  Suppl.  46,  103  X.  Y.  App. 
Div.  310   (1905)    (unverified  certificates). 

14.  Pratt  v.  Hamilton,   161  Mich.  258.   126 
X.  \V.  196,  17  Detroit  Leg.  X.  288   (1910). 

15.  Combs  v    Combs.   130  Ky.   827,   114  S. 
W.  334   (1908)  :   Roe  v.  Versailles  Bank,   167 
Mo.   406,   67    S.    W.   303    (1902):    Spande   v. 
Western  Life  Indemnity  Co.    (Or.  1911),  117 
Pac.  973. 

16.  Waldroof  v.  Ruddell.  96  Ark.  171.   131 
R.   W.  670    (1910):   Rookcastle  Min.  L.  &   0. 
Co.   v.    Isaacs,    141    Ky.    80,    132    S.    W.    165 
(1910). 

17.  Mo   K.  &  T.  Ry.  Co.  v.  Williams   (Tex. 
Civ.  App.  (1911),  133  S.  W.  499 


tions  on  the  Early  of  Essex's  Murder,  9  How. 
St.  Tr.  1229  (1684).  "The  use  you  make 
of  this  is  no  more,  but  only  to  corroborate 
what  he  hath  said,  that  he  told  it  him  while 
it  was  fresh,  and  that  it  is  no  new  matter 
of  his  invention  now."  Knox's  Trial.  7-  How. 
St.  Tr.  763  (1679),  per  Scroggs,  L.  C.  J. 

9.  Fenwick's   Trial,    13    How.    St.    Tr.    537 
(1696). 

10.  4  Chamberlayne,  Evidence,  §  2700. 

Hearsay  evidence  is  incompetent  to  estab- 
lish any  specific  fact  which  is  susceptible  of 
being  proved  by  witnesses  who  speak  from 
their  own  knowledge.  Hirshberg.  Hollander 
&  Co.  v  Robinson  &  Son,  75  X.  J.  L.  256,  66 
Atl.  925  (1907). 

Negative  facts  may  be  as  objectionable  to 
the  rule  excluding  hearsay  as  positive  ones. 
Pelly  v.  Denison  &  S.  Ry.  Co.  (Tex.  Civ.  App. 
1904) ,  78  S.  W.  542.  Thus  a  partner  will  not 
be  allowed  to  testify  that  neither  his  partner 
nor  the  firm  had  ever  been  notified  of  a  cer- 
tain fact.  Dunn  &  Lallande  Bros.  v.  Gunn, 
149  Ala.  583.  42  So.  6S6  (1906). 

11.  Home   Building   &    Loan    Ass'n   v.   Mc- 
Kay. 217  111.  551.  75  X.  E.  569,  108  Am.  St. 
Rep.  263    (1905),  reversing  judgment   118  111. 
App.  586.     Hyslop  v.  Boston  &  M.  R.  R..  208 
Mass.  362,  94  X.  E.  310,  21  Am.  &  Eng.  Ann. 


§   860  UNSWORN  STATEMENTS.  670 

other  end  of  the  line  is  hearsay  18  and  the  statement  is  not  rendered  competent 
by  a  declaration  by  such  other  person  that  he  has  received  the  information 
which  was  telephoned  him  at  the  time  such  conversation  took  place.19 

§  860.  [Hearsay  Rule  Stated] ;  A  Controlling  Rule,  An  Absolute  Bar.20 —  The 
anomalous  feature  of  the  rule  against  hearsay  is  that,  unless  the  conditions  of 
a  recognized  exception  are  presented,  the  bar  of  the  rule  is  absolute.  No 
forensic  necessity  on  the  part  of  a  litigant  suffices  to  bring  into  operatidn  the 
administrative  power  of  a  presiding  judge.  The  fundamental  administrative 
duty  of  the  court  to  protect  a  litigant  in  the  substantive  right  to  prove  his  case 
by  permitting  him  to  use  secondary  evidence  where  the  primary  is  practically 
unattainable  is  forced  to  yield  at  this  point.  The  case  proposed  for  proof  may 
be  absolutely  dependent  upon  the  establishment  of  a  fact  which  can  only  be 
shown  by  an  extrajudicial  assertion.  The  declarant  may  be  unavailable,  by 
reason  of  his  having  left  the  jurisdiction21  or  even  the  country  itself.22  He 
may  be  too  sick  to  attend  the  trial 23  or,  if  present,  he  may  not  be  permitted 
to  testify  24  or  the  proponent  may  be  without  the  power  of  compelling  him  to 
do  so.25  He  may  even  be  affirmatively  shown  to  be  dead.26 

Even  the  suggestion  that  remote  or  collateral  facts,  e.g..  those  deliberative 
in  their  nature,  might  properly  be  treated  as  beyond  the  operation  of  the  rule,27 
has  failed  to  commend  itself  to  the  favorable  action  of  the  courts.28  There  is, 
however,  a  distinction  taken  between  its  operation  in  civil  and  criminal  cases. 
In  the  former  should  the  hearsay  statement  be  admitted  without  objection  it 
becomes  evidence  in  the  case,20  subject,  of  course,  to  any  infirmative  sugges- 

18.  Millner  v.   Silverman,   100  Md.   341.  71  23.  Gaither  v.  Martin,  3   Md.   146    (1852). 
Atl.  96-2,   24   L.   R.   A.    (X.   S.)    895    (1000)  ;  Snuil're  cmem  wely  amec  of  timem  ef  alww 
Texas  &   P.  Ry    Co.  v.  Felker,  44  Tex    Civ.  Lack  of  time  in  which  to  take  a  deposition 
App.   420,   90   S.   \V.   430    (1007):    Jacobs   v.  does    not    confer   admissibility      Though    the 
Cohn,  91  N'.  Y.  Suppl.  330,  46  Misc.  Rep.  115  sickness  of  a  witness  has  come  to  the  atten- 
(1904) .  tion  of  the  proponent  only  the  day  before  the 

19.  Texas  &   P.  Ry    Co.  v.  Felker,  44  Tex.  trial,  the  unsworn  statement  will  not  he  re- 
Civ    App    420,  00  S.  W.  430   (1007).                     ( ceived.     Gaither  v.  Martin,  3  Md.  146  (1852). 

Telephone    conversation. —  On    a    question          24.  Rlann    v.    Beal.    5    Ala.    357     (1843)- 

whether  an  insurance  company  had  notice  of  Churchill  v.  Smith,  16  Vt.  560   (  1844) 
a  transfer  of  a  policy  a  witness  may  testify  25.  State  v.  Yanz,  74  Conn.  177   50  Atl   37 

that  he  heard  the  insured  go  to  the  telephone  02  Am.  St.  Rep.  205.  54  L.  R.  A,  7,90  ( 1001 )  • 

and  call   for  the  company  and  talk  over  the  Rrnddon  v.  Speke.  0  TIow.  St.  Tr.  1127  i  1684) 
telephone   and    return    saying  that   the   com-  26.  Georgia. —  Do/ier    v     McWhorter     117 

pany  agreed  to  the  transfer.     It  seems  that  Ga.  786.  45  S.  E.  61    i!003). 
when  the  fact  of  a  real  conversation  is  proved  27.  Justus'  Succession.  47  La.  Ann.  302    16 

there    is    no    objection    to    such    testimony.  So.  841    (1805). 

Northern    Assurance    Co.    v.    Morrison     (Tex.          28.  Surprise.— The    existence    of    surprise 

Civ.  App.),  162  S   W   411  and    the    threatened    prejudice    of    the    party 

20.  4  Chamberlayne.     Evidence.     §§     2702,  caused  thereby  does  not  justify  ignoring  the 

rule  as  to  hearsay  evidence,  or  brinsr  the  same 

21.  Johnson  v.  State.  50  Ala.  37    (1877).  within  any  exception  to  the  rule.     \Yatkins  v 

22.  Pearson    v.    Darrington.    32    Ala.    227       WatkSns,  30  Mont    367,  102  Pac.  860  (1009). 
(1858)  ;  Brown  v   Steele,  14  Ala.  63  (1848).  29.  State    Bank    v.    Wroddy,    10    Ark.    638 


671  HEAKSAY  RULE.  §§  861,  862 

tions  due  to  its  inherent  weakness.  In  criminal  actions,  on  the  contrary,  the 
hearsay  statement  is  to  be  rejected,  unless  the  defendant  actively  assents  to  its 
reception.30 

It  may  fairly  be  said  that,  speaking  generally,  the  exception  excluding  hear- 
say is  the  only  procedural  rule  of  evidence  which  excludes  testimony  for  the 
admission  of  which  a  sound  administrative  reason  exists.  As  a  matter  of 
principle,  not  only  does  the  hearsay  rule  mar  any  scientific  symmetry  to  which 
the  law  of  evidence  might  otherwise  lay  claim  but  it  inflicts  serious  injury  upon 
the  successful  administration  of  justice.31 

The  rule  seems  as  applicable  to  preliminary  as  to  final  issues.32  Where  a 
jury  is  present,  the  use  of  hearsay  is  none  the  less  objectionable  because  elicited 
by  questions  asked  by  the  judge.33  . 

Even  confessions  by  third  persons  to  having  committed  the  crime  with 
which  the  defendant  is  charged  cannot  be  proved  by  hearsay.34 

§  861.  [Hearsay  Rule  Stated] ;  Statutory  Exceptions.35 —  It  is  not  surprising 
to  find  that  the  hardship  and  injustice  of  excluding  a  relevant  unsworn  state- 
ment which  is  essential  to  the  contention  of  its  proponent  should  have  attracted 
the  attention  of  the  law-making  body.  A  specific  instance  where  this  intoler- 
able situation  was  found  to  be  of  frequent  occurrence  has  been  in  connection 
with  claims  by  or  against  the  estates  of  deceased  persons.  The  administrative 
expedient  has  been  adopted  of  admitting  the  statements  of  the  decedent  as 
evidence  on  actions  for  or  against  his  estate.3''  or  of  forbidding  the  reception 
of  self-serving  testimony  from  the  surviving  party  to  the  transaction.  Under 
appropriate  circumstances,  the  extra  judicial  statements  of  the  deceased  will  be 
received  in  evidence/"7 

£  862.  [Hearsay  Rule  Stated] ;  Hearsay  Memoranda  Refreshing  Memory.38 — 
Memoranda  to  refresh  memory  of  a  witness  cannot,  in  the  absence  of  special 

(1858).     See  Xunn  v.  Jordan,  31  Wash.  506,  33.  Bornheimer    v.     Baldwin,    42    Cal.    27 

72  Pac.  124   (1903).     See,  however,  Laughlin  (1871). 

v.  Inman,  138  111.  App.  40   (  1907  ) .  34.  People   v.    Schooley,    149   X.    Y.    99,   43 

30.  Phillips  v    State,  29  Ga.  105   (1859).  X.  E.  536   (1896). 

31.  '•  If  1  was  asked  what  I  think  it  would  35.  4  Chamberlayne,  Evidence.  §  2704. 

be  desirable  should  be  evidence.  I  have  not  the  36.  Foote  v.  Brown,  81  Conn.  218,  70  Atl. 
least  hesitation  in  saying  that  1  think  it  699  (1908)  (title  to  land):  Mooney  v. 
would  be  a  highly  desirable  improvement  in  Mooney.  80  Conn.  446,  68  Atl.  985  (1908) 
the  law  if  the  rule  was  that  all  statements  In  order  that  the  declaration  of  the  decedent 
made  by  persons  who  are  dead  respecting  should  be  competent  tinder  such  a  statute,  it 
matters  of  which  they  had  a  personal  knowl-  is  essential  that  the  action  should  have  been 
edge,  and  made  ante  litem  motam.  should  be  brought  directly  by  or  against  his  legal  rep- 
admissible.  There  is  no  doubt  that  by  re-  resent  atives.  Mooney  v.  Mooney,  80  Conn. 
jecting  such  evidence  we  do  reject  a  most  446.  68  Atl.  985  (1908). 

valuable  source  of  evidence."     Sugden  v.   St.  37.  Mulcahy  v.  Mulcahy,  84  Conn.  659,  81 

Leonards,   1    P.   D.   154,  250.  45  L    J.  P.  49,  Atl.   242    (lOlli  :    Pixley   v.   Eddy.   56   Conn. 

34    L.   T.    Rep.    i  X.   S.)    372.   24   \Ykly.   Rep.  33(5.   15  Atl.   758    (1888);   Hamilton  v.  Lam- 

860    (1876),  per  Mellish.  L.  J.  phear,  54  Conn.  237.  7  Atl    19   (1886) 

32.  Early  v.  Oliver,  63  Ga.  11    (1879).  38.  4  Chamberlayne,  Evidence,  §  2705. 


§§   863-865  UNSWORX  STATEMENTS.  672 

circumstances,  be  based  upon  the  hearsay  statements  of  others.  In  general,  a 
witness  must  know  of  his  own  knowledge  that  the  statements  of  a  memorandum 
are  true.39 

§  863.  [Hearsay  Rule  Stated] ;  Implied  Hearsay.40 —  Where  the  sole  relevancy 
of  an  act  consists  in  the  extrajudicial  assertion  which  it  implies,  its  reception 
in  evidence  is  felt  to  be  contrary  to  the  rule  excluding  hearsay.41  Under  the 
circumstances,  judicial  administration  is  justified  in  rejecting  the  covering  or 
containing  fact.  The  question  of  much  greater  administrative  nicety  is  pre- 
sented where  this  latter  fact  itself  possesses  a  logical  relevancy  or  bearing  upon 
the  issue.  Upon  sound  arid  recognized  administrative  principles,  the  risk  of 
evading  the  hearsay  rule  will  be  encountered  should  the  fact  itself  seem  fairly 
necessary  to  proof  of  the  proponent's  case,  the  paramount  right  in  this  con- 
nection. Thus  it  may  be  shown  that  the  officials  of  a  given  town  decline  to 
allow  a  certain  individual  to  vote,  although  the  fact  carries  an  implication  of  a 
declaration  that  the  person  is  not,  in  their  opinion,  a  qualified  voter.42 

§  864.  [Hearsay  Rule  Stated] ;  Knowledge  Based  on  Reputation.4  3; — ^.Testi- 
mony based  on  no  personal  knowledge  or  observation  on  the  part  of  the  witness 
but  resting  upon  a  reputation  prevalent  through  the  community,  is  objection- 
able as  hearsay.44  As  established  by  scandal  and  gossip,  local  reputation  may 
constitute  a  peculiarly  objectionable  form  of  hearsay.  It  is  not  under  oath 
nor  are  the  tests  of  cross-examination  applied  to  it. 

§  865.  [Hearsay  Rule  Stated] ;  Testimony  Based  on  Hearsay.45 —  A  hearsay 
statement  cannot  be  employed  in  whole  40  as  the  basis  of  the  testimony  of  the 
witness  to  the  effect  that  a  certain  fact  exists.47  Nor  can  it  be  used  in  part  for 
such  purpose.48  The  witness  is  required  to  speak  as  to  his  own  knowledge.  A 
present  conviction  of  the  truth  of  a  fact  which  has  been  reached  by  weighing 
the  extrajudicial  statements  of  others  does  not  satisfy  the  requirements  of  this 
rule.43 

39.  L'Herbette  v.  Pittsfleld  Nat.  Bank,  162  46.  Grimme  v.  General  Council  of  Fraternal 
Mass.  137,  38  X.  E.  368,  44  Am.  St.  Rep.  354       'Aid    Ass'n,    167    Mich.    240,    132    X.    W.    497 
(1894).     Use  of  memorandum  to  refresh  rec-        (1911). 

ollection,  see  note.  Bender  ed.,  183  \.  Y    195.  47.  Cornish    v.    Chicago,    etc.,    R.    Co.,    49 

Ri<rht   to  use  memorandum   to  refresh   recol-  Iowa  378   (1878).     And  see  Ramsey  v.  Smith, 

lection,   see  note,    Bender   ed.,   90   X.   Y.    309.  138  Ala.  333,  3o  So.  325   (1903). 

Use  of  memorandum  as,  see  note,  Bender  ed.,  48.  Patrick  v.  Howard,  47  Mich.  40.  10  X. 

22  X.  Y.  462.  W.  71   (1881)  ;  Levy  v.  J.  L.  Mott  Iron  Works, 

40.  4  Chamberlayne,  Evidence,  §  2706.  1-27  X.  Y.  Suppl.  506,  143  App.  Div.  7   (1911  ) 

41.  In  re  Louck's  Estate,  160  Cal    551,  117  (hospital    records    not    shown    to    he    true)  ; 
Pac.  673   (1911)    (belief  of  by-standers) .  Robeson  v.  Sohuylkill  Xav.  Co.,  3  Grant  Cas. 

42.  Meserve  v.  Folsom.  62  Vt.  504,  20  Atl.  (Pa.)    186    (1855);    Monk   v.   State,   27   Tex. 
926    (1889).  App.  450,    11    S.   W.   460    (1«89).     But   com- 

43.  4  Chamberlayne,  Evidence,  §  2707.  pare  Hornum  v.  McXeil,  80  X.  Y.  Suppl.  728, 

44.  Moore  v.  Dozier,   128  Ga.  90.  57   S.  E.  80  X.  Y.  App.  Div.  637    (1903). 

110   (1907).  49.  Lamar  v.  Pearre,  90  Ga.  377,  17  S.  E. 

45.  4    Chamberlayne,    Evidence.    §§    2708-       92  (1892). 
2710. 


673  HEAESAY  RULE.  §  865 

Joint  Knowledge. —  Should  the  sanction  of  an  oath  be  given  to  the  state- 
ment of  an  informant  the  objection  that  the  second  witness  is  testifying  from 
hearsay  may  be  removed.  Thus,  where  a  witness  testifies  that  he  has  informed 
a  given  person  of  a  fact  which  the  speaker  has  himself  forgotten,  he  has  been 
regarded  as  rendering  the  evidence  of  a  person  so  informed  competent  as  to 
what  the  fact  is.50 

Where  testimony  is  taken  through  an  interpreter  the  objection  from  hearsay 
is  obviated  by  taking  the  oaths  of  the  witness  and  the  interpreter.51 

An  entirely  different  question  is  presented  where  a  person  who  subsequently 
testifies  as  a  witness  has  examined  a  set  of  documents,  public  or  private,  and  is 
asked  to  state  the  effect  of  these  papers.  This  the  witness  is  at  perfect  liberty 
to  do,52  the  administrative  advantage  of  thus  expediting  the  trial  being  obvious. 
No  infraction  of  the  hearsay  rule  is  involved.  Such  knowledge  may  readily 
be  acquired  by  the  witness  in  the  course  of  public  53  or  official  duty.54  The 
testimony  is  not  objectionable  as  being  based  upon  hearsay.  The  witness  is 
not  giving  the  contents  of  the  documents  as  such.  He  is  merely  stating  what 
he  has  found  out  and  knows  of  his  own  knowledge,  what  the  writings  are  about, 
what  they  are  seeking  to  effect,  what  position  the  persons  concerned  assume 
in  them  and  the  like.  An  administrative  question  of  some  nicety  arises  in 
view  of  the  danger  that  a  witness  may,  in  reality,  be  basing  his  testimony  on 
hearsay.  Can  a  rule  of  procedure  or  practice  be  formulated  as  to  this  matter 
of  preliminary  examination  \  The  question  as  to  the  advisability  of  holding 
a  preliminary  examination  into  the  personal  knowledge  of  the  witness  would 
appear  to  be  a  purely  practical  one  most  wisely  left  to  be  determined  by  the 
circumstances  of  each  individual  case.  It  may  sufficiently  appear,  for  exam- 

50.  Shear  v.   Van   Dyke,    10   Hun    (X.   Y.)        50  Minn.  91,  52  N.  W.  274;   People  v.  Ran- 
528   (1877)    (number  of  loads  of  hay)  :   Hart       dazzio,  194  X.  Y.  147,  87  X.  E.  112. 

v.   Atlantic  Coast  Line  R.   R.    (X1.  C.    1907),  52.  California. —  San  Pedro  Lumber  Co.  v. 

56  S.  E.  559.  Reynolds,   121   Cal.   74,  53   Pac.  410    (1898); 

51.  Com.  v.  Storti,  177  Mass.  339,  58  X.  E.  Fidelity  &  Deposit  Co.  of  Maryland  v.  Cham- 
1021   (1901).  pion  Ice  Mfg..  etc.,  Co.,   133  Ky.   74,   117   S. 

Interpreter.— One   taking   part    in    a   con-  \V.  393    (1909). 

versation  through  an  interpreter  may  not  53.  An  administrator  who  has  learned  in 
generally  testify  to  the  interpretation  of  what  the  course  of  his  discharge  of  the  trust  that 
was  said  by  the  other  speaker.  But  such  evi-  a  given  claim  was  made  by  or  against  the 
dence  may  be  put  in  by  one  party  to  the  suit  estate  may  properly  testify  to  that  effect, 
when  the  person  interpreted  is  an  opposing  Stewart  v.  Chadwick,  8  Iowa  463  (1859). 
party,  as  the  interpreter  is  regarded  as  an  54.  An  expert  on  cattle  diseases  who  has 
agent  of  the  party  who  has  availed  himself  ascertained  from  the  records  and  correspond- 
of  this  method  of  communication  and  his  ence  of  the  national  department  of  agricul- 
statements  are  regarded  as  admissions.  This  ture,  with  which  he  is  connected,  the  local- 
is  to  be  sure  a  fictitious  agency  but  as  a  prac-  ities  in  the  State  of  Texas  where  ''  cattle 
tical  matter  a  necessary  step  and  should  fever  "  is  prevalent,  may  state,  as  a  result  of 
really  be  recognized  as  an  exception  to  the  his  investigations  which  districts  of  the  State 
hearsay  rule.  Grocz  v.  Delaware  &  Hudson  are  so  affected,  although  he  has  never  visited 
Cl.,  161  X.  Y.  Supp.  117;  Miller  v.  Lathrop,  them.  Grayson  v.  Lynch.  163  U.  S.  468,  16 

S.  Ct.  1064,  41  L.  ed.  230  (189.1). 


§  866  UNSWORN  STATEMENTS.  674 

| 

pie,  from  the  statement  itself  that  it  is  made  by  one  who  has  no  personal  knowl- 
edge on  the  subject.55 

§  866.  Reasons  for  Hearsay  Rule ;  Inherent  Weakness.5'3 —  In  treating  hear- 
say statements,  unsworn  declarations  employed  in  proof  of  the  facts  asserted, 
as  secondary  evidence,  the  judicial  administration  of  the  earlier  English  law  of 
evidence  acted  in  a  wise  and  scientific  spirit.  Even  when  relevant  at  all, 
which  seems  by  no  means  to  occur  so  frequently  as  the  state  of  the  authorities 
would  apparently  indicate,  the  evidence  of  an  extrajudicial  statement,  when 
employed  as  hearsay,  to  prove  the  fact  which  it  asserts,  is  of  a  distinctly  infe- 
rior grade.  So  much  greater  by  comparison  is  the  probative  force  of  the 
testimony  of  the  original  percipient  witness,  the  maker  of  the  unsworn  state- 
ment, given  in  court  under  the  sanction  of  an  oath  and  subject  to  the  test  of 
cross-examination  as  to  constitute  it  in  this  connection  a  primary  grade  of 
proof. 

In  addition  to  the  practical  danger  that  the  statement  may  have  been  mis- 
understood57 or  inisreported  °8  there  is  also  the  further  objection  that  it  is 
given  without  oath  59  and  without  the  privilege  of  cross-examination,60  the 
latter  being  by  far  the  stronger  objection,  as  the  statement  comes  to  the  court 
untested.01  This  objection  applies  equally  to  affidavits62  or  depositions  taken 
in  proceedings  between  third  parties.03  Therefore  where  the  statement  was 
subjected  to  cross-examination  it  may  be  received  G4  and  where  it  was  given  in  a 
tribunal  which  did  not  require  cross-examination  it  will  be  excluded;05  as  in 
case  of  coroner's  inquests  cc  or  justices  courts  67  unless  the  person  affected  had 
an  opportunity  of  examining  the  declarant. 

55.  Lamar  v.  Pearre,  90  Ga.  377.  17  S.  E.  61.  Marshall  v.  Chicago  &  G.  E.  R.  Co.,  48 
82    (1892).  111.  475,  476   (1868). 

56.  4  C  hamberlayne,    Evidence,    §§    2711-  62.  Holliday  v.  Roxbury  Distilling  Co.,  115 
2710.  X.  Y.  Suppl.  383,  130  App.  Div.  654   (1909). 

57.  Louisville  &  X.  R.  Co.  v.  Murphy   (Ky.  63.  YVaterson  v.  Leat,  10  Fla.  326   (1863). 
1912),  150  S.  \V.  7!)  (mistake  and  deception).  64.  Minneapolis  Mill  Co.  v   R.  Co.,  51  Minn. 
Hearsay  is  excluded  because  the  probabilities  304,  315,  53  X.   W.   639    (1892);   Bradley  v. 
of    falsehood    and    misrepresentation,    either  Mirick,  91  X.  Y.  293,  296   (1883);  Wright  v. 
willful    or    unintentional,    being    introduced  Tatbam,  1  A.  &  E.  3   (1834K 

into  a  statement,  are  greatly  multiplied  every  65.  Attorney-General   v.   Davison,   McCl.   & 

time  it  is  repeated.     The  original  statement,  Y.    160,    167     (1825);    Jackson    v.    Bailey,    2 

even   if  correctly   reported,   is  not  under  the  Johns.    (X.   Y)    17    (1806);    R.   v.    Paine,   5 

safe-guards  of  the  personal  responsibility  of  Mod.  163   (1696)  :  Julian  v.  Kansas  City  Star 

the  author  as  to  its  truth  or  the  tests  of  a  Co.,  209  Mo.  35,  107  S.  W.  496   (1907). 

cross-examination  as  to  its  accuracy.     Shep-  The  offer  made  to  a  defendant  that  he  may 

pard    v.    Austin,    159    Ala.    361,    48    So.    696  cross-examine,   if  he  sees   fit,   is   sufficient   to 

(1909).  safeguard   his   rights.     State   v.   Hill,   2   Hill 

58.  Mima  Queen  v.  Hepburn,  7  Cranch   (U.  S.   C.   607.   27   Am     Dec.   406    (1835):    R.   v. 
S.)   290,  295,  3  L.  ed    348   (1813).  Smith.  Holt  X.  P.  614   (1817)  :  Trials  at  Xisi 

59.  Diel  v.  Kellogg,  163  Mich.   162.   128  X.  Prius.  240    (1763). 

W    420,  17  Detroit  Leg.  X.  891    (1910).  66.  Pittsburgh   C.   &   St.   L.   R.   Co.   v.   Mc- 

60.  Com    v.  Trefethen.  157  Mass.  180,  185,       Grath.  115  111.  172.  3  X.  E.  439    (1885). 

31  X.  E   961,  24  L.  R.  A.  235  (1892).  In  England  depositions  taken  at  coroners' 


675  SCOPE  OF  HEABSAY  RCI.E.  §§   867-869 

§  867.  [Reasons  for  Hearsay  Rule];  Distrust  of  the  Jury;  Hearsay  in  Other 
Judicial  Systems.68 —  Hearsay  is  employed  in  other  systems  of  law,  as  the 
civil  69  and  ecclesiastical  law,  but  its  strict  exclusion  by  the  common  law  is 
caused  by  the  general  distrust  of  the  jury  and  the  effect  of  such  statements  on 
the  minds  of  persons  unaccustomed  to  consider  the  limitations  and  restrictions 
which  legal  views  upon  the  subject  would  impose.70 

§  868.  Scope  of  Hearsay  Rule.71 — Applying  equally  to  civil  and  criminal 
cases,  embracing  oral,  printed,  written  or  composite  statements,  indifferently 
affecting  declarations  which  are  implied  as  well  as  those  more  fully  expressed, 
the  rule  against  hearsay  statements  has  evidently  a  wide  range  of  influence, 
even  when  restricted  to  its  normal  scope.72  As  the  term  is  commonly  em- 
ployed, the  application  of  the  rule  is  still  wider  being  made  to  cover  two  large 
classes  of  extrajudicial  statements  which  must  carefully  be  excluded  before 
the  true  juridical  value  of  the  rule  can  be  satisfactorily  estimated.  The  first 
of  these  classes,  the  instances  in  which  the  unsworn  statement  is  circumstan- 
tially relevant,  constituent  or  probative  by  reason  of  its  bare  existence,  has 
already  been  considered  in  the  preceding  chapter.  It  remains  to  place  on  one 
side,  as  not  properly  within  the  scope  of  the  hearsay  rule  which  excludes  extra- 
judicial  statements  when  used  as  proof  of  the  facts  asserted  a  second  and  very 
large  class  of  unsworn  statements,  those  which  are  logically  irrelevant. 

Courts  frequently  give  as  a  reason  for  excluding  evidence  logically  irrelevant 
that  it  is  hearsay  and  this  practice  has  caused  some  confusion. 

§  869.  Relevancy  of  Hearsay.73 —  The  absence  of  cross-examination  in  case 

inquests  are  admissible.     R.  v.  Eriswell,  3  T.  administrative  tribunals  should   not   be   con- 

R.  707    (1700).  fined  to  the   strict   rules  of  evidence.     They 

67.  R.  v.  Ferry  Frystone,  2  East  53  (1801).  are  composed  of  experts  and  not  subject  to 

68.  4  Chamberlayne,  Evidence,  §  2720.  the  suspicion  to  which  juries  are  subject  and 

69.  "  In   Scotland,  and  most  of  the  Conti-  are  better  able  to  weigh  the  evidence  of  all 
nental  States,  the  judges  determine  upon  the  kinds.     So  it  has  been  held  that  a  board  under 
facts  in  dispute  as  well  as  upon  the  law:  and  the   Workmen's   Compensation   Act   may   con- 
they  think  there  is  no  danger  in  their  listen-  sider   hearsay   evidence.     Carroll  v.   Knicker- 
ing  to  evidence  of  hearsay,  because  when  they  bocker    Tee    Co.,    155    X.    Y.    Supp.    1.     See 
come  to  consider  of  their  judgment,   on  the  contra,    Englebretson    v.    Industrial    Accident 
merits  of  the  case,  they  can  trust  themselves  Commission,  170  Cal.  79.3.  151  Pac.  421:  Em- 
entirely  to  disregard  the  hearsay  evidence,  or  plovers'  Assurance  Corporation  v.   Industrial 
to   give   it    any   little   weight    which    it    may  Accident  Commission,  170  Cal.  800,   151   Pac. 
seem  to  deserve.     But  in  England,  where  the  423. 

jury  are  the  sole  judjes  of  the  fact,  hearsay  State   of   Mind  of  Declarant. —  The  House 

evidence  is  properly  excluded,  because  no  man  of  Lords  has  recently  gone  far  in  abrogating 

can  tell  what  effect  it  misrht  have  upon  their  the   hearsay   rule   by   admitting   contempora- 

minds.*'     Berkeley's  Case.  4  Campb.  401.  415  neous  declarations  to  show  the  intention  or 

(1^11).  per  Mansfield.  C.  .T.  state    of    mind    of    the    declarant.     Lloyd    v. 

70.  Wright  v.  Tatham.  7  A.  &  E.  313,  375.  Powell  Duffryn*Steam  Coal  Co.   (1914).  A.  C. 
2  X.  &  P.  305.  34  E.  C.  L.  17S   (837).  733. 

71.  4    Chamberlayne.    Evidence.    §§    2721-  73.  4    Chamberlayne,    Evidence,    §§    2725, 
2724.  2726. 

72.  Administrative  Boards. —  It  seems  that 


§§  870, 871  UNSWORN  STATEMENTS.  676 

of  an  extrajudicial  statement  employed  as  hearsay,  or,  more  properly,  the 
difficulty  of  mentally  affixing  any  determinate,  evidentiary  value  to  a  declara- 
tion not  so  tested,  has  led  judicial  administration,  as  is  most  clearly  seen  in 
connection  with  the  u  exceptions  "  to  the  hearsay  rule,  to  require  that  a  clear 
and  unmistakable  relevancy,  objective  and  subjective,  should  be  established  if 
such  a  declaration  is  to  be  received  in  evidence. 

§  870.  [Relevancy  of  Hearsay] ;  Objective  Relevancy.74 —  Applying  more  spe- 
cifically to  hearsay  declarations,  the  familiar  general  propositions  that  seem  to 
be  essential  to  the  probative  force  of  all  statements  which  are  to  be  judicially 
used,  the  rule  may  fairly  be  deduced  that  no  extrajudicial  statement  when  used 
as  proof  of  the  facts  asserted  will  be  admitted  unless  it  would,  if  believed, 
logically  establish,  mediately  or  immediately,  the  existence  of  some  fact  in  the 
res  gestae,  properly  so  called.  The  declaration  which,  if  true,  lacks  this  ob- 
jective correlation  with  some  ultimate  factum  probandum  is  to  be  rejected. 
This  is  properly  done,  not  by  virtue  of  any  rule  peculiar  to  hearsay  but  under 
the  general  administrative  duty  of  the  court  to  keep  from  the  attention  of  the 
jury  matters  upon  which  they  cannot  rationally  act. 

Common  examples  of  this  rule  are  the  rejection  of  disconnected  statements 
where  a  link  in  the  chain  of  evidence  is  missing,75  or  the  rejection  of  the  state- 
ments of  the  agent 7C  or  privy  77  until  agency  or  privity  is  shown. 

§  871.  [Relevancy  of  Hearsay] ;  Subjective  Relevancy.78 —  If  the  objective 
relevancy  of  a  hearsay  statement  is  tacitly  assumed  as  a  matter  of  course,  the 
question  of  subjective  relevancy  stands  in  quite  a  different  position.  The  in- 
quiry no  longer  is  as  to  whether  the  declaration,  if  believed,  would  establish 
the  res  gestae  fact,  properly  so  called.  The  question  is,  Shall  the  statement  be 
believed,  credited  as  proving  the  fact,  the  existence  of  which  it  asserts. 

The  statement  should  appear  to  be  made  by  one  with  adequate  knowledge,79 
with  no  motive  to  misrepresent 80  and  therefore  self-serving  statements  are 
excluded  whether  oral81  or  in  writing82  and  although  the  declarant  is  dead.83 

74.  4    Chamberlayne,    Evidence,    §§    2727-      227,   1.5  Am.  Dec.   627    (1825):   Turner  Falls 
2730.  Lumber  Co.  v.  Burns,  71  Vt.  354,  45  Atl.  896 

75.  Hard  v.  Ashley,  63   Hun  634,  18  N.  Y.       (1899). 

Suppl.  413,  44  X.  Y.  St.  Rep.  792,  affirmed  80.  Lavender  v.  Hall,  60  Ala.  214  (1877). 
136  N.  Y.  645,  32  N.  E.  1015  (1892).  81.  Africa  v.  Trexler,  232  Pa.  493,  81  Atl. 

76.  Enneking    v.    Woebkenberg,    88    Minn.       707    (1911). 

259,  92  N.  W.  932   (1903)  82.  Troy    v.    Rudnick,    198    Mass.    563,    85 

77.  Evans  v.  McKee,  152  Pa.  St.  89.  25  Atl.       N.  E.  177   (1908). 

148   (1892).  83.  Gunter  v.  Gunter,   174  Fed.  933,  98  C. 

78.  4    Chamberlayne,    Evidence,    §§    2731-      C.  A.  545   (1909). 

2736.  Declarations  of  a  deceased  partner  as  to 

79.  Circumstantial  evidence. —  Proof  of  ac-  his  being  the  sole  owner  of  the  business  are 
tual    knowledge    may    be    made    by    circum-  inadmissible.     Let'son    v.     Hall     (Ala.     App. 
stances.     McDonald  v.  MoCaskill,  53  X   C    158  1912).  58  So.  740. 

(1860);    Coats  v    Speer,  3   McCord    (S.   C.) 


677  FORM  OF  HEARSAY.  §§  872-874 

For  the  same  reason  statements  by  agents,84  or  privies S5  in  favor  of  their 
principals  or  representatives  are  excluded. 

§  872.  Form  of  Hearsay.80 —  In  respect  to  form,  hearsay  statements  may 
properly  be  regarded  in  one  of  two  ways.  The  rule  of  exclusion  applies  in- 
differently to  them  all.  As  distinguished  from  each  other  by  the  nature  of 
their  source,  unsworn  statements  in  their  assertive  capacity  may  be  treated  as 
composite  or  individual. 

Composite  hearsay  may  be  denned  as  a  compound  or  blended  extrajudicial 
declaration  of  an  indeterminate  number  of  people  so  mingled  that  the  separate 
voices  can  no  longer  be  distinguished. 

Individual  hearsay,  on  the  contrary,  may  be  regarded  as  an  extrajudicial 
statement  shown  to  have  been  made  by  a  particular  person  or  set  of  persons. 
So  far  as  classified  by  means  of  the  vehicle  through  which  the  utterance  is 
presented  to  the  tribunal  they  may  be  conveniently  considered  as  being  oral, 
printed  or  written.87 

§  873.  [Form  of  Hearsay] ;  Composite  Hearsay.88 —  Composite  hearsay,  as 
above  defined,  usually  presents  itself  to  the  tribunal,  with  increasing  vagueness 
as  Reputation,  Rumor  or  Tradition. 

§  874.  [Form  of  Hearsay] ;  Reputation.89 —  It  is  necessary  to  consider  under 
what  circumstances  the  existence  of  a  given  reputation  is  probatively  relevant 
to  the  truth  of  the  facts  which  it  asserts  ?  Apparently,  this  is  exhibited  when- 
ever the  nature  of  the  subject  matter  and  the  other  circumstances  attending 
the  formation  and  promulgation  of  the  reputation  are  such  as  to  make  it 
probable  that  by  thorough  discussion  and  the  prevalence  of  an  interest  vigor- 
ously to  combat  any  mistake  on  the  subject,  the  truth  has  presumably  been 
reached.  The  inference  apparently  is  that  the  reputation  never  would  have 
continued  in  its  ultimate  form  had  it  failed  to  state  the  actual  reality.90 

Like  hearsay  in  many  other  forms,  reputation  in  its  assertive  capacity  is 
considered,  from  an  administrative  point  of  view,  as  secondary  evidence.  The 
direct  testimony  of  witnesses,  cognizant  of  their  own  knowledge  as  to  the  exist- 
ence of  the  facts  asserted  being  primary  evidence,  the  existence  of  a  reputation 
to  the  same  effect  may  be  shown  when  evidence  of  the  higher  grade  is  unattain- 

84.  Franklin   County  v.   Bunting,   111   Ind.  ing  the  court   may   consider  telegrams   from 
143,  12  X.  E.  151    (1887).  the  governor  of  the  state  demanding  the  ex- 

85.  Healy  v.  Malcolm,  77  App.  Div.  60.  78  tradition  of  the  applicant.     Massee.  ex  parte, 
X.   Y.  Suppl.   1043    (1902)     (assignor  of  con-  95  S.  C.  315,  70  S.  E.  97.  46  L.  R.  A    (X.  S.) 
tract).  781    (10131       Telegrams  as  evidence,  see  note, 

86.  4  Chamherlayne,  Evidence,  §  2737  Bender  ed  .  100  X   Y.  455. 

87.  Affidavits. —  It    is    error   to   allow    affi-  88.  4  C  hamlierlayne.  Evidence,  §  2738. 
davits    to   he   read   to   the   jury   in    a    dishar-  89.  4     (  hamherlayne.     Evidence.    §£    2739- 
ment   case.     Lenihan   v.   Commonwealth.    165  2751. 

Ky.  03.  176  8.  W.  948,  L.  R    A.  1917  B  1132  90.  Jaquith  v.   Scott,  63  X'.  H.  5,  56  Am. 

(1915).  Rep.  476   (1883). 

Telegrams. —  In  a   habeas  corpus  proceed- 


§  874 


UNSWORN  STATEMENTS. 


678 


able  91  and  proof  of  the  fact  is  reasonably  essential  to  the  case  of  the  proponent. 

Thus  reputation  may  be  used  to  corroborate  other  evidence  where  primary 
evidence  fails  92  or  to  prove  any  matter  of  public  or  general  interest  93  as  the 
existence  of  public  rights.94 

The  actual  declarants  in  case  of  a  reputation  regarding  matters  of  public 
and  general  interest  being  unidentified,  administration  cannot  well  demand 
that  the  proponent  show  that  they  possessed  adequate  knowledge  and  were  free 
from  a  controlling  motive  to  misrepresent.  No  showing  need  even  be  made 
to  the  effect  that  the  speakers  were  not  personally  interested  in  establishing 
the  fact  that  they  were  assisting  to  create. 

The  probative  force  of  reputation  is  greatly  increased  should  it  appear  to 
have  arisen  ante  litem  motam.Q5  Common  customs  96  or  municipal  incorpora- 
tion 9T  or  boundaries  98  may  be  proved  in  this  way,  and  other  facts  affecting 
the  community  as  the  habits  "  and  morals  *  of  the  citizens,  or  the  existence 
of  a  place  as  a  liquor  nuisance.2  However,  private  rights  3  or  facts  of  per- 


91.  Stevens  v.  San  Francisco,  etc.,  R.  Co., 
100  Cal.  554,  35  Pac.  165  (1893). 

92.  Rizer  v.  James,  26   Kan.   221    (1881). 
Where  direct  proof  of  a  fact  is  accessible,  it 
cannot  ordinarily  be  proved  by   showing  the 
reputation    in    a   community    to    that    effect. 
Thus,  that  a  given  person  resides  at  a  par- 
ticular place  cannot  be  established  by  repu- 
tation.    Abel  v   State,  90  Ala.  631,  8  So.  760 
(1890). 

93.  Morse  v   Whitcomb,  54  Oregon  412,  102 
Pac.  788,  rehearing  denied,  103  Pac.  775,  135 
Am.  St.  Hep.  832  (1909). 

94.  llampson  v.  Taylor,  15  R.  I.  83,  8  All. 
331,  23  Atl.  732   (1S85). 

95.  Reid  v.  Reid,  17  N.  J   Eq.  101    (1864). 

96.  Carr  v.   Mostyn,  5  Exch.  69,   19  L.  J. 
Exch    249   (1850). 

A  custom  may  be  put  in  evidence  if  it  is 
general  and  uniform  and  not  contrary  to  law 
or  to  reason.  Rains  v.  Weiler,  101  Kan.  294, 
166  Pac  235.  L  R.  A.  1917  F  571  (1917). 

97.  Bow   v.   Allenstown,  34   N.    H.   351,  69 
Am   Dee.  489   (1857). 

98.  Drury    v.    Midland    R.    Co..    127    Mass 
571    (1879)    (county). 

99.  Newdeck  v.  Orand  Lodge  A    0    U.  W , 
61  Mo    App.  97   (1894). 

1.  It  has,  on  the  contrary,  been  held  that 
reputation  is  not  admissible  to  determine 
whether  an  insured  person  had  become  intem- 
perate, or  had  been  intoxicated  within  a  cer- 
tain period.  Knapp  v  Brotherhood  of  Amer- 
ican Yeomen  (Iowa  1910).  126  X.  W.  33f>. 
To  the  contrary  effect,  see  Stevens  v  San 


Francisco,  etc.,  R.  Co.,  100  Cal.  554,  35  Pac. 
165   (1893). 

Reputation  may  be  in  itself  relevant. — 
For  example,  in  an  action  for  slander  th« 
reputation  of  the  plaintiff  for  honesty  may  be 
put  in  evidence  as  bearing  on  the  amount  of 
the  damages.  Deitchman  v.  Bowles,  166  Ky. 
285,  179  S.  W.  249  In  a  trial  for  homicide 
for  killing  a  man  who  was  attempting  to 
break  into  the  defendant's  house  to  get  de- 
ceased's wife  the  defence  may  put  in  evidence 
of  the  reputation  of  the.  defendant  as  being 
quarrelsome  and  dangerous.  Bailey  v.  Peo- 
ple, 54  Colo.  337,  130  Pac.  832,  45  L.  R.  A 
(X.  S.)  145  (1913).  Where  a  master  volun- 
tarily employs  a  physician  to  treat  his  em- 
ployees the  doctor's  general  reputation  for 
drunkenness  may  be  shown  as  evidence  that 
the  master  knew  or  should  have  known  that 
he  was  incompetent.  Guy  v.  Lanark  Fuel 
Co.,  72  W.  Va.  728,  79  S.  E.  941.  4S  L  R.  A. 
(X.  S.)  536  (1913).  Tn  an  action  on  an  in- 
surance policy  where  it  becomes  material  to 
show  that  the  defendant  was  addicted  to  the 
use  of  intoxicating  liquors  his  reputation  is 
not  admissible  as  being  a  man  addicted  to  the 
use  of  intoxicants  as  this  is  pure  hearsay. 
Smith  v  Prudential  Tns.  Co.,  83  X.  J  L  719, 
85  Atl.  190,  43  L.  R.  A  (X.  S.)  431  (1912). 

2.  Ostendorf  v  State  (Okla  Cr  App.  1912) 
128  Pac.  143  Tn  a  prosecution  for  keeping  a 
bawdy  house  the  reputation  of  the  house  as 
being  one  of  ill  fame  may  be  shown  by  the 
prosecution  although  its  reputation  is  not  put 
in  evidence  by  the  defence.  Putnam  v.  State, 


679 


FORM  OF  HEARSAY. 


§§  875-877 


sonal  interest 4  as  the  skill  of  a  physician  5  or  the  financial,0  mental,7  or  physi- 
cal 8  condition  of  individuals  or  their  business  relations  9  cannot  be  proved 
in  this  way. 

§  875.  [Form  of  Hearsay] ;  Rumor.10 —  Passing  from  reputation  to  rumor,  a 
downward  step,  in  proving  capacity,  is  taken.  Should  the  relevant  fact  be  the 
existence  of  the  rumor  itself;  in  other  words,  should  the  evidentiary  fact  be 
independently  relevant  rather  than  employed  as  proof  of  the  thing  asserted,  it 
is,  of  course,  admissible.11  To  prove,  however,  the  true  existence  of  the  fact 
which  it  alleges,  a  rumor  will  not  be  received  by  judicial  administration.12 

§  876.  [Form  of  Hearsay] ;  Tradition.13 —  Among  composite  forms  of  hear- 
say, tradition  would  seem  to  be  as  far  above  rumor,  in  a  probative  sense,  as  it 
is  below  reputation.  However  this  may  be,  and  such  generalizations  are  rather 
misleading  than  helpful,  tradition  is  seldom  received  by  judicial  administration 
as  proving  the  truth  of  the  fact  which  it  asserts.14  In  case,  however,  of  mat- 
ters of  public  and  general  interest,15  e.g.,  the  location  of  an  ancient  public 
boundary  lt}  for  administrative  reasons  the  evidence  is  received. 

§  877.  [Form  of  Hearsay] ;  Printed.17 —  A  hearsay  statement,  an  extrajudi- 


9  Okla  Crim.  Rep.  535,  132  Pac.  916,  46  L. 
R.  A.  (X.  S.)  593  (1913).  Evidence  of  bad 
reputation  alone  may  not  be  enough  to  prove 
that  a  house  is  a  bawdy  house  but  it  is  admis- 
sible together  with  other  evidence.  King  v. 
Comm.,  154  Ky.  829,  159  S.  W.  593,  48  L.  R. 
A.  (N:  S.)  253  (1913). 

3.  Cox  v.  Brookshire,  76  X.  C.  314   (1877). 
General  reputation  in  the  neighborhood  can- 
not be  used  to  show  that  a  certain  piece  of 
land    is    within    the    boundaries    of    a    tract 
named  in  a  deed  as  the  "  Grant  Mill  Place." 
McAfee  v.  Xewberry  87  S    E.  392,        Ga. 

4.  Middleswortli  v.   Xixon,  2  Mich.  425,  57 
Am.    Dec.    136     (1852)      (elected    to    office): 
Litchfield  Iron  Co.  v.  Bennett,  7  Cow.   (X.  Y.) 
234    (1827)     i  elected  to  office):    Ferguson  v. 
Wright.  .113  X.  C.  537.  18  S.  E.  691    (1893) 
(residence) . 

5.  Clark  v.   Com,   111  Ky    443,  63   S.  W. 
740,  23  Ky.  L.  Rep.  1029  (1901) 

6.  Watterson  v    Fuelhart,  169  Pa.  St.  612, 
32  Atl.  597    (18051. 

Insolvency. —  A  fact  so  interesting  and  no- 
torious as  insolvency  may  in  some  cases  be 
proved  by  reputation.  Downs  v.  Rickards.  4 
Del  Ch.  416  (1872)  ;  Griffith  v.  Parks,  32  Md. 
1  (I860). 

7.  Walker  v.  State,   102  Ind.  502.   1   X.  E. 
856    (1SS.-)). 

8.  Mosser  v.  Mosser,  32  Ala.  551    (1858); 


Chicago,  etc.,  A   &  R.  Co.  v.  Johnson,  116  111. 
206,  4  X.  E.  381    (1886) 

9.  Central  R.  &  Banking  Co.  v.  Smith,  76 
Ala.    572,   52   Am.    Rep     353    (1884):    Trow- 
bridge    v.     Wheeler,     1    Allen     (Mass.)     162 
(1861)  ;  McGregor  v.  Hudson  (Tex.  Civ.  App. 
1895),  30.  S.  W.  489. 

10.  4  Chamberlayne,  Evidence,  §  2752. 

11.  Governor    v.     Campbell,     17     Ala.    566 
(1850). 

12.  Johnson  v.  Johnson,   114  111.  611,  3  N. 
E.  232,  55  Am.  Rep.  883   (1885). 

13.  4    Chamberlayne,    Evidence,    §§    2753- 
2755. 

14.  Coughlin  v.  Poulson,  2  Mac  Arthur   (D. 
C.)    308    (1875)     (mental   state);    McKinnon 
v.  Bliss,  21  X.  Y   206   (1860);   Houston,  etc., 
R.   Co    v    Burke,   55  Tex.   323,  40  Am.   Rep. 
808  (1881)  ;  Cline  v.  Catron,  22  Gratt.   (Va.) 
378   (1872). 

Ownership  of  land. —  Family  tradition  as 
to  the  ownership  of  land  is  inadmissible  to 
establish  title  to  it.  Cline  v.  Catron,  22 
Gratt.  (Va.)  378  (1872). 

15.  Wooster     v.      Butler.      13     Conn      309 
(1831):    Bow   v.    Allenstown.   34   X.   H    351, 
69  Am.  Dec.  489    (1857)  ;  MoKinnon  v.  Bliss, 
21  X.  Y.  206   (I860). 

16.  De  Loney  v.  State,  88  Ark    311,  115  S. 
W.   13S    (1008). 

17.  4     Chamberlayne.    Evidence,     §§    2754, 
2755. 


§§  878, 879  UNSWOBN  STATEMENTS.  680 

cial  declaration  used  as  proof  of  the  facts  asserted,  is  none  the  less  objectionable 
to  the  rule  under  consideration  because  it  is  in  printed  form.  In  its  statement, 
the  rule  excluding  hearsay  makes  no  exception  in  favor  of  books,18  however 
meritorious,  or  of  standard  treatises  of  recognized  authority.  Its  exclusion  is 
applied  equally  as  rigorously  to  such  a  learned  treatise  on  a  medical  l9  or  other 
scientific  20  or  technical  subject  as  to  a  newspaper,121  magazine  or  periodical,  or 
other  ephemeral  publication  of  a  less  learned  character.22 

§  878.  [Form  of  Hearsay] ;  Written.23 —  Considered  as  hearsay,  an  unsworn 
statement  which  is  in  writing  is  as  much  within  the  rule  under  consideration  as 
one  which  is  oral.24  Xor  is  the  formality  or  deliberate  character  of  the  writ- 
ing administratively  considered  of  consequence  in  this  connection.  Tempo- 
rary, ephemeral  writings  such  as  letters,25  are  as  fully  subject  to  the  rule 
against  hearsay  as  are  also  telegrams  2G  or  loose  memoranda.27 

Hence  extrajudicial  self-serving  statements 28  or  even  judicial  statements 
under  oath  29  as  in  affidavits30  or  pleadings31  or  statements  contained  in  mer- 
cantile transactions  32  or  official  statements,33  aside  from  the  relevancy  of  regu- 
larity, are  excluded  as  hearsay. 

§  879.  [Form  of  Hearsay] ;  Official  Statements ;  Admissions.34 —  Under  ordi- 
nary administrative  principles,  while  the  declarant,  his  privies  or  representa- 
tives may  not  be  able  to  use  the  declarations  of  a  public  or  private  entry  in  his 
behalf,  these  assertions  may  be  used  against  them.  Should  it  appear,  for  ex- 

18.  Brown  v.  Xewell,  116  X.  Y.  Suppl.  965,  27.  Merritt  v.   Westerman.   165  Mich.  535, 
132  App    Div.  548  (1909),  affirmed  200  X.  Y.       131  X.  W.  66   (1911) 

501,  93  X    E.  1117  (1910).  28.  Hunter  v.  Harris,  131  111.  482,  23  X.  E. 

19.  Fox    v.    Peninsular    White    Lead,    etc.,      626    (1890)    (affidavit). 

Works,  84  Mich.  676,  48  X.  W.  203  (1891).  29.  Louisville,   etc.,    R.    Co     v.    Wood,    113 

20.  Kreuziger   v.   Chicago,   etc,   R.   Co,   73  liid.   544,    14    X.    E    572,    16   X.    E.   572,    16 
Wis.  158,  40  X.  W.  657    (1888)  X.  E    197   (1887). 

21.  <"hild   v.   Sun  Mut.    Ins.   Co.,   3   Sandf.  30.  An   affidavit,   speaking   generally,   fails 
(X     V.)    26    (1849);    Gettins    v.    Hennessey  to    remove    the    bar    of    the    hearsay    rule. 
(Or    1912).  120  Pac   369;  Morgan  &  Bros.  v.  United  Surety  Co.  v.  Summers,   110  Md.  95, 

Missouri,  K.  &  T.   Ry    Co.  of  Texas,  50  Tex.      72  Atl.  775   (1909). 

Civ.  App    420,  110  S    W.  978    (1908).  31.  Kami   v    Bennett,  223   Pa.  36,  72   Atl. 

22.  Stagg  &  Conrad  v.   St.  Jean,  29  Mont.      342   (1909). 

288,  74  Pac    740    i 1903)     (catalogue);   Xor-  32.  Illinois   Cent.    R.    Co.    v.    Langdon,    71 

folk  &   W.   Ry.  Co.  v.   Bell,   104  Va.   836,  52  Miss.   146,  14  So.  452    (1893);   Mcllhargy  v. 

S   E.  700   (1906).  Chambers,    117    N.    Y.    532,    23    X.    E.  *561 

23.  4    (  hamberlayne,    Evidence,    §§    2756-  (1889);    Crease  v.   Parker,  6   Fed.   Cas.  Xo. 
2760.  3.376,  1  Cranch.  C.  C.  448   (1807).     See  also, 

24.  Spohr   v,   Chicago,   206   111.   441.   69   X.  International,  etc,  R    Co.  v.  Startz,  97  Tex 
E.     515      (1903)      (consideration     stated     in  167,   77   S.   W.   1,   reversing    (Tex    Civ.   App. 
deed).  1903)  74  S.  W    1118. 

25.  Rice  v.  James.  193  Mass.  458,  79  X    E.  33.  Shnmway  v.  Leakey,  67  Cal.  458,  8  Pac. 
807    (1907)  12    (1885);   Lynn   v.  Troy,  57   Hun    (X.  Y.) 

26.  Woods  v.  Toledo.  St    L.  &  W.   R.  Co.,  590,   10  X.   V.  Suppl.  594.  32  X    Y.  St.  Rep. 
159  111.  App.  209   (1910).  497   (1890). 

34.  4  Chamberlayne,  Evidence,  §  2761. 


681  FORM  OF  HEARSAY.  [ 

ample,  as  has  been  said,  that  the  party  against  whom  a  hearsay  statement  is 
t  ii'ered  has  authorized  the  making  of  it35  or  is  otherwise  connected  with  its 
existence  in  some  way  which  the  substantive  law  recognizes  36  it  may  be  re- 
ceived against  him  as  his  admission. 

.J*.j.j-~£~JL.   JlcLX  lAJcLiJ 

35.  blmimvay  v.  Leakey.  H7  Gal.  4o3,  S  Pac.       X.    Y.    Suppl.    594,    32   N.    Y.    St.    Rep.    497 
12   (18S5J.  (1890). 

36.  Lynn  v.  Troy,  57  Hun  (N.  Y.)  590,  10 


CHAPTER  XXXIX. 

HEARSAY  AS  SECONDARY  EVIDENCE;  DECLARATIONS  AGAINST  INTEREST. 

Hearsay  as  secondary  evidence,  880. 
Declarations  against  interest;  rule  stated,  881. 
distinguished  from  admissions,  882. 
administrative  requirements;  necessity,  883. 

subjective  relevancy,  884. 
nature  of  interest;  pecuniary,  885. 
proprietary,  886. 

interest  other  than  pecuniary  or  proprietary,  887. 
general  requirements,  888. 

§  880.  Hearsay  as  Secondary  Evidence.1 —  The  sound  administrative  princi- 
ple, that  hearsay,  when  shown  to  be  necessary  and  relevant,  should  be  received 
as  secondary  evidence,  had  already,  on  the  advent  of  a  more  rigidly  procedural 
treatment  of  the  subject,  obtained  considerable  recognition  by  the  courts  of 
the  United  States.  The  influence  of  such  a  judicial  feeling  is  still  manifest.2 
In  this  view,  while  the  testimony,  under  oath,  of  the  declarant  is  admittedly  a 
primary  grade  of  proof,3  the  reception  of  a  report  of  his  unsworn  statement  is 
permitted  as  a  secondary  grade  of  evidence.  In  these  jurisdictions  should  the 
court  become  satisfied  that  the  primary  evidence  is  unattainable  4  because  the 
declarant  is  dead  5  outside  the  jurisdiction,6  or  that  the  evidence  cannot,  for 
some  other  reason,  be  procured  7  the  report  of  his  extrajudicial  statement  may 
be  received.8 

1.  4     Chamberlayne,    Evidence,     §§     2762-  Michigan. —  Stockton    v.    Williams,    Walk. 
2768.  Ch.  120   (1843). 

2.  "It  is  objected  that,  however  impressive  Texas. —  Primm    v.    Stewart,    7    Tex.    178 
the  declaration  of  a  man  of  character  may  be,  (1851). 

even   without   his   oath,  yet   the   law   admits  Canada. —  Lyons  v.  Laskey,  5  Montreal  Q. 

the  word  of  no  one  in  evidence  without  oath.  B.  5   (1889). 

The  general  rule  certainly  is  so;  but  subject  6.  Udall's     Case,     1     How.     St.     Tr.     1271 

to  relaxation,  in  cases  of  necessity,  or  extreme  ( 1590) . 

inconvenience."     Garwood  v.  Dennis,  4  Binn.  7.  Furman  v.  Coe,   1  Caines  Cas.    (N.  Y.) 

(Pa.)  314,  328  (1811),  per  Tilghman,  C.  J.  96   (1804)    (could  not  have  testified  before)  ; 

3.  Printup  v.  Michell,  17  Ga.  558,  63  Am.  Griffith  v.  Sauls,  77  Tex.  630,   14  S.  W.  230 
Dec.  258   (1855).  (1890)    (physically  incapacitated). 

4.  Gould    v.    Smith,    35    Me.    513     (1853);  8.  "Hearsay  is  uniformly  holden  incompe- 
Peterson  v.  Ankrom,  25  W.  Va.  56  (1884).  tent  to  establish  any  specific  fact  which  is  in 

5.  Maryland. —  Smith  v.  Wood,  31  Md.  293  its  nature  susceptible  of  being  proved  by  wit- 
(1860).  nesses  who  can  speak  from  their  own  knowl- 

Massachusetts  —  Townsend  v.  Pepperell,  99      edge."     Page    v.    Parker,    40    N.    H.    47,    60 
Mass.  40  (1868)  ;  Barrett  v.  Wright,  13  Pick.       (1860),  per  Fowler,  J. 
45   (1832). 

682 


683  RULE  STATED.  §§  881-883 

§  881.  Declarations  against  Interest;  Rule  Stated.9 — Among  recognized  excep- 
tions to  the  rule  excluding  hearsay  is  that  which,  under  the  conditions  of  neces- 
sity and  relevancy  receives  the  declarations  made  against  interest.  Treating 
the  statement  as  secondary  evidence  of  the  facts  asserted,  the  rule  is  announced 
that  where  the  primary  evidence,  the  testimony  of  the  declarant,  is  unavailable 
owing  to  the  latter Y  death  or  other  sufficient  reason,  proof  will  be  received  of 
his  extra  judicial  statement  if  against  his  pecuniary  or  proprietary  interest 
when  made.10  The  extrajudicial  statement  against  interest  may  be  either 
oral  or  in  writing.11 

Whether  the  term  res  gestae  be  taken  in  its  restricted  or  English  meaning  or, 
on  the  other  hand,  be  accorded  its  broad  American  significance,  in  neither  case 
is  it  required  that  the  declaration  against  interest  should  be  part  of  it.12 

§  882.  [Declarations  against  Interest] ;  Distinguished  from  Admissions.13 — 
The  declaration  against  interest,  forming  the  subject  of  an  exception  to  the 
rule  against  hearsay,  is  broadly  distinguished  from  an  admission,  with  which 
it  has  at  times  been  confused.  The  points  of  essential  difference  in  main  are 
four:  (1)  The  admission  is  a  creature  of  procedure;  the  declaration  against 
interest  is  entirely  a  matter  of  evidence,  i.e.,  of  reasoning.  (2)  Admissions 
are  primary  evidence  of  the  facts  stated;  the  declaration  against  interest  is  a 
secondary  grade  of  proof,  received  only  when  shown  to  be  necessary  to  the  case 
of  the  proponent,  the  primary  evidence  being  unavailable.  (3)  The  admission 
is  receivable  in  evidence  only  when  the  declarant  or  some  one  identified  with 
him  in  legal  interest  is  a  party  to  the  suit  and  the  admission  is  offered  against 
him ;  the  declaration  against  interest  may  be  made  by  anyone,  and  is  receivable 
in  suits  between  third  persons  "  and  though  made  in  favor  of  the  present  pro- 
ponent 15  or  one  in  privity  with  the  declarant.16  (4)  The  admission  is  re- 
ceived although  it  was  not  considered  by  the  declarant,  at  the  time  it  was  made, 
as  being  opposed  to  his  interest ;  in  the  declaration  against  interest,  the  declarant 
must  have  been  distinctly  conscious,  at  the  time  of  making  his  assertion,  that  it 
was  directly  opposed  to  his  pecuniary  or  proprietary  interest.17 

§  883.  [Declarations  against  Interest];  Administrative  Requirements;  Neces- 
sity.18—  As  in  other  cases  involving  the  use  of  secondary  evidence,  it  is  essen- 
tial to  the  admission  of  the  hearsay  declaration  against  interest  that  the  exist- 

9.  4     Chamberlayne,     Evidence,     §     2769  13.  4  Chamber layne,  Evidence,  §  2770. 
Declarations  against  interest,  see  note.  Bender  14.  Rand  v.  Dodge,  17  X.  H.  343   (1845). 
ed.,  34  X.  Y.  307.                                                               15.  Currier  v.  Gale,  14  Gray   (Mass.)   504, 

10.  Kresling   v.    Powell,    149    Ind.    372,   49       77  Am   Dec.  343  (1860). 

X.  E.  265   (1898).  16.  Rand  v.  Dodge,  17  X.  H.  343    (1845)  ; 

11.  Rand  v.  Dodge,  17  X.  H.  343   (1845).  Turner  v.  Dewan,  41  U.  C.  Q.  B.  361    (1877). 

12.  Mentzer   v.   Burlingame,   85   Kan.    641,  17.  Life  Ins.   Co.   of  Virginia  v.  Hairston, 
118  Pac.  698   (1911)  :  White  v.  Choteau,  1  E.  108  Va.  832,  62  S.  E.  1057,  128  Am.  St.  Rep. 
D.  Smith  (X.  Y.)  493   (1852)  ;  Ivat  v.  Finch,  989  (1908). 

1  Taunt.  141,  9  Rev.  Rep.  716  (1808)  18.  4  Chamberlayne,  Evidence,  §  2771.    • 


§  884  DECLARATIONS  AGAINST  INTEREST.  684 

ence  of  a  satisfactory  necessity  for  using  it  be  shown  to  the  court.19  The  pro- 
ponent's right  to  prove  his  case  being  regarded  as  paramount,  he  must  do  at 
least  two  things:  (1)  He  must  show  that  a  particular  fact  is  fairly  essential 
to  the  establishment  of  his  case.20  (2)  He  must  affirmatively  prove21  that  he 
is  practically  prevented  from  producing  the  primary  evidence  of  it.  In  case  of 
hearsay,  the  extrajudicial  statement  offered  in  proof  of  the  facts  asserted,  this 
is  the  testimony  of  the  percipient  as  a  witness.  In  this  connection,  as  in  others, 
the  proponent  may  show  the  unavailability  of  the  witness  in  a  very  conclusive 
manner  by  proving  that  the  declarant  is,  dead.22  Should  he  be  able  to  estab- 
lish the  fact  that  he  has  no  means  of  compelling  the  declarant  to  testify  2;{  and 
that  the  latter  declines  to  do  so  voluntarily,  as  where  the  person  whose  extra- 
judicial  statement  is  offered  is  outside  the  jurisdiction  of  the  court  24  or  has 
the  benefit  of  a  privilege  and  proposes  to  avail  himself  of  it,  or  that  by  reason 
of  interest  he  is  incompetent,25  a  sufficient  case  of  forensic  necessity  is  estab- 
lished. Incapacity  to  testify,  due  to  some  physical  or  mental  2<!  infirmity,  may 
constitute  a  satisfactory  necessity  to  warrant  the  court  in  receiving  the  sec- 
ondary evidence. 

§  884.  [Declarations  against  Interest] ;  Subjective  Relevancy.27 —  Adequate 
knowledge  on  the  part  of  the  declarant  must  be  shown  sufficient  to  warrant  the 
jury  as  reasonable  men  in  acting  on  it.28  An  absence  of  a  motive  to  misrepre- 
sent must  also  appear  2<J  but  it  need  not  be  made  ante  litem  motam  30  and  it 

19.  Manning   v.    Lechmere,   1    Atk.   45.3,   26       Ingalls,    16    Iowa    81     (1864);    Stephens    v. 
Eng.  Reprint  288   (1737).     See,  also,  Warren       Gwenap.  1  M.  &  Rob.  120  (1831). 

v.  Greenville,  2  Str.  1129   (1773).     "The  gen-  25.   Pugh  v.  McRae,  2  Ala.  393.  394  (1841)  ; 

eral    rule   of   evidence   excludes   all    hearsay.  Fitch  v.  Chapman.  10  Conn.  8,  11   (1833). 
From  necessity  and  from  the  impracticability  26.  Mahaska    Co.    v.    Ingalls.    16    Iowa    81 

in  some  instances,  of  other  proof,  exceptions  (1864);     Union     Bank    v.    Knapp,    3    Pick, 

to  this  rule  have  been   made."     Westfield   v.  (Mass.)    flfi.    15   Am.   Dec.    181    (1825).     But 

Warren,  8  N.  J.  L    251   (1826).  see,  Harrison  v.  Blades,  3  Campb.  457  (1813). 

20.  It    has    even    been    required    that    no  See  also,  Jones  v.  Henry,  84  N.  C.  320,  324 
other  method  of  proving  the  fact  should  exist.  (1881. 

Lord  Harclwicke.  for  example,  suggested  that  27.  4     Chamberlayne,    Evidence,    §§    2772, 

the  reason  of  the  rule  is  that  "  no  other  [evi-  2773. 

dence]    can   he  had."     Manning  v.   Lechmere,  28.  Paine  v.  Crane,  112  Minn.  439,  128  N. 

1  Atk  453.  26  Eng.  Reprint  288  (  1737).     See,  W.  574   (1910). 

also,  Warren  v.  Greenville.  2  Str.  1129  (1740) .  29.  "  The  admissibility  of  the  evidence  rests 

21.  Wilson  v.  Simpson,  9  How.   100,   13  L.  upon  the  improbability  that  one  will  admit 
ed.  66   (1850).  that  which  it  is  for  his  pecuniary  interest  to 

22.  Paine  v.  Crane,   112  Minn.  439,  128  N.  deny."     Mentzer  v.  Burlingame,  85  Kan.  641, 
W.  574   (1910)  118  Pac.  698   (1911),  per  Benson,  J. 

23.  Harriman  v.  Brown,  8  Leigh   (Va.)  697  30.  Chandler  v.  Mutual  L.  I   Assn.,  131  Ga. 
(1837).  82,  61  S.  E.  1036  (1908)  ;  Halvorsen  v.  Moon, 

24.  Walnut  Ridge  Mercantile  Co.  v.  Cohn,  etc,  Lumber  Co.,  87  Minn.   18,  91  N.  W.  28, 
79  Ark.  338,  96  S.  W.  413   (1906)  :  Shearman  94   Am.   St.   Rep.   669    (1902)  ;    compare  Ma- 
v.  Atkins,  4  Pick.    (Mass.)   283,  293    (1826)  ;  haska  Co.  v.  Ingalls  Ex'r.  16  Iowa  81   (1864)  ; 
South   Omaha  v.  Wrzensinski    (Xebr.  1902),  Paine  v.  Crane,  112  Minn.  439,  128  N.  W.  574 
92  N.  W.   1045;   Alter  v.  Berghaus,  8  Watts  (1910). 

(Pa.)    77    (1839)..    But  see,  Mahaska  Co.  v. 


685  MATURE  OF  INTEREST.  §§  885-887 

need  not  be  spontaneous.31  The  burden  of  proving  that  it  was  against  interest 
lies  on  the  proponent,32  and  whether  a  sufficient  foundation  for  it  is  laid  is  a 
question  for  the  judge.33 

§  885.  Nature  of  Interest;  Pecuniary  .a4 —  As  embodied  in  the  statement  of  the 
rule  the  interest  in  derogation  of  which  the  declarant  speaks  may  be  either  pe- 
cuniary or  proprietary.  In  other  words,  the  statement  must  have  antagonized 
the  direct  material  interest  of  the  speaker  as  owner  of  money  or  other  prop- 
erty. 

Pecuniary  Interest. —  The  declaration  against  interest  is  admissible  when 
the  nature  of  that  interest  is  pecuniary. ;:r> 

The  declarant,  for  example,  may  acknowledge  himself  legally  indebted  to 
some  other  person.36  On  the  other  hand,  he  may  state  that  nothing  or  some- 
thing less  than  the  prima  facie  sum  is  due  to  himself  from  a  third  person  on  a 
particular  account.37 

§  886.  [Nature  of  Interest] ;  Proprietary.38 —  An  equal  guarantee  of  trust- 
worthiness is  furnished  where  the  extrajudicial  statement  is  opposed  to  the 
proprietary  interest  of  the  declarant.39 

The  interest  may  be  either  in  personal  property  40  or  in  real  estate  41  or  may 
relate  to  the  question  of  a  boundary.42 

§  887.  [Nature  of  Interest] ;  Interest  other  than  Pecuniary  or  Proprietary.43— 
There  are  many  other  kinds  of  interest  which  a  sane  declarant  may  well  regard 
as  of  equal  or  even  greater  value  than  his  money  or  tangible  possessions,  an-.l 
declarations  as  to  such  matters  ought  on  principle  to  be  admissible  as  much  as 
declarations  against  material  interest,  but  such  is  not  the  law.44  Even  a  decla- 
ration against  the  reputation  of  the  declarant  or  subjecting  him  to  legal  liabil- 
ity 45  is  not  admissible. 

31.  Doe  v.  Turford,  3  B.  &  Ad.  890,  1  L.  J.  Bowen  v.  Chase,  98  U.  S.  254,  25  L.  ed.  47 
K.  B.  262,  23  E.  C.  L.  388   (1832).  (1878). 

32.  Sanguinetti    v.    Rossen,    12    Cal.    App.  40.  Bank  deposits. —  Declarations  by  a  wife 
623,  107  Pac.  560   (1906).  will   be  received  to  the  effect   that   bank   de- 

33.  Paine  v.  Crane.  112  Minn.  439,  128  N.  posits    belonged    to    the    husband      Moore    v. 
W.  r>74   (1010).  Fingar.   138  App.  Div.  920,   122  X.  V.  Suppl 

34.  4  Chamberlayne,  Evidence.  §  2774.  851   (1910). 

»      35.  McCarthy  v.  Stanley,  151  App  Div.  358,  41.  Smith  v.  Moore.  142  N.  C   277.  55  S.  E. 

136  X.  Y.  Suppl.  386  (1»12).  275.  7  L.  R.  A.   (X.  S.)   684   (1006) 

36.  Swan  v.  Morgan.  88  Hun  378.  34  X.  Y  42.  Manuel  v    Flynn.  5  Cal.   App.   319,  90 
Suppl.  829,  68  X.  Y.  St    Rep.  76*   <180.-,).  Pac.  463    (1007). 

37.  Scammon    v.    Scammon.    33    X     H.    52  43.  4     Chamberlayne.     Evidence,    §§    2779, 
(1856);    Sparling   v.    Wells,    24    X.    Y.    App.       2780. 

Div.  584.  49  X.  Y.  Suppl.  321    (1898)  ;   Scott  44.  Hank  v.  State.   148  Ind.  238.  46  X.  E. 

v.  Crouch,  24  Utah  377,  67  Pac.  1068   (1902).  127,  47  X.  E   465   (1807) 

38.  4    Chamberlayne,    Evidence,    §§    2775-  45.  Aver  v.  Colgrqve.  81  Hun   (X.  Y.)   322, 
2778.  30  X.  Y.  Suppl.  788  (1894)  :  Penner  v.  Cooper, 

39.  Helm  v.  State,  67  Miss.  562,  7  So.  487  4  Munf.   (Va.)   458   (1815)    (trespass)  ;  Helm 
(1890)  ;  Powers  v.  Silsby,  41  Vt.  288  (1868)  ;  v.  State.  67  Miss.  562,  7  So.  487   (1890). 


§  888 


DECLARATIONS  AGAINST  INTEKEST. 


686 


§  888.  [Nature  of  Interest];  General  Requirements.46 — Judicial  administra- 
tion and,  later  on,  procedure,  has  imposed  certain  general  requirements  as  to 
the  nature  of  the  interest  which  the  proponent  must  show,  regardless  of  whether 
the  statement  be  opposed  to  the  pecuniary  interest  of  the  declarant  or  taken 
to  be  in  derogation  of  his  estate  in  chattels  or  land.  To  establish  the  degree 
of  relevancy  or  probative  force  upon  which  this  exception  of  the  hearsay  rule 
rests,  it  is  essential  that  the  speaker  should  possess  a  present,  rather  than  be 
expecting  to  acquire  a  future  interest.4'  Furthermore  the  interest  must  be 
known  to  the  declarant 4S  and  be  substantial.40  Oral  declarations  are  as  ad- 
missible as  written  50  unless  the  substantive  law  requires  the  production  of  a 
writing  51  and  the  declaration  may  be  in  any  form.52  Such  declarations  are 
admissible  not  only  in  proof  of  facts  directly  asserted  but  also  of  facts  inci- 
dentally stated  53  as  the  amount  of  rent  54  or  the  source  of  title.55  Such  a 
declaration  is  by  no  means  conclusively  binding  upon  the  declarant.  He  may 
explain  50  or  modify  it,  but  is  not  permitted  to  rebut  it  by  evidence  of  other 
declarations.57  In  pursuance  of  the  same  line  of  thought,  the  declaration 
against  interest  has  been  spoken  of  as  having  but  slight  evidentiary  weight 
as  against  documentary  evidence.58 


46.  4    Chamberlayne,    Evidence,    §§    2781- 
2789. 

47.  California. —  Thaxter  v.  Inglis,  121  Cal. 
593,  54  Pac.  86   (1898). 

48.  Taylor  v    VVitham,  3  Ch.  D.  605,  45  L. 
G.  Ch.  798,  24  Wkly.  Rep.  877  (1876). 

49.  That  the  entire  declaration   should  he 
against  the  pecuniary  or  proprietary  interest 
of  the  declarant  is   not   required.     Smith   v. 
Moore,  142  N.  C.  277,  55  S.  E.  275,  7  L.  R. 
A.  (X.  S.)   684   (1906). 

50.  Bowen  v.   Chase,  98  U.   S.   254,  25  L. 
ed.  47  (1878). 

51.  Marsh   v    Xe-ha-sa-ne   Park   Assoc.,   18 
Misc.    (N    Y.)    314,  42  X.  Y.  Suppl.  996,  re- 
versed 25  App.  Div.  34,  49  N.  Y.  Suppl.  384 
(1896). 


52.  Hall    v.    Insurance    Co.,    3    Phila.    331 
(1859)    ( enrolment  of  vessel ). 

53.  Taylor  v.  Gould,  57  Pa.  St.  152  (1868). 

54.  Reg.  v.   Exeter,  L.   R.  4  Q.   B.  341,   10 
B.  &  S.  433,  38  L.  J   M.  C.  126,  20  L.  T.  Rep. 
(X  S.)    693,  17  Wkly.  Rep.  850    (1869). 

55.  Sly  v.  Dredge,  2  P.  D.  91,  46  L.  J.  P. 
&  Adm.  63,  25  Wkly.  Rep.  463  (1877). 

56.  Phipps  v.  Martin,  33  Ark.  207    (1878)  ; 
Raymond   v.   Cummings,    17    X.   Bruns.w.   544 
(1877). 

57.  Harrison  v.  Harrison,  80  Xeb.  103,  113 
X.  W.  1042  (1907). 

58.  Pargoud    v.     Amherson,     10    La.     352 
(1830). 


CHAPTER  XL. 

HEARSAY  AS  SECONDARY  EVIDENCE;  DECLARATIONS  AS  TO  MATTERS  OF 
PUBLIC  UR  GENERAL  INTEREST. 

Declarations  an  to  matters  of  public  and  general  interest,  889. 
Administrative  requirements;  necessity,  890. 

subjective  relevancy ;  adequate  knowledge,  891. 

absence  of  controlling  motive  to  misrepresent,  892. 
Form  of  declar<ition,  893. 
Scope  of  rule;  boundaries,  etc.,  894. 

§  889.  Declarations  as  to  Matters  of  Public  and  General  Interest.1 —  Matters 
of  public  and  general  interest,  those  of  such  relation  to  the  general  life  of  the 
community  or  of  the  public  at  large  as  to  lead  to  a  rational  assumption  that 
they  have  been  widely  and  understandingly  discussed,  are  the  subject  of 
another  u  exception  "  to  the  rule  excluding  hearsay.2  In  other  words,  the  pro- 
ponent being  unable  to  produce,  in  the  exercise  of  his  paramount  right  to  prove 
his  case,  the  primary  evidence  of  these  important  facts  is  permitted,  under 
fixed  conditions,  to  introduce  extrajudicial  statements  as  a  secondary  grade 
of  proof. 

§  890.  Administrative  Requirements;  Necessity.3 — Before  secondary  evidence 
of  unsworn  statements  can  be  received,  as  proof  of  the  facts  asserted,  it  is 
essential,  here,  as  in  other  instances  of  the  use  of  secondary  evidence,  that 
the  primary  proof  of  the  oral  testimony  of  the  declarant  4  should  be  shown 
to  be  unavailable,  and  that,  in  consequence,  a  sufficient  administrative  neces- 
sity to  procure  secondary  evidence  has  been  placed  on  the  proponent.5  A 
declaration  of  this  nature  is  said  to  be  admissible  "  where  no  better  evidence 
can  be  had."  6  In  general,  administration  requires  that  the  declarant  should 
be  shown  to  be  dead."  although  other  facts  showing  unavailability  have  occa- 

1.  4  Chamberlayne,  Evidence,  §  2790  ment    of    the    unavailable    person.     Beard    v. 

2.  Inhabitants    of    Enfield    v.    Woods,    212  Talbot,  2   Fed.  Cas    Xo.   1,182.     Even  that  a 
Mass.  547,  90  X.  E.  331  (1012).     Hearsay  dec-  surveyor  testifies  to  the  same  effect  does  not 
larations,  to  be  admissible  concerning  matters  exclude  the  evidence      Yo\v  v    Hamilton,   136 
of  general  or  public  interest,  must  refer  to  a  X.  C.  357.  48  S.  E.  782   <  1!)04). 

public  or  general  right  and  not  to  a  particu-  5.  Scroggins    v.    Dalrvmple.    52    X.    C.    46 

lar  exercise  of  it.     Inhabitants  of  Enfield  v.  (1S50)  :  Birmingham  v.  Anderson.  40  Pa.  St. 

Woods,  212  Mass.  547.  0  X.  E .331    (1012).  506     <  1S61 )  :    Turner    Falls    Lumber    Co.    v. 

3.  4  Chamberlayne,  Evidence.  §  2701.  Burns.  71  Vt.  354.  45  Atl.  896   (1890). 

4.  That    another    declarant    on    the    point  6.  King  v.  Watkins,  98  Fed.  013  (1899). 
can  be  procured  as  a  witness  is  not  a  neces-  7.  Lay  v.  Neville.  25  Cal.  545    (1864). 
sary  ground  for  excluding  the  hearsay  state- 

687 


§§  891,  892  DECLARATIONS  AS  TO  PUBLIC  MATTERS.  688 

sionally  been  deemed  to  establish  a  necessity  warranting  the  reception  of 
the  evidence.8  It  can  scarcely  be  said,  however,  that  this  very  rational  in- 
dulgence is  in  accordance  with  the  general  rule,  under  which  absence  from 
the  jurisdiction  9  is  not  treated  as  a  sufficient  ground  for  failing  to  produce 
the  declarant  as  a  witness. 

§  891.  [Administrative  Requirements];  Subjective  Relevancy;  Adequate 
Knowledge.10 —  Unless  the  situation  presented  to  a  presiding  judge  is  such  that 
knowledge  on  the  part  of  a  given  declarant  as  to  the  existence  of  a  fact  of 
public  and  general  interest  may  rationally  be  assumed,  affirmative  proof  to 
the  satisfaction  of  the  court  must  be  offered  on  the  subject.11  The  court  will 
assume  knowledge  by  the  witness  residing  in  the  community  12  of  any  public 
boundary  but  where  a  private  boundary  of  quasi-public  concern  is  in  question 
the  witness  must  be  shown  to  have  actual  knowledge  13  which  may  be  assumed 
in  a  neighbor  14  or  one  owning  adjoining  land  15  or  a  surveyor  who  has  sur- 
veyed the  land  ie>  or  his  assistants.17 
J  - 

§  892.  [Administrative  Requirements] ;  Absence  of  Controlling  Motive  to  Mis- 
represent.^—  Essential  to  the  subjective  relevancy  of  an  extrajudicial  state- 
ment relating  to  a  matter  of  public  and  general  interest  as  secondary  evidence 
of  the  facts  asserted,  is  not  only  the  requirement  that  the  declarant  was  pos- 
sessed of  adequate  knowledge  but  also  that  the  latter  was  not,  at  the  time  of 
making  his  statement,  under  a  controlling  motive  to  misrepresent.  The  de- 
clarant must  be  disinterested.19  Should  an  interest  in  the  speaker  to  mis- 
represent be  exhibited  to  the  court  his  declaration  may  properly  be  rejected.20 
The  influence  of  bias  21  or  of  the  partisan  warmth  of  feeling  developed  by  the 

Lawrence  v.  Tennant,  64  X.  H.  532,  15  All.  15.  Keefe  v.  Sullivan  County  R.  R.,  75  N. 

543    (1888).  H.  116,  71  Atl.  379    (1908). 

8.  Hartford  v.  Maslen,  76  Conn.  599,  615,  16.  Simpson   v.   De   Ramirez,   50   Tex.   Civ. 
57   Atl.    740    (1904),   per   Hall,   J.    (strip   of  App.  25,  110  S.  W.  149   (1908).     The  survey- 
land  claimed  as  part  of  public  parks).  or's  knowledge  of  the  names  and  relations  of 

9.  Tracy  v.  Eggleston,  108  Fed.  324,  47  C.  landmarks  may  be  shown  by  the  survey  itself. 
C.  A.  357  writ  of  certiorari  denied  183  U.  S.  Smith  v.  Headrick,  93  N.  C.  210   (1885). 
699,   22    S.    Ct.    935.   46   L.   ed.    396    (1901).  17.  Overton    v.    Davisson,    1    Gratt.     (Va.) 

10.4    Chamberlayne,    Evidence,    §§    2792-  216,  42  Am.  Dec.  544  ( 1844)  ;  Hill  v.  Proctor, 

2797.  10  W.  Va.  59   (1877). 

11.  Lay   v.    Xeville,    25    Cal.    545     (1864);  18.4    Chamberlayne,    Evidence,    §§    2798- 
Cornwall    v.    Culver,    16    Cal.    423     (1860);  2799. 

Adams  v.  Stanyan,  24  X.  H.  405  (1852);  Key-  19.  Hathaway  v.   Goslant,   77   Vt.    199,   59 

stone  Mills  Co.   v.    Peach   River   Lumber   Co.  Atl.  835   (1905). 

(Tex.  Civ.  App.  1906),  96  S.  W.  64.  20.  Corbleys  v.  Ripley,  22  W.  Va.   154,  46 

12.  Bow  v.  Allenstown,  34  N.  H.  351,  366,  Am.  Rep.  502   (1883). 

69  Am.  Dec.  489   (1857).  21.  Bethea  v.  Byrd,  95  X.  C.  309,  59   Am. 

13.  Lawrence  v.  Tennant,  64  X.  H.  532,  15  Rep.  240  (1886).     "Those  declarations  which 
Atl.  543    (1888).  are  liable  to  the  suspicion  of  bias  from  inter- 

14.  Brenstein    v.    Xort-h    American    Realty  est  "  are  always  to  be  excluded.     Harriman  v. 
Co.,  119  X.  Y.  Suppl.  1    (1909)  ;  Broadwell  v.  Brown,  8  Leigh    (Va.)    697,  713    (1837),  per 
Morgan,  142  X.  C.  475,  55  S.  E.  340    (1906)  Tucker,  P. 

(half  a  mile). 


FORM  OF  DECLARATION. 


893,  894 


arising  of  a  controversy  22  have  been  deemed  to  render  the  statement  untrust- 
worthy.23 It  has,  therefore,  been  required  that  the  declaration  should  have 
been  made  ante  litem  motam.24  Statements  made  post  litem  motam  may, 
however,  be  used  in  corroboration  of  those  made  before  any  controversy  on 
the  subject  arose.25  The  fact  that  the  declaration  is  self -sen-ing  does  not 
necessarily  exclude  it  but  affects  its  weight  only.-0 

§  893.  Form  of  Declaration.27 —  The  declaration  may  be  in  any  form,  oral 
or  written,28  circumstantial 29  or  by  proof  of  reputation.30  Declarations  as 
to  boundaries  may  take  the  form  of  deeds,  surveyors'  notes,31  plans  32  and 
the  like. 

§  894.  Scope  of  Rule ;  Boundaries,  etc.33 —  The  admissibility  of  the  extra- 
judicial  statement  extends  to  facts  directly  but  not  to  those  incidentally 34 
asserted.  Facts  of  the  latter  nature,  such  as  dates,35  and  the  like,  are  not 
apt  to  be  the  subjects  of  extended  discussion  and  mutual  correction  36  upon 
which  the  relevancy  of  this  species  of  evidence  rests.  For  the  purposes  of 
the  present  rule,  the  test  of  what  is  public  is  as  to  whether  the  subject  in 
question  is  calculated  to  excite  such  a  general,  sustained,  and,  as  it  were, 
spirited  discussion  as  will  be  apt  to  result  in  the  establishment  of  a  correct 
opinion.  The  rule  may  cover  municipal  boundaries37  or  incorporation38  and 


22.  Dancy  v.  Sugg,  19  N.  C.  515   (1837). 

23.  Royal  v.  Chandler,  83  Me.  150,  21  Atl. 
842    (1891). 

24.  Hamilton   v.   Smith,   74   Conn.   374,   50 
Atl.  884  (1902). 

25.  Whitman  v.  Haywood,  77  Tex.  557,  14 
S.  W.  166   (1890)  :  Martyn  v.  Curtis,  68  Vt. 
397,  35  Atl.  333   (1896). 

26.  Child  v.  Kingsbury,  46  Vt.  47   (1873)  ; 
Tracy  v.  Eggleston,  108  Fed.  324,  47  C.  C.  A. 
357  "(1901). 

27.  4  Chamberlayne,  Evidence,  §  2800. 

28.  Bow   v.   Allenstown,   34   X.   H.   351,   69 
Am.  Dec.  489    (1857). 

29.  Bow  v.   Allenstown,   34   N.   H.   351,   69 
Am.  Dec.  489    (1857). 

30.  Attorney  General  v.  Antrobus,  74  Law 
J.  Ch.  599.  2  Ch.  188.  92  Law  T.  790,  3  Local 
Gov.  R.  1071,  21  Times  Law  R.  471   (1905). 

31.  Morton  v.   Folger,   15  Cal.  275    (1860). 
See  Weld  v.  Brooks,  152  Mass.  297,  25  X.  E. 
719     (1890):    Bow    v.    Allenstown.    34    X.    H. 
351.    69    Am.    Dec.    489     (1857):    Daniels    v. 
Fitzhugh,  13  Tex.  Civ.  App.  300,  35  S.  W.  38 
(1896). 

32.  Birmingham    v.    Anderson.    40    Pa.    St. 
506  (1861)  :  Cottingham  v.  Seward  (Tex.  Civ. 
App.  1894),  25  S.  W.  797.     See,  also.  Mineral 
R.  &  M.  Co.  v.  Auten,  188  Pa.  St.  568,  41  Atl. 


327  (1898)  (draft  of  a  survey  over  a  hun- 
dred years  old  held  admissible). 

33.  4    Chamberlayne,    Evidence,    §    2741    et 
seq.;    4    Chamberlayne,    Evidence,    §§    2801- 
2810. 

34.  Smith  v.  Cornett,  38  S.  W.  689,  18  Ky. 
L.   Rep.  818    (1897)     (date);   Peck  v.  Clark, 
142   Mass.    436,    8    X.    E.    335    (1886);    Van 
Deusen    v.    Turner,    12    Pick.     (Mass.)     532 
(1832). 

35.  Bolton  Southwest  School  Dist.  v.  Wil- 
liams, 48  Conn.  504    (1881). 

36.  Southwest    School    Dist.    of    Bolton    v. 
Williams,  48  Conn.  504,  507   (1881). 

37.  Chapman   v.   Twitchell,   37   Me.   59,   58 
Am.  Dec.  773    (1853). 

38.  Bow  v.   Allenstown,   34   X.  H.   351,   69 
Am.  Dec.  489   (1857). 

'  39.  Dawson  v.  Town  of  Orange,  78  Conn. 
96,  61  Atl.  101  (1905)  (town  common). 

40.  Thomas  v.  Jenkins.  6  A.  &  E.  525,  1 
Jur.  261,  6  L.  J.  K.  B.  163,  1  X.  &  P.  587, 
33  E.  C.  L.  285  (1837). 

In  America,  however,  the  necessities  of  a 
new  country  have  generally  resulted  in  the 
admission  of  such  evidence  of  a  deceased  per- 
son [Cadwalader  v.  Price.  Ill  Md.  310.  73 
Atl.  273,  134  Am.  St.  Rep.  603-n  (1909)]  even 


§  894  DECLARATIONS  AS  TO  PUBLIC  MATTERS.  690 

whether  lands  are  public  3y  but  not  (in  England)  private  boundaries40  unless 
ancient  4l  or  coinciding  with  public  boundaries.4- 

to  prove  facts  incidentally  stated.     Hamilton  41.  McKineron  v.  Bliss,  31   Barb.   180,  af- 

v.  Menor,  2  Serg  &  R.  (Pa.)  70  (1815)  ;  Mur-  firmed  ->l  X.  Y.  206  ( 1860). 

ray  v.  Spencer,  88  N.  C.  357   (1883).     State-  42.  Curtis  v.  Aaronson,  49  N.  J.  L.  68,  7 

ruents  of  the  nature  of  the  claim  made  are  not,  Atl.  886,  60  Am.  Rep.  584  ( 1886)  ;  McKhmon 

however,  admissible  under  this  rule.  v   Bliss,  21  N.  Y.  206  (1860). 


CHAPTER  XLI. 

HEARSAY  AS  SECONDARY  EVIDENCE;  DYING  DECLARATIONS. 

Hearsay  as  secondary  evidence;  dying  declarations,  895. 
Administrative  requirements;  necessity,  896. 

relevancy,  897. 

subjective  relevancy,  898. 

completeness  demanded,  899. 

rule  strictly  construed,  900. 

who  are  competent  as  declarants,  901. 

function  of  the  court,  902. 
Expectation  of  death,  903. 

modes  of  proof,  904. 
Form  of  declaration,  905. 
Number  of  dying  declarations,  906. 
Privilege  of  husband  and  wife,  907. 
Scope  of  declaration,  908. 
Weight  for  the  jury,  909. 

a  discredited  rule,  910. 

impeachment,  911. 

mental  state  of  declarant,  912. 
Rule  constitutional,  913. 

§  895.  Hearsay  as  secondary  Evidence ;  Dying  Declarations.1 —  A  unique  form 
of  extrajudicial  statement,  often  full  of  dramatic  interest,  employed  by  judicial 
administration  as  secondary  proof  of  the  facts  asserted,  is  the  dying  declara- 
tion. On  an  indictment  for  the  homicide  of  the  declarant  his  statement  cover- 
ing the  details  of  the  fatal  encounter  is  admissible,  provided  that  it  be  shown, 
to  the  satisfaction  of  the  presiding  judge,  to  have  been  made  under  a  con- 
scious sense  of  impending  death.  The  relevancy  upon  which  its  a'dmissibility 
was  originally  predicated  and  since  maintained,  although  with  apparently 
decreasing  confidence,  is  the  solemnity  of  the  occasion  on  which  the  statement 
is  made.  Its  probative  force  is  closely  related  to  that  created  by  the  presence 
of  an  oath.  At  the  time  when  the  present  exception  took  its  rise  immediate 
consequences  were  thought  to  attend  perjury  in  undergoing  the  oath  ordeal. 
In  a  later  age,  the  false  taking  of  an  oath  was  thought  to  be  punished  by  an 
offended  God  after  the  death  of  the  offender.  Under  this  conception,  it  was 

1.  4  Chamberlayne,  Evidence,  §  2811.  Dy-  N"  Y.  470.  401.  Admissibility  of  dying  decla- 
ing  declarations,  see  note,  Bender  ed.,  192  rations,  see  note,  Bender  ed.,  56  N.  Y.  96. 

691 


§§896,897  DYIXQ  DECLAKATIONS.  692 

not  surprising  that  the  immediate  prospect  of  impending  death  should  be 
thought  to  impose  upon  the  mind  of  a  declarant  a  feeling  of  the  presence 
of  the  Divine  Being  which  would  clear  it  of  all  motive  to  misrepresent  the 
truth,  and,  being  practically  equivalent  to  the  sanction  of  an  oath,  might  fairly 
be  regarded  as  a  satisfactory  substitute  for  it.  Relevancy  being  thus  estab- 
lished, extrajudicial  statements  by  the  victim  of  a  homicide  giving  the  cir- 
cumstances attending  the  occurrence  will  be  received  in  evidence  as  secondary 
proof  of  the  facts  asserted  if  made  in  the  fixed  belief  of  immediately  im- 
pending death.2  Such  statements  may  be  received  at  the  instance  of  the 
defense  :!  as  well  as  that  of  the  prosecution.4  This  may  occur  where  the  dying 
declaration  absolves  the  accused  from  responsibility,  laying  the  blame  upon 
another  person.5 

Presence  of  Accused. —  It  is  not  required  for  the  admissibility  of  such  a 
statement  that  the  accused  should  have  been  present  or  represented  by  counsel 
when  it  was  made.6 

§  896.  Administrative  Requirements ;  Necessity.7 —  The  administrative  ground 
for  receiving  secondary  evidence  of  the  res  gestae  of  a  homicide  in  the  form 
of  a  dying  declaration  is  a  recognition  of  the  necessity  under  which  the 
prosecution  as  proponent  often  labors  in  proving  its  case.8  The  injured  person 
being  dead,  he  is  no  longer  available  as  a  witness.  The  primary  proof,  the 
testimony  of  the  declarant,  is  inaccessible.  Under  these  circumstances  the 
charge  could  scarcely  be  made  out  except  by  the  use  of  the  declarations  of  the 
deceased  concerning  the  facts  of  the  transaction.  Frequently,  only  he  and 
the  accused  are  cognizant  of  the  real  facts.  The  extrajudicial  declarations  of 
the  injured  person  must  be  received9  unless  there  is  to  be  a  failure  or  mis- 
carriage of  justice. 

§  897.  [Administrative  Requirements] ;  Relevancy.10 —  As  in  other  instances 
of  the  reception  of  secondary  evidence,  not  only  must  the  proponent  show  that 
it  is  fairly  necessary  to  the  proof  of  his  case  but  also  that  the  evidence  is 
relevant,  objectively  and  subjectively  considered.  The  question  of  the  ob- 
jective relevancy  of  dying  declarations  seldom  presents  much  difficulty.  Even 
if  the  secondary  evidence  should  be  in  part  irrelevant,  the  dying  declaration 
will  still  be.  received  if  otherwise  competent.11 

2.  People   v.    Falletto,   202   N.    Y.    494.   96       Greg    61,  32  Pac    1031,  33  Pac.  537,  affirmed 
N.  E.  355   ( 1911 ) .  24  Greg.  61.  33  Pac.  537  <  1S93) . 

3.  Mattox  v.  U    S.,  146  U.  R.  140,  13  S.  ft.  7.  4  Chamberlayne,  Evidence,  §  2812. 

50,  36  L.  ed.  917   (1S92).  8.  Morgan   v.   State,   31    Ind.   215    (1869)  ; 

4.  To  refuse  this  privilege  has  been  held  to  State    v.    Knoll.    69    Kan.    767.    77    Pac.    580 
be   error.     Green   v.   State.   89   Miss.   331,   42  (1904):    People  v    Falletto,   202   N.   Y.  494. 
So.  797  (19071  96  X.  E    355    (1911);   State  v.  Watkins    (N. 

5.  People  v.  Southern,  120  Cal.  645,  53  Pac.  C.  1912),  75  S.  E.  22. 

214  (1898).  9.  Rhea  v   State,  75  S.  E.  22   (1912). 

6.  Shenkenberger   v.    State.    154    Tnd.    630,  10.  4  Chamberlayne,  Evidence,  §  2813. 

57  N".  E    519   (1900);  State  v.  Brunnetto,  13  11.  State  v    Privas,  32  La.  Ann.   1086,  36 

La.  Ann.  45    (1S58)  ;   State  v.   Foot  You,  24       Am.  Rep.  293   (1880). 


693  KELEVANCY.  §§  898-900 

§  898.  [Administrative  Requirements] ;  Subjective  Relevancy.12 —  The  de- 
clarant must  be  shown  to  have  adequate  knowledge  of  the  facts  stated  especially 
of  the  identification  of  the  accused,13  and  the  dying  man  is  presumed  to  have 
no  motive  to  misrepresent.14  That  the  statement  is  self-serving  affects  merely 
its  probative  force  10  while  the  fact  that  the  declarant  asserts  himself  responsi- 
ble for  hia  own  death  adds  to  its  weight.10  With  the  change  in  modern  views 
as  to  the  future  life  there  is  much  doubt  often  expressed  as  to  the  reliability 
of  this  species  of  testimony. 

§  899.  [Administrative  Requirements];  Completeness  demanded.17 — In  respect 
to  that  which  it  purports  to  cover,  a  dying  declaration  must  be  complete.18 
Administration  by  no  means  requires  that  the  extrajudicial  statement  must, 
in  order  to  be  admissible,  be  a  full  account  of  the  entire  res  gestae,  properly 
so-called,  of  the  fatal  meeting.19  What  is  demanded  is  that  the  declarant 
should  be  shown,  or  rationally  assumed,  to  have  said  all  which  he  intended 
to  say  on  the  topic  which  he  has  spoken  about.  No  modification  which  the* 
speaker  regarded  as  essential  to  the  accuracy  of  his  statement  can  properly 
be  omitted.  Should  there  be  reasonable  ground  for  believing  that  some  such 
qualification  has  failed  to  appear,  the  dying  declaration  will  be  rejected  as 
incomplete.20  The  declaration  need  not  however  be  presented  in  the  exact 
words  of  the  declaration  21  but  the  substance  is  enough.22 

§  900.  [Administrative  Requirements] ;  Rule  strictly  construed.23 —  Distrust 
of  the  soundness  of  the  judicial  reasoning,  upon  which  the  admissibility  of 
this  particular  exception  to  the  hearsay  rule  was  established  and  is  still  main- 
tained, has  naturally  led  to  the  formulation  of  an  extremely  restricted  rule  on 
the  subject  of  dying  declarations.  It  is  said  that  they  should  be  received  with 
great  caution.24  Extension  by  interpretation  and  intendment  is  not  favored. 
Unless  an  extrajudicial  statement  can  be  brought  strictly  within  the  rule,  the 

12.  4    Chamberlayne,    Evidence,    §§    2814-  17.  4    Chamherlayne,    Evidence,    §§    2820- 
2819.  2821. 

13.  Com.  v.  Roddy,  184  Pa.  274,  39  Atl.  211  18.  State  v.  Cronin,  64  Conn    293,  29  Atl. 
(1898).  536    (1894). 

14.  Donnelly  v.  State,  26  X.  J.  L.  507.  620  19.  State     v.     Xettlebush,     20     Iowa     257 
(1857)  :  R.  v.  Perkins,  9  C.  &  P.  395   (1840).       (1866)  ;    State   v.   Patterson,   45   Vt.  308,   12 

15.  Mattox  v.  U.  S.  146  U.  S.  140,  13  Sup.       Am.  Rep.  200   (1873). 

Ct.  50,  36  L.  ed.  917   (1892).  20.  C'ooper  v.   State.   89  Miss.  351,   42   So. 

16.  Beaty  v.  Com.,  140  Ky.  230,  130  S.  W.       666  (DOT). 

1107   (1910)  :   Com.  v.  Matthews,  89  Ky.  287,  21.  Park  v.   State,    126   Ga.   575,   55   S.   E. 

12  S.  W.  333,  11  Ky.  Rep.  505   (1889).     Com-  489    (1906). 

pare  Kearney  v.  State.  101  Ga.  803.  29  S.  E.  22.  Murphy  v.  People,  37  111.  447    (1865). 

127,  65  Am.  St.  Rep.  344   (1897).  23.4    Chamherlayne,    Evidence,    §§    2822- 

Friendship    for    another    may    induce    the  2826. 

declarant  to  falsely  accuse  himself  of  having  24.  Gardner   v.    State,   55    Fla.   25,   45    So. 

been  the  aggressor  in  the  encounter  from  the  1028   (1908)  ;  Smith  v.  State,  9  Ga.  App.  403, 

effects  of  which  he  is  suffering.     See  Boyd  v.  71  S.  E.  606    (1911)  ;   Lipscomb  v.  State,  75 

State,  84  Miss.  414,  36  So.  525  (1904).  Miss.  559,  23  So.  210  (1897). 


§  901  DYING  DECLARATIONS.  694- 

judicial  impulse  is  to  reject  it.25  In  brief,  a  dying  declaration  is  received 
only  in  criminal  actions  for  homicide,  where  the  death  of  the  declarant  is  the 
subject  of  the  charge  and  the  circumstances  of  the  killing  form  the  basis  of 
the  declaration,  the  latter  having  been  made  under  a  sense  of  immediately 
impending  death.  The  evidence  is  not  received,  according  to  the  course  of 
the  common  law.  in  civil  actions,20  illegal  acts  implying  an  assault  even  in 
case  of  those  which,  like  abortion,  result  in  death.  Although  the  earlier  law 
admitted  the  evidence  in  case  of  other  crimes,27  it  is  now  settled  that  the  dying 
declaration  is  admissible  only  in  cases  for  homicide.28  Where  a  conspiracy 
is  shown,  the  dying  declarations  of  deceased  will  be  received  as  against  a 
defendant  who  did  not  fire  the  fatal  shot,  but  was  present  on  the  scene  actively 
assisting  in  the  perpetration  of  the  crime.29 

§  901.  [Administrative  Requirements] ;  Who  are  competent  as  Declarants.30— 
Speaking  generally,  any  person  is  a  competent  declarant  who  would  be  re- 
ceived as  a  witness.  In  other  words,  anyone  who  would,  if  living,  be  competent 
to  testify,  may  be  the  declarant  in  a  dying  declaration.31  Conversely,  in  case 
the  maker  of  the  dying  statement  would,  if  alive,  be  incompetent  as  a  wit- 
ness,32 his  dying  declaration  would  be  rejected.33  Included  in  this  general 
statement  is  the  fact  that  where  the  declarant,  by  reason  of  infancy,34  insanity,35 
or  other  cause,36  would  have  been  incompetent  to  have  testified  as  a  witness, 
his  declaration  made  in  extremis  will  not  be  received.  As  an  ex-convict  is  a 
competent  witness,  his  dying  declaration  is  admissible.37  The  court  may 

25.  State  v.  Belcher,  13  S.  C.  459  (1880).  27.  R.  v    Drummond,  Leach  Cr.  L.  4th  ed. 

26.  Thayer  v    Lombard,  165  Mass.  174,  42      337  (1784)    (robbery). 

N.  E.  563,  52  Am.  St.  Rep.  507    (1896).     It  28.  "Such  evidence  is  admissible,  in  cases 

is   well    settled    in    this   country    that    dying  of    homicide,    only    where    the    death    of    the 

declarations  are  admissible  in  homicide  cases  deceased  is  the  subject  of  the  charge,  and  the 

only.     The    Supreme    Court    of    Kansas    has,  circumstances  of  the  death  are  the  subject  of 

however,   in   a  learned  opinion  declared  that  the  dying  declarations."     People  v.  Davis,  56 

there  is  no  basis  for  the  distinction  and  holds  X.  Y.  95,  103   (1874),  per  Grover,  J 

that  they  are  admissible  in  civil  cases.     The  29.  People  v.  Moran,   144  Cal.  48,  77  Pac. 

theory  on  which  they  are  admitted  is  that  the  777    (1904). 

realization    of   impending   death    operates   on  30.  4     Chamberlayne,    Evidence,    §§    2827, 

the  mind  and  conscience  of  the  declarant  with  2828. 

strength   equal   to  that  of  an   ordinary  oath  31.  North  v.  People,  139  111.  81,  28  N.  E. 

administered    in    a    judicial    proceeding,    and  966   (1891). 

this    reason    applies    equally    in    civil    cases.  32.  R    v.  Drummond,  1   Leach  Cr.  L.   4th 

This  was  formerly  the  rule  in   England  and  ed.  337   (1784)    (convict), 

such  declarations  were  not  limited  to  homi-  33.  State  v.  Baldwin,  15  Wash.  15,  45  Pac. 

cide  cases  until  after  1830  and  then  the  limi-  650   (1896). 

tation  was  made  by  the  courts  under  the  old  34.  Hunter  v   State,  59  Tex.  Cr.  App.  439, 

theory    that    a    criminal    wrong    was    more  129  S.  W.  125  (1910)    (10  vears). 

worthy  of  attention  of  the  courts  than  a  civil  35.  Guest   v.    State,   96   Miss.    871,   52    So. 

wrong   but   as  this   idea   has   been   discarded  211    (1910). 

the     rule     itself     should     also     he     dropped.  36.  Jackson  v.  Vredenburgh,   1  Johns.  159, 

Thurston  v.  Fritz,  91  Kan.  468,  138  Pac.  625,  163   (1806)    (interest). 

50  L.  R  A.  (N   S.)  1167  (1914).  37.  State  v.  Blount,  124  La.  202,  50  So.  12 

(1909). 


695  FUNCTION  OF  COURT.  §§  902, 903 

make  various  judicial  assumptions  as  that  one  who  thought  himself  in  extremis 
had  the  mental  feelings  appropriate  to  that  situation  3S  or  that  an  infant  of 
tender  years  was  incompetent  as  a  witness."'9 

§  902.  [Administrative  Requirements] ;  Function  of  the  Court.40 —  The  dying 
declaration,  is  not  permitted  by  judicial  administration  to  go  directly  to  the 
jury.41  Whether  the  conditions  essential  to  its  admissibility  have  been  shown 
to  exist  in  a  particular  case  is  an  administrative  question  *2  and  frequently, 
in  view  of  the  momentous  consequences  to  the  defendant,  one  of  difficulty  and 
nicety.  The  court  cannot,  it  is  said,  properly  leave  to  the  jury  the  question 
of  the  admissibility  of  a  dying  declaration.43  Where,  however,  the  court  as 
a  matter  of  law  passes  upon  the  competency  of  dying  declarations  and  admits 
them,  but  the  evidence  is  conflicting  regarding  a  fact  which  determines  the 
admissibility  of  the  statement,  the  presiding  judge  may  reasonably  regard  the 
administrative  expedient  of  again  submitting  the  question  of  the  competency 
of  the  declarations  to  the  jury  under  appropriate  alternative  instructions.44 
The  appellate  courts  will  not  under  the  prevailing  rule  reverse  the  action  of 
the  trial  court  in  these  matters  if  reason  has  been  employed.45 

§  903.  Expectation  of  Death.46 —  The  subjective  sense  of  impending  dissolu' 
tion  on  the  part  of  the  deceased  at  the  time  of  making  his  statement,  must  be 
proved  to  the  satisfaction  of  the  presiding  judge,  if  the  dying  declaration  is  to 
be  received.47  It  is  not  sufficient  to  render  the  statement  admissible  that  the 
declarant  should  be  aware  that  he  is  certain  ultimately  to  die  of  his  injury.48 
He  must  be  conscious 49  that  the  hand  of  death  rests  upon  him,  that  the 
grim  visitor  has  arrived,  that  there  is  absolutely  no  chance  of  anything  for 
him  but  immediate  death.50  All  hope  and  expectation  of  living  must  have 
been  abandoned.51  The  declarant  should  be  possessed  by  a  fixed  feeling  that 
he  must  die  at  once.52  Dying  declarations  should  not  be  confused  with  ad- 

38.  Lambeth    v.    State,    23    Miss.    322,    358  44.  Willoughby  v.  Territory,  16  Okla.  577, 
(1852)  ;    People  v.  Craft.   148  X.  Y.  631.  43       86  Pac.  56  (1906i. 

X.  E.  80   (1896).  45.  State   v.   Monich,   74   X.  J.   L.   522,   64 

39.  State  v.  Frazier,  109  La.  Ann.  458,  33      Atl.   1016    (1906). 

So.  561    (1903)  ;  Rex.  v.  Pike,  3  C.  &  P.  598,  46.  4    Chamberlayne,    Evidence.    §§    2831- 

14  E.  C.  L.  735   (1829)    (four  years).  2834. 

40.  4    Chamberlayne,     Evidence,    §§    2829,  47.  People  v.  Governale,  193  N.  Y.  581,  86 
2830.  X.  E.  554   (1908). 

41.  State  v    Johnson,   118  Mo.  491,  24  S.  48.  People  v.  Cassesse,  251  111.  422,  96  X. 
W.  229,  40  Am.  St.  Rep.  405   (1893).  E.  274   (1911). 

42.  State  v.  Kuhn,  117  Iowa  216,  90  X.  W.  49.  State  v.  Brumo,  153  Iowa  7,  132  X.  W. 
733   (190-2)  817   (1911). 

43.  Roten  v.  State,  31  Fla.  514,  12  So.  910  50.  People  v.  Del  Vermo,  192  X.  Y.  470,  85 
(1893)  ;  State  v.  Zorn,  202  Mo.  12,  100  S.  W.       X.  E.  690   (1908). 

591    (1907);   State  v.  Johnson,   118  Mo.  491,  51.  Williams  v.  State,   168  Ind.  87,  79  X. 

24  S.  W.  229,  40  Am.  St.  Rep.  405    (1893)  ;  E.  1079  (1907). 

Willoughby   v.    Territory,    16    Okla.    577,    86  52.  Com.  v.   Bishop,   165  Mass.   148,  42  X. 

Pac.  56   (1906);  State  v.  Center,  35  Vt.  378  E.  560    (1896).     A  dying  declaration  is  not 

(1862).  admissible  unless  it  is  made  at  a  time  when 


§§   904,905  DYING  DECLARATIONS.  690 

missions  by  conduct  as  where  the  deceased  makes  statements  in  the  presence 
of  the  accused  under  such  circumstances  that  silence  may  be  taken  as  proof 
of  acquiescence  53  or  where  the  statement  is  spontaneous  and  part  of  the  res 
yestae,54  in  which  case  it  need  not  appear  that  the  deceased  then  entertained  a 
present  expectation  of  death.  If  the  declarant  thought  that  he  was  under  the 
shadow  of  death  his  statement  is  admissible  although  hi*  attendants  regarded 
him  as  having  a  chance  of  recovery  r>r>  and  even  so  assured  him  5C  but  should 
it  appear  that  he  entertained  the  least  hope  of  recovery  5T  even  without  reason  58 
his  statement  is  not  receivable.  The  fact  that  death  does  not  occur  at  once  is 
immaterial.59 

§  904.  [Expectation  of  Death] ;  Modes  of  Proof."0 —  That  the  declarant,  be- 
lieving himself  to  be  in  extremis,  made  his  statement  under  the  solemn  sense 
of  inevitable  and  impending  death  can  be  shown  in  any  of  several  ways.  The 
only  requirement  imposed  by  judicial  administration  is  that  the  presiding 
judge  should  be  reasonably  satisfied  that  the  declaration  was  made  under  the 
sanction  required  by  law.61  The  fact  to  be  established  being  psychological,  the 
difficulty  of  proof  authorizes,  if  not  requires,  an  extended  range  of  evidence. 
This  proof  may  consist  in  the  conduct  of  the  declarant,62  as  where  he  calls 
for  prayers,63  or  may  be  found  in  his  declarations  °4  made  before  or  after  the 
statement  65  or  an  inference  may  be  drawn  from  his  physical  condition  at  the 
time  (iti  or  from  statements  made  to  him  at  the  time  as  to  his  condition.67 

§  905.  Form  of  Declaration.08 —  Most  statements  are  oral  and  may  be  in  any 

the  declarant  had  abandoned  all  hope  of  re-  60.  4    Chamberlayne,    Evidence,    §§    2835- 

covery.     A  sentence  added  to  a  dying  declara-  2840. 

tion  of  a  Chinaman  that  "  1  make  the  same  61.  People  v.  Smith,  172  N.  Y.  210,  64  N. 

under   the   fear   and   belief  that  1   will  die"  E.  814  (1902). 

which  statement  was  inserted  before  signature  62.  State   v.    Bridgham,    51    Wash.    18,    97 

at  the  request  of  the  district  attorney  as  it  Pac.  1096  (1908). 

was  not  his  voluntary  statement   is  not  ad-  63.  White   v.    State,    111    Ala.    92,    21    So. 

missible.     State  v.  Fong  Loon,  29  Idaho  248,  330   (1896)  ;  Ward  v.  State,  85  Ark.  179,  107 

158  Pac.  233,  L.  H.  A.   1916  F  1198    (1916).  S.  W.  677    (1908)    (prayed);  Lyens  v.  State, 

53.  Donnelly    v.    State,    26    N.    J.    L.    463  133  Ga.  587,  66  S.  E.  792    (1909)    (prayed); 
( 1857  ) .  State  v.  Spencer,  30  La.  Ann.  362  ( 1878) . 

54.  Healy  v.  People,   163  111    372.  45  N.  E.  64.  Com.    v.   Thompson.    159    Mass.    56,    33 
230  (1896)  ;  Goodall  v.  State,  1  Oreg.  333,  80  N.  E.  Ill   (1893). 

Am.  Dec.  396  (1861).  65.  Remoteness. —  The    declarations    as    to 

55.  People  v.  Simpson,  48  Mich.  474,  12  N.  apprehension    of   death   must   be   made    suffi- 
W.   662    (1882)  :    State  v.   Bradley.   34   S.   C.  ciently  near  the  time  of  the  dying  declara- 
136.  13  S.  E.  315   (1890).  tion    to    be   relevant      Where   a    considerable 

56.  Pitts  v.  State.  140  Ala    70.  37  So.   101  length  of  time  intervenes  the  evidence  may  be 
(1904).  rejected.     Phillips  v.  State,  3  Ala.  App.  218, 

57.  People  v.  Hodgdon.  55  Cal.  72.  36  Am.  57  So    1033   (1912)    (several  days). 

Rep.  30  ("reali/ing  that  I  may  not  recover  ")  66.  State  v.  Sullivan.  20  R.  I.  114,  37  Atl. 

(18SO).  673   (1S97). 

58.  Com.  v.  Roberts,  108  Mass.  296   (1871).  67.  People  v.  White,  251   111.  67,  95  X.  E. 

59.  Johnson  v.  State,  102  Ala.  1,  16  So.  99  1036  (1911). 

(1893).  68.  4    Chamberlayne,    Evidence,    §§    2841- 

2846. 


69: 


FOKJI. 


•§§  906,907 


language  69  or  form  T0  and  need  not  be  spontaneous  71  but  may  be  in  reply  to 
questions  72  or  by  signs  73  if  it  is  clear  what  the  intention  was.74  The  state- 
ment is  often  written  75  but  need  not  be  signed  76  and  if  written  its  contents 
must  be  proved  by  production  of  the  paper  itself.77  It  is  immaterial  whether 
the  statement  is  sworn  to  or  not 7ti  and  it  may  be  used  merely  as  a  memorandum 
to  refresh  the  memory  of  the  witness  who  heard  the  statement  made.79 

§  906.  Number  of  dying  Declarations.80  — Where  statements  are  made  by  the 
deceased  at  different  times,  all  may  be  proved  as  his  dying  declarations  if  all 
are  made  under  a  sense  of  impending  death.81  Should  the  original  statement 
have  been  made  while  the  declarant  was  not  in  the  required  mental  condition, 
his  subsequent  affirmance  of  it,  while  under  the  sense  of  impending  dissolution, 
admits  the  earlier  declaration,  provided  that  there  is  no  uncertainty  as  to  what 
statements  are  referred  to.82 

§  907.  Privilege  of  Husband  and  Wife.83 — Under  the  well-known  principle 
of  the  common  law  that  husband  and  wife  are  permitted  to  testify  as  to  acts 
of  violence  committed  by  one  against  the  persor  of  the  other,  it  is  not  questioned 
in  any  quarter  that  the  dying  declarations  of  a  wife  may  be  admissible  upon 
the  trial  of  an  indictment  brought  against  her  husband  for  killing  her  or  vice 
versa.84  In  other  words,  the  relation  of  husband  and  wife  does  not  affect  the 


69.  Daughdrill  v.  State,  113  Ala.  7,  21  So. 
378   (1896)    (as  message  to  wife). 

70.  State  v.  Ashworth,  50  La.  Ann.  94,  2? 
So.   270    (1898);    Brande  v.   State    (Tex.   Cr. 
App.   1898),  45  S.  W.   17    (1898)    (statement 
may  be  given  at  different  times  with  interrup- 
tions) . 

71.  Supra,  §  903. 

72.  Smith  v.  State,  9  Ga.  App.  403,  71  S. 
E.  606(1911)    (bystander). 

73.  People   v.    Madras,   201    N.   Y.    349,   94 
X.  E.  857   (1911). 

74.  McHugh  v.  State,  31  Ala.  317  (1858). 

75.  Com.   v.   Birriolo,   197   Pa.  St.   371,   17 
Atl.  355   (1900). 

76.  State   v.   Carrington,    15   Utah   480.   50 
Pac.  526   (1897). 

77.  Gardner  v.  State,  55  Fla.  1025,  45  So. 
1028   (1908)    (copy  rejected) 

78.  Jackson   v.   State    (Ark.    1912),    145   S. 
\V.  559:  State  v.  Byrd,  41  Mont.  585,  111  Pac. 
407    11910);    State  v.  Talbert,  41   S    C.  526, 
19    S.    E.    852     (1894).     See,    also,    State    v. 
Clark,  64  W.  Va.  625.  63  S.  E.  40-2   (1008). 

79.  Sailsherry    v.    Com.,    32    Ky.    L.    Rep. 
1085,  107  S.  \V.  774    (1908)  :   Com    v.  Haney. 
127  Mass.  455   (1879)  :  State  v    Whitson.  Ill 
X.  C.  695.  697.  16  S.  E.  332   (1892)  :  Turner 
v.  State.  89  Tenn.  547.  15  S.  W.  S3S    (1891) 
Where  a  dying  declaration  is  taken  through 


an  interpreter  by  a  stenographer  the  stenog- 
rapher cannot  himself  testify  to  what  the 
interpreter  told  him  as  this  is  hearsay.  State 
v.  Fong  Loon,  29  Idaho  248,  158  Pac.  233, 
L.  R.  A.  1916  F,  1198  (1916)  The  use  of  a 
printed  form  in  obtaining  a  dying  declaration 
containing  questions  as  to  knowledge  of  im- 
pending death  is  to  be  discouraged  as  tending 
to  cause  the  questions  to  be  asked  in  a  per- 
functory manner.  If  the  questions  are  slurred 
over  or  answered  by  a  perfunctory  nod  or  a 
careless  assent  there  is  an  utter  absence  of  the 
clear  and  unequivocal  expression  of  the  cer- 
tain conviction  of  impending  death  which  the 
law  has  always  demanded  as  an  essential  pre- 
requisite to  the  admission  of  unsworn  decla- 
rations of  fact  which  may  be  used  to  deprive 
a  hiynan  being  of  his  life.  But  the  mere  use 
of  the  printed  form  will  not  of  itself  cause 
the  rejection  of  the  declaration  People  v. 
Kane.  213  X.  Y  260.  107  X  E.  655,  L.  R.  A 
1915  E  607  (1915). 

80.  4  Chamberlayne.  Evidence.  §  2847. 

81.  Dunn  v.  People,   172  111.  582,  50  N.  E. 
137    11898). 

82.  State  v  Peacock,  58  Wash.  41,  107  Pae. 
1022,  27  L.  R.  A.   (X.  S.)   702  n.   (1910). 

83.  4  Chamberlayne.  Evidence.  §  2848. 

84.  Afoore  v.  State.  12  Ala.  764.  42  Am.  Dec. 
276  (1848)  ;  People  v.  Green,  1  Den.  (N.  Y.) 


908 


DYING  DECLARATIONS. 


698 


admissibility  of  the  statement.  It  will  be  received  if  otherwise  admissible.85 
Still  more  clearly,  no  impediment  would  arise  on  this  score  where  the  accused 
was  merely  an  accomplice  with  the  husband  of  the  declarant.80 

§  908.  Scope  of  Declaration. s7 —  In  general,  the  dying  declaration  may  prop- 
erly cover  whatever  the  declarant  might  legally  have  stated  as  a  witness,88  and 
nothing  further.89  Primarily,  it  should  cover  the  res  gestae  of  the  fatal  en- 
counter,0" using  the  very  elastic  Latin  term  not  in  the  extended  American  sense 
but  in  its  English  or  restricted  meaning.  The  extrajudicial  statement  should 
not  be  so  extended  as  to  include  facts  remotely91  or  only  incidentally92  con- 
nected with  the  main  occurrence.93  Within  the  proper  meaning  of  the  phrase 
may  be  included  any  relevant  facts,  preliminary  or  subsequent,  which  have  a 
causal  relation  to  the  happening  of  the  res  gestae.94  The  declaration  may 
include  such  facts  as  tend  to  explain  the  res  gestae  95  but  not  the  effects  of  the 
crime.90  The  statement  if  essentially  one  of  fact  may  take  the  form  of  infer- 
ence97 and  the  declarant  may  even  be  allowed  to  state  that  the  accused  "  poi- 
soned "  him.98  The  emotions  of  the  declarant  must  be  excluded  99  but  the 
identification  of  the  person  who  did  the  killing  is  one  of  the  most  valuable 
offices  of  a  dying  declaration.1  The  declaration  must  not  contain  inference 


614    (1845);   State  v.   Belcher,   13  S.  C.  459 
(1880). 

85.  People  v.  Beverly,  108  Mich.  509,  66  N. 
W.  379  (1896). 

86.  State  v.  Pearce,  56  Minn.  226,  57  N.  W. 
652,   1065,  affirmed  56  Minn.  226,  57  N.   W. 
1065   (1894). 

87.  4    Chamberlayne,    Evidence,    §§    2849- 
2857. 

88.  Tibbs  v.  Com.,  138  Ky.  558.  128  S.  W. 
871,  28  L.  R   A.   (X.  S.)  6«5n.   (1910). 

89.  People  v.  Smith,  172  N.  Y.  210,  64  N. 
E.  814  (1902). 

90.  State  v.  Wright,  112  Iowa  436,  445,  84 
N    \V.  541   (1900). 

91.  State  v.  Spivey.   191  Mo.  81,  90  S.  W. 
81    (1905);    Wakefield   v.   State,   50  Tex.  Cr. 
App.  124,  94  S.  W.  1046   (1906). 

92.  State  v    Horn,  204  Mo    528,  103  &  W. 
69   (1907)  ;   State  v.  Eddon,  8  Wash.  292,  36 
Pac.  139   (1894)    ( deceased  unarmed ). 

93.  Nordgren  v.  People,  211   111.  425,  71  N. 
E.  1042   (1904). 

94.  People  v.   Cyty.   11   Cal.  App.  702,   106 
Pac.  257   (1909).     Where  a  dying  declaration 
is  introduced  by  the  State  it  is  error  to  limit 
an    admission    in    it    that    the   deceased    had 
threatened   the   defendant   to   its  use   as    im- 
peaching the  dying  declaration.     This  is  itself 
a  dying  declaration  which  the  defendant  can 


use.     Tittle  v.  State,  188  Ala.  46,  66  So.  10, 
52  L.  R.  A.   (N.  S.)   910   (1914). 

95.  People  v.  Glover,  141  Cal.  233,  74  Pac. 
745   (1903)  ;  State  v.  Betsch,  43  S.  C.  132,  20 
S.  E.  993   (1895). 

96.  Johnson  v.  State,  63  Miss.  313   (1885). 

97.  Pennington  v.  Com.,  68  S.   W.  451,  24 
Ky.   L.   Rep.   321    (1902);   Luker  v.   Com.,   5 
S.  W.  354,  9  Ky.  L.  Rep.  385  (1887)    (he  and 
defendant  had  no  difficulty). 

98.  Copeland  v.   State,  58   Fla    26,  50  So. 
621   (1909)  ;  Shankenberger  v.  State.  154  Tnd. 
630,  57  N.  E.  519   (1900)    ("poisoned  by  my 
mother-in-law"):    State   v.   Kuhn,    117    Iowa 
216,  90  N.  W.  733  (1902)  ;  Lipscomb  v.  State, 
75     Miss.     559,     23     So.     210.     230     (1898) 
Contra:     Berry  v    State,  63  Ark.  382,  38  S. 
W.    1038    (1897)     (whiskey    was    poisoned); 
Mathedy  v.  Com.,    19   S.   W    977,   14   Ky.   L. 
Rep.    182    (1892):    Orner  v.   State    (Tex.   Cr. 
App.  1912) ,  143  S.  W.  935) .     A  dying  declara- 
tion to  the  effect  that  the  defendant  had  killed 
him  "  on  purpose  "  is  admissible  although  ob- 
jected to   on   the   ground   that   it    is   opinion 
evidence      Pippin  v    Commonwealth,  117  Va. 
919.  86  S.  E.  152   (1915). 

99.  State  v.  Evans.  124  Mo.  397,  28  S.  W. 
8    (1894)    (forgiveness). 

1.  People  v.  Madas,  201  N.  Y.  349,  94  N.  E. 
857   (1911). 


699  WEIGHT.  §  909 

or  the  use  of  reasoning.2  The  declaration  may  summarize  various  phenomena 
and  state  them  as  a  collective  fact  3  as  the  absence  of  provocation  4  or  may 
state  psychological  facts  5  as  the  belief  of  the  declarant  °  when  an  ordinary 
witness  would  have  been  permitted  to  do  so  7  but  facts  occurring  before  the 
res  gestae  of  the  killing  itself  cannot  be  included.*  Where  the  statement  con- 
tains some  valid  and  some  immaterial  evidence  its  admission  may  depend  on 
whether  it  seems  necessary.1* 

§  909.  Weight  for  the  Jury,10 —  The  preliminary  ruling  of  the  judge  admit- 
ting the  dying  declaration  goes  no  farther  than  to  decide  that  the  jury  may 
rationally  conside,r  it  as  evidence.11  What  probative  force  it  shall  have  in 
deciding  the  issues  raised  in  the  case  is  absolutely  for  them  to  determine.12 
In  deciding  as  to  its  credibility  the  jury  should  consider  all  the  evidence  in 
the  case,  including  any  which  may  have  come  to  their  attention  during  the 
preliminary  hearing  on  voif  dire.13  The  credit  which  the  jury  may  be  dis- 
posed to  give  may  properly  vary  as  they  regard  a  dying  declaration  as  being 
one  of  fact,  on  the  one  hand,  or  as  stating  opinion  or  inference  on  the  other.14 
So,  as  to  whether  a  dying  declaration  has  been  voluntarily  made,  or  was  ex- 
torted by  duress  15  is  a  question  for  them.  As  to  the  presence  of  a  sense  of 
impending  death,  the  jury  may  find  that  it  does  or  does  not  exist.16  To  assume, 
in  instructions,  therefore,  that  the  statements  admitted  are,  in  fact,  dying 
declarations,  has  been  said  to  be  error.17  Even  should  the  jury  be  convinced 
that  the  utterances  placed  before  them  are  properly  entitled  to  the  legal  status 
of  dying  declarations,  they  are  by  no  means  constrained  to  credit  them.  They 
may  believe  that  the  declarant  has  spoken  the  truth  and  so  credit  his  state- 

2.  People  v.  Alexander,  161  Mich    645,  126  9.  Collins    v.    Com.,    12    Bush     (Ky.)    271 
X.  W.  837   (1910).  (1876). 

3.  Com.  v.  Matthews,  89  Ky.  287,  12  S.  W.  10.  4  Chamberlayne,  Evidence,  §  2858. 
333,  11  Ky.  L.  Rep.  505   (18S9).  11.  Com   v.  Roberts,  108  Mass.  296   (1871). 

4.  Washington  v.  State,  137  Ga.  218.  73  S.  12.  Meno   v.   State,    117   Md.   435,   83  Atl. 
E.  512    (1911)    ("he  shot  me  for  nothing").  759   (1912)    ( sufficient  intelligence ). 

5.  The  government  cannot  show,  as  part  of  13.  People  v.  White,  251   111.  67,  95  N    E. 
its  original  case,  that  the  accused  had  threat-  1036    (1911):   Gurley  v.  State    (Miss.   1912), 
ened  violence  against  the  deceased      State  v.  57  So.  565;   State  v.  Gow.  235  Mo.  307,  138 
Perigo.   80   Iowa  37.  45   X.   W.   39(1    (1800);  S.  W.  648   (1911):  Jackson  v.  State,  55  Tex. 
Hackett  v.  People,  54  Barb.  370   (1866).  Cr.  App.  79,  115  S.  W.  262,  131  Am.  St.  Rep. 

Vermont. —  State    v.     Wood,     53     Vt.     560  792  (1908). 
(1881).  14.  State    v.    Washington.    13    S.    C.    453 

Washington.—  State   v.   Moody,    18   Wash.,  (1880):   State  v.  Quick,   15  Rich.  L.    (S.  C.) 

165,  51  Pac.  35fi    (1897)  342   (1867). 

6.  Doolin  v   Com..  95  Ky.  29.  23  S.  W.  663.  15.  Jackson  v.  State,  55  Tex.  Cr.  App.  79, 
15  Ky.  L.  Rep.  408  (1893).  115  S.  W.  262,  139  Am.  St.  Rep.  792   (1908) 

7.  People   v.    Conklin,    175   X.    Y.    333.    67  (abortion). 

X.  E.  624  (1903).  16.  California. —  People    v.    Thomson,    145 

8.  People  v.  Alexander,  161  Mich    645,  126      Cal.  717,  79  Pac.  435  (1905). 

X.  W.  837,  17  Detroit  Leg.  X.  408    (1910):  17.  People   v.   Thomson,    145   Cal.   717,   79 

Still  v.  State,  126  Tenn.  80,  140  S.  W.  298      Pac.  435  (1905). 

(1911). 


§§  910-U12  DYING  DECLARATIONS.  700 

ment,  although  they  fail  to  find  that  he  spoke  with  a  sense  of  impending 
death  l8  and  they  may,  on  the  other  hand,  disbelieve  his  utterance,  though 
made  in  expectation  of  immediate  dissolution. 

§  910.  [Weight  for  the  Jury] ;  A  discredited  Rule.19 —  The  administrative 
treatment  judicially  accorded  to  the  admission  of  this  exception  to  the  hearsay 
rule  as  secondary  evidence  of  the  facts  asserted  is  intelligible  only  upon  the 
theory  that  the  rule  which  admits  it  is  a  discredited  one.  It  is  both  too  strictly 
and  too  loosely  construed.  Since  the  ground  for  receiving  the  statement  is 
that  of  necessity,  its  reception,  upon  sound  administrative  principles,  should 
end  when  the  necessity  no  longer  exists.  Yet  even  where  »the  government  is 
able  to  prove  a  perfect  case  by  direct  evidence,  the  dying  declaration  continues 
to  be  received.  Such  declarations  are  not  always  fair  to  the  accused  as  usually 
made  by  one  surrounded  by  his  friends  with  a  natural  desire  to  exculpate 
himself 20  and  therefore  the  prosecution  is  allowed  to  corroborate  them  by 
showing  prior  consistent  statements  by  the  declarant 21  and  will  give  the 
accused  the  widest  latitude  in  his  defence.22 

§  911.  [Weight  for  the  Jury] ;  Impeachment.23 —  The  declarant  in  a  dying 
declaration  may  be  impeached  in  any  manner  which  would  be  proper  in  case 
of  a  witness.24  This  may  be  done  by  disproving  the  statements  of  the  declara- 
tion 25  or  showing  inconsistent  statements 26  of  the  declarant  or  that  he  has 
a  bad  moral  character  27  or  is  irreligious.28 

§  912.  [Weight  for  the  Jury] ;  Mental  state  of  Declarant.29 —  To  enable  them 
properly  to  judge  of  the  probative  force  of  a  dying  declaration,  the  jury  are 
entitled  to  be  fully  informed  of  the  circumstances  under  which  it  was  made.30 
Prominent  among  these  is  the  mental  condition  of  the  declarant.31  This  they 
are  entitled  to  view  from  all  angles,  reaching  a  conviction  of  their  own  as  to  an 
actual  sense  of  impending  death  experienced  by  the  declarant  at  the  time  of 

18.  See  Donnelly  v.  State,  26  N.  J.  L.  463,  26.  Carver  v.  United  States.  164  U.  S.  694, 
affirmed  26  N.  J   L.  601    (1857).  17  Sup.  Ct.  228,  41  L.  ed.  602  (1897). 

19.  4    Chamberlayne,    Evidence,    §§    2859-  27.  Xordgren    v     People,    211    111.    425,   71 
2864.  N.  E.  1042   (1904). 

20.  Lipscomb  v.   State,  75  Miss    559,  580,  28.  Kesbit   v.    State,   43   Ga.   238    ( 1871 )  ; 
23  So.  210    (1897)    (the  mind  of  the  declar-  State  v.   Elliott,  45  Iowa  486    (1877):   Gam- 
ant  may  be  impaired  or  confused).  brell  v    State.  92  Miss.  728,  46  So.  138,  17  L. 

21.  State  v.  Craine,  120  N.  C.  601,  27  S.  E.  R.    A.    (N.    S.)    291,    131    Am.    St.    Rep.   549 
72    (1897)    (affidavit).  (1908). 

22.  Com.  v    Roberts,  108  Mass.  296  (1871).  29.  4  Chamberlayne,  Evidence,  §  2867. 

23.  4    Chamberlayne,    Evidence,    §§    2864-  30.  State   v.   Doris,   51   Ore<r.    136.   94   Pac. 
2866.  44,  16  L.  R    A.   (X.  S.)   660  n.   (1908)  :  State 

24.  Carver  v.  U.  S.,  164  U.  S.  694,  17  Sup.  v.    Crawford,    31    Wash.    260,    71    Pac.    1030 
Ct.  228,  41  L   ed.  602  (1896).  (1903). 

25.  White   v.   State,   30  T<?x.   App.   652,   18  31.   Allen  v.   Com.,   134   Ky.    10,   119   S.  W. 
S.  W   462  (1892).  795    (1000)     (rational);    Hunter  v.  State,  59 

Tex.  Cr.  App.  439,  129  S.  W.  125   (1910). 


701  WEIGHT.  §  913 

making  his  statement  and  its  influence  over  him  in  inhibiting  falsehood.32 
Evidence  should  be  received  as  to  the  memory  33  or  sanity  34  of  the  declarant. 

§  913.  [Weight  for  the  Jury] ;  Rule  Constitutional.35 —  That  the  admissibility 
of  dying  declarations  is  not  in  violation  3:>  of  the  right  of  confrontation  fre; 
quently  secured  to  all  persons  on  trial  by  express  constitutional  provisions  is 
well  settled.36 

32.  State  v.  Yee  Gueng,  57  Oreg.  509,  112  34.  Guest   v.   State,   96  Miss.   871,   52   So. 
Pac.  424  (1910).  211    (1910). 

33.  Mockabee  v.  Com.,  78  Ky.  380   ( 1880)  ;  35.  4    Chamberlayne,    Evidence,    §§    2868, 
Brown  v.  State,  32  Miss.  433    (1856);   Vass'  2869. 

Case,  3  Leigh    (Va.)    786,  24  Am.  Dec.  695  36.  People  v.  Corey,  157  N.  Y.  332,  51  N.  E. 

(1831).  1024   (1898). 


CHAPTER  XLII. 

HEARSAY  AS  SECONDARY  EVIDENCE;  ENTRIES  IN  COURSE  OF  BUSINESS. 

Declarations  in  course  of  business,  914. 

English  rule,  915. 

American  rule,  916. 

Administrative  requirements;  necessity,  917. 

subjective  relevancy;  adequate  knowledge,  918. 

absence  of  controlling  motive  to  misrepresent,  919. 

contemporaneousness  required,  920.     • 

regularity,  921. 
Form  of  statement,  922. 

written,  923. 
Nature  of  occupation,  924. 

§  914.  Declarations  in  Course  of  Business.1 —  Another  exception  to  the  hearsay 
rule  which  substantive  law  has  placed  at  the  service  of  judicial  administration 
in  its  effort  to  elicit  truth  is  that  which  admits,  as  proof  of  the  facts  asserted, 
oral  declarations  or  written  entries  made  by  deceased  persons  in  the  usual 
course  of  professional  or  official  business,  or  in  discharge  of  some  duty.2 

Relevancy  of  Regularity. —  At  the  present  day  the  chief  importance  of  the 
exception  to  the  hearsay  rule  under  consideration  is  a  historical  one.  To- 
gether with  the  rule  relating  to  shop  books,  it  constitutes  one  of  the  confluent 
currents  of  authority  which  have  blended  under  the  influence  of  modern  con- 
ditions into  the  broad  general  principle  of  the  Relevancy  of  Regularity.  This 
may  broadly  be  defined  as  a  judicial  recognition  of  the  probative  force  as  pri- 
mary evidence  of  hearsay  statements  contemporaneously  made  in  the  regular 
course  of  private  or  official  duty  or  business  by  one  having  no  motive  to  mis- 
represent. This  principle  is  perhaps  most  firmly  established  in  legislative 
enactments  passed  in  most  jurisdictions  of  the  English-speaking  world. 

§  915.  English  Rule.3 —  In  connection  with  the  present  exception,  the  rule 
early  established  in  England  presents  points  of  difference  to  that  later  formu- 
lated in  the  United  States.  The  present  "  exception."  as  it  is  called,  to  the 
hearsay  rule,  as  established  in  England  has  been  spoken  of  as  covering  all 

1.  4  Chamherlayne,  Evidence,  §  2870.  admissible  evidence  of  the  acts  and  matters 

2.  "  \Ye  think  it  a  safe  principle,  that  mem-  so  done"     Nicholls   v  Webb.   8   Wheat     (U. 
oranduras  made  by  a  person  in  the  ordinary  S. )    326,  337.  5   L.  ed.  326    (1823).  per  Mr 
course   of    his    business,    of   acts    or   matters  Justice  Story. 

which  his  duty  in  such  business  requires  him          3.  4     Chamberlayne,    Evidence,     §§    2871- 
to  do  for  others,  in  case  of  his  death,  are      2875. 

702 


703  AMERICAN  RULE.  §§  916,917 

entries  "  made  by  a  person  since  deceased,  in  the  ordinary  course  of  his  busi- 
ness," 4  "  in  the  usual  course  or  routine  of  business,"  6  "  in  the  exercise  of  his 
business  and  duty  "  6  and  in  other  similar  expressions.7  In  this  connection, 
it  is  not  material  whether  the  entrant  is  a  party,  the  clerk  of  a  party,  or  a 
stranger  to  the  proceedings  in  which  the  evidence  is  offered.  The  distinction 
between  the  English  and  the  American  rule  is  that  in  England  the  declarant 
must  not  only  have  made  the  entry  in  the  course  of  business  but  also  in  dis- 
charge of  his  duty  8  which  must  not  be  self-imposed.9  The  duty  must  be  to 
make  the  entry  at  the  exact  time  when  it  was  actually  recorded.10  A  further 
peculiarity  of  the  English  rule  is  that  it  cannot  be  invoked  for  the  proof  of 
collateral  facts  mentioned  in  the  entry.11 

§  916.  American  Kule.12 —  The  requirement  that  the  declarant  should  not 
only  be  acting  in  the  course  of  his  duty  or  business  in  doing  the  very  act  stated 
but  it  should  also  be  a  duty  imposed  upon  him  by  some  superior  authority  to 
make  an  entry  of  it  at  the  exact  time  when  it  was  made,  does  not  obtain  in  the 
United  States.  It  is,  on  the  contrary,  sufficient  if  the  making  of  an  entry  or 
the  doing  of  the  act  was  a  natural  and  usual  accompaniment  of  the  doing  of 
the  act  itself  in  case  either  of  a  private  individual,13  or  of  a  public  official.14 
Under  the  American  rule,  though  not  pursuant  to  the  English,  a  contemporane- 
ous entry  regularly  made  in  the  course  of  private  or  official  business  will  be 
received  not  only  as  evidence  of  the  facts  directly  asserted,  for  the  sake  of 
stating  which  the  declaration  may  fairly  be  regarded  as  having  been  made, 
but  also  of  those  collaterally  or,  as  it  were,  incidentally,  mentioned.  Indeed, 
any  fact  which  the  declarant  is  proved  to  have  known  or  which  can  fairly  be 
assumed  to  have  been  within  his  knowledge  15  may,  if  stated  by  him  under 
the  conditions  prescribed  by  the  rule  be  evidence,  after  his  decease  'or  when 
he  is  unavailable  as  a  witness,  in  proof  of  the  facts  asserted. 

§  917.  Administrative  Requirements;  Necessity.16 — The  conditions  of  admis- 
sibility  for  this  species  of  evidence,  originally  administrative  in  their  nature, 

4.  Doe  v.  Turford,  3  B.  &  Ad    800   (1832).  11.  Chambers  v    Bernasconi,   1   Cromp.  M. 
To  the  same  effect,  see  Rawlins  v.  Riokards,  &  R.  347,  368,  1  Cromp   &  J.  451    (1831),  per 
28  Beav.  370.  373  (1860).  Denman,  C.  J. 

5.  Poole  v   Dicas,  1  Bing.  X   C.  649  (1835),  12.4    Chamberlayne,    Evidence.    §§    2876, 
per  Tindal.  C   J.  2877. 

6.  Rawlins  v    Rickards.  28  Beav.  370..  373  13.  Fishery  Mayor,  67  X.  Y  73.  77  (1876). 
(1860),  per  Homilly,  M.  R  14.  Little   v.   Downing.   37  X.   H.   355,   364 

7.  Mercer  v.  Denne  i  Eng    1905),  74  Law  J.  (1858). 

Ch.  723  [Ifl05]  2  Ch.  538.  03  Law  T.  412,  3  15.  Massee-Felton  Lumber  Company  v.  Sir- 
Local  Gov  R.  1203.  21  Times  Law  R.  760  man?.  122  C,a  207.  50  S.  E.  02  (1005). 

8.  Smith  v.  Blakey.  L.  R    2  Q    B.  326.  333  Contra:     Estate  of  Ward.  73  Mich.  220.  225, 
(1867)  :  Canada  C.  R.  Co.  v.  McLaren,  8  Ont.  41  X   W  431   ilSSOK  per  Campbell.  ,T.:Sitler 
App.  564  (1883).  v.   C.ehr.   105  Pa.   St.  577.   600.  51    Am    Rep. 

9.  R.  v.  Worth,  4  Q.  B.  132   (1843).  207   (1884). 

10.  Polini  v.  Gray,  L.  R.   12  Ch.  D.  411          16.  4  Chamberlayne,    Evidence,    §§    2878- 
(1879).  2883. 


j;   :»18  ENTRIES  IN  COURSE  OF  BUSINESS.  704 

but  at  present  largely  procedura1  in  character,  are  those  customary  in  case  of 
am-  species  of  secondary  evidence  Necessity  and  Relevancy.  Absence  of  the 
witness  from  the  jurisdiction,17  his  death  18  or  sickness  ltf  and  even  the  prac- 
tical inconvenience  of  withdrawing  from  business  many  persons  to  prove  small 
items 20  are  ordinarilly  deemed  a  sufficient  necessity  for  the  introduction  of 
this  evidence. 

§  918.  [Administrative  Requirements];  Subjective  Relevancy;  Adequate 
Knowledge.21 —  For  the  subjective  relevancy  of  the  extrajudicial  statement 
made  in  the  course  of  business  and  its  consequent  admissibility,  it  is  essential 
that  the  declarant  be  shown  or  reasonably  assumed  to  have  been  possessed  of 
such  adequate  knowledge  on  the  subject  as  to  make  his  declaration  helpful  to 
the  jury.22  Should  several  persons  possess  individual  knowledge  covering  the 
separate  parts  of  a  transaction  which  forms  the  subject  of  a  given  entry,  the 
evidence  of  all  such  persons  will  be  required  in  certain  jurisdictions.  Where 
its  effect  is  to  establish  a  complete  chain  of  proof  as  to  the  existence  of  the  fact 
in  question,  the  judicial  or  extrajudicial  statements  of  all  the  persons  involved 
are  to  be  submitted  to  the  court,23  any  break  in  the  line  of  proof  being  fatal 
to  the  admissibility  of  the  remainder.  Should  A.  testify  to  the  existence  of  a 
fact,  and  that  he  correctly  reported  it  to  B.,  B.'s  entry,  in  the  usual  course  of 
business,  is  admissible  in  connection  with  A.'s  testimony,  although  B.  is  not 
shown  to  have  possessed  any  independent  knowledge  on  the  subject.24  On 
the  other  hand,  by  certain  authorities,  it  has  been  held  unnecessary  to  call  any 
witness  other  than  the  entrant.  In  these  jurisdictions,  testimony  by  the 
entrant  that  he  received  the  report  upon  which  he  has  acted,  in  the  regular 
course  of  business,  will,  if  reinforced  by  evidence  of  the  entrants  having  entered 
the  fact  correctly,  admit  the  book  as  evidence  of  the  facts  stated  in  the  entry.25 
It  is  felt  by  many  courts  that  in  a  multiplicity  of  small  transactions,  the  exist- 
once  of  a  contemporaneous  record  is  far  more  cogent  in  compelling  belief  than 
the  memory  of  the  witness  could  possibly  be  and  therefore  that  the  books  should 
be  regarded  as  the  best  evidence  of  the  facts.26 

17.  Cameron  Lumber  Co.  v   Somerville.  129  (1806)  ;  Dohmen  Co.  v.  X.  F.  Ins.  Co.,  96  Wis. 
Mieh.  552,  89  X.  W.  346  (1902)  .  38,  71  X.  W.  69   (1897). 

18.  Culver  v.  Marks,  122  Ind.  554.  23  N.  E.  21.  4  Chamberlayne,     Evidence,     §§     2884- 
1086.  7   L.   R    A.  489,    17   Am.   St.  Rep.   377,  2887. 

5T>2    (1889).  22.  Leask  v.   Hoajrland,  205  X.  Y.   171,  98 

19.  Heattie  v.  Mo.Mullen.  82  Cm-    -1*4.  74       X.  E   395   (1912). 

Atl.  767   i  1909)  ;    Rridfjexvater  v.   !N>   I  -.iry,  ">4  23.  Cameron  Lumber  Co.  v.  Somerville.  129 

Conn.  217,  6  Atl.  415   (1886)  ;  Union  Bank  v.  Mich.  552,  89  X.  W.  346   (1902). 

Knapp,  3  Pick.    (Mass.)   96.  15  Am.  Dec.  181  24.   Mayor,   etc..   of    X.    Y.    v.    Second    Ave. 

(1825)  ;   Chaffee  v    U.   S.,   18  Wall.    ( t"    S.)  R.  R.  Co..  102  X    Y.  572.  7  X.  E.  905,  55  Am. 

516,541,21  L.  ed.  908  (1873).  Rep.  839   (1886). 

20.  Schaefer  v.   Georgia  R.  R.  Co.,  66  Oa.  25.  Architects   &    Builders    v.    Stewart,    68 
39,  43   (1880)  ;  Fielder  Bros.  &  Co.  v.  Collier.  \V.  Ya.  506.  508,  50  So.  166.  36  L.  R.  A.   (X. 
13  Ga.  495,  499   (1853)  ;  Chisholm  v.  Beaman  S.)   899n    (1911). 

Machine    Co.,    160    Til.    101,    43    X.    E.    796  26.  Mississippi  River  Lodging  Co.   v.  Rob- 


70.~>  MOTIVE  TO  MISREPRESENT.  §§  919-921 

§  919.  [Administrative  Requirements] ;  Absence  of  Controlling  Motive  to  Mis- 
represent.27—  As  in  case  of  all  statements,  judicial  or  extra  judicial,  it  is  re- 
quired in  the  event  of  their  use  as  secondary  evidence  of  the  facts  asserted, 
not  only  that  the  declarant  was  possessed  of  adequate  knowledge  but  that  he 
was  free  from  controlling  motive  to  misrepresent.28  This  lack  of  motive  to 
misrepresent,  upon  which  the  subjective  relevancy  of  the  evidence  is  based,  is 
taken  or  assumed  to  be  established  by  the  automatism  of  habit,  the  regular 
doing  of  an  act  where  the  declarant  has  no  motive  to  misrepresent  but  has  every 
reason,  in  discharge  of  his  business,  professional,  or  official  duty,  to  assert 
the  truth.  So  strong  is  the  probative  force  of  an  automatic  habitual  state- 
ment that  it  is  by  no  means  insisted  by  judicial  administration  that  the  extra- 
judicial  declaration  in  course  of  business  should  be  against  the  interest  of  the 
declarant.  On  the  cont^ry.  such  utterances  may  properly  be  admitted,  al- 
though distinctly  self-serving.29 

§  920.  [Administrative  Requirements] ;  Contemporaneousness  Required.30 — 
Judicial  administration,  whose  work  has  been  hardened  by  the  doctrine  of 
stare  decisis  into  the  procedural  requirements  of  the  rule  under  consideration, 
demands  not  only  that  the  entry  or  declaration  should  have  been  made  in  the 
regular  course  of  business  or  official  duty,  but  also  that  it  should  have  been 
customary  to  make  these  declarations  or  entries  substantially  contemporaneous 
with  the  happening  of  the  events  to  which  they  refer.31 

Absolute  contemporaneousness  is,  naturally,  not  required.  It  is  sufficient  if 
the  statement  be  made  at  practically  or  substantially  the  same  time  as  the 
act  is  done.32 

§  921.  [Administrative  Requirements] ;  Regularity.33 —  It  is  recognized  that 
the  duty  of  keeping  books  is  entirely  inconsistent  with  any  attempt  to  record 
error  as  anything  less  than  accuracy  involves  a  large  amount  of  trouble  for  the 
bookkeeper.34  Affirmative  proof  should  be  offered  that  the  books  are  regularly 
and  accurately  kept.35  Declarations  in  course  of  business  should  be  carefully 
distinguished  from  mere  memoranda  not  kept  regularly  or  in  course  of  duty.36 

son,  69  Fed.  773,  782,  16  C.  C.  A.  400  ( 1S95)  ;  32.  R.  R.  Co.  v.  Henderson,  57  Ark.  402,  415 

Continental   Xat.   Bank  v.   First   Nat.   Bank,  (1893);  Kennedy  v.  Doyle,  10  Allen   (Mass.) 

108  Tenn.  374,  68  S.  W.  497   (1902).  161    (1865)  ;   Chaffee  v.  U.  S.,   18  Wall.    (U. 

27.  4  Chamberlayne,     Evidence,     §§     2888,  S.)  516.  541,  21  L.  ed.  908   (1873). 

2SS9.  33.  4  Chamberlayne.     Evidence,    §§     2893- 

28.  Lassone   v.   B.   &   L.   R.   Co.,   60   X.   H.       2896. 

345,  354.  24  Atl.  902.  17  L.  R.  A.  525   (1890).  34.  Poole  v.  Dicas,  1  Bing.  X.  C.  649,  653 

29.  Bland  v.  Warren,  65  X.  C.  372,  373,  374       (1835). 

(1871).  35.  Patterson  &   Co.  v.  Gulf,  etc.,  Ry.  Co. 

30.  4  Chamberlayne,    Evidence,    §§    2890-  (Tex.  Civ.  App.  1910),  126  S.  W.  336. 
2892.  36.  Lassone  v.  Boston  &  Lowell  R.  Co.,  66 

31.  :VfcKni<rht  v.  Newell,  207  Pa.  St.  562,  57  N.  H.  345,  358,  24  Atl.  902,  17  L.  R.  A.  525 
Atl.  39  (1904).  (1890). 


§§  922,  923  ENTKIES  IN  COURSE  OF  BUSINESS.  706 

The  fact  that  no  entry  at  all  appears  where  one  should  had  the  transaction  taken 
place  is  a  negative  fact  from  which  an  inference  may  be  made.37 

§  922.  Form  of  Statement;  Oral.38 — The  form  of  statement  is  important  on 
the  question  of  weight  rather  than  on  that  of  admissibility  where  the  other 
conditions  exist  for  receiving  the  evidence.  With  the  exceptions  hereafter  to 
be  noticed,  the  declaration  in  course  of  business  may  properly  be  oral  as  well 
as  in  any  written  form.  The  admissibility  of  the  oral  declaration,  e.g.,  the 
report  of  a  constable,30  is  well  established  in  England.40  The  application  of 
the  rule  to  oral  statements  is  not,  however,  frequently  referred  to  in  the  Ameri- 
can cases;41  though  there  is  no  apparent  reason  for  making  any  distinction 
between  oral  and  written  statements  in  this  connection.42  In  mercantile  and 
business  houses  oral  reports  are  regularly  made  and  a  duty  undoubtedly  exists 
for  making  them  and  with  correctness.  No  element  of  trustworthiness  is, 
therefore,  lacking. 

§  923.  [Form  of  Statement] ;  Written.43 —  Among  the  more  frequently  used 
forms  of  making  written  declarations  in  regular  course  of  business  are  book 
entries,  endorsements,  official  registers,  reports  and  the  like.  Naturally,  the 
carefully  kept  books  of  account  where  the  item  in  question  is  intimately  woven 
into  the  "  warp  and  woof  "  of  a  day's  business  stand  in  a  somewhat  different 
probative  position  from  endorsements  on  separate  and  often  fugitive  sheets 
of  paper  or  even  from  a  loosely  kept  baptismal  record.  Any  form  of  written 
statement  which  is  intelligible  or  interpretable  is,  however,  competent  44  if 
made  under  the  required  conditions.  Such  entries  are  commonly  made  in 
account  books45  and  are  admissible  when  the  entry  is  proved  to  be  the  work  of 
the  person  by  whom  it  purports  to  be  made  as  where  it  is  shown  to  be  in  his 
handwriting.4'3  The  book  itself  must  be  produced.47  The  statement  may 
take  the  form  of  endorsements  on  notes  48  or  other  wrritten  memoranda  49  or 
reports.  r'° 

37.  State   v.   McCormick,   57    Kan.   440,   46  44.   North  Bank  v.  Abbot,  13  Pick.   (Mass.) 
Pac.  777,  57  Am    St    Rep.  341    (1S96);   Bas-      465,  471,  25  Am.  Dec.  334  (1883). 

trop   State    Bank   v.    Levy,    106    La.    586,   31  45.  Kibbe  v.  Bancroft,  77   111    18   (1875). 

So     164    (1901)  46.  Welsh  v.  Barrett.  15  Mass   380  (1819); 

38.  4  Chamberlayne.  Evidence,  §  2897.  Ohaffee  v.  U.  S,  18  Wall     (U.  S. )    516,  541, 

39.  K.  v.  Buckley,  13  Cox  Cr.  C.  293  (1873).  21    L.    ed     908     (1873).     Only    the    original 

40.  A  declaration  by  word  of  mouth  or  by  entry  is  provable  in  this  way.     St.  L,  etc.,  R. 
writing  made   in   the  course  of  the   business  Co.    v.    Henderson,    57    Ark     402.    21    S.    W. 
are  alike  admitted.     Sussex  Peerage  Case,  11  878   (1893)  ;  Cresswell  v.  Slack.  6*  Towa  110, 
Cl.  &  F.  85,  113    (1844),  per  Lord  Campbell.  26  N.  W    42    (1885)  ;  James  v    Wharton,  13 

41.  Fennerstein's  Champagne,  3   Wall.    (U.  Fed.   Cas.   Xo.   7,187.  3  McLean    (U.   S. )    492 
S.)   145,  18  L.  ed.  121    (1865).  (1844).     See  also  §  2901. 

42.  Western  Maryland  Co  v  Manro,  32  Md.  47.  New   Jersey   Zinc   &    I.    Co.   v.    Lehigh 
2HO,   283    (1870):    McNair  v.   Nat,    Life   Tns.  Zinc  &   ]     Co.,  59  N.  J.  L.   189,  35  Atl.  915 
Co.,  13  Hun   (N.  Y.)    144   (1878)    (statement  (1896). 

of  physician  as  to  cause  of  death).  48.  Lilly  v.  Larkin.  66  Ala.  110  (1880). 

43.  4  Chamberlayne,    Evidence,    §§    2898-          49.  Walker   v.    Curtis,    116   Mass.    98,    101 
2904.  (1874). 


70^ 


XATUEE  OF  OCCUPATION. 


§  924 


§  924.  Nature  of  Occupation.51 — N0  limitation  or  restriction  has  been  placed 
as  to  the  nature  of  the  occupation  to  which  the  rule  admitting  declarations  of 
deceased  persons  in  the  course  of  business  shall  apply.  Any  line  of  human 
activity,  professional  or  lay,  in  which  work  is  done  and  a  record  of  it  regularly 
kept,  whether  voluntary  or  under  requirement  of  law,  is  within  the  rule,  as 
formulated  in  America.  It  covers  any  form  of  commercial  business  52  or 
mechanical  53  or  professional  54  work  or  even  the  service  of  process  by  officers.55 


50.  Culver  v.  Alabama  M.  R.  Co.,  108  Ala. 
330,  18  So.  827    (1895). 

51.  4  Chamberlayne,     Evidence,    §§    2905- 
2909. 

52.  Sasscer  v.   Farmers'   Bank,   4   Md.  409 
(1853)  :  Halliday  v.  Martinet,  20  Johns.   (X. 
Y.)    16S,  11  Am    Dec.  262   (1822^  ;  Roberts  v. 
Rice,  69  N.  H.  472,  45  Atl.  237  { 1898)  ;  Perk- 


ins v.  Augusta  Ins.  &  B.  Co.,  10  Gray  (Mass.) 
312,  324,  71  Am.  Dec.  654   (1858). 

53.  Dickens   v.   Winters,    169   Pa.   St.    126, 
135,  32  Atl.  289    (1895). 

54.  Bridgewater  v.  Roxbury,  54  Conn.  213, 
6  Atl.  415    (1886). 

55.  R.  v.  Cope,  7  C.  &  P.  720   (1835). 


CHAPTER  XLIII. 

HEARSAY  AS  SECONDARY  EVIDENCE;  DECLARATIONS  CONCERNING  PEDIGREE. 

The  pedigree  exception,  925. 

Rule  stated;  unsworn  statements  as  to  pedigree,  926. 

Administrative  requirements;  necessity;  general  and  special,  927. 

relevancy,  928. 

validity  of  document  not  demanded,  929. 

issue  must  be  one  of  genealogy,  930. 
Scope  of  rule;  facts  directly  asserted,  931. 

facts  incidentally  asserted;  relationship,  932. 
Form  of  statement,  933. 

composite;  reputation,  934. 
tradition,  935. 
individual,  936. 

Circumstantial  proof  of  pedigree,  937. 
Proof  by  acquiescence  in  case  of  pedigree,  938. 
Animal  pedigree,  939. 
Scope  of  circumstantial  evidence  in  case  of  pedigree,  940. 

birth,  941. 

death,  942. 

marriage,  943. 

names,  944. 

race,  945. 

relationship,  946. 

residence,  947. 

status,  948. 

§  925.  The  Pedigree  Exception.1 —  The  family  is  looked  upon  by  judicial 
administration  as  a  miniature  community.  In  case  of  the  general  community 
the  interest  of  the  inhabitants  affected  by  the  matter  in  question  to  reach  the 
truth  and  the  guaranty  of  trustworthiness  which  results  from  the  general  dis- 
cussion concerning  so  interesting  a  topic  is  regarded  as  insuring  a  satisfactory 
degree  of  probative  force.  So  in  the  smaller  circle  of  the  family,  the  self- 
interest  of  the  members  to  reach  the  truth,  the  mutual  correction  implied  in 
family  discussions  of  topics  relating  to  the  common  interest  are  thought  to  be 
safely  trusted  to  promote  justice.2 

1.  4  Chamberlayne,   Evidence,   §   2fllO.  ily   affairs,  when  no  special   reason   for  bias 

2.  "  This  rule  rests  upon  the  principle  that       or  passion  exists,  are  fairly  trustworthy,  and 
natural  effusions  of  those  who  talk  over  fam-      should  be  given  weight  by  judges  and  juries, 

708 


709 


RULE  STATED. 


;§  926,927 


§  926.  Bule  Stated;  Unsworn  Statements  as  to  Pedigree.3 — The  unsworn 
statement  of  a  deceased  4  member  of  the  family  5  or  of  the  husband  or  wife 
of  such  member  will,  under  certain  minor  conditions,  be  received,  as  an 
exception  to  the  rule  against  the  admission  of  hearsay  6  in  proof  of  the  facts 
directly  7  or  incidentally  asserted  as  to  pedigree.8  The  declarations  of  the 
party  concerning  whom  a  pedigree  fact  is  sought  to  be  established  are  admissible 
under  the  same  conditions  as  those  of  any  other  member  of  the  family.9 

Necessity  that  the  relationship  of  declarant  be  legitimate. —  That  an  illegiti- 
mate member  of  a  family  is  not  a  competent  declarant  of  genealogical  facts 
concerning  the  family  was  held  in  an  early  English  case  and  seems  never  to 
have  been  directly  questioned.10 

§  927.  Administrative  Requirements ;  Necessity;  General  and  Special.11 — As  to 
the  necessity  for  receiving  the  evidence  it  will  be  required  by  judicial  ad- 
ministration that  a  reason,  satisfactory  to  the  presiding  judge,  be  shown  as  to 
why  the  primary  evidence,  the  testimony  of  the  declarant,  is  not  produced;12 


as  they  are  in  the  ordinary  affairs  of  life." 
Gorham  v.  Settegast,  44  Tex.  Civ.  App  254, 
262,  98  S.  W.  665  (1906),  per  Neill,  J.  As 
to  pedigree  See  note,  Bender,  ed.,  126  N.  Y. 
568 

3.  4  Chamberlayne,   Evidence.   §  2911. 

4.  In  re  Hurlburt,  68  Vt.  366,  35  Atl.  77,  35 
L    R.  A.  794   (1895). 

5.  It    is    only    necessary    to    show    that    a 
declarant,  since  deceased,  was  a  member  of  a 
family  to  which  it  is  sought  to  attach  a  third 
person,   to   render   proofs   of   the    statements 
of  the  declarant  with  respect  to  the  pedigree 
of   the   third   person   admissible   in   evidence. 
Scheidegger  v.  Terrell,   149  Ala.  338,  43  So. 
26  (1906 ) .     1  f  it  is  not  shown  that  a  declara- 
tion was  made  by  a  member  of  the  family 
it  will  be  excluded.     Northern  Pacific  R.  Co. 
v.    King,    181    Fed.    913,    104    C.    C     A     351 
(1910). 

Pedigree. —  Declarations  concerning  pedi- 
gree must  be  made  by  one  who  is  related 
by  blood  or  affinity  to  the  family  of  which  he 
speaks  But  this  cannot  be  shown  by  hear- 
say in  the  declaration  itself  but  must  be 
proved  by  some  evidence  independent  of  the 
declaration  itself.  So  the  declaration  of  a  de- 
ceased person  cannot  be  admitted  simply  he- 
cause  the  declaration  contains  the  statement 
that  the  declarant  is  a  member  of  the  family 
in  question  as  told  to  the  declarant  by  a 
member  of  the  family.  Aalholm  v.  People, 
211  X.  Y  406,  105  X*  E.  647.  L.  R.  A.  1915 
D  215  (1914) 

6.  State  v.  McDonald,  55  Oregon  419,  104 


Pac.  967    (1909),  rehearing  denied  106  Pac. 
444  (1910)    (statute). 

7.  Malone  v    Adams,  113  Ga.  791,  39  S.  E. 
507,  84  Am.  St.  Rep.  259  (1901). 

8.  "  The   phrase,    '  pedigree,'   embraces   not 
only   descent  and   relationship,   but  also  the 
facts  of  birth,  marriage  and  death,  and  the 
times  when  these  events  happened."     Kelly  v. 
McGuire,  15  Ark.  555.  604   (185),  per  Hemp- 
stead,  ,J. 

9.  Harvick  v.  Modern  Woodmen  of  America, 
158   111.   App.   570    (1910);    Taylor   v    Grand 
Lodge  A.  O.  U.  W.,  101  Minn.  72,  111  X.  W. 
919,    11    L.    R.    A.     (X.    S.)     92n,    118    Am. 
St.  Rep    606   (1907).     Compare  Doe  v.  Ford, 
3  U.  C.  Q    B.  352   (1847). 

10.  Bamford   v.    Barton,   2  .M.   &   Rob.   28 
(1837).     In  a  jurisdiction  having  a  statute 
which  gives  an  illegitimate  child  the  right  to 
inherit  from  his  father,  it  was  proper,  in  an 
action  for  partition,  to  admit  evidence  of  dec- 
larations of  the  alleged  father  of  a  claimant 
in  regard  to  his  relationship  with  the  latter 
who  claimed  a   share  of  the  property  as  an 
illegitimate  son.     Alston  v.  Alston,  114  Iowa 
29,  86  X.  W.  55   ( 1901 ) . 

11.  4  Chamberlayne,     Evidence,     §§     2912, 
2913. 

12.  When  other  evidence  of  the  fact  is  at- 
tainable, the  extrajudicial  statement  will  not, 
it  is  said,  be  received      Rogers  v.  De  Bardele- 
ben    Coal,   etc.,   Co,   97   Ala.    154,    12   So.   81 
(1893);    Covert  v.   Hertzog,   4   Pa.    St.    145 
(1846).- 


§  928  PEDIGREE.  710 

This  necessity  may  be  general  or  special,  according  as  it  applies  to  pedigree 
evidence  as  a  whole  or  in  relation  to  the  statements  of  a  particular  witness. 
Should  it  appear  that  the  proponent  can  establish  the  genealogical  facts  neces- 
sary to  the  proof  of  his  contention  by  the  direct  evidence  of  witnesses,  the  court, 
as  an  administrative  matter,  may  very  properly  decline  to  admit  secondary 
evidence  in  the  form  of  hearsay  declarations  13  as  to  pedigree,  until,  at  least, 
further  proof  rebutting  the  proponent's  case  is  introduced.  Thus,  where  wit- 
nesses having  adequate  knowledge  attend  for  the  purpose  of  testifying  to  the 
age  of  a  given  person,  the  record  of  his  birth  in  a  family  Bible  may  properly 
be  rejected.14  The  recognized  special  necessity  for  receiving  the  extrajudicial 
statement  of  a  declarant  in  the  pedigree  declaration  is  that  the  latter  has 
deceased.15  The  fact  of  death  must  be  proved  to  the  satisfaction  of  the  court, 
although  it  may  be  inferred  from  lapse  of  time 16  or  other  relevant  cir- 
cumstances. 

§  928.  [Administrative  Requirements] ;  Relevancy.17 —  Passing  over  the  ob- 
jective relevancy  of  a  declaration  concerning  pedigree,  as  presenting  no 
peculiarity  in  this  connection,  objective  relevancy  being  an  absolute  require- 
ment in  respect  to  evidence  of  evfery  class,  it  may  be  appropriate  to  consider  the 
subjective  relevancy  of  such  statements,  which  requires  that  when  they  are 
offered  as  proof  of  the  f acts  asserted  the  declarant  be  shown  ( 1 )  to  have 
possessed  adequate  knowledge  of  the  facts  which  he  asserts,  and  (2)  to  have 
been  free  from  a  controlling  motive  to  misrepresent.  The  qualifications  of 
the  declarant  must  be  shown  in  advance  by  the  proponent  as  a  condition  of 
the  admissibility  of  the  declarations.18  Of  course,  where  the  declarations 
concern  the  declarant  only,  adequate  knowledge  need  not  be  shown  as  an  inde- 
pendent fact,  as  it  is  axiomatic  that  a  person  may  speak  concerning  himself.19 
It  is  generally  assumed  that  a  member  of  the  family  has  adequate  knowledge 
concerning  family  history2"  but  the  relationship  of  the  declarant  must  be 
established  by  evidence  independent  of  the  declaration  itself.21  The  statement 
need  not  however  be  contemporaneous  with  the  event.22  Intimate  friends 23 
or  even  old  servants  24  or  other  members  of  the  family  25  not  relations  do  not 

13.  Wolf  v   Wilhelm  (Tex.  C'iv.  App.  1912),  19.  See  Malone  v    Adams,   113  Oa    791,  39 
146  S.  W.  216  S.  E    .507   ;1901). 

14.  Bigliben  v.  State  (Tex.  Civ.  App    1912).  20.   Bernards    Tp     v     T?edminster    Tp.(    74 
151  S    W    1044:   Rowan  v    State.  57  Tex.  Cr.  X.  -T.  Law  92,  04  Atl.  9fiO  (1906) 

Rep.  625,  124  S    W.  668   (1910).  21.  Greene  v.  Almand,  1 1 1  Ga   735,  36  S.  E. 

15.  Champion  v.  McCarthy,  228  111.  87,  81  957   -(1900):    Doe   v.   Servos.   5   U.   C.   Q.   B. 
X    E   808,  11  L    R.  A    (X.  S.)   1052n   (1907)  (O.  S  \   284   (1849) 

16.  Mann   v    Cavanauph.   110   Ky    776.   62  22    Swift  &  Co    v.   Rennard,   119  111.   App. 
S    W    854,  23  Ky   Law  Rep   238   (1901).  173    (1905) 

17/4  Chamberlayne.     Evidence,     §§     2914-  23.  Brid«rer  v.  Huett.  2  F.  &.  F.  35   (I860) 

2920.  24.  Flora  v    Anderson.  75  Fed.  217   (1896) 

18    Young  v.  Shulenberg,  165  X.  Y.  385,  59          25.  Chapman  v.  Chapman.  2  Conn.  347.  7 
N.  E.  135,  80  Am.  St  Rep  730  (1901).  Am.  Dec.  277    (1817)  :   Jackson  v.  Cooley,  8 

Johns.   (N.  Y.)    128   (1811). 


711  DOCUMENTS.  §§  929,930 

come  within  the  rule.  The  extrajudieial  statement  as  to  pedigree  may  be 
testified  to  by  anyone  who  heard  it.26  The  declaration  should  be  made  by  one 
with  no  controlling  motive  to  misrepresent  27  and  hence  ante  litem  motam.28 

§  929.  [Administrative  Requirements] ;  Validity  of  Documents  not  Demanded.29 
—  The  instrument  containing  a  pedigree  statement  need  not  itself  be  valid  for 
the  purpose  for  which  it  was  intended.  The  pedigree  assertion  contained  in  a 
will  or  circumstantially  employed  as  proof  of  pedigree  may  be  equally  effective, 
for  example,  although  the  will  itself  fail  of  operation.30  The  essential  re- 
quirement is  that  the  pedigree  assertion  should  be  identified  as  having  been 
made  by  a  competent  declarant. 

§  930.  [Administrative  Requirements] ;  Issue  Must  be  One  of  Genealogy.31 — 
In  many  jurisdictions,  it  seems  to  be  a  fairly  well  established  rule  that,  in  order 
that  hearsay  evidence  may  be  admitted  under  the  pedigree  exception,  it  is 
essential  that  the  issue  upon  which  the  testimony  is  offered  be  one  of  gene- 
alogy.32 The  courts  in  some  jurisdictions  maintain  a  less  restricted  view  of 
the  administrative  position  of  pedigree  declarations,  relying  upon  the  general 
principle  upon  which  extrajudieial  statements  are  admitted  as  an  exception  to 
the  hearsay  rule.  In  such  jurisdictions,  declarations  of  genealogical  facts, 
including  facts  of  family  history  incidental  thereto,  are  admitted  in  evidence 
upon  compliance  with  the  administrative  requirements  without  regard  to  the 
nature  of  the  issue  of  the  case  in  which  they  are  offered.33  In  settlement 
cases,  an  attempt  was  made  in  the  early  English  decisions  to  establish  the 
admissibility  of  the  statements  of  a  deceased  pauper  as  to  his  place  of  birth 
and  residence.  It  was  thought  that  this  might,  be  done  as  part  of  the  excep- 
tion relating  to  pedigree  and  a  favorable  ruling  was  actually  made,  although 
by  an  equally  divided  court.34  Later,  this  case  was  overruled,  the  doctrine 
remaining  settled  since  that  time  that  the  declarations  of  a  pauper  35  or  member 
of  his  family  36  will  not  be  received  after  their  decease  regarding  the  place 

26.  Arents  v.   Long   Island   R.  Co,    156  N  43  (1896):  In  re  Lambert,  56  L.  J   Ch.  122,56 
Y.   1,  50  X    E.  422    (1808).  L.  T.  Rep.  X    S.  15   (1886). 

27.  In  re  McClellan's  Estate,  20  S.  D    498.  31.  4  Chamberlayne,     Evidence.     §§     2922- 
107  X.  W.  681    (1906)  2927. 

28.  Xorthrop  v.   Hale.  76  Me.  306,  49  Am  32.  People  v.  Mayne,  118  Cal    516.  50  Pac 
Rep.  615    (1884).     For  a  statement    to  have  654.  62  Am.  St.  Rep    256    (IS!)?):    Bowen  v. 
been  made  ante  litem  motam  within  the  mean-  Preferred  Ace.  Ins.  Co.,  74  X.  V    Suppl    10), 
ing   of   the    rule   judicial    administration    re-  6S  App    Div.  .342   i  19021 

quires  that  it  must  not  only  have  been  made  33.  In  re  Fhirlburt's   Est..   6S  Vt.   366.   35 

before  an  action  was  started,  but  before  any  Atl.  77,  35  L.  R    A    794    (1895). 

controversy  or  prospect  of  controversy  arose  34.   Rex    v.   Eriswell,   3  T    R     70"    (1790). 

Rollins  v.   \Yicker,   154   X.   C.   559,   70   S.   E  35.  Rex    v.    Ferry    Frystone.    2    East    54 

934   (1911)  M801) 

29.  4  Chamberlayne,  Evidence,  §  2921  36.  Greenfield     v.     Camden.     74     Me.     56 

30.  Jennings  v.  Webb,  8  App.  Cas.   (D.  C.)  (1882).     Londonderry  v.  Andover,  28  Vt  416 

(1856). 


931,  932 


PEDIGEEE. 


712 


of  birth  37  or  residence  of  the  pauper.38     The  rule  is  the  same  whether  the 
declarations  are  oral  or  written.39 

§  931.  Scope  of  Rule;  Facts  Directly  Asserted.40 —  The  immediate  and  primary 
purpose  of  an  extra  judicial  declaration,  admissible  under  the  present  rule  as 
secondary  evidence  of  the  truth  of  its  assertions,  is  to  state  a  fact  of  pedigree.41 
The  fact  may  be  age,42  birth,43  death,44  identity,45  marriage  4G  or  relation- 
ship47 or  any  of  the  steps  or  links  constituting  relationship.48  The  relation- 
ship covered  may  be  in  the  direct  ascending  line  either  by  blood  49  or  marriage  50 
or  in  the  direct  descending  51  or  collateral  52  line. 

§  932.  [Scope  of  Rule];  Facts  Incidentally  Asserted;  Relationship.53 — An 
extrajudicial  statement  relating  to  pedigree  may  furnish  evidence  not  only 
of  facts  directly  asserted  but  as  to  those  collaterally  involved  in  the  statement 54 
or  of  those  which  may  reasonably  be  implied  or  inferred  from  it.55  Thus,  the 
dates50  at  which- or  the  places57  where  facts  of  genealogical  importance  oc- 

46.  Eisenlord   v.   Clum,   126  N.   Y.   552,  27 
N.  E.  1024,  12  L.  R.  A.  836   (1891). 

47.  Alston  v.  Alston,  114  Iowa  29,  86  N. 
W.  55   (1901). 

48.  Matter  of  Fails,  107  N.  Y.  Suppl.  224, 
56  Misc.  217   (1907). 

49.  South  Hampton  v   Fowler,  54  N.  H.  197 
(1874)  :  Brown  v.  Lazarus,  5  Tex.  Civ.  App. 
81,  25  S.  W.  71    (1893). 

50.  Jewell  v.  Jewell.  1  How.    (U.  S  )    219, 
11   L.   ed.   108    (1843). 

51.  Arents  v.  Long  Island  R.  Co.,   156  N. 
Y.  1,  50  N.  E.  422   (1898). 

52.  California. —  Taylor    v     McCowen,    154 
Cal.  798,  99  Pac.  351    (1909)    (statute). 

53.  4  Chamberlayne,  Evidence,  §  2939. 

54.  Kelly  v.  McGuire,  15  Ark.  555   (1855)  ; 
Morrill    v.    Foster,    33    1ST.    H.    379     (1853); 
Clements  v.  Hunt.  46  N.  C.  400  (1854). 

55.  Wood  v.  Sawyer,  61  N.  C.  251   (1867)  ; 
Viall   v.   Smith.   6    H.    I.   417    (1860).     Facts 
not  strictly  those  of  pedigree  may  be  so  con- 
nected with  pedigree  facts  as  to  be  provable  in 
the  same  way.     Wall  v.   Lubbock    (Tex.  Civ. 
App.  1900),  118  S    W.  886 

56.  Maine. —  Northrop  v.  Hale,  76  Me.  306, 
49  Am.  Rep.  615    (1884). 

MicJtiaan. —  Van  Sickle  v.  Gibson,  40  Mich. 
170  (1379). 

New  Hampshire. —  Morrill  v.  Foster,  33  N. 
H.  379  (1856) 

57.  Jackson  v.  Boneham,  15  John     (N    Y.) 
227    (1818)  ;  Hammond  v.  Noble.  57  Vt.  193, 
203   (1804)  ;  Rishton  v.  Nesbitt,  2  M.  &  Rob. 
554    (1844). 


37.  Connecticut. —  Union    v.    Plainfleld,    39 
Conn.  563  (1873)    (father). 

Maine. —  Greenfield  v.  Camden,  74  Me.  56 
(1882). 

38.  Braintree  v.  Hingham,  1  Pick.  (Mass.) 

245  (1822)  ;  Londonderry  v.  Andover,  28  Vt. 
416     (1856);    Rex    v.    Frystone,    2    East    54 
( 1801 )  ;  Rex  v.  Chadderton,  2  East  27  ( 1801 ) 
Records,    belonging    to    a    town    which    is    a 
party  to  the  suit,  bearing  upon  the  question 
of  the  residence  of  the  pauper's  ancestry,  are 
competent :    they  are  part  of  the  res  gestae 
and  partake  of  the  character  of  declarations 
made  by  the  town.     Greenfield  v   Camden,  74 
Me.  56 '(1882). 

39.  Rex    v.    Ferry    Frystone,    2    East    54 
(1801). 

40.  4  Chamberlayne,     Evidence,     §§     2928- 
2938. 

41.  The  rule  allowing  hearsay  evidence  on 
the   issue   of   pedigree   cannot   be   invoked   to 
show  the  source  of  money  which  it  is  alleged 
was  received  by  one  member  of  a  family  from 
another  member      Bi^pham  v.  Turner,  S3  Ark. 
331,  103  S.  W.   1135   (1907). 

42.  .Yen-     Jersey. —  Hancock     v.     Supreme 
Council  Catholic  Benev   Legion,  67  N.  J    Law 
614,  52   Atl.  301,  69  N.  J.  Law  308,  55  Atl. 

246  (1002). 

43.  American  L.  Ins.,  etc.,  Co.  Y.  Rosenagle, 
77  Pa    S't    507    (1875) 

44.  Dawson    v.   Mayall,    45   Minn.    408,   48 
N.   W    12    (1891). 

45.  Malone   v.    Adams.   113   Ga.   791,  39   S. 
E.  507,  84  Am.  St.  Rep.  259   ( 1901 ) . 


713  FOBM.  §  933 

curred  may  be  included  in  an  extrajudicial  statement  relating  to  pedigree.  A 
very  considerable  range  of  other  incidental  facts  has  been  permitted  to  the 
proponent.  Thus,  general  facts  relating  to  a  particular  branch  of  the  family  58 
as  that  they  owned  property  5i>  may  be  given  in  evidence  under  the  rule.  So 
the  names,"0  nationality01  and  residences62  of  particular  members  of  the 
family,  their  number,63  as  well  as  relationship  to  each  other04  and  similar 
facts G5  may  be  stated  in  such  an  extrajudicial  declaration.  While  the  fact 
of  membership  in  a  given  family  cannot  be  satisfactorily  proved  by  the  unaided 
extrajudicial  statement  of  the  person  in  question,06  but  must,  on  the  contrary, 
be  established,  in  the  absence  of  an  admission,07  by  some  evidence,  either 
direct  cs  or  circumstantial,69  to  the  satisfaction  of  the  presiding  judge  70  out- 
side the  declaration  itself,71  the  latter  may,  upon  being  thus  shown  to  be  that 
of  a  member  of  the  family,  be  used  to  prove  the  relationship  of  the  declarant 
to  any  particular  member  of  it.72  The  declaration  regarding  pedigree  naturally 
covers,  moreover,  other  intimate  relationships  existing  between  members  of  the 
immediate  family,  such  as  husband  73  or  wife,74  brother  75  or  sister.76  Finally, 
the  declarant  may  state  his  own  relation  to  the  family,77  or  to  any  designated 
member  of  it. 

§  933.  Form  of  Statement.78 —  An  unsworn  statement  regarding  pedigree 
may  present  itself  to  the  tribunal  in  any  one  of  a  variety  of  forms.  So  far  as 
such  declarations  constitute  an  exception  to  the  hearsay  rule,  they  rest,  in  main, 
upon  the  credit  of  the  declarant.  They  are,  therefore,  personal  evidence.  As 

58.  Shrewsbury  Peerage  Case,  7  H    L.  Cas.  110  Pac.  828    (1910);   Wren  v.  Rowland,  33 
I,  11  Eng.  Reprint  I   (1858).  Tex.  Civ.  App.  87,  75  S.  W.  894   (1903). 

59.  Maslin    v.    Thomas,    8    Gill    (Md.)     18  68.  Pierce  v.  Jacobs,  7  Mackey  (18  D.  C.), 
(1849).  489    (1887). 

60.  McClaskey  v    Barr,   47   Fed.    154;    re-  69.  Northrop  v.  Hale.  76  Me.  306,  49  Am. 
versed   70   Fed.    529,   530,    17    C.    C.    A.    251  Rep.  615  (1884). 

(1891).  70.  Sitler  v.  Gehr,  105  Pa.  St.  577,  51  Am. 

61.  Currie    v.    Stairs,    25    N.    Brunsw.    4      Rep.  207  (1884). 

(1890).  71.  Welch    v.    Lynch,    30   App     D.    C     122 

62.  Illinois. —  Stumpf  v.  Osterhage,  111  111  (1907)  ;  State  v.  McDonald,  55  Oreg.  419,  104 
82    (1884);   Hishton  v.  Nesbitt,  2  M.  &  Rob.  Pac.   967    (1909)    rehearing  denied,   106  Pac. 
554  (1844)  ;  Currie  v.  Stairs,  25  N.  Brunsw.  4  444  (1910). 

(18!)0).  72.  Wallbridge   v.   Jones,    33    U.   C.   Q.   B. 

63.  De  Leon  v.  McMurray,  5  Tex.  Civ  App.      613.  618   (1873). 

280,  23  S.  W.  1038   (1893)*.  73.  Chamberlain  v.  Chamberlain,  71  N.  Y. 

64.  Monkton   v.    Atty.-Gen ,   2   Russ.   &   M.       423    (1877) 

147,  150,  11  Eng.  Ch.  147   (1831)  74.  Shorten  v.   Judd.  56  Kan.  43,  42  Pac. 

65.  Young  v    State,   36   Ore.   417.   59   Pac.       337.  54  Am    St.  Rep.  587   (1895). 

812.  60  Pac.  711.  47  L.  R    A.  548   (1900)    (for  75.  In  re  Fail's  Will,  107  N.  Y.  Suppl.  224, 

identification,  declarations  tha±  deceased  had  56  Misc.  Rep.   217    (1907). 

changed  his  name,  had  enlisted  and  deserted  76.  Northrop  v.  Hale,  76  Me.  306,  49  Am. 

were  admitted)  Rep   615   (1884) 

66.  Vantine  v    Butler.  240  Mo    521.  144  S  77.  Russell   v.    Langford.   135   Cal.   356,   67 
W   807,  39  L.  R.  A.   ( N.  S.)    1177   (1912).  Pac    331    (1902). 

67.  In  re  Clark's  Estate,  13  Cal.  App.  786,  78.  4  Chamberlayne,     Evidence,     §§     2940, 

2941. 


j;   })'54  PEDIGKEE. 

submitted  to  the  court,  the  pedigree  declarations  may  be  oral  or  in  writing,74* 
formal  so  or  informal.  Xo  superior  admissibility  attaches  to  written  state- 
ments above  those  which  are  oral ;  81  nor  is  the  official  entry  in  the  absence  of 
statute,  received  as  proof  of  a  higher  grade.  Declarations  may  be  also  classi- 
fied as  composite,  i.e.,  proceeding  from  an  indeterminate  number  of  persons  in 
a  general  statement  where  the  individual  voices  of  the  declarants  have  been 
lost ;  and  individual,  i.e..  the  statements  of  identified  persons. 

§  934.  [Form  of  Statement];  Composite;  Reputation.82 — The  evidence  of 
reputation  in  the  family,  i.e.,  among  persons  whose  declarations  would  be 
competent  is  receivable  S3  for  the  purpose  of  establishing,  in  connection  with 
a  member  of  any  branch  of  the  family,84  an  appropriate  fact  of  pedigree.  This 
rule  has  sometimes  been  extended  to  include  a  general  reputation  in  the  com- 
munity.80 Facts  covered  may  be  both  those  directly  asserted  and  those  whose 
existence  is  incidentally  or  collaterally  declared.86  Such  reputation,  in  fine, 
may  relate  to  any  of  the  ordinary  facts  of  pedigree.87 

History  in  the  family  may  fairly  be  deemed  practically  equivalent  to 
reputation.88  As  this  is  primary  evidence  no  necessity  for  its  introduction 
need  be  shown.89  Adequate  knowledge  of  the  declarant  may  be  shown  by 
showing  him  to  be  a  member  of  the  family  90  with  no  motive  to  misrepresent.91 
Among  facts  of  pedigree  which  may  be  established  by  reputation  in  the  family 
are  those  of  age,92  birth,93  death,94  marriage,95  or  its  absence,1'0  and  the  dates 

79.  Wolf  v.  Wilhelm  (Tex.  Civ.  App.  1912) ,  87.  The    location    of   a    land   certificate    is 
146  S.  W.  216.  not    a    fact    of    pedigree    in    this    connection. 

80.  In  re  Peterson's  Estate    (N.  D.  1912),  Odom   v    Woodward,   74  Tex    41,    11    S.    W. 
134   N.    W.    751     (entries   in   family    Bible);  925   (1889) 

Wolf  v.  Wilhelm   (Tex.  Civ.  App.  1912),  146  88.  Cook   v    Carroll   Land,  etc.,  Co.    (Tex. 

S.   W.   216    (affidavit).  Civ.    App.    1897),   39    S.    W.    1006;    Byera   v. 

81.  "The    existence    of    a    family    register  Wallace,  87  Tex.   503,  28  S.   W    1056,  29   S. 
does  not  exclude  proof  of  declarations  of  de-  W.  760   (1895)  ;   In  re  Hurllmrt's  Estate,  68 
ceased    members    of    the    family."     Swing   v.  Vt.  366.  35  Atl.  77,  35  L.  R    A.  794   (1895); 
French,  11  Lea.    (Tenn.)   78,  80,  47  Am.  Rep.  Doe    v.    Griffin,    15    East   293,    13    Rev.    Rep 
277   (1883),  per  Cooper,  J.  474    (1812). 

82.  4  Chamberlayne,     Evidence,     §§     2942-  89.  Smith  v.  Kenney  (Tex   Civ.  App.  1899) , 
2948  54  S.  W.  801      But  see  Rogers  v    De  Bardele- 

83.  Butrick  v.  Tilton,  155  Mass.  461,  29  N.  ben   Coal,  etc  ,  Co.,  97    Ala.    154,   12   So.   81 
E    1088   (1892).  (1893). 

84.  Butrick  v.  Tilton,  155  Mass   461,  29  N.  90.  Metheny  v.  Bohn.  160  111.  263,  43  N.  E. 
E.  1088  (1892)    (grandfather's  cousin)  ;  Webb  380   (1896). 

v.    Richardson,    42    Vt.    465    (1869)     (grand-  91.  Morgan  v.  Purnell,  11  N.  C.  95   (1825) 

father)  ;  Cox  v.  Brice,  159  Fed.  378,  86  C.  C.  (ante  litem  motam  if  possible). 

•A.   378    (1908)  92.  Watson    v     Brewster,    1    Pa     St.    381 

85.  Wall  v.  Lubbock,  52  Tex.  Civ.  App.  405,  (1845)       Contra    Rogers    v.    De    Bardeleben 
118  S.  W.  886  (1909).  Coal,  etc.,  Co.,  97  Ala.  154,  12  So.  81    (1893)  ; 

86.  Fraser  v.  Jennison,  42  Mich.  206,  3  N.  White  v.   Strother.   11   Ala.   720    (1847) 

W,  882  (1879)    (residence)  ;  American  L.  Ins.,  93.  In   re   Hurlburt's   Estate,   68   Vt     366, 

etc.,  Co.  v.  Roaenagle,  77  Pa    St.  507   (1875)  35  Atl.  77.  35  L.  R    A.  794    (1895). 

(dates)  ;  Swink  v  French,  11  Lea.  (Tenn.)  78,  94.  American  L.  Ins.,  etc.,  Co.  v.  Rosenagle, 

47  Am.  Rep.  277    (1883)    (dates):    Webb  v.  77  Pa.  St.  507    (1875). 
Richardson,  42  Vt.  465    (1869)    (dates). 


715 


FOBM. 


§§  935,936 


at  which  these  respective  events  occurred.97  Reputation  which  is  admissible 
to  establish  the  fact  of  marriage  may  be  either  general  reputation  98  or  reputa- 
tion in  the  family.09  Facts  of  parentage  l  or  of  relationship  in  general 2  may 
be  proved  in  the  same  way. 

§  935.  [Form  of  Statement] ;  Tradition.3 —  A  further  form  of  composite 
statement  is  tradition  in  the  family.4  Like  reputation,5  a  tradition  is  a  form 
of  family  history0  and  may  be  shown  by  the  testimony  of  any  member  of  the 
family,7  in  proof  of  the  same  familiar  genealogical  facts,8  e.g.,  death,9  mar- 
riage 10  or  relationship.11  Certain  minor  details  relating  to  tradition  as  proof 
of  pedigree  may  be  mentioned.  The  requirement  has  been  made  that  the 
members  of  the  family  among  whom  the  tradition  existed  should  be  shown 
to  be  dead.12  The  fact,  however,  that  the  declarant  appears  to  have  had  but 
slight  personal  knowledge  furnishes  no  ground  for  rejecting  the  testimony.13 
!N'or  is  entire  accuracy  in  the  statement  insisted  on,  it  being  received  for  what 
it  is  worth,  notwithstanding  some  admitted  discrepancy.14  To  the  relevancy, 
however,  of  the  evidence  it  is  essential  that  the  tradition  should  be  shown  to 
have  arisen  among  those  possessed  of  adequate  knowledge  and  without  con- 
trolling motive  to  misrepresent.15 

§  936.  [Form  of   Statement] ;   Individual.16 —  The  extrajudicial    declaration 


95.  In  re  Pickens,   163  Pa,  St.   14,  29  Atl. 
875,  25  L.  R.  A.  477   (1894). 

96.  Jacobs  v.  Fowler,  119  N.  Y.  Suppl.  647, 
135  App.  Div   713   (1909). 

97.  Metropolitan    Life    Ins.    Co.    v.    Lyons 
(Ind.  App.  1912),  98  N.  E.  824 

98.  Chamberlain  v.  Chamberlain,  71  N.  Y. 
423   (1877). 

99.  Jones   v.   Jones,   48   Md.    391,    30   Am. 
Rep  466  (1877)  ;  Barnum  v.  Barnum,  42  Md. 
251    (1875):    Henderson   v    Cargill,   31   Miss. 
367,  409    (1856):   Clark  v.  Owens,  18  N.  Y. 
434    (1858). 

1.  State   v.   McDonald,   55   Oreg    419,    103 
Pac.  512,  104  Pac.  967,  106  Pac   444   (1910). 

2.  Lamar   v.   Allen,    108  Ga.    158,   33   S.   E. 
958   (1899);   Lindsey's  Devisee  v.   Smith,  131 
Ky.   176,   114  S.  w'779    (1908). 

3.  4  Chamberlayne,   Evidence,   §   2949 

4.  In  re  HurHmrt's  Estate,  68  Vt.  366,  377, 
35    Atl.    77,    35    L.    R.    A.    794    (1895),   per 
Thompson,  J. 

5.  Pancoast's   Lessee   v.    Addison,    1    Harr. 
&   J.    (Md.)    350,   2    Am.   Dec.    520    (1802); 
Carter    v.    Montgomery,    2    Tenn.    Ch.    216 
(1875)  ;   In  re  Hurlbnrt's  Estate,  68  Vt.  366, 
35  Atl.  77,  35  L.  R.  A.  794   (1895)  ;  Johnson 
v.  Todd,  5  Beav.  597  (1843). 

6.  Eisenlord  v.   Clum,   126  N.  Y.   552,  27 


X.  E.  1024,  12  L.  R.  A.  836  ( 18«)1 )  -.  Eaton 
v.  Tallmadge,  24  Wis.  217  (186!));  Johnson 
v.  Todd,  5  Beav.  597  (1843). 

7.  Doe  v.  Griffin,  15  East  293    (1812). 

8.  Jackson  v.  King,  5  Cow.  237,  15  Am.  Dec. 
468    (1825);   Jackson  v.   Browner,  18  Johns. 
37    (1820);   Jackson  v.  Cooley,  8  Johns.   128 
(1811);  Fulkerson  v.  Holmes.  117  U.  S.  389, 
6  Sup.  Ct.  780,  29  L    ed.  915   (1886). 

9.  Anderson  v.  Parker,  6  Cal.  197    (1856)  ; 
Pancoast's  Lessee  v.   Addison,   1    Harr.  &  J 
(Md.)     350,    2    Am.    Dec.    520    (1802);    Van 
Sickle  v.  Gibson,  40  Mich    170   (1879);   Fos- 
gate   v.    Herkimer,   Mfg.,    etc..   Co.    12    Barb. 
(X.  Y.)   352;  affirmed,  12  N.  Y.  580   (1852). 

10.  Van    Sickle    v.    Gibson,    40    Mich.    170 
(1879). 

11.  Van    Sickle    v     Gibson,    40   Mich.    170 
(1879). 

12.  Fosgate  v.  Herkimer  Mfg.,  etc.,  Co.,  12 
Barb.    (N.   Y.)    352,   affirmed,    12   N.   Y.   580 
(1852). 

13.  Lovat  Peerage  Case,  10  App.  Cas.   763 
(1885). 

14.  Johnson  v.   Todd.  5  Beav    597    (1843). 

15.  Whitelocke  v.   Baker,   13  Ves.  Jr.  511, 
9  Rev.  Rep.  216,  33  Eng.  Reprint  385   (1807). 

16.  4  Chamberlayne,    Evidence,    §§    2950, 
2951. 


§§  937,938  PEDIGBEE.  716 

may  be  not  only  composite,  as  in  case  of  reputation  or  tradition,  but  individual, 
as  where  the  speaker  is  identified.  Individual  statements  may  be  oral 17  or 
written.  The  oral  statement  is  as  competent  as  the  most  solemn  written  asser- 
tion, on  the  same  point,18  even  one  contained  in  a  family  Bible.19 

§  937.  Circumstantial  Proof  of  Pedigree.20 —  Evidence  as  to  pedigree  is  often 
circumstantial  in  nature  as  presented  in  the  form  of  various  facts  whose 
principal  value  is  circumstantial  rather  than  assertive  and  whose  bearing 
upon  the  issue  often  seems  remote.21  Let  it  be  assumed  that  a  contention 
regarding  a  point  in  family  history  is  of  such  a  nature  that,  if  correct,  certain 
entries  would  very  probably,  be  found  in  a  particular  record.  Finding  them 
there  will  be  received  as  a  fact  circumstantially  relevant.22  Per  contra,  the 
failure,  upon  inquiry,  to  find  such  entries  may  be  a  relevant  fact,  occasionally 
of  considerable  probative  force,  tending  to  disprove  the  truth  of  the  contention 
itself.23 

§  938.  Proof  by  Acquiescence  in  Case  of  Pedigree.24 —  That  a  statement  of  a 
fact  of  pedigree  should  be  allowed  to  go  uncontradicted  and  unaltered,  when 
brought  to  the  attention  of  persons  who  should  be  interested  in  having  the  truth 
alone  stated,  has  a  strong  tendency  to  convince  and  satisfy  reasonable  minds 
that  the  statement  is  true.  This  conclusion  of  logic  is  of  great  assistance  in 
many  instances  where  proof  of  a  genealogical  fact  is  sought  to  be  established. 
Where  the  necessity  is  shown,  the  court  will  permit  a  proponent  to  prove  a 
statement  of  a  relevant  pedigree  fact  by  whomsoever  made  or  whatever  may 
be  its  form,  provided  it  be  shown  or  can  fairly  be  inferred  that  it  came  to  the 
knowledge  of  some  member  of  the  family,  connected  either  by  blood,  or  mar- 
riage, who  had  or  may  reasonably  be  taken  to  have  had  adequate  knowledge 
as  to  the  truth  of  the  matter :  provided  further,  that  the  latter  is  shown  or  can 
fairly  be  assumed  to  have  assented  to  or  acquiesced  in  the  accuracy  of  the 

17.  Morrill  v   Foster,  33  N.  H.  379  (1856).      also  admissible,  as  original   evidence  of  the 

18.  Clements  v.  Hunt,  46  N   C.  400  (1854)  ;       same  facts."     Kelly  v.  McGuire,  15  Ark.  555, 
Swink  v.  French,  11  Lea   (Tenn  )   78,  47  Am.       604    (1855),  per  Hempstead,  J. 

Rep.    277    (1883);    Currie   v.    Stairs,    25    N.  22.  Jackson  v.  King,  5  Cow.    (N.  Y.)    237, 

Brunsw.  4  ( 1885) .     But  see  Webb  v.  Haycock,  15  Am.  Dec.  468   (1825) . 

19  Beav.  342   (1864).  23.  Crouch    v.    Hooper,    16    Beav.    182,    1 

19.  Currie    v.    Stairs,    25    N.    Brunsw.    4  Wkly.  Rep.  10  (1852) .     The  fact  that  no  cer- 
(1885).  tificate  of  marriage  is  produced  from  the  of- 

20.  4  Chamberlayne,    Evidence,    §§    2952-  fice  of  the  clerk  of  the  county,  where  the  mar- 
2954.  riage  was  alleged  to  have  been  performed  in  a 

21.  "  Correspondence  of  deceased  members  state  whose  law  required  the  person  perform- 
of   the   family,   recitals   in   family  deeds,  de-  ing  a  marriage  to  file  such  a  certificate,  is  a 
scriptions  in  wills,  and  other  solemn  acts,  are  circumstance    throwing    great   doubt    on    the 
original  evidence,  where  the  oral  declarations  probability  that  the  marriage  ever  took  place 
of   the   parties   are   admissible.     Inscriptions  and  is  competent  evidence  on  that  question, 
on  tombstones,  and  other  funeral  monuments,  Barnum  v.  Barnum,  42  Md.  251,  299  (1875). 
engravings  on  rings,  inscriptions  on   family  24.  4  Chamberlayne,    Evidence,    §§    2955— 
portraits,  charts  of  pedigree,  and  the  like,  are  2965. 


717  ANIMAL.  §§  939,940 

declaration.25  The  probative  element  in  this  proof  is  the  failure  to  make  any 
corrections  in  the  statement.  In  this  case  adequate  knowledge  of  the  declarant 
need  not  be  shown,20  but  the  adequate  knowledge  necessary  and  which  may  be 
assumed  is  that  of  members  of  the  family  who  acquiesce  in  the  statement  27 
without  motive  to  misrepresent 2S  and  ante  litem  motam.  The  statement  may 
be  in  any  form  29  and  an  adequate  necessity  must  be  shown  for  its  admission. 
Less  stringency  of  proof  is  required  in  case  of  ancient  facts  30  of  family  his- 
tory31 than  others.  The  conduct  of  persons  towards  each  other  may  be  used 
to  show  their  relationship.32  Mere  possession  of  documents  may  be  evidence  3S 
as  corroboration  34  in  proving  facts  of  family  pedigree. 

§  939.  Animal  Pedigree.35 —  Evidence  of  reputation  as  to  the  pedigree  of  an 
animal  may  be  properly  received.30  Thus,  in  an  action  to  recover  damages 
for  injuries  caused  to  an  animal  by  reason  of  the  negligence  of  a  carrier,  proof 
of  reputation  as  to  the  pedigree  of  the  animal  was  held  to  be  admissible.37 
Pedigree  books  may  also  be  admitted  where  they  are  recognized  as  a  standard 
authority  among  dealers  or  breeders  of  the  particular  class  of  animals  referred 
to  by  such  a  book.38 

§  940.  Scope  of  Circumstantial  Evidence  in  Case  of  Pedigree;  Age.39 —  Should 
the  necessity  be  satisfactorily  shown  by  the  proponent,40  he  may  establish  the 
fact  of  age  by  resorting  to  declarations  which  owe  their  probative  force  to  cir- 

25.  People  v    Rat?,    115  Cal.    132,  46  Pac.  bia)  80  (1886)  :  Kansas  Pac.  R.  Co.  v.  Miller, 

D15     (1896);    Jones    v.    Jones.    45    Md.    144  2  Colo,  442   (1874). 

(1876);    Eastman   v.   Martin.    19    X.    H.    152  33.  Rollins  v.   Atlantic  City   K.  Co.,  73  X. 

(1848).  J.  L.  64,  62  Atl.  929   (1905). 

28.  People  v.   Ratz.    115   Cal.    132,   46  Pac.  34.  Fulkerson    v.    Holmes,    117    U.    S.    389, 

915     (1896):    Jones    v.    Jones,    45    Md.    144  6  Sup.  Ct    780,  29  L.  ed.  915   (1885). 
(1876);    Eastman   v.   Martin,    19   X.    H.    152  35.  4  Chamberlayne.  Evidence,  §  2966. 

(1848).  36.  "The  question  of  pedigree  and  ancestry 

27.  \Yeaver  v.  Leiman.  52  Md    708   (  1879).  is  a  matter  of  common  or  general  reputation, 

28.  Dinan     v.     Supreme    Council     Catholic  Avhether  the  question  concerns  horses,  cattle, 
Mut.    Ben.    Assoc.,   201    Pa.   St.   363.   50    Atl.  dogs,  or  men.     The  matter,  from  the  very  na- 
D99    (1902).  ture  of   things,   depends   upon   reputation   or 

29.  Tnion    Ins.  Co    v.  Pollard,  94  Va.   146,  common  repute."     Citizens,  Rapid  Tr.  Co.  v. 
26  S.   E    421,  64  Am.  St.  Rep.  715,  36  L.  R.  Dew,    100   Tenn.   317,  324,  45   S.   W    790,  66 
A.  271    ( 1896) .  Am.  St.  Rep.  754,  40  L.  R.  A.  318  ( 1897) .  per 

30.  Rollins  v.  Atlantic  City  R.  Co.,  73  X.  J.  Wilkes,  J. 

L.  64,  62  Atl.  929    (1905).  37.  Jones    v     Memphis,    etc.,    Packet    Co. 

31.  After  a  long  lapse  of  time,  where  the  (Miss.  1902),  31  So.  201       See  also  Ohio  &  M 
parties  are  dead  and  where  it  appears  that  a  Ry.  Co.  v   Stribling,  38  111    App.  17   (1899). 
person    has   been    recognized   and   treated   as  38.  Louisville  &  X*.  R.  Co.  v.  Kice.  109  Ky. 
the   legitimate  child   of   a    certain    man   and  786,  60  S    W.  705   (1901)    (holding  American 
woman,  not  only  by  the  father  and  mother,  stud  books  are  admissible  on  question  of  pedi- 
but  also  by  various  members  of  the  families  gree  where  carefully  compiled  and  universally 
of  both  father  and  mother,  legitimacy  may  be  accepted  as  conclusive  by  persons  dealing  in 
presumed.     In  re  Robb's  Estate,  37  S.  C.  19,  such  animals). 

16  S.  E   241    (1891).  39.4    Chamberlayne.    Evidence,    §§    2967- 

32.  White  v.  Strother.  11  Ala.  720   (1847)  ;       2969. 

Green  v.  Norment,  5  Mackey  (Dist.  of  Colum-          40.  People  v.  Mayne,  118  Cal.  516,  50  Pac. 


§§  941,942 


PEDIGEEE. 


718 


cumstances  and  which  are  admissible  under  the  pedigree  exception  for  like 
reason.41  This  may  be  done  by  entries  in  a  family  record  42  or  family  Bible  43 
and  a  person  may  testify  to  his  own  age  though  necessarily  based  on  hearsay  44 
but  he  may  not  testify  to  the  age  of  another  on  the  basis  of  hearsay  45  or 
reputation.40 

§  941.  [Scope  of  Circumstantial  Evidence  in  Case  of  Pedigree] ;  Birth.47 —  It 
has  been  said  that  hearsay  cannot  be  used  to  prove  the  place  of  a  person's 
birth.48  This,  however,  may  well  be  doubted,  for  hearsay  declarations  or 
reputation  in  the  family  49  regarding  the  fact,  place  5"  or  time  of  birth  may 
be  as  competent  as  is  the  circumstantial  proof  i(1  by  which  these  facts  are 
established. 

§  942.  [Scope  of  Circumstantial  Evidence  in  Case  of  Pedigree] ;  Death.52 — 
Should  a  suitable  forensic  necessity  for  receiving  it  be  presented,53  not  only 
may  secondary  evidence  of  extrajudicial  statements  be  received  in  proof  of  the 


654,  62  Am.  St.  Rep.  256  (1897);  Hunt  v. 
Supreme  Council  0.  of  C.  F.,  64  Mich.  671, 
31  N.  W.  576,  8  Am.  St.  Rep.  855  (1887); 
Leggett  v.  Boyd,  3  Wend.  (X.  Y.)  37V> 
(1829)  ;  Campbell  v.  Wilson,  23  Tex.  253,  76 
Am.  Dec.  67  (1859). 

41.  California. —  People   v.    Ratz,    115    Cal. 
132,  46  Pac.  915    (1806). 

42.  Bertram  v.  Witherspoon,   138  Ky.   116, 
127   S.  W.  533    (19JO);   State  v.  Hazlett,   14 
N.  D.  490,  105  N.  \~.  617  ( 1905)  ;  Union  Cent. 
L.  Ins.  Co.  v.  Pollard,  94  Va.   146,  26  S.  E. 
421,   64  Am    St.   Rep.   715,  36  L.  R.  A.   271 
(1896). 

43.  Where  a  mother  testified  as  to  the  age 
of   her   children,   a  record   of  the   entries   of 
their  births  made  in  the  family  Bible  under 
her  dictation  by  a  person  since  deceased  was 
admitted  to  corroborate  the  testimony  of  the 
mother.     Wiseman  v.   Cornish,  53   N.  C.  218 
(8  Jones  Law)    (1860). 

44.  This  may  be  true  though  the  parents 
of  the  declarant  are  available  as  witnesses. 
Bain  v.  State,  61  Ala.  75  (1878)  :  Pearce  v. 
Kyzer,  16  Lea  (Tenn.)  521,  57  Am.  Rep.  240 

(1886) .  It  is  competent  to  show,  on  the  ques- 
tion of  a  girl's  age,  that,  before  the  contro- 
versy arose,  the  girl  had  a  birthday  party 
and,  on  that  occasion,  there  was  a  birthday 
cake  having  her  age  in  figures  upon  it.  Park- 
hurst  v.  Krellinger,  69  Vt.  375,  38  Atl.  67 

(1897). 

45.  People  v.  Mayne,  118  Cal.  516,  50  Pac. 
654,  62  Am.  St.  Rep.  256    (1897):  "Dinan  v. 
Supreme  Council  Catholic  Mut.   Ben.   Assoc., 
201   Pa.   St.  363,  50  Atl.   999    (1902);   Con- 


necticut Mut.  L.  Ins.  Co.  v.  Schwenk,  94  U. 
S    593,  24  L.  ed    294   (1876). 

46.  Sims   v.    State    (Tex.   Cr.   App.    1902), 
70  S    W.  90;  Colclough  v    Smyth.  15  Ir.  Ch. 
347,  10  L.  T.  Rep.   (N.  S.)   918   (1863). 

47.  4  Chamberlayne,  Evidence,  §  2969a. 

48.  Brooks  v.  Clay,  3  A.  K.  Marsh.    (Ky.) 
545  ( 1821 )  ;  Adams  v.  Swansea,  1 16  Mass.  591 
(1875):    Tyler    v.    Flanders,    57    N.    H.    618 
(1876):    Ctirrie  v.   Stairs,  25  New  Bruns.  4 
(1885).     A  witness  will  not  be  permitted  to 
testify,  entirely  from  the  hearsay  statements 
of  others,  as  to  the  place  of  his  birth.     Mc- 
Carthy   v.    Deming,    4    Lans.     (N.    Y.)     440 
(1871);   Mima   Queen  v.   Hepburn.  7   Cranch 
(U.   S.')    290,   3  L.   ed.   348    (1813);    Rex.   v. 
Erith,  8  East  539,  542    (1807). 

49.  Clark  v.  Owens,   18  N.  Y.  434    (1858). 
See  also  Grand  Lodge  A.  O.  U.  W.  v.  Bartes, 
69  Neb.   631,  96   N.   W.   186,  98   N.   W.   715, 
111  Am.  St.  Rep.  '577   (1904). 

50.  Wilmington     v.     Burlington,     4     Pick. 
(Mass.)     174    (1826):    McCarty   v.    Terry,    7 
Lans.    (N.  Y. )    236    (1872). 

51.  Weaver  v.  Leiman,  52  Md.  708   (1879)  ; 
Beckham  v.  Nacke,  56  Mo.  546    (1874);   See 
also  Currie  v.  Stairs,  25  N!  Brunsw.  4  ( 1885). 

52.  4  Chamberlayne,     Evidence,     §§     2970- 
2973. 

53.  Unless  the   fact  be   an   ancient   one.   it 
may  properly  be  assumed,  in  the  absence  of 
affirmative  proof  on  the  subject,  that  primary, 
i.e.,  more  original,  evidence  can  be  procured 
on  the  subject,  all  forms  of  secondary  proof 
being    provisionally    rejected.     Stouvenel    v. 
Stephens,  26  How.  Pr.    (N.  Y.)   244    (1863). 


719 


MARRIAGE. 


§  943 


fact  of  death,  whether  such  declarations  be  in  individual  54  or  composite  55 
form,  but  facts  circumstantially  relevant  are  equally  available  for  the  purpose.56 
The  conduct  of  the  family1"'7  or  information  received  from  the  family  5-  may 
be  used  to  establish  rhe  death  of  one  of  its  members.  Death  may  also  be 
shown  by  proof  of  general  reputation  in  the  community  5'J  where  the  family 
had  knowledge  of  it.""  A  report  of  death  must  be  in  the  form  of  a  declara- 
tion by  a  deceased  member  of  the  family.01 

§  943.  [Scope  of  Circumstantial  Evidence  in  Case  of  Pedigree] ;  Marriage.62 — 
The  fact  of  marriage  may  be  proved  circumstantially  by  cohabitation,63  by 
the  fact  that  the  persons  in  question  had  children  whom  they  acknowledged 
and  to  whom  they  gave  the  family  name,64  by  the  alleged  husband's  support  of 
the  alleged  wife  and  children,65  or  by  any  acts  or  conduct  of  the  parties  proba- 
tively  relevant."0  Marriage  may  also  be  shown  by  entries  in  a  family  record,67 
by  reputation  in  the  community  68  or  in  the  family  69  but  reputation  may  be 
insufficient  when  standing  alone  in  criminal  cases.70 


54.  Stouvenel  v.  Stephens,  26  How.  Pr.  (X. 
Y.)    244    (1863);    Fosgate  v.   Herkimer  Mfg., 
etc.,  Co,  12  Barb.    (X.  Y.)    352,  affirmed,  12 
X.  Y.  580   •:  1852)  ;  Primm  v.  Stewart,  7  Tex. 
178   (1851)  :  Scott  v.  Ratliffe,  5  Pet.    (U    S. ) 
81,  8  L.  ed   54  (1831). 

55.  Ewing   v.    Savary,   3   Bibb.    (Ky.)    235 
(1813).     Reputation  may  be  the  only  avail- 
able evidence.     Ringhouse  v.  Keever,  49  111 
470   -1869)  ;  Houston  City  St.  R    Co.  v   Rich- 
art   (Tex.  Civ.  App.  1894),  27  S.  W.  920. 

56.  Mortality   tables   if   of   recognized   au- 
thority, are  receivable  as  part  of  the  common 
knowledge  of  the  community  and  may  be  ex- 
amined by  the  judge  as  tending  to  establish 
the  facts  asserted.     Mississippi,   etc.,  R.   Co. 
v.   Ayres,   16  Lea    (Tenn.)    725    (1886);   Gal- 
veston,   etc.,  R.   Co    v.    Arispe,   81    Tex.   517, 
17    S.    W.    47     (1S9D;    McKeigue   v    Janes- 
ville,  68  Wis   50,  31  X.  W.  298  ( 1887)  ;  Vicks- 
burg,  etc,  R.  Co.  v.  Putnam,  118  U.  S.  545, 
7  Sup    Ct.  1,  30  L.  ed    257    (1886) 

Gravestones. —  Xorth  Brookfield  v.  Warren, 
16  Gray  (Mass.)  171  (I860):  Smith  v.  Pat- 
terson, 95  Mo.  525,  8  S.  W.  567  (1888) 

Family  Bible. —  Wiseman  v.  Cornish,  53  N. 
C.  218  (8  Jones  Law)  1«6;  In  re  Berkeley,  4 
Campb  401  (1811). 

57.  XTorth    Brookfield  v.   Warren,    16  Grav 
(Mass.)    171   11860)  ;  Hunt  v.  Johnson,  19  X. 
Y.  279    ( 1859 ;  ;  McClaskey  v.  Barr.  47  Fed 
154,  reversed,  70  Fed.  529,  530,  17  C.  C.  A. 
251     (1893);    Lewis    v.    Marshall.    30   U.    S 
(5  Pet  )  469,  8  L.  ed    195   (1S31). 

58.  Anderson  v.  Parker,  6  Cal.  197   (1856)  ; 


Mason  v.  Fuller,  45  Vt.  29   (1872)  ;  Du  Pont 
v.  Davis,  30  Wis.  170  (1872). 

59.  Pancoast  v.  Addison,  1  Har.  &  J.  (Md.) 
350,  2  Am.  Dec.  520  (1802)  ;  Jackson  v.  King- 

5  Cow.  (X.  Y.)  237,  15  Am.  Dec.  468  (1825)  ; 
Flowers'    Lessee    v.    Haralson,    14    Tenn.    (6 
Yerg.)   494   (1834)  ;  Ringhouse  v.  Keever,  49 
111.  470  (1869)  ;  Flowers'  Lessee  v.  Haralson, 

6  Yerg  (Tenn.)  496   (1834). 

60.  Welch  v.  R    Co  ,  1S2  Mass.  84,  64  X.  E. 
695    (1902);    Blaisdell  v.  Bickum,   139  Mass. 
250,  1  X.  E.  281    (1885). 

61.  Wallace    v.    Howard    (Tex.    Civ.    App. 
1895),  30  S.  W.  711. 

62.  4  Chamberlayne,    Evidence,    §§    2974- 
2977. 

63.  Jackson  v.  Jackson,  80  Md.  176,  30  Atl. 
752     (1894);    Jones    v.    Jones,    45    Md.    144 
(1876);   Copes  v.  Pearce,  7  Gill.    (Md.)   247 
(1848);   Henderson  v.   Cargill,  31   Miss.  367 
(1894)  ;   Thompson  v.  Xims,  83  Wis.  261,  53 
X  W.  502,  17  L.  R.  A.  847  (1892). 

64.  Henderson    v.    Cargill,    31    Miss.    367 
(1894) 

65.  Vincent's  Appeal,  60  Pa  St.  228  ( 1869) . 

66.  Kansas  Pac.  R.   Co.  v.   Miller,  2  Colo. 
442   (1874)  ;  Jennings  v.  Webb.  8  D.  C.  App. 
43,  56    (1896);   Thompson  v    Xims,  83   Wis 
261,  53  NT.  W   502,  17  L.  R.  A.  847   (1892). 

67.  Jones  v   Jones,  45  Md.  144   (1876). 

68.  Chamberlain  v.  Chamberlain.  71  X".  Y. 
423    (1877).     In  re  Pickens,  163  Pa    St.  14, 
29  Atl.  875,  25  L.  R.  A.  477    (1894). 

69.  Jones   v.   Jones,   48   Md.    391,   30   Am. 
Rep.  466  (1877)  ;  Barnum  v.  Barnum,  42  Md. 


§§  944-948  PEDIGEEE.  720 

§  944.  [Scope  of  Circumstantial  Evidence  in  Case  of  Pedigree] ;  Names.71— 
The  name  of  an  individual  or  family  may  be  proved  by  reputation,72  the  fact 
that  a  reputation  exists  rendering  it  worthy  of  consideration. 

§  945.  [Scope  of   Circumstantial  Evidence   in   Case  of  Pedigree] ;   Race.73— 
Circumstances  regarding  the  recognition  and  treatment  of  a  person  as  a  mem- 
ber of  a  particular  race  are  competent  on  the  question  of  race.74 

§  946.  [Scope  of  Circumstantial  Evidence] ;  Relationship.70 —  Relationship 
may  be  proved  not  only  by  the  declarations  of  deceased  members  of  the  family 
but  by  evidence  more  circumstantial  in  its  nature,  e.g.,  the  possession  of  prop- 
erty at  one  time  belonging  to  an  ancestor  by  one  claiming  to  be  his  descendant T6 
or  the  manner  in  which  two  persons  conducted  themselves  in  respect  to  each 
other.77  Acts  of  a  deceased,  tending  to  show  his  illegitimacy,  are  admissible 
on  that  point,  as  are  also  the  acts  of  his  mother.78  Likewise  common  reputa- 
tion upon  the  subject  of  the  parentage  of  a  person  whose  pedigree  is  in  dispute 
is  admissible.79  Even  similarity  of  names  will  be  considered  on  the  question 
of  relationship  in  case  of  ancient  facts.80 

§  947.  [Scope  of  Circumstantial  Evidence  in  Case  of  Pedigree] ;  Residence.81— 

For  the  purpose  of  identifying  a  given  person  or  establishing  some  other  rele- 
vant fact,  the  question  of  place  of  residence  may  become  closely  involved  with 
pedigree  and  treated  in  many  respects  as  a  pedigree  fact.82  However,  it  seems 
to  be  settled  that  residence  cannot  be  established  by  reputation.83 

§  948.  [Scope  of  Circumstantial  Evidence  in  Case  of  Pedigree] ;  Status.84— 
General  reputation  has  been  held  admissible  to  prove  the  status  of  a  person, 
for  example,  that  he  was  a  free  person  85  or  that  he  was  a  noncitizen ;  86  but 
this  is  contrary  to  the  weight  of  authority.87  In  criminal  cases,  where  the  fact 

251    (1875);   Henderson  v.  Cargill,  31   Miss.  Pac.  512,  104  Pac.  907,  106  Pac.  444   (1910). 

367,  409    (1856);    Clark  v.  Owens,   18  N.  Y.  80.  Fulkerson  v.  Holmes,   117  U.  S.  389,  6 

434  (1858).  Sup.  Ct.  780,  29  L.  ed.  915    (1885). 

70.  Burning  v.  Hastings,  183  Pa.  St.  210,  38  81.  4  Chamberlayne,  Evidence,  §  2980a. 
Atl    627    (1897)     Icrim.   con.).  82.  Byers  v.  Wallace,  87  Tex.  503,  511,  28 

71.  4  Chamberlayne,  Evidence,  §  2978.  S.  W.  1056,  29  S.  W.  760  (1895),  per  Brown, 

72.  U.  S.  v.  Dodge,  25  Fed.  Cas.  No.  14,974,  J. 

Deady  186   (1866).  83.  R.   Co.   v.   Thompson,   94  Ala.   636,    10 

73.  4  Chamberlayne,  Evidence,  §  2979.  South.  280  (1891)  ;  Shearer  v.  Clay  11  Ky.  (1 

74.  Locklayer   v.   Locklayer,    139    Ala.   354,  Litt.)    260   (1822);   Ferguson  v.  Wright,   113 
35  So   1008  (19031  ;  Gilliland  v.  Board  of  Ed-  N.  C.  537,  18  S.  E.  691   (1803)  :  Londonderry 
ucation,  141  N.  C.  482,  54  S.  E.  413  (1906).  v    Andover,  28  Vt.  410    (1856) 

75.  4  Chamberlayne.  Evidence,  §  2980  84.  4  Chamberlayne,  Evidence,  §  2981. 

76.  Wiess  v.  Hall    (Tex.   Civ.   App.   1911),  85.  Bryan    v.    Walton.    20    Ga.    480.    509 
135  S.  W.  384;  Fulkerson  v.  Holmes,  117  U.  (1856).     See  also  Shorter  v.  Boswell,  2  Harr. 
S.  389,  6  Sup.  Ct.  780,  29  L   ed.  815   (1885).  &  J.    (Md.)    359    (1808). 

77.  White  v.  Strother,  11  Ala.  720  (1847).  86.  George  v.   U.    S.,    1   Okla,   Cr.   307,  97 

78.  State  v.   McDonald,   55    Ore.   419,    103  Pac.  1052,  100  Pac.  46    (1908). 

Pac.  512,  104  Pac.  967,  106  Pac.  444   (1910).          87.  Walkup  v.  Pratt,  5  Harr    &  J.    (Md.) 

79.  State  v.   McDonald,   55   Ore.   419,    103      51    (1820);   Walls  v.  Hemslev,  4  Harr.  &  J. 


721  STATUS.  §  948 

of  corporate  existence  is  merely  a  collateral  matter,  such  fact  may  be  established 
by  general  reputation.88 

(Md.)  243  ( 1817)  ;  Charlton  v.  Unis,  4  Gratt.       1    (1893)  ;   State  v.  Thompson,  23  Kan.  338, 
(Va.)  58  (1847).  33  Am.  Rep.  165  (1880). 

88.  Fleener  v   State,  58  Ark.  98,  23  S.  W. 


CHAPTER  XLIV. 

HEARSAY  AS  PRIMARY  EVIDENCE;   (SPONTANEITY. 

Hearsay  as  primary  evidence,  94'J. 
Relevancy  of  spontaneity,  i»50. 
Declarations  part  of  a  fact  in  the  res  gestae,  951. 
relevancy  to  fact  asserted,  952. 
statement  must  be  contemporaneous,  953. 
The  principle  of  the  res  gestae,  954. 

relation  to  the  rule  against  hearsay,  955. 
The  modern  view,  956. 

considerations  determining  spontaneity,  957. 
elapsed  time,  958. 
form  of  statement,  959. 

consciousness  and  lack  of  motive  to  misstate,  960. 
permanence  of  impression,  961. 
physical  state  or  condition,  962. 
Narrative  excluded;  admissions,  963. 

spontaneous  statements  by  agents,  964. 
remoteness,  965. 

Range  of  spontaneous  statements;  probative  facts  preceding  the  res  gestae,  966. 
probative  facts  subsequent  to  the  res  gestae,  967. 
accusation  in  travail,  968. 
declarations  of  complainant  in  rape,  969. 
.    American  rule,  970. 

independent  relevancy ;  failure  to  complain,  971. 
the  element  of  time;  independent  relevancy,  972. 
declarations  of  owner  on  discovering  larceny,  etc.,  973. 
personal  injuries,  974. 

Probative  weight  of  spontaneous  statements,  975. 
Who  are  competent  declarants,  976. 

§  949.  Hearsay  as  Primary  Evidence.1 —  Hearsay  evidence  is  received  as  pri- 
mary evidence  only  in  two  classes  of  cases.  Judicial  administration  recognizes 
mainly,  if  not  exclusively,  two  influences  upon  the  mind  of  the  declarant  in  any 
given  case  which,  in  the  absence  of  countervailing  considerations,  uniformly 
are  deemed  to  confer  admissibility  upon  his  extrajudicial  statements.  These 
are,  (1)  the- truth-compelling  power  of  a  spontaneous  reaction  to  an  over- 

1.  4  Chamberlayne,   Evidence,  §  2982. 

722 


723  RELEVANCY.  §§  050,951 

whelming  motor  impulse;  (2)  a  force  of  habit.  The  former,  it  has  seemed 
convenient  brietiy  to  designate  as  the  Relevancy  of  Spontaneity.  The  latter 
will  be  spoken  of  as  the  Relevancv  of  Reffularitv. 

r  «.  »— •  «. 

§  950.  Relevancy  of  Spontaneity.2 —  To  judicial  administration,  the  auto- 
matic is  the  true.3  What  a  declarant  asserts,  not  so  much  of  himself 4  as  over- 
borne and  forced  thereto  by  overwhelming  emotion,  the  stress  of  sudden  shock 
or  intense  pain,  the  law  of  evidence  assumes  to  be  the  fact.0 

§  951.  Declarations  Part  of  a  Fact  in  the  Ees  Gestae.'5 —  Apparently,  in  cur- 
rent judicial  parlance,  a  spontaneous  extrajudicial  statement  is  spoken  of  as 
being  a  declaration  which  is  "  part  of  the  res  gestae."  7  Such  unsworn  state- 
ments are  customarily  received  in  civil  cases  or  on  criminal  proceedings  in  proof 
of  the  facts  asserted.  Indeed,  wherever  the  element  of  spontaneity  is  present, 
e.g.,  in  connection  with  independently  relevant  extrajudicial  statements,  includ- 
ing, to  use  Greenleaf  s  phrase,8  "  verbal  acts,"  and  the  like,  the  presence  of  this 
element  of  proof  tends  to  superimpose  upon  the  constituent  or  probative  rele- 
vancy of  such  statements  a  tendency  to  establish  the  truth  in  point  of  fact  of 
that  which  has  been  asserted.  For  reasons  which  are  in  part  stated  elsewhere,9 
the  presence  of  spontaneity  is  not  essential  for  this  purpose  of  proving  the  fact 
asserted  in  an  extrajudicial  declaration.  Wherever  spontaneity  is  present, 
however,  such  is  its  probative  effect. 

Res  gestae  is  indeed,  as  employed  by  the  American  courts,  a  term  of  protean 
meaning.10  Properly  considered,  and  as,  in  a  majority  of  cases,  represented 
in  the  English  view,  the  term  designates  the  actual  series  of  world  happenings 
out  of  which  the  right  or  liability  asserted  in  the  action  arises  so  far  as  it  arises 
at  all.  To  extend  the  same  phrase  so  as  to  include  not  only  the  probative  facts 
which,  when  direct  proof  of  the  true  res  gesiae  is  unavailable,  are  used  to  estab- 
lish them,  but  to  cover  also  all  evidentiary  or  probative  facts  whatever,  and 
even  those  which,  though  lacking  in  probative  relevancy,  the  rules  of  procedure 
have  made  admissible,  seems  by  no  means  ideal.  A  careful  examination  of  a 
considerable  number  of  decisions  in  which  it  has  been  held  that  certain  evi- 
dence was  admissible  as  "  part  of  the  res  gestae  "  will,  it  is  believed,  convince 
the  student  of  two  facts,  (1)  that  a  rational  and  true  reason  may  be  discovered 

2.  4  Chamberlayne,   Evidence.   §   2083.  5.  People  v.  Del  Venno,  192  X.  Y    470,  85 

3.  Murray  v    Boston  &  M    R.  Co..  72  N   H.       X    E    600   (190SK 

32,  37.  54  Atl    280.  61  L.  R.  A.  405,  101  Am.  6.  4  Chamberlayne,      Evidence,      §§      2984, 

St.  Rep   fiGO   (1<)03).  2985. 

4.  Competency  as  a  witness. —  So  little  is  7.  Feldman    v.    Detroit    United    Ry.,    162 
the  declarant  in  an  extra  judicial  spontaneous  Mich    4S6.  127  X    W.  687,  17  Detroit  Leg.  N. 
utterance     regarded     as     thinking    his     ovm  707    (1010). 

thoughts  that  it  is  not  even  required  for  the  8.  1  Olf.  Ev.    (15th  ed.)   §  108. 

admissibility  of  his  statement  that  he  should  9.  §   2580. 

he  competent  as  a  witness      Croomes  v.  State,  10.  State  v.  Territory,  12  Ariz.  36,  38,  94 

40  Tex.  Cr    App   672,  51  S.  W.  924,  53  S.  W.  Pac    1104   (1908). 

882    (1899). 


§  952  HEARSAY  AS  PRIMARY  EVIDENCE;  SPONTANEITY.  724 

for  admitting  the  evidence  in  every  case  where  it  was  properly  admitted,  with- 
out resorting  to  a  meaningless  phrase;  (2)  that  the  court,  feeling  from  the 
standpoint  of  reason  or  "  common  sense  "  that  the  jury  should  have  the  aid  of 
the  evidence,  admitted  it  as  u  part  of  the  res  gestae  "  without  taking  the  trouble 
to  discover  and  assign  the  true  reason  for  its  admissibility.  Illustrations  of 
this  loose  and  hurried  use  of  the  convenient  term  res  yestae  are  not  rare  in 
judicial  opinions.11 

§  952.  [Declarations  Part  of  a  Fact  in  the  Res  Gestae] ;  Relevancy  to  Fact  As- 
serted.12—  That  the  relevancy  of  an  extrajudicial  statement  to  the  existence  of 
the  fact  asserted  in  it  is  due  to  the  spontaneous  nature  of  the  utterance  rather 
than  to  position  among  the  res  yestae  becomes  obvious  upon  comparing  those 
res  gestae  utterances  deemed  admissible  for  the  purpose  and  those  not  so  re- 
garded. A  very  large  number  of  extrajudicial  statements  deemed  independ- 
ently relevant  are  undoubtedly  part  of  the  res  gestae,  properly  so  called,  as 
being  constituency  relevant.  These  utterances,  however,  have  no  tendency,  in 
the  absence  of  spontaneity,  to  establish  the  existence  of  the  facts  which  they 
assert.  That  the  defendant,  for  instance,  said,  speaking  of  the  plaintiff, 
"  A.  B.  is  a  thief,"  may  on  an  action  of  slander  be  proved  as  a  relevant,  indeed, 
a  necessary  fact.  Such  a  declaration  would  have  little  tendency,  standing 
alone,  though  obviously  part  of  the  res  gestae,  to  show  that  it  was  true,  that 
A.  B.  was,  in  point  of  fact,  a  thief. 

Whether  the  exhibition  by  an  extrajudicial  statement  of  a  proving  power 
resulting  from  an  intimate  relation  to  attending  circumstances  would  ever  be 
accepted  as  sufficient  judicial  proof  of  the  fact  asserted  is  very  doubtful.  Upon 
principle,  it  may  fairly  be  contended  that  such  proof  should  be  sufficient. 

Xo  distinction,  as  a  matter  of  principle  or  of  authority,  exists  between  the 
meaning  of  res  gestae  when  employed  in  criminal  as  distinguished  from  civil 
cases.  What  is  law  for  a  criminal  case  is  law  for  a  civil  case,  and  -vice 
versa. 

The  distinction  which  procedure  recognizes  between  the  independently  rele- 
vant capacity  of  an  extrajudicial  statement  and  its  use  in  an  assertive  capacity 
is,  at  bottom,  false  and  misleading.  The  circumstantially  probative  quality 
of  any  statement,  the  proving  power  of  the  fact  of  its  existence,  persists  in  all 
cases,  whether  the  statement  be  judicial  or  extrajudicial.  the  capacity  in  which 
it  is  used,  assertive  or  relevant,  independent  of  its  truth  or  falsity. 

The  assertive  capacity  of  an  extrajudicial  statement  presents,  as  compared 
to  that  of  independent  relevancy,  certain  essential  differences,  at  least  on  the 
surface.  The  fact  of  the  statement,  its  circumstantially  probative  quality  in 
establishing  the  existence  of  a  physical  or  psychological  fact  in  itself  relevant, 
recedes  into  the  background.  The  inference  of  truth  to  which  the  making  of 

11.  Hall  v.  Uvalde  Asphalt  Pav.  Co.,  92  N.  12.  4  Chamberlayne,  Evidence,  §§  2986- 
Y.  Suppl.  46,  47  (1905).  2991. 


725  CONTEMPORANEOUS.  §  953 

the  statement  gives  rise,  under  the  circumstances  disclosed,  assumes  the  first 
importance. 

§  953.  [Declarations  Fart  of  a  Fact  in  the  Res  Gestae] ;  Statement  Must  be 
Contemporaneous.13 —  The  rule  as  commonly  laid  down  is  that  an  extrajudicial 
declaration  must,  in  order  to  be  received  in  evidence,  be  contemporaneous  with 
some  principal  fact  in  the  res  gestae.14  Few  rules  are  more  confusing.  In 
the  first  place,  strictly  speaking,  it  is  not  and  cannot  be  insisted  on.  Practical 
contemporaneousness  is  all  that  is  required.15 

The  statement  is  further  confused  as  the  extrajudicial  declarations  which 
properly  constitute  part  of  the  res  gestae  may  fall  within  one  or  the  other  of 
two  general  classes.  (1)  They  may  be  independently  relevant,  circumstan- 
tially probative  by  reason  of  their  mere  existence,  e.g.,  the  utterance  in  an 
action  of  libel  or  slander  or  proof  of  the  mental  state  with  which  a  particular 
act  is  done.  (2)  They  may  be  hearsay  statements,  used  in  their  assertive 
capacity,  as  proof  of  the  facts  alleged,  e.g.,  where  one  injured  in  a  railroad 
collision  gives  a  spontaneous  account  of  it,  before  he  has  time  to  invent  anything 
to  his  own  advantage.  To  the  admissibility  of  these  two  classes  or  species  of 
extra  judicial  statement  an  entirely  different  standard  of  contemporaneousness 
is  customarily  applied  by  judicial  administrators. 

The  independently  relevant  statement  may  be  admitted  whether  it  follows  16 
or  precedes  1T  the  principal  fact  to  be  established  by  such  declaration  if  it  con- 
tinues to  be  evidentiary  of  the  fact  to  be  proved  by  it 1S  as  in  case  of  state- 
ments of  intention. 

In  case  of  a  spontaneous  statement  it  is  of  course  necessary  that  the  con- 
trolling fact  or  facts  from  which  spontaneity  arises  should  be  actually  present 
or  that  its  or  their  influence  should  remain,  dominating  the  mind  of  the  decla- 
rant. "J  In  other  words,  the  essential  consideration  is  as  to  the  presence  of 
what  may  be  called  the  reflection-numbing  operation  of  certain  impressive  facts 
upon  the  mind  of  the  declarant. 

The  interval  must  be  so  short  that  any  suspicion  of  fabrication  will  be  elimi- 
nated.20 

The  rule  is  customarily  laid  down  that  an  extrajudicial  statement  admitted 
as  part  of  the  res  gestae  must  characterize  some  proper  fact  within  its  scope.21 

13.  4  Chamberlayne,     Evidence,  §§     2992-  18.  Louisville,  etc.,  R.  Co    v.   Pearson,  97 
2996  Ala.  211.  12  So.   176   (1893)  :  Murray  v.  Bos- 

14.  Trenton  Pass.  R.  Co.  v.  Cooper,  60  N.  ton,  etc.,  R.  Co..  72  N.  H.  32,  54  Atl.  289,  61 
J.  L.  219,  37  Atl.  730,  64  Am.  St.  Rep.  592,  L.  R.  A.  495,   101  Am.  St.  Rep.  660    (1903). 
38  L.  R.  A.  637    (1897).  19.  Keyes  v.  Cedar  Falls,  107  Iowa  509,  78 

15.  Murray  v.  Boston,  etc.,  R  Co.,  72  N.  H.  N.  W.  227   (1SM> 

32.  54  Atl   289,  61  L   R.  A.  459,  101  Am.  St  20.  Com.  v.  Van  Horn,  188  Pa.  St.  143,  41 

Rep    660    (1903).  Atl.  469    (1893). 

16.  Bradley  v.  State,  54  Tex.  Cr.  App.  53,           21.  Smith  v.  National  Ben.  Soc.,  123  X.  Y. 
Ill  S    \V.  733    (1908).  85,  25  N.  E.  197,  9  L.  R.  A.  616   (1890). 

17.  State  v   Laster,  71  N.  J.  L.  586,  6  Atl. 
361    (1905). 


§§  954,955     HEARSAY  AS  PRIMARY  EVIDENCE;  SPONTANEITY.  726 

This  may  be  doubted,  notwithstanding  the  well-settled  character  of  the  rule, 
Certainly,  the  proposition  does  not  hold  true  in  case  of  a  spontaneous  utterance. 
What  the  half-dazed  victim  of  a  railroad  accident,  for  example,  has  to  say  re- 
garding the  cause  of  his  condition  has,  as  a  rule,  little  effect  in  limiting,  ex- 
plaining or  otherwise  characterizing  any  fact  in  the  res  gestae,  whatever  may 
be  the  meaning  attached  to  that  elastic  phrase. 

In  accident  cases  great  assistance  is  furnished  by  admitting  in  evidence  spon- 
taneous statements  of  the  participants  in  the  transaction,22  and  in  criminal 
cases  statements  of  the  deceased  2a  or  of  the  accused  -4  or  of  the  person  injured 
are  likewise  admitted  even  though  self-serving.25  The  so-called  res  gestae  fact 
should  itself  be  receivable  in  evidence  2ti  as  one  material  to  the  issue.27 

§  954.  The  "  Principle  of  the  Res  Gestae."  28 —  What  did  Prof.  Greenleaf  un- 
derstand by  ''  the  principle  of  the  res  gestae  "?  To  attempt  grasping,  even  in 
outline,  the  present  situation  regarding  the  meaning  of  res  gestae  as  employed 
by  American  courts  and  something  as  to  the  rule  admitting  extra  judicial  state- 
ments as  part  of  this  class  of  facts,  it  may  be  necessary  to  examine  the  work 
of  this  eminent  authority  in  some  detail.  "  Res  gestae  "  means  what,  if  any- 
thing, Greenleaf  has  made  it  mean.  To  him,  it  owes  its  great  extension  in 
scope,  its  rank  as  a  so-called  "principle."  The  feature  which  the  various  rules 
relied  upon  by  Greenleaf  in  illustration  of  his  general  "  principle  "  of  the 
res  gestae  possess  in  common  is  that  of  introducing  as  a  ground  for  receiving 
the  evidence  an  element  of  probative  force  distinct  from  the  general  credit  of 
the  declarant. 

The  basis  of  Greenleaf's  "  principle  of  the  res  gestae  "  is  further  denned  by 
his  inclusion,  as  illustrations  of  it,  of  classes  of  extrajudicial  statements  which 
are  chiefly  evidentiary  by  reason  of  their  mere  existence  and  which,  in  the 
present  treatise  it  has  seemed  appropriate  to  denominate  independently  rele- 
vant, i.e.,  probative,  regardless  of  their  truth  or  falsity.  Under  this  head  are 
grouped  all  juridical  uses  of  an  unsworn  statement  in  its  circumstantial  aspect, 
no  inference  being  suggested  as  to  the  truth  of  the  facts  asserted. 

§  955.  [The  "  Principle  of  the  Res  Gestae  "] ;  Relation  to  Rule  Against  Hear- 
say.29—  The  firm  establishment  and  general  acceptance  among  courts  and 
jurists  of  the  proposition  really  implied  in  Greenleaf's  "  principle  of  the  res 
gestae  "  would  seem  to  promise  much  benefit  to  the  practical  operation  of  the 

22.  Gilbert  v.  Ann  Arbor  R.  Co.,  161  Mich  26.  Pinney  v.  Jones,  64  Conn.  545,  30  Atl. 
73,  125  N.  W.  745    (1010).  762,  42  Am.  St.  Kep.  209  (1894). 

23.  Com.  v.  Van  Horn,  188  Pa.  St.  143,  41  27.  State  v.  Whitt,  113  N.  C.  716,  18  S.  E. 
Atl.  469   (1898).  715   (1893). 

24.  Darby  v.  State,  9  Ga.  App.  700,  72  S.  E.  28.  4  Chamberlayne,     Evidence,    §§    2997- 
182   (1911)  :  State  v.  Eutledge,  135  Iowa  581,  3002. 

113  N.  W.  461    (1907)  29.  4  Chamberlayne,  Evidence,  §  3003. 

25.  Murer  Coal  &  Ice  Co.  v.  Howell,  217  111. 
190,  75  N.  E.  469  (1905). 


727  MODERN  VIEW.  §§  956-958 

rule  against  hearsay.  That  an  extra  judicial  statement  should  be  received  under 
proper  administrative  restrictions  in  individual  cases,  as  primary  evidence  in 
support  of  any  relevant  inference,  not  resting  in  main  upon  the  credit  of  the 
declarant,  to  which  it  logically  gives  rise  would  at  once  deprive  the  hearsay 
rule  of  its  anomalous  character  and  introduce  a  simplifying  rule  of  much  scien- 
tific value  and  of  great  practical  assistance  to  judicial  administration. 

§  956.  The  Modern  View.30 — Kecognizing  the  actual  and  the  still  greater 
potential  value  of  Greenleaf's  work  in  this  connection,  it  may  be  reluctantly  ad- 
mitted that  the  main  body  of  the  legal  progress  along  lines  of  evidence  has  by 
no  means  taken  up  the  entire  advanced  ground  which  the  eminent  authority  of 
the  last  century,  as  it  were,  staked  out  for  it.  The  mere  logical  relevancy  of  an 
unsworn  statement,  though  not  resting  in  main  upon  the  credit  of  the  declarant, 
is  not  in  itself  as  yet  a  sufficient  ground  for  receiving  it  in  support,  of  a  propo- 
sition as  to  which  it  convinces  the  mind.  This  is  true  regardless  of  the  forensic 
necessities  of  the  proponent  or  the  administrative  situation  of  the  case. 

Courts  had  long  been  familiar  with  the  probative  force  of  an  extra  judicial 
statement  rendered  spontaneous  by  the  controlling  influence  of  a  fact  in  the 
res  gestae,  properly  so-called.  That  they  should  hesitate  to  do  justice  by  re- 
ceiving spontaneous  statements  where  the  dominating  fact  is  an  evidentiary  or 
probative  one  could  scarcely  be  expected.  The  essential  element  of  proving 
power  was  the  spontaneous,  unreflecting  nature  of  the  utterance.  The  relation 
which  the  controlling  fact  sustained  to  the  proposition  in  issue,  whether  its 
relevancy  was  constituent,  as  being  that  of  a  res  gestae  fact,  or  probative  as 
being  that  of  an  evidentiary  one  could  not  be  permitted  to  be  a  determining 
factor  in  the  doing  of  justice.  As  Greenleaf's  classification  made  all  spon- 
taneous statements  'l  part  of  the  res  gestae,"  modern  courts  have  felt  no  hesi- 
tation in  extending  the  term  res  gestae  so  as  to  cover  relevant  facts  controlling 
the  volition  of  the  declarant,  whatever  be  their  relation  to  the  issue.31 

§  957.  [The  Modern  View] ;  Considerations  Determining  Spontaneity.32 — 
Whether  the  circumstances  under  which  a  declaration  was  made  are  such  as  to 
make  it  reasonably  probable  that  it  was  spontaneous  presents  a  preliminary 
question  for  the  determination  of  the  trial  judge.33  The  burden  is  upon  the 
proponent  to  show  the  essential  fact.34  Should  the  judge  be  of  opinion  that  an 
opportunity  for  deliberation  and  reflection  has  been  afforded  to  the  speaker,  it 
will  be  assumed  to  have  been  utilized,  the  declaration  being  rejected.35 

§  958.  [Considerations  Determining  Spontaneity] ;  Elapsed  Time.3fi —  The  para- 
mount single  influence  in  consideration  of  the  admissibility  of  spontaneous 

30.  4  Chamberlayne,     Evidence,     §§     3004,  34.  Pool   v.   Warren  County,   123  Ga    205, 
3005.  51  S.  E.  328    (1905). 

31.  Travellers'  Insurance  Co.  v.  Mosley,  8  35.  Wright  v.  State,  88  Md.   705,  41  Atl. 
Wall.  (U.  S.)  397,  403,  19  L.  ed   437   (1869).  1060   (1898). 

32.  4  Chamberlayne,  Evidence,  §  3006.  36.  4  Chamberlayne,    Evidence,    §§    3007- 

33.  State  v    Williams,  108  La.  222,  32  So.  3009. 
402   (1902). 


§  959  HEARSAY  AS  PRIMARY  EVIDENCE;  SPONTANEITY.  728 

declarations  is  that  of  elapsed  time  as  other  things  being  equal 37  the  shorter 
the  interval  of  elapsed  time  the  greater  the  probability  that  the  declaration  is 
spontaneous.38  .No  definite  rule  can  be  laid  down  however  as  shortness  of 
elapsed  time  is  by  no  means  equivalent  to  proof  of  spontaneity.^  Where  the 
interval  is  indefinite  spontaneity  must  be  aim-mat  ivdy  shown  and  even  a  very 
short  interval  of  time  is  not  conclusive  in  favor  of  its  existence.40  Where  the 
interval  of  elapsed  time  is  definite  the  comparative  number  of  receptions  to 
rejections  increases  as  the  length  of  time  is  shorter  and  where  the  time  is  two 
minutes  41  or  less  a  large  proportion  of  the  statements  are  admitted  unless  it 
otherwise  appears  that  the  statement  was  not  spontaneous  42  but  even  long 
periods  as  several  hours  may  not  render  the  statement  inadmissible  under  ex- 
ceptional circumstances.43 

§  959.  [Considerations  Determining  Spontaneity];  Form  of  Statement.44 — A 
form  of  statement  presented  in  the  evidence  may  assist  judicial  administration 
in  determining  whether  a  given  utterance  is  spontaneous.  Strong  emotion  is 
brief,  incisive,  often  disjointed  in  expression.  It  gravitates,  apparently  by 
some  rudimentary  impulse,  to  the  pulsating,  the  rythmical.  Overflowing  emo- 
tion shows  a  peculiar  torrential  quality,  in  itself  readily  distinguished  from  the 
calm,  orderly  word-choosing  process  of  deliberate,  purposeful  discourse.  An 
extended,  involved  and  closely  connected  form  of  statement  naturally  tends, 
therefore,  to  repel  the  inference  of  spontaneity.45  Should  the  utterance  actually 
be  automatic  or  instinctive,  the  circumstance  that  it  is  made  in  a  narrative  form 
is  by  no  means  conclusive  against  its  admissibility.46  Should  a  reasonable 
suspicion  exist  on  the  part  of  the  judges  that  the  statement  is,  as  a  matter  of 
fact,  a  narrative,  i.e.,  a  deliberate  account  of  past  events,  the  administrative 
practice  is  to  exclude  it.47 

37.  Whether  particular  sayings  constitute  a  41.  Murray  v.  Boston,  etc.,  R.  Co.,  72  N. 
part    of   res   gestae   depends    rather    on    the  H.  32,  54  All.  289,  61  L.  R.  A.  495,  101  Am. 
spontaneity  of  the  events  than  on  the  precise  St.  Rep.  660   (1903)  ;  Coll  v.  Easton  Transit 
time   which   may   have   elapsed   between   the  Co.,  180  Pa.  St.  618,  37  Atl.  89  (1897). 
main  fact  and   the   statements  made.     Cobb  42.  King  v.  State,  5  Miss.  576,  5  So.  97, 
v.  State   (Ga.  App.  1912),  74  S.  E.  702.  7   Am.   St.  Rep.   681    (1888)     (a  little  more 

38.  State  v.  Molisse,  38  La.  Ann.  381,  58  than  a  minute) . 

Am.  Rep.  181    (1886);  Houston,  etc.,  R.  Co.  43.  Walters  v.   Spokane  International  Ry. 

v.  Weaver    (Tex.  Civ.  App.  1897),  41   S.  W.  Co.,    58    Wash.    293,    108    Pac.    593     (1910) 

846.  (nearly  two  hours). 

39.  Du  Bois  v.  Luthmer,  147  Towa  315,  126  44.  4  Chamberlayne,  Evidence,  §  3010. 

N.  W.  147  (1910)  (ten  minutes  received).  45.  Indianapolis  St.  R.  Co.  v.  Whitaker, 

Adequate  knowledge  on  the  part  of  the  160  Ind.  125,  66  X.  E.  433  (1903). 

declarant  must  in  any  event  be  shown.  46.  Lovett  v.  Georgia.  30  Ga.  255,  4  S.  E. 

~New  Hampshire. —  Davis  v.  Boston  &  M,  R.  912  (1887)  ;  Murray  v.  Boston,  etc.,  R.  Co., 

R.,  75  N.  H.  467,  76  Atl.  170  (1910).  72  N.  H.  32,  54  Atl.  289,  61  L.  R.  A.  495, 

40.  "  It  is  no  more  competent  because  made  101   Am.   St.   Rep.  660    (1903);    Edwards  v. 
immediately  after  the  accident  than  if  made  Edwards,  39  Pa.  St.  369   (1861). 

a  week  or  a  month  afterwards."  Lane  v.  47.  People  v.  Dice,  120  Cal.  1897,  52  Pac. 
Bryant,  9  Gray  (Mass.)  245,  247,  69  Am.  Dec.  477  (1898)  ;  Thornton  v.  State,  107  Ga.  683, 
282  (1857),  per  Bigelow,  J.  33  S.  E.  673  (1899)  ;  Savannah,  etc.,  R.  Co.  v. 


729  j    ....:.-.  §§ 

A  written  statement  is  not  yc.r  ae  inadmissible,48  although  it  would  seem  that 
deliberation  must  usually  accompany  the  making  of  a  statement  in  such  form. 

§  960.  [Considerations  Determining  Spontaneity] ;  Consciousness  and  Lack  of 
Motive  to  Misstate.49 —  It  should  appear  in  all  cases  that  the  declarant  was  con- 
scious 5"  and  the  fact  that  the  statement  was  against  the  interest  of  the  declarant 
will  render  it  more  readily  received  51  than  where  it  is  self -serving.52 

§  961.  [Considerations  Determining  Spontaneity] ;  Permanence  of  Impres- 
sion.53—  A  fact  receiving  great  judicial  consideration  is  as  to  the  permanent 
nature  of  the  impression  which  the  controlling  circumstances  are  calculated  to 
create.54  "  The  seriousness  of  the  injury,  the  character  of  the  accident,  and 
the  surrounding  physical  circumstances  and  results  of  the  occurrence,  attending 
the  declaration  as  well  as  the  principal  fact,  are  necessary  matters  for  consid- 
eration in  the  determination  of  the  question  of  the  admissibility  of  the  declara- 
tion." 55  -^ 

The  presence  of  an  excited  state  of  mind  at  the  time  of  the  declaration  tends 
to  make  the  statement  more  spontaneous  56  and  a  spectator  is  deemed  less  likely 
to  be  excited  than  a  participant  in  the  affair.57  To  render  the  statement  auto- 
matic it  is  essential  that  no  intervening  circumstance  should  have  taken  place  58 
and  in  such  case  the  burden  is  on  the  proponent  to  show  that  the  statement  sub- 
sequently made  was  spontaneous  59  as  where  medical  assistance  is  obtained  6C 
or  removal  from  the  scene  of  the  transaction  occurs.61 

§  962.  [Considerations  Determining  Spontaneity] ;  Physical  State  or  Condi- 
tion.62—  Plainly  important  for  consideration  of  the  court  in  determining  the 
question  of  spontaneity  is  the  physical  state  or  condition  in  which  the  declarant 
is  shown  to  have  been  at  the  time  his  statement  was  made.  For  example,  an 

Holland,  82  Ga.  257,  268,  10  S.  E.  200,  14  Am.          55.  Murray  v.  Boston,  etc.,  R   Co.,  72  N.  H. 
St.  Rep.  158   (1888).  32,  37,  54  Atl.  289,  61  L.  R,  A.  495,  101  Am. 

48.  From  three  to  five  minutes  after  her      St.  Rep.  660  (1903),  per  Walker,  J. 

throat  was  cut,  the  windpipe  being  severed  so  56.  State  v.    Rutledge,    135   Iowa   581,    113 

that  she  could  not  speak,  the  deceased  wrote.  X.  W.  461   (1907). 

"  Jess  Morrison  killed  me."     This  was  shown  57.  Louisville  Ry.  Co.  v.  Johnson's  Adm'r, 

in  evidence.     State  v.  Morrison,  64  Kan.  669,  131  Ky.  277,  115  S.  W.  207,  20  L    R.  A.   (N. 

68  Pac.  48    (1902).  S. )    133   (1909). 

49.  4  Chamberlayne,     Evidence,     §§     3011,  58.  Bernard   v.    Grand    Rapids   Paper   Box 
3012.  Co.,  170  Mich.  238,  136  X.  W.  374   (1912). 

50.  Christopherson  v.  Chicago,  M.  &  St.  P.  59.  Ford   v.   State,   40  Tex.   Cr.    App.   280, 
R   Co.,  135  Iowa  409,  109  X.  W.  1077   (1906).  50  S.  W.  .350   (1899). 

51.  O'Shields  v.  State,  55  Ga.  696  (1876)  60.  State  v.  Deuble,  74  Iowa  509,  38  N.  W. 

52.  Bradberry  v    State,  22  Tex.  App.   273,  383    (1888);   Mutcha  v.  Pierce,  49  Wis.  231, 
2  S.  YV.  582    (1886)  ;   U.  S.  v.  King,  34  Fed.  5  X.   W.  486,  35  Am.  Rep.   776    (1880). 

302  (1888).  61.  Martin  v.  Xew  York,  etc.,  R.  Co.,  103  X. 

53.  4  Chamberlayne,    Evidence,    §§    3013-  Y.  626,  9  X    E.  505   (1886).     But  see,  Scheir 
3019  v  Quirin.  177  X.  Y.  568,  69  X.  E.  1130  (1904), 

54.  Snto  v    Territory.  12  Ariz.  36,  94  Pac.  affirming  77   X.  Y.  App.  Div.  624,  78  X.  Y. 
1104   (1908)  :  Murray  v.  Boston,  etc,  R.  Co.,  Suppl.  956. 

72  X.   H.  32,  37.  54  Atl.   289,  61    L    R.   A.          62.  4  Chamberlayne,  Evidence,  §  3020. 
495,  101  Am.  St.  Rep.  660  (1903). 


§  963  HEARSAY  AS  PEIMARY  EVIDENCE;  SPONTANEITY.  730 

unsworn  statement  made  while  the  declarant  is  afflicted  with  intense  pain  re- 
sulting from  a  recent  injury,63  would  probably,  were  no  modifying  facts  sug- 
gested, be  judged  to  be  spontaneous.  Severe  bodily  suffering  or  mental  anguish 
may  be  highly  significant  in  establishing  the  truth  of  facts  asserted  in  the 
utterance.  Thus  the  declarations  of  a  woman  accusing  her  husband  of  setting 
her  clothing  on  fire,  made  while  her  body  was  still  smoking;  °4  those  of  a  work- 
man who  had  shortly  before  fallen  into  a  vat  of  scalding  liquid;05  those  of  a 
man  who  had  been  shot,  made  while  his  shirt  was  still  on  fire  from  the  flash  of 
the  weapon ;  G6  and  those  of  a  man  who  had  both  arms  crushed,  made  about  an 
hour  after  the  accident,67  have  been  received  in  evidence  as  spontaneous  and 
worthy  of  consideration  by  a  jury.  The  first  successful  efforts  by  an  injured 
person  at  articulation  may  be  received  as  spontaneous  though  the  interval  of 
time  since  the  original  occurrence  has  been  a  considerable  one.68 

§  963.  Narrative  Excluded;  Admissions.69 — That  a  spontaneous  statement 
may  relate  to  the  existence  of  a  fact  which  is  physically  past,  though  present 
in  the  influence  which  it  exerts,  is  not  questionable.  Where,  however,  an  extra- 
judicial  assertion  is  a  deliberate  statement,  made  upon  reflection  of  past  events, 
the  declaration  is  classed  as  narrative  and  cannot  be  received  under  the  present 
rule,70  admitting  spontaneous  statements  as  proof  of  the  facts  asserted. 

Substance,  rather  than  form,  of  statement,  is  regarded  by  judicial  adminis- 
tration as  decisive,  in  this  connection.71  Though  an  extrajudicial  declaration 
be,  in  form,  narrative,  it  will  be  received  in  its  assertive  capacity  if  in  reality 
it  amounts  to  the  spontaneous  assertion  of  a  relevant  fact.72  ^Nor  is  a  state- 
ment necessarily  to  be  regarded  as  lacking  in  spontaneity  because  it  is  made  in 
response  to  a  question,73  though  that  fact  often  is  an  important  element  in  ren- 
dering a  statement  inadmissible.74 

63.  Scheir  v.  Quirin,  177  N    Y.  568,  69  X.          69.  4  Chamberlayne,     Evidence,     §§     3021, 
E.  1130  ( 1904),  affirming  77  App.  Div.  624,  7S      3022. 

N.  Y.   Suppl.  950    (1902).  70.  Waldele  v.  R.  Co.,  95  N.  Y.  274,  278, 

64.  Walker  v.  State,  137  Ga.  398,  73  S.  E.      47  Am.  Rep   41   (1884).  per  Earl,  J. 

368   (1912).  71.  Bionto  v    Illinois  Cent.  R   Co.,  125  La. 

65.  Scheir  v.  Quirin,  177  X.  Y.  568,  69  X.       147,   51    So.   98,   27   L.   R.   A.    (X.    S.)    1030 
E.  1130   (1904),  affirming  77  X.  Y.  App.  Div.       (1910). 

624,  78  X.  Y.  Suppl.  956   (1902).  72.  Lovett  v.  State.  80  Ga   255,  4  S.  E.  912 

66.  Bice  v.  State,  51  Tex   Cr.  App.  133,  100  (1887)  :   Murray  v.   Boston,  etc.,  R.   Co.,  72 
S.  W.  949    (1907)  X.  H.  32,  54  Atl.  289,  61  L.   R.  A.  495.  101 

67.  Starr  v.  Aetna  Life  Ins.  Co..  41  Wash  Am.  St.  Rep.  660  (1903) 

199,  83  Pac.  113,  4  L.  R.  A.   (X.  S.)   636  n  73.  Denver  City  Tramway  Co.  v    Brumley. 

(1905).  51  Colo.  251.  116  Pac    1051*  (1911);  Christo- 

68.  Fulcher  v.  State,  28  Tex.  App.  465,  13  pherson  v.  Chicago,  M.  &  St    P.  R.  Co ,  135 
S.  W.  750  (1890).     A  physician  may  not  tes-  Iowa  409.   109   X.   W.    1077    (l'90r.)  ;    Lexin?- 
tify  that  when  he  pressed  the  plaintiff's  ankle  ton  v.  Fleharty,  74  Xeh.  626,  104  X.  W.  1056 
the  plaintiff  flinched  as  this  is  a  mere  declara-  (1905). 

tion    to    the    physician      Xorris    v.    Detroit          74.  Greener  v.  General  Electric  Co.,  208  N. 
United  R.  Co..  185  Mich.  264,  151  N.  W7.  747.      Y.  135,  102  X   E.  527  (1913). 
It  may  well  be  doubted  whether  this  case  is 
good  law. 


731  NARRATIVE  EXCLUDED.  §§  964^966 

Statements  against  interest  are  to  be  carefully  distinguished  from  ordinary 
spontaneous  statements  as  they  are  received  as  admissions.75  The  admissions 
of  the  agent  are  under  a  canon  of  substantive  law  received  only  when  made 
while  the  agent  was  acting  in  the  business  of  the  principal  although  they  are 
commonly  received  or  rejected  as  being  within  or  outside  of  the  "  res  gestae."  7tt 

§  964.  [Narrative  Excluded] ;  Spontaneous  Statements  by  Agents.77 —  The 
spontaneous  statements  of  an  agent  stand  in  an  entirely  different  administrative 
position,  as  evidence  of  the  facts  asserted,  from  his  extrajudicial  admissions. 
The  latter,  whatever  may  be  the  phraseology  employed  in  relation  to  the  term 
res  gestae,  involve  questions  of  law,  procedural  or  substantive.  A  narrative 
extrajudicial  statement  of  an  agent  will  be  received  as  an  admission,  if  shown 
to  be  suitably  connected  with  the  agency.78  Otherwise  it  will  generally  be 
rejected.79 

§  965.  [Narrative  Excluded] ;  Remoteness.80 —  It  has  been  settled  by  authority 
both  in  England  and  in  the  States  of  the  American  Union  that  there  is  an 
important  administrative  difference  between  a  narrative  statement  and  one 
which  simply  relates  to  a  past  transaction.  In  other  words,  a  spontaneous 
utterance  may,  and  indeed  usually  does,  relate  to  a  fact  which  is  past  in  point 
of  time.  So  long  as  the  controlling  effect  of  the  res  gestae  or  probative  fact 
upon  the  will  of  the  declarant,  has  not  so  far  ceased  to  operate  as  to  make  it 
reasonable  to  feel  that  the  stage  of  automatic  utterance  has  been  replaced  by 
that  of  self -consciousness,  the  statement  is  not  to  be  regarded  as  narrative.81 
It  is  doubtful  whether  any  more  definite  rule  can  well  be  formulated  as  to  the 
precise  point  of  time  or  causation  at  which  the  so-called  "  principal  fact "  can 
be  said  to  be  too  remote  from  the  statement  offered  in  evidence,  for  the  latter  to 
be  regarded  as  spontaneous.82 

§  966.  Range  of  Spontaneous  Statements;  Probative  Facts  Preceding  the  Res 
Gestae.83 —  The  effect  of  the  modern  extension  of  the  term  res  gestae  in  such  a 
way  as  to  embrace  not  only  the  res  gestae,  but  also  the  probative  facts,  by  which, 
in  the  absence  of  direct  evidence,  it  is  sought  to  reproduce,  circumstantially,  the 
former  or  constituent  facts,  has  resulted  in  depriving  the  phrase  res  gestae  of 
any  very  definite  meaning.  As  at  present  generally  used  the  phrase  res  gestae, 

75.  People  v    Simonds.  ]«  Cal   275   '1861 )  :       ingr  Co.,  172  U.  S.  401,  19  S.  Ct.  233,  43  L.  ed. 
State  v    Davis,   104  Tenn    .VI 1.   ">S  S.  W.    122       492  (1899). 

(1900)  ;   McGee  v.  State,  31  Tex   Cr   App.  71,  79.  f'onnectinit. —  Morse     v.     Consolidated 

19    S.   W.    764    (1892);    Johnson   v.    State,    8  Ry   Co.,  81  Conn.  395,  71  Atl   553  (1908). 

Wyo.  494,  58  Pac.  761   (1899).  80.  4  Chamberlayne,  Evidence,  §  3025. 

76.  American  Law  Review,  XV  80   (1881),  81.  State  v.  Alton.  105  Minn.,  410,  117  N. 
per  Professor  James  Bradley  Thayer.  W   617.  15  Am.  &  Eng.  Ann.  Cas.  806  (1908) 

77.  4  Chamberlayne,     Evidence.     §§     3023.  82.  Soto  v.  Territory,  12  Ariz.  36.  94  Pac. 
3024.  1104  (1908)  ;  State  v.  Blanchard.  108  La.  110, 

78.  Sonnentheil  v.  Christian  Moerlein  Brew-  32  So    397    (1902). 

83.  4  Chamberlayne,  Evidence,  §  3026. 


§§  967,968     HEARSAY  AS  PRIMARY  EVIDENCE;  SPONTANEITY.  732 

in  connection  with  the  relevancy  of  spontaneity  now  under  consideration,  is  so 
employed  as  to  cover,  not  only  the  res  gestae  or  constituent  facts,  properly  so- 
called,  but  also,  with  apparently  entire  indifference,  those  which  precede  and 
those  which  follow  a  period  of  time  at  which  alone  any  constituent  fact  could 
have  occurred.  It  occasionally  happens  that  the  reflective  faculties  of  a  person 
are  so  numbed  and  stilled  by  some  danger  which  is  imminent  or  by  dread  of 
something  that  is  clearly  about  to  take  place  that  any  statement  made  at  the 
time  may  properly  be  regarded  as  spontaneous.84 

§  967.  [Range  of  Spontaneous  Statements] ;  Probative  Facts  Subsequent  to  the 
Ees  Gestae.85 —  Probative  facts,  the  office  of  which  is  to  throw  light  backward, 
as  it  were,  upon  the  nature  of  the  actual  res  gestae,  are  receivable  in  evidence, 
upon  ordinary  principles.  Among  these  may  properly  be  extrajudicial  state- 
ments, employed  either  in  an  independently  relevant  capacity  or  as  spontaneous 
utterances.  In  the  first  case,  the  probative  effect  is  produced  by  reason  of  the 
mere  existence  of  the  declaration,  suitable  relevancy  being  shown.  A  spon- 
taneous utterance  is  evidence  of  the  truth  of  the  facts  asserted  in  the  decla- 
ration. 

Criminal  cases  offer  the  most  conspicuous  field  for  the  application  of  this 
rule  86  as  the  parties  are  most  often  under  excitement  and  in  such  cases  even, 

explanations  bv  the  accused  of  his  conduct  are  often  admitted  87  as  in  homicide 
*  • 

cases  88  as  well  as  larceny.89  In  a  poisoning  case  the  prosecution  is  permitted 
to  show  practically  everything  said  by  the  injured  person  regarding  the  admin- 
istration or  operation  of  the  poison  from  the  time  it  was  first  introduced  into 
the  system  of  the  deceased  until  death  ensues.90 

§  968.  [Range  of  Spontaneous  Statements] ;  Accusation  in  Travail.91 —  The 
presence  of  an  element  of  spontaneity  may  affect  the  probative  force  of  a  so- 
called  declaration  in  travail.  It  has  long  been  held  that  the  mother  of  an 
illegitimate  child  might  accuse  the  putative  father  at  the  time  of  her  travail,92 

84.  In  a  prosecution  for  assault  with  intent  87.  Slay  v.  State  (Tex.  Cr.  App.  1907),  99 

to    kill,    evidence    that    as    the    wife    of    the  S.  W.  550. 

victim    opened    a   door   at   the    time    of   the  88.  Carwile  v.  State,  148  Ala.  576,  39  So. 

shooting,    her    child    said    "Look!    there    is  220   (1905). 

Uncle  Isaac  and   Uncle  Jesse  going  to  shoot  89.  Bennett  v.  People,  96  111.  602  (1880). 

us!  "     was     properly     admitted.     Shirley     v.  90.  People  v.  Benham,  63  X.  Y.  Suppl.  923, 

State,   144   Ala.   35,  40   So.  269    (1906).     On  30  Misc.  466,  14  X.  Y.  Cr.  Rep.  434  (1900). 

an  inquiry  regarding  the  death  of  a  person,  a  91.  4  Chamherlayne,  Evidence,  §  3033. 

letter  written  by  him  stating  an  intention  to  92.  The  time  of  travail,  as  this  phrase  is 

commit    suicide   has   been    admitted.     Rogers  employed  by  the  legislature  has  been  held  to 

v  Manhattan  Ins.  L.  Co.,  138  Cal.  285,  71  Pac.  mean   the  period  of  labor-pain   prior  to  the 

348    (1903).  birth  of  the  child.     Bacon   v    Harrington,   5 

85.4  Chamberlayne,     Evidence,     §§     3027-  Pick.    (Mass.)    63    (1827)  ;    Com.   v.    Cole.    5 

3032.  Mass.  517    (1809).     See,  also.  Scott  v.  Dono- 

86.  Green  v.  State,  154  Ind.  655,  57  N.  E.  van,    153   Mass.   378,   26   X.   E.   871     (1891); 

637    (1900);   State  v.  Spivey,  151  N.  C.  676,  Tacey  v.  Xoyes,  143  Mass.  449,  9  X.  E.  830 

65  S.  E.  995   (1909).  (1887);  Long  v.  Dow,  17  X.  H.  470   (1845). 


733  RANGE.  §  969 

and  that  the  statement  so  made  might  be  received  in  evidence  on  affiliation  pro- 
ceedings as  proof  of  the  fact  asserted.93 

§  969.  [Range  of  Spontaneous  Statements] ;  Declarations  of  Complainant  in 
Rape.94 —  Criminal  proceedings  to  punish  for  rape,  attempts  at  rape,  indecent 
assault  and  the  like  present  peculiar  problems  of  judicial  administration,  which 
have  been  recognized  since  early  times.  The  peculiar  nature  of  the  offence,  the 
circumstances  which  usually  surround  its  com  mission,  the  sex  of  the  injured 
party,  and  her  natural  reticence  to  speak  of  it  tend  to  make  proof  difficult  and 
lead  to  a  relaxation  of  strict  rules  of  evidence.  The  result  has  been  the  devel- 
opment of  a  unique  rule,95  or  perhaps  what  would  better  be  termed  a  principle, 
as  there  can  hardly  be  said  to  exist  a  settled  rule,  at  least,  a  uniform  rule.  The 
courts  have  all  recognized  the  principle  that,  notwithstanding  the  general  rule 
that  a  party's  self-serving  declarations  may  not  be  introduced  in  evidence  by 
him,  in  this  instance  there  should  be  an  exception.  They  have  differed  in  the 
manner  of  applying  this  principle  and  in  the  latitude  to  be  given  to  the  ex- 
ception. 

The  mere  fact  that  the  injured  party  had  made  a  complaint  to  a  proper 
person  in  seasonable  time  is  all  that  has  been  allowed  in  many  cases.  This  was 
permitted  to  be  shown  by  both  the  complainant  and  by  the  person  to  whom  the 
complaint  was  made.96 

In  other  cases,  the  factsof  the  complaint  and  the  particulars  thereof  have 
been  shown  as  part  of  the  case-in-chief  of  the  prosecution ;  but  the  particulars 
•were  not  admitted  as  proof  of  the  facts  complained  of.  They  were  purely  for 
the  purpose  of  corroborating  the  prosecutrix'  in  anticipation  of  impeachment ; 
or  for  the  purpose  of  determining  the  conflict  of  veracity  frequently  arising  in 
such  cases  between  the  complaining  witness  and  the  accused;  or  to  anticipate 
the  adverse  inference  upon  which  the  defendant  would  rely,  if  no  proof  of  a 
complaint  by  his  accuser  were  offered. 

A  rule  which  has  been  adhered  to  in  many  cases  allows  the  fact  that  a  com- 
plaint was  made  to  be  shown  in  the  case-in-chief  of  the  prosecution ;  and.  if  any 
attempt  is  made  by  the  defence  to  impeach  the  credibility  of  the  prosecutrix, 
then  the  particulars  of  the  complaint  may  be  shown.  Here,  again,  the  particu- 
lars are  admitted  solely  for  corroborative  purposes.  They  are  not  considered 
any  proof  of  the  facts  asserted  by  them.  The  question  of  the  extent  to  which 
the  impeachment  of  the  prosecutrix  must  go  before  the  particulars  of  the  com- 

93.  Bacon  v.  Harrington,  5  Pick.    (Mass  )  Thayer  on  Bedingfield's  case  in  14  Amer.  Law 
63   (1827).  Rev.  at  page  830. 

94.  4  Chamberlayne,     Evidence,     §§     3034.  96.  "  In  R.  v.  Stroner.  1  C.  &  K  650  (1845), 
3035.     Admissibility  of  prompt  complaints  in  the  prosecution  was  compelled  by  the   court 
rape.     See  note.  Bender,  ed  .   104  X.   Y.   493.  to  call  the  woman  to  whom  the  complaint  was 

95.  For   some   statement  of  the  historical  made,  although  she  was  at  the  time  in  at- 
basis  upon   which  the  anomalous   rule  with  tendance  as  a  witness  for  the  accused."     14 
regard  to  rape  rests,  see  article  of  Prof.  J.  B.  Amer.  Law  Rev.  p.  830  n. 


§§  970,971     HEARSAY  AS  PRIMARY  EVIDENCE;  SPONTANEITY.  734 

plaint  are  admissible  seems  not  to  have  been  very  clearly  indicated  by  the 
authorities. 

Lastly,  the  fact  of  the  complaint,  together  with  its  details,  are  frequently 
admitted  as  spontaneous  statements  under  a  true  exception  to  the  hearsay  rule. 
The  entire  evidence  is  given  as  part  of  the  ease-iu-chit-f  of  the  prosecution.**7 

The  earlier  English  decisions  allowed  the  fact  that  the  alleged  outraged 
woman  had  made  a  complaint  to  be  shown,  but  excluded  the  particulars  of  such 
complaint. <JS  The  later  decisions  modified  this  view  and  the  present  rule  in 
England  admits  both  the  fact  of  the  complaint  and  its  particulars;  but  the 
latter  are  not  admitted  as  proof  of  the  facts  complained  of.  They  are  received 
solely  for  the  purpose  of  showing  consistent  conduct  oil  the  part  of  the  prose- 
cutrix  and  to  corroborate  her  testimony.  The  particulars  of  the  complaint  are 
admitted  on  the  examination-in-chief  of  the  witnesses  for  the  prosecution. 9a 

§  970.  [Declarations  of  Complainant  in  Rape] ;  American  Rule.1 —  The  various 
courts  of  the  United  States  are  not  all  in  harmony  in  their  attitude  toward  the 
admissibility  of  the  declarations  of  the  complainant  in  a  case  of  rape.  The 
mere  fact  that  a  complaint  was  made  to  a  proper  person  within  a  reasonable 
time  is  uniformly  held  to  be  admissible  as  part  of  the  case-in-chief  of  the  prose- 
cution for  the  purpose,  it  is  commonly  said,  of  corroborating  the  prosecutrix.2 
As  to  whether  the  particulars  of  the  complaint  can  be  shown  as  part  of  the  case- 
in-chief of  the  prosecution,  there  is  a  clear  and  marked  division  of  opinion.  In 
the  large  majority  of  the  jurisdictions,  the  details  or  particulars  of  the  com- 
plaint caunOt  be  shown  in  the  first  instance,3  while  in  a  few  jurisdictions  the 
modern  English  rule  is  followed  and  both  the  fact  that  a  complaint  was  made 
and  its  full  details  are  admitted  upon  the  direct  examination  of  the  witnesses 
for  the  prosecution.4  The  defence  may  draw  out  the  particulars  of  the  com- 
plaint upon  the  cross-examination  of  the  people's  witnesses.5  However,  in 
some  jurisdictions,  where  the  details  of  the  complaint  are  rejected  in  the  first 
instance,  it  has  been  held  that,  if  the  defense  attempts  to  impair  the  credibility 
of  the  prosecutrix,  the  full  details  may  be  shown  by  way  of  rebuttal  for  the 
purpose  of  corroborating  her.0 

§  971.  [Declarations  of  Complainant  in  Rape] ;  Independent  Relevancy;  Failure 

97.  Sodomy. —  Upon  principle  it  would  seem  1.  4  Chamberlayne,     Evidence,     §§     3036- 
that  the  rules  of  evidence  applicable  in  rape       3039. 

cases  would  be  equally  applicable  in  sodomy  2.  People  v.  Wilmot,  139  Cal.   103,   105.  72 

cases,    where    the    victim    does    not    consent  Pac    838    (1903) 

This  has  in  effect  been  held  in  a  case  where  3.  People  v.  Weston,  236  Til.  104,  86  N.  E. 

the  victim  was  a  boy  four  year  of  age.     Soto  1S8   (1908). 

v.  Territory,  12  Ariz   36.  94  Pac.  1104  (1908)  4.  Hornbeck  v.   State.   35  Ohio  St.   277,  35 

98.  Rev.  v.  Mercer,  6  Jur.  243   (1842).  Am.  Hep.  608    (1879) 

99.  Rex  v    Osborne,  74  L    J.   K    B    311,   1  5.  Huey  v.  State,  7  fta.   App    398.  60  S.  E. 
K.   B.   551,  92  L.  T    393,   53   W.   R.  494,  69  1023   (1910). 

J.  P.   189,  21   L.  T.  R.  288    (1905).  6.  Pulley  v.   State.   174   Ind.  542,  92  N.  E. 

550. (1910). 


735  RAPE.  §  972 

to  Complain.7 —  So  natural  is  the  spontaneous  impulse  to  disclose  the  fact  and 
nature  of  the  injury  in  this  class  of  cases  that  any  delay  in  making  such  a  com- 
plaint not  shown  to  be  due  to  the  presence  of  some  adequate  cause  will  almost 
inevitably  suggest  the  inference  of  subsequent  fabrication  and  invention.  A 
forensic  necessity,  therefore  rests  upon  the  prosecution  to  explain,  to  the  satis- 
faction of  the  jury,  the  reason  for  any  delay  which  might  otherwise  seem  un- 
reasonable.8 

It  is  obvious  from  what  has  been  said  that  the  administrative  reasons  which 
permit  the  independently  relevant  fact  of  a  complaint  to  be  received  in  evidence 
require  not  only  that  the  statement  should  be  freshly  made  but  also  that  it 
should  be  voluntary.  Where  the  condition  of  the  complainant  is  such  as  to 
compel  explanation,  or  the  explanation  is  demanded  by  interested  persons  in 
the  form  of  questions  9  there  is  no  such  voluntary  complaint  as  tends  to  negative 
the  inference  of  consent  which  has  arisen  from  previous  silence.  However,  in 
view  of  the  peculiar  nature  of  the  crime  of  rape  and  the  situation  of  the  injured 
party  after  its  commission,  the  complaint  is  not  under  all  circumstances  ex- 
cluded because  made  in  response  to  questions.10 

§  972.  [Declarations  of  Complainant  in  Rape];  The  Element  of  Time;  Inde- 
pendent Relevancy.11 —  The  early  English  law  requiring  "  hue-and-cry  "  was 
designed  to  afford  immediate  notice  to  the  community  of  the  commission  of  a 
crime  that  instant  pursuit  might  be  made  and  the.  offender  apprehended.  In 
rape,  as  in  other  crimes,  a  fresh  complaint  was  demanded;  i.e.,  piily  a  short 
interval  could  be  permitted  to  elapse  between  the  doing  of  the  deed  and  the 
making  of  the  complaint.  So  far  as  the  fact  of  complaint  is  one  of  independent 
relevancy,  the  same  strictness  of  requirement  as  to  length  of  time  between 
offence  and  complaint  is  not  made  under  the  modern  rule.12  The  use  of  the 
fact  of  complaint  is,  in  this  connection,  a  corroborative  one,  operating  by  the 
removal  of  the  inh'rmative  explanation  of  subsequent  invention.  To  be  rele- 
vant in  this  respect,  a  complaint  must  have  been  made  within  such  a  time  after 
the  occurrence  that  it  may  reasonably  be  held  to  negative  in  some  degree  the 
alternative  theory  of  fabrication.13 

Where  the  detailed  statements  of  the  complainant  are  used  in  their  hearsay 
capacity  as  primary  evidence  of  the  facts  asserted  the  same  requirement  of 
immediate  complaint  is  made,  but  the  reason  for  it  is  entirely  different.  Fresh 

7.  4  Chamberlayne,     Evidence,     §§     3040,  11.  4  Chamberlayne,     Evidence,     §§     3042, 
3041.  3043. 

8.  Com  v.   Rollo,  203  Mass.  354,  89  N.  E.  12.  State  v.  Bebb,  125  Iowa  494,  496,  101 
556   (1909)  ;  People  v.  Marrs,  125  Mich.  376,  N.  W.  189   (1904),  per  Bishop,  J 

84  N.  W.  284   (1900).  13.  State  v.  Bebb,  125  Iowa  494,  101  N.  W. 

9.  Cunningham  v.  People,  210  Til.  410,  413,       189  (1904)  ;  Cowles  v.  State.  51  Tex.  Cr.  App. 
71  N.  E  389   '1004),  per  Hand.  J.  498,  102  S.  W.  1128  (1907)  (after  defendant's 

10.  State  v.  Dudley,   147   Iowa  645,  126  N.      arrest). 
W.  812   (1910)  :  State  v.  Peres,  27  Mont.  358, 

71  Pac.  162   (1903). 


§§  973,974     HEARSAY  AS  PEIMAEY  EVIDENCE;  SPONTANEITY.  736 

complaint  is  required,  not  for  the  purpose  of  securing  pursuit  and  apprehen- 
sion of  the  offender  nor  even  for  the  later  and  still  common  purpose  of  cor- 
roboration,14  but  in  order  that  the  resulting  statement  may  be  spontaneous  and, 
accordingly  furnish  evidence  of  the  facts  declared  in  it. 

§  973.  [Range  of  Spontaneous  Statements] ;  Declarations  of  Owner  on  Discover- 
ing Larceny,  etc.15 —  Worthy  of  note  among  spontaneous  utterances  which  fol- 
low the  general  rule  now  under  consideration  are  the  declarations  of  owners  of 
property  made  shortly  after  it  has  been  taken  from  their  possession,  by  violence 
or  otherwise.  Where  the  conditions  of  spontaneity  are  present,  these  extra- 
judicial  statements  may  be  received  as  proof  of  the  facts  asserted.1'5  On  the 
other  hand,  a  failure  to  complain  with  reasonable  promptness  may  well  afford 
ground  for  a  doubt  as  to  the  good  faith  of  a  present  charge.17 

§  974.  [Range  of  Spontaneous  Statements] ;  Personal  Injuries.18 —  A  common 
application  of  the  rules  relating  to  the  use  of  unsworn  spontaneous  statements 
as  proof  of  the  facts  asserted  is  found  in  those  cases  where  action  is  brought  to 
recover  damages  for  personal  injuries.19  In  a  typical  case,  the  attendant  ex- 
citement, the  bodily  pain  or  mental  anguish  consequent  upon  the  injury,  the 
unwonted  importance  temporarily  attaching  to  the  injured  person  himself  con- 
stitute a  combination  of  influences  calculated  to  drive  from  the  mind  of  a 
sufferer  thoughts  of  premeditation  or  invention.  As  was  said  by  the  supreme 
court  of  Xew  Hampshire:  "When  a  person  receives  a  sudden  injury,  it  is 
natural  for  him,  if  in  the  possession  of  his  faculties,  to  state  at  once  how  it 
happened.  Metaphorically,  it  may  be  said,  the  act  speaks  through  him  and 
discloses  its  character."  20  After  an  interval,  however,  of  greater  or  less  dura- 
tion according  to  the  circumstances  of  the  case,  the  question  is  sure  to  occur  to 
the  victim  of  the  accident.  Who  is  responsible  for  this  pain  which  I  am  suf- 
fering; who  will  recompense  me  for  my  other  injuries?  With  this,  or  some 
similar  act  of  introspection,  the  state  of  deliberated  utterance  may  be  assumed 
to  begin. 

The  declarations  may  be  those  of  the  person  injured  21  or  those  of  the  party 
sought  to  be  held  liable  or  his  agent,  employee  or  representative.22  In  some 
instances  the  declarations  of  third  parties  or  bystander*  have  been  received.23 

That  an  unsworn  statement  made  under  such  circumstances  as  render  it  spon- 

14.  People  v.  Row,  135  Mich.  505.  08  X   W.  20.  Murray  v   Boston  &  M.  R   Co.,  72  X.  H. 
13,    10    Detroit   Leg.    X.    841     (1004)     (three  32,  37,  54  Atl.  280,  61  L.  R.  A.  405,  101  Am. 
months).  St    Rep.  650   (1003),  per  Walker.  J. 

15.  4  Chamberlayne,  Evidence.  §  3044.  21.  Muren  Coal  &   Ice  Co.  v.  Howell,  217 

16.  Illinois.—  Goon  Bow  v.  People,  160  111.  111.    100,   75   X.   E.   469    (1005). 

438,  43  X.  E.  593   (1806).  22.  Hyvonen  v.  Hector  Iron  Co.,  103  Minn. 

17.  Tompkins  v.   Saltmarsh,   14  Serg.  &  R.  331,   115   X.   W.    167,    123   Am.   St    Rep.   332 
(Pa.)   275,  280    (1826).  (1008). 

18.  4  Chamberlayne,  Evidence,  §  3045.  23.  Cromeenes  v.  San  Pedro,  L.  A.  &  S    L. 

19.  Muren  Coal  &  Ice  Co.  v.  Howell,  217  111.  R    Co.,  37  Utah  475,  109  Pac.  10,  24  Am.  & 
190,  75  N.  E.  469  (1905)  Eng.  Ann.  Cas.  307  (1910). 


737  WEIGHT,  §  9~Fi 

taneous  reveals  an  apparent  element  of  inference  on  the  part  of  the  speaker  24 
does  not  necessarily  furnish  ground  for  rejecting  the  declaration. 

It  scarcely  need  Le  said  that,  if  the  elements  of  spontaneity  were  present  in 
the  making  of  an  unsworn  statement,  the  fact  that  it  was  made  to  a  physician 
cannot  affect  its  admissibility,  the  statement  being  received,  in  accordance  with 
the  general  rule,  as  proof  of  the  facts  therein  stated. 

It  is  a  well-settled  general  rule  that  statements  to  a  physician  concerning 
present  pain,  suffering  and  physical  condition  generally,  made  with  a  view  tc 
obtaining  treatment  and  relief  are  admissible  in  evidence  as  proof  of  the  pa- 
tient's condition  at  the  time  the  statements  were  made.25 

The  facts  shown  by  the  articulate  utterances  of  the  patient  should  be  those 
reasonably  essential  to  a  proper  diagnosis  of  his  state  or  condition,26  collateral 
matters  ~~  such  as  the  name  of  an  assailant 2S  or  an  assertion  as  to  the  instru- 
ment with  which  an  assault  was  committed  29  not  being  regarded  as  properly 
included. 

Statements  as  to  past  bodily  or  mental  condition  cannot  be  regarded  as  ad- 
missible under  the  present  rule.30  It  has,  however,  been  decided  that  state- 
ments of  past  pain  and  suffering  made  to  a  physician,  when  necessary  to  a  cor- 
rect diagnosis,  may  be  testified  to  by  the  physician ;  31  but  that  they  must  not 
be  considered  by  the  jury  as  evidence  tending  to  show  the  fact  of  such  pain  and 
suffering.32  The  wisdom  of  such  a  rule  may  be  doubted  as  its  application  by 
the  court  and  jury  must  clearly  be  difficult. 

Statements  made  to  a  physician  for  the  purpose  of  enabling  the  latter  to 
testify  as  an  expert  in  favor  of  the  declarant  are  usually  excluded  for  adminis- 
trative reasons.33 

§  975.  Probative  Weight  of  Spontaneous  Statements.34 —  The  probative  force 
of  a  spontaneous  utterance  clearly  lies  in  the  elimination  of  any  controlling 
motive  to  misrepresent  the  truth.  The  operation  of  the  reflective  faculties, 
with  their  possible  perversions  of  self-interest,  has  been  replaced  by  the  men- 
tally automatic,  closely  analogous  to  the  exactness  of  natural  law.  This  judi- 

24.  State  v.  Morrison,  64  Kan   669,  68  Pac.  84   (1892)  ;  Denton  v.  State,  1  Swan   (Tenn.) 
48   (1902).  279   (1851). 

25.  Chicago  City  Ry.  Co.  v.  Bundy,  210  Til.  30.  Davidson  v   Cornell,  132  N.  Y.  228,  30 
39,  71  X.  E.  28   (1904).  N.  E.  573    (1892). 

26.  Statements    of   third    persons   are   not  31.  A  statement  by  a  slave  to  his  attending 
deemed    proper    constituents    upon    which    to  physician  that  he  had  been   ill   for  the  past 
base  tiie  diagnosis  of  a  physician.     Atchison.  three   weeks   was   received   as   proof   of   that 
etc,  R.  Co    v.   Frazier,  27   Kan.   463    (1882)  fact.     Yeatman  v    Hart,  6  Humphr.    (Tenn.) 

(husband):     Heald    v.    Thing,    45    Me.    392  374(1845).     See,  also,  Looper  v.  Bell,  1  Head 

(1858)    iwife).  (Tenn.)   373   (1858). 

27.  Richards    v.    Com.,    107    Va.    881,    59  32.  Wilkins  v.  Brock,  81   Vt.  332,  70  Atl. 
S.  E.   1104    (1908).  572     (1908):    Acme    Cement    Plaster    Co.    v. 

28.  People  v    O'Brien,  92   Mich.   17,  52  N.  Westman   fWyo.  1912).  122  Pac.  89. 

W   S4  (  1892) .  33.  Shaughnessy  v.  Holt,  236  111   485,  86  N. 

29.  Collins  v.  Waters,  54   111    485    (1S70)  ;       E.  256,  21  L-  R.  A.   (N.  S.)  826  n.   (1908). 
People   v.    O'Brien,   92   Mich.    17,   52   N.    W. 


§  976  HEABSAY  AS  PKIMARY  EVIDENCE;  SPONTANEITY.  738 

cial  administration  trusts,  it  being  assumed  that  the  declarant  has  stated  the 
truth  as  it  appears  to  him.35  That  the  statement  is  self-serving  does  not  con- 
stitute a  necessary  ground  for  its  rejection,  and  one  against  the  interest  of  the 
declarant  in  the  nature  of  a  confession  need  not  be  shown  to  have  been  volun- 
tary as  that  term  is  commonly  used  in  connection  with  alleged  confessions  by 
those  accused  of  crime,36  its  admissibility  resting  upon  an  entirely  different 
basis.  In  like  manner,  the  spontaneous  statement  of  a  person  about  to  die 
may  take  the  place  of  a  dying  declaration,  properly  so-called,37  even  in  a 
civil  case.3* 

§  976.  Who  Are  Competent  Declarants.30 —  Determining  the  admissibility  of 
extra  judicial  statements  from  the  standpoint  of  the  competency  of  the  declarant 
to  make  the  particular  statements  in  question  has  often  taxed  administrative 
judgment.  The  competency  of  the  declarant  may  be  affected  by  his  age, 
mental  capacity,  knowledge  of  the  subject-matter,  relation  to  the  main  trans- 
action, and  the  like.  It  may  be  laid  down  as  a  broad  general  rule  from  which 
there  is  little  dissent  and  from  which,  on  principle,  there  can  be  dissent  only 
in  cases  where  the  circumstances  are  unusual,  that  a  spontaneous  declaration 
is  admissible  in  and  of  itself  without  regard  to  the  person  making  it.  This 
necessarily  follows  as  a  result  of  the  basis  of  admissibility,  such  declarations 
being  received  because  of  their  automatic  unpremeditated  character.  There- 
fore, the  spontaneous  declarations  of  a  child  too  young  to  be  sworn  as  a  wit- 
ness,40 an  agent  or  representative  of  one  of  the  parties,41  a  bystander  who  wit- 
nessed the  main  transaction,42  particularly  when  related  to  or  having  a  special 
interest  in  one  of  the  parties,43  or  an  adult  person  of  sound  mind  who  is  not 
sworn  as  a  witness  because  of  incompeteucy  44  or  otherwise  are  ordinarily  re- 
ceived as  evidence  of  the  facts  declared.  It  has  even  been  indicated  that  the 
spontaneous  declarations  of  an  insane  person  are  admissible.45  This  no  doubt 
is  a  sound  view  where  it  does  not  appear  that  the  person  was  insane  when  the 
declarations  were  made,  although  he  is  insane  at  the  time  of  the  trial.40  Obvi- 

34.  4  Chamberlayne,     Evidence,     §§     3048,  40.  Grant  v.  State,   124  Ga.  757,  53  S.  E. 
3049.  334   (1906). 

35.  State  v.  Alton,  105  Minn.  410,  417,  117  41.  Ensley  v.   Detroit   United  R.   Co.,    134 
N.   W.   617,    15   Am.   &  Eng.   Ann.   Cas.   806  Mich.  195,  96  N.  W.  34  (1903) 

(1908),  per  Lewis.  J.  42.  Smith  v.  State,  10  Ga.  App.  36,  72  S.  E. 

36.  Allen    v.    State,    60    Ala.    19     (1877);       527    (1911). 

Head  v.  State,  44  Miss.  731    (1870)  ;  Miller  43.  People  v.  McArron,  121  Mich.  1,  79  N. 

v.    State,    31    Tex.    Cr.    App.    609,    21    S.   W.  W.  944   (1899)    ( mother  of  accused ). 

925,  37  Am.  St.  Rep.  836  (1893).  44.  Dunham  v.   State,   8   Ga.  App.   668,   70 

37.  State  v.  Morrison,  64  Kan.  669,  68  Pac.  S.  E.  Ill    (1911)    (wife  of  accused,  incompe- 
48    (1902):   People  v.  Del  Vermo,   192  X.  Y.  tent);   Flores  v.  State   (Tex.  (V.  App.  1904), 
470,  85  N    E.  690  (1908).  79  S.  W.  808    (convict). 

38.  Brownell  v.  Pacific  R    Co,  47  Mo.  239  45.  Wilson  v   State,  49  Tex.  Cr.  App.  50,  90 
(1871)     (negligence);    Jack   v.   Mutual,   etc.,       S.  W.  312   (1905). 

Life  Assn.,  113  Fed.  49,  51  C.  C.  A.  36  (1902).  46.  The   fact  that   the  prosecuting  witness 

39.  4  Chamberlayne,  Evidence,  §  3050.  in  a  case  of  robbery  was  insane,  and,  there- 

for, incompetent  as  a  witness,  at  the  time  of 


739  DECLARANTS.  §  976 

ously,  however,  sound  administration  must  sometimes  exclude  what  is  appar- 
ently a  truly  spontaneous  utterance  because  of  attendant  circumstances  which 
make  the  evidence  unreliable,  as,  for  example,  the  mental  incapacity  of  the 
declarant 4T  or  the  admitted  physical  conditions  under  which  the  declaration 
was  made."18 

In  rape  cases,  and  those  of  similar  nature,  there  is  an  apparent  confusion 
among  the  authorities  as  to  the  competency  of  the  injured  female  to  make  a 
statement  of  complaint  which  is  receivable  in  evidence.49 

A  reasonable  rule  which  would  avoid  all  uncertainty  seems  easy  to  formu- 
late. The  bare  fact  that  a  complaint  was  made  is  an  independently  relevant 
circumstance  and  does  not  depend  for  its  probative  force  upon  whether  or  not 
the  complainant  is  sworn  as  a  witness.  Such  fact,  without  the  details  of  the 
complaint,  should  be  shown  to  the  jury  in  all  cases,  except  possibly  in  cases 
where  the  length  of  time  which  elapsed  before  the  complaint  was  made  clearly 
justifies  the  trial  judge  in  regarding  the  evidence  as  worthless.  Where  the 
complaint  was  spontaneous,  the  details  should,  of  course,  be  received  also. 

trial  which  took  place  more  than  two  months  mother  after  an  assault  of  which  he  was  the 

after  the  robbery,  is  no  ground  for  excluding  victim,  with  respect  to  the  assault,  may   be 

his    spontaneous    declarations    made    shortly  received  in  evidence  notwithstanding  the  fact 

after  the  robbery.     State  v.  Smith,  26  Wash.  that  he  is  too  young  to  be  competent  to  testi- 

354,  67  Pac.  70    ( 1!)01 ) .  fy.    Soto  v.  Territory.  12  Ariz.  36,  94  Pac.  1 104 

47.  Adams  v.  State,  34  Fla.  185.  15  So.  905  (1908).     In  an  action  for  assault  with  intent 
(1894)    (child  three  and  a  half  years  old  too  to  commit  rape  on  the  person  of  a  female, 
young  to  be  reliable)  who,  by  reason  of  being  an  imbecile,  was  in- 

48.  Regnier  v.  Territory.  15  Okla.  652,  660.  competent  to  testify,  the  declarations  of  such 
82  Pac.  509  (1905)    (where  declarant,  had  not  female  made  after  the  assault  are  inadmissi- 
aeen  assailant  who  had  shot  from  ambush)  ble.     Hornbeck  v.  State,  35  Ohio  St.  277,  35 

49.  The  statement  of  a  child,  made  to  his  Am.  Rep.  608    (1879). 


CHAPTER  XLV. 

HEARSAY  AS  PRIMARY  EVIDENCE;  RELEVANCY  OF  REGULARITY. 

Shop  book  rule,  977. 

Administrative  requirements;  Necessity,  978. 

relevancy;  adequate  knowledge,  979. 

absence  of  controlling  motive  to  misrepresent,  980. 

suppletory  oath,  981. 

books  must  be  those  of  original  entry,  982. 

corroboration  aliunde,  983. 

entry  must  be  intelligible,  984. 

entry  on  book  account  must  have  been  a  routine  one,  985. 

facts  creating  suspicion,  986. 

identity  of  book  must  be  established,  987. 

y     .<  ' 

material  used,  988. 

original  must  be  produced,  989. 
Scope  of  evidence,  990. 

nature  of  charges;  special  contract,  991. 
other  matters,  992. 

nature  of  occupation,  993. 

who  may  be  charged,  994. 
Weight,  995. 

§  977.  Shop  Book  Kule.1 —  The  shop  book  rule  is  that  the  account-books  of  a 
party,  supported  by  his  suppletory  oath  are  admissible  in  evidence  to  show  a 
sale  or  delivery  of  goods  or  the  performance  of  services.2  The  rule  was  a 
necessity  under  the  old  rule  that  a  party  could  not  be  a  witness  for  himself  as 
where  a  shopkeeper  had  no  clerk  there  was  no  way  of  proving  the  account  except 
through  the  books  3  and  this  practice  was  early  recognized  by  statute  and  in 
the  eighteenth  century  entries  made  by  deceased  clerks  began  to  be  received.4 

The  rule  was  early  adopted  in  the  Xew  England  States  but  was  made  subject 
to  certain  modifications  or  restrictions  as  to  the  amounts  covered  by  the  entries  5 
but  the  books  were  admitted  when  supported  by  the  suppletory  oath.6  New 

1.  4  Chamberlayne,     Evidence,     §§     3051-  4.  Pitman   v.   Maddox,  Holt   N.   P.   298,  2 
3063.  Salk.  600,  2  Ld.  Kaym.  732   (1698). 

2.  Pratt   v.  White,   132  Mass    477    (1882)  5.  Terrill  v.  Beecher.  9  Conn.  344   (1832); 

3.  Conklin  v.  Stamler,  8  Abb.  Prac.   ( X.  Y.)  Davis  v.  Sanford,  9  Allen  (Mass  )  216  (1864). 
395,  2  Hilt.  422,  17  How.  Prac.  399   (1859)  ;  6.  Sheehan  v    Hennessey,  65  N.  H.  101,  18 
Cole  v.  Dial,  8  Tex.  347    (1852).  Atl.  652  (1889). 

740 


741  NECESSITY.  §  978 

York  and  New  Jersey  also  early  adopted  the  rule  but  the  suppletory  oath  was 
not  required  in  those  states.7 

A  shopbook  thus  received  in  evidence  becomes  primary  and  independent  evi- 
dence of  the  facts  stated  therein  though  used  in  a  hearsay  capacity.8  The  rule 
is  not  founded  on  the  principle  that  the  entries  are  a  part  of  the  res  gestae  but 
on  the  theory  that  a  system  of  accounts  demands  accuracy  and  accuracy  becomes 
habitual  with  the  person  keeping  such  records. 

The  modern  growth  of  business  with  the  increase  in  the  entries  in  account- 
books  made  the  proof  of  such  items  increasingly  difficult  and  the  early  restric- 
tion that  the  books  must  be  used  simply  to  refresh  the  recollection  of  the  witness 
was  abandoned  and  the  books  received  in  evidence  when  the  witness  could 
swear  that  the  entries  were  correct  when  made  although  he  had  no  memory 
about  the  matter.9 

The  difficulty,  expense  and  frequent  impossibility  of  making  proof  of  book 
accounts  combined  with  legislative  enactments  and  judicial  rulings,  have  re- 
sulted in  a  decided  broadening  of  the  "  shop  book  "  rule.  The  rule,  in  its  first 
stage  of  development,  although  frequently  designated  by  its  original  name,  has, 
in  most  jurisdictions,  been  modified  by  removing  every  limitation  iu  regard  to 
the  amount  involved  in  the  transaction  and  allows,  under  the  old  conditions 
prescribed  by  the  "  shop  book  "  rule,  original  entries  in  the  books  of  account  of 
persons  engaged  in  all  lines  of  business,  professional  lines  included,  made  in 
the  usual  course  of  business,  as  a  contemporaneous  record  of  current  trans- 
actions, by  a  party  or  his  agent  or  employee,  to  be  introduced  in  evidence,  with- 
out regard  to  whether  such  record  is  in  favor  of  or  against  the  party  whose 
transactions  are  recorded  therein.10 

§  978.  Administrative  Requirements;  Necessity.11 — The  fundamental  admin- 
istrative necessity  for  receiving  evidence  of  shop  books  lay  in  the  circumstance 
that  as  a  rule  indebtedness  from  small  transactions  could  be  proved  in  no  other 
way  under  the  ancient  rule  that  a  party  could  not  be  a  witness  in  his  own 
behalf  ia  and  it  was  formerly  necessary  that  the  party  should  prove  that  he 
had  no  clerk  or  assistant  who  could  testify.  This  might  be  shown  by  proving 
that  there  was  no  clerk  t3  or  that  he  was  dead,14  insane  15  or  otherwise  unavail- 

7.  Sickles  v.  Mather,  20  Wend.   (X.  Y.)   72,       traders  who  kept  no  clerks."     Smith  v.  Rentz, 
32  Am.  Dec.  521    (1838).  131  N.  Y.  169,  176,  30  X.  E.  54,  15  L.  R.  A. 

8.  Place  v.  Parsons,  17  Wkly.  Dig.  (N.  Y.)       138  (1892),  per  Andrews,  J 

293   (1883).  13.  Smith  v.  Smith,  163  N.  Y.  168,  57  N.  E. 

9.  Halsey    v.    Sinsebaugh,    15    N.    Y.    485       300,  52  L.  R.  A.  545    (1900)    holding  that  a 
(1857).  clerk   is  one  who  had  something  to  do  with 

10.  The  tendency  of  modern  statutes  is  to  and  had  knowledge  generally  of  the  business 
enlarge    the    scope    of    the    shop    book    rule.  of  his  employer  in  reference  to  goods  sold  or 
See  for  example  Alass.   St.   1H13,  c.   288.  work  done  so  that  he  could  testify  on  the  sub- 

11.  4  Chamberlayne,     Evidence.     §§     3065-  ject. 

3070.  As  a  corporation  must  necessarily  act   by 

12.  "  Tt  was  founded  upon  a  supposed  ne-       clerks  or  other  servants  or  agent?,  it  cannot 
cessity  and  was  intended  for  cases  of  small      prove  an  account  by  means  of  the  shopbock 


§  979  SHOP-BOOKS.  742 

able  16  and  today  wherever  a  reasonable  necessity  is  shown  for  doing  so  the 
evidence  of  the  handwriting  of  the  declarant  will  be  received  in  lieu  of  his 
verbal  testimony.17 

§  979.  [Administrative  Requirements];  Relevancy;  Adequate  Knowledge.18 — 
As  in  case  of  other  statements,  judicial  or  extrujudicial,  used  in  an  assertive 
capacity,  i.e.,  as  evidence  of  the  facts  alleged,  it  is  required  in  case  of  the  decla- 
ration contained  in  a  shop  book,  that  it  should  be  objectively  and  subjectively 
relevant  to  the  existence  of  some  res  gestae  fact.  Objective  relevancy  being 
assumed  as  an  essential  prerequisite  for  all  evidence,  it  may  be  said  that,  in 
this  connection  as  in  others,  the  familiar  elements  of  subjective  relevancy  are 
two:  (1)  The  declarant  must  have  adequate  knowledge  as  to  the  fact  as- 
serted; (2)  He  must  be  free  from  controlling  motive  to  misrepresent.  The 
entrant  must  know  of  his  own  knowledge  the  truth  of  the  transaction  which  he 
enters,19  and  it  is  usually  required  that  the  clerk  actually  making  the  entry  be 
produced  if  he  be  available.20 

A  short  delay  in  making  the  entry  will  not  cause  its  exclusion  as  where  a 
temporary  record  is  made  on  a  slate  21  where  it  appears  that  the  delay  will  not 
impair  the  knowledge  of  the  entrant  22  but  where  other  facts  tending  to  show 
impairment  of  knowledge  are  shown  even  a  short  delay  may  be  sufficient  to 
exclude  the  entry.23 

Under  the  complicated  conditions  of  modern  business  the  person  who  makes 
the  entries  seldom  does  anything  else  and  is  forced  to  rely  for  the  accuracy  of 
what  he  states  upon  the  information  of  those  who  have  sold  the  goods,  rendered 
the  services  or  done  the  other  necessary  parts  of  a  completed  transaction.  In 
such  case  it  is  proper  to  show  the  course  of  business  and  to  prove  by  the  evi- 
dence of  those  who  reported  the  facts  that  the  reports  were  made  by  those  who 
had  personal  knowledge  of  them  and  that  the  reports  were  accurate  and  the 
entries  were  accurately  made  from  these  reports.24  The  informant  should  be 

rule.  .  Congdon  v.  Aylesworth  Co.  v.  Sheehan,  Shipman  v.  Glynn,  31  App.  Div.   (X.  Y.)  425, 

11  X    Y.  App    Div.  456,  42  N.  Y    Suppl.  255  430,  52  N.  Y.  Suppl.  691   (1898),  per  Ward,  J 

(1896);   Snyder  v.  Harris,  61   X.  J.   Eq    480.  See  also,  Leask  v    Hoagland.  205  X.  Y.   171. 

48  Atl.  329    (1901).  98    X     K.  3<>5,  reversing   judgment   128  N.  Y. 

14.  Hutchins   v    Berry.   75   X.   H.   416.   75  Suppl.    1017,    144    App.    Div.    138;    rehearing 
Atl.  650   (1910).  denied,  205  X.   Y.  594,  98  X.  E     (1912). 

15.  Beattie  v.  McMullen,  82  Conn.  484,  74  20.  Barnes  v.  Simmons,  27  111.  512,  81  Am. 
Atl.   767    11909).  Dec.  248  (1862). 

16.  Cook  v.  People.  231  111    9,  82  X.  E.  863  21.  Woolsey  v.  Bohn,  41  Minn.  235,  42  X. 
(1907K  W.   1022    (1889). 

17.  Xorth  Bank  v   Abbot,  13  Pick.  (Mass.)  22.  Redlich  v.  Bauerlee,  98  111.  134,  38  Am. 
465,  25  Am.  Dec.  334   (1833).  Rep    87   (1881). 

18.  4  Chamberlayne,     Evidence,    §§     3071-  23.  Forsythe   v.   Xorcross,   5    Watts    (Pa  ) 
3075  432,  30  Am.  Dec.  334  (1836). 

19.  It    should    appear   as   to   these   entries  24.  Atlas  Shoe  Co.  v.  Bloom,  209  Mass.  563, 
that  "  they  related  to  transactions  within  the  95  N.  E  952  (1911). 

knowledge  of  the  persons  making  the  entries." 


743  MOTIVE  TO  MISREPBESENT.  §§  980, 081 

produced  when  possible  but  if  lie  is  not  available  his  attendance  will  be  excused 
in  most  States.25 

Where  a  book  of  original  entries  is  kept  by  several  persons  the  entries  being 
mingled  each  entrant  may  testify  to  the  accuracy  of  the  items  he  has  himself 
entered 2tJ  but  he  may  not  testify  to  the  correctness  of  items  entered  by  his 
associates.27 

§  980.  [Administrative  Requirements;  Relevancy];  Absence  of  Controlling  Mo- 
tive to  Misrepresent. -* —  The  suggestion  has  been  offered  that,  as  an  adminis- 
trative matter,  it  should  not  only  be  made  to  appear  that  the  entrant  had  actual 
adequate  knowledge,  but  also  that  he  was  without  such  a  controlling  motive  to 
misrepresent  as  would  render  it  probable  that  he  is  not  telling  the  truth.  Such 
a  requirement  might  with  greater  propriety  be  insisted  upon  where  the  evidence 
offered  is  secondary,  e.g.,  entry  of  a  deceased  person  in  course  of  business,  rather 
than  in  cases  where  the  evidence  offered  is  primary  in  its  nature.29  However 
this  may  be,  it  seems  at  least  certain  that  there  is  no  requirement  that  the  entry 
should  be  adverse  to  the  pecuniary  interest  of  the  entrant.30  The  knowledge  of 
the  declarant  is  greatest  before  distracting  circumstances  have  intervened.  The 
motive  to  misrepresentation  is  reduced  to  a  minimum  where  the  possible  conse- 
quences of  the  statement  in  its  bearing  upon  the  interest  of  the  speaker  has  not 
as  yet  become  apparent. 

Contemporaneousness  is  one  of  the  strongest  factors  in  favor  of  the  probative 
force  of  an  entry,  which  means  within  a  reasonable  time.  What  is  a  reason- 
able time  under  the  circumstances  is  a  question  of  fact  in  each  case31  having 
in  mind  the  nature  of  the  business.32 

An  echo  of  the  early  shopbook  rule  is  still  to  be  found  in  the  requirements 
that  the  entries  be  those  of  charge  and  not  of  discharge,33  and  entries  tending  to 
relieve  a  debtor  will  be  rejected  under  this  rule.  Shopbook  entries  are  not 
properly  classified  as  res  gestae  facts  but  are  based  rather  on  the  automatism 
of  business  as  done  in  the  modern  way. 

§  981.  [Administrative  Requirements] ;  Suppletory  Oath.34 —  The  suppletory 
oath  formerly  required  was  that  the  books  were  regularly  kept  as  a  contempo- 
raneous record  of  the  daily  doings  of  the  business.35  This  form  of  oath  has 
been  dispensed  with  and  it  is  now  necessary  to  show  merely  that  the  book  is 

25.  Rothenberg  v   Herman,  90  X.  Y.  Suppl.  30.  Augusta  v.  Windsor,  19  Me.  317  (  1841). 
431    (1904).  31.  Mahoney    v     Hartford    Inv.    Corps,    82 

26.  Herriott  v   Kersey,  69  Iowa  111,  28  N.       Conn    280,  73   At!    766    (1909). 

W.  468    (1886).  32.  Yearsley's     Appeal,     4S     Pa.     St.     531 

27.  Whitley  Grocery  Co.  v.  Roach,  115  Ga.        (1865)     'once  a  week  sufficient). 

918,  42   S.   E.  282    (1902).  33.  Riley  v.   Boehm,   167  Mass    1S3.  45  X. 

28.  4  Chamherlayne,     Evidence,     §§     3706-       E.  R4(1S96). 

3081.  34.  4  Chamberlayne,     Evidence.     §§     3082- 

29.  Lord    v.   .Moore,    37    Me.    20S     (1854);       3084. 

Kennedy    v     Doyle,    10    Allen     (Mass.)     161          35.  Vosburgh  v.  Thayer,  12  Johns    (N.  Y.) 
(1865).  461    (1815). 


§  982 


SHOP-BOOKS. 


744 


admissible  as  being  kept  in  the  regular  course  of  business.30  Where  the  entrant 
is  available  he  should  be  produced  and  swear  to  the  correctness  of  the  entry  37 
but  if  he  is  not  available  the  book  will  be  admissible  on  proof  of  his  hand- 
writing.38 

The  shop-book  may  be  used  against  the  representatives  of  the  deceased  debtor 
notwithstanding  statutes  forbidding  a  party  to  be  a  witness  against  the  estate 

of  a  deceased  person.39 
-oM  sflflloifnoj^lo  3o«3gdA  ;  [^offAVdlsJ!  ;  ataamanupfrH  9viJ«-iJannittf>A]  .080 

§  982.  [Administrative  Requirements] ;  Books  Must  be  Those  of  Original 
Entry .40—  One  of  the  administrative  requirements  in  connection  with  the  ad- 
mission of  the  shop  book  in  evidence  is  that  it  must  be  the  book  of  original 
entries,  that  is,  the  book  in  which  the  entries  were  first  permanently  made.41 

For  this  purpose  temporary  memoranda  are  not  regarded  as  original  entries 
and  need  not  be  produced  where  the  books  are  made  up  from  them  at  once  as 
they  are  regarded  simply  as  methods  for  refreshing  the  recollection  of  the 
entrant.42  The  books  may  be  in  any  form  which  does  not  throw  such  discredit 
on  its  accuracy  and  good  faith  as  to  deprive  it  of  all  reasonable  probative  force.43 
The  books  may  be  in  day  book  44  or  ledger  form.45  Shop  books  within  the  rule 


36.  Smith  v.  Smith,  163  X.  Y.  168,  57  N.  E 
300,  52  L.  R.  A.  545   (1900). 

37.  Townsend  v.  Coleman,  18  Tex.  418,  20 
Tex.   817    (1857). 

38.  Leighton  v.  Manson,  14  Me.  208  (1837)  ; 
Odell  v.  Culbert,  9  Watts  &  S.    (Pa.)    66,  42 
Am.  Dec.  317    (1845).     See  Seaboard  Air  L. 
Ry.  v.  Railroad  Commr's,  86  S.  C.  91,  67  S. 
E.    1069,    138    Am.    St.    Rep.    1028     (1910). 
Handwriting  of  accounts  in  books  immaterial. 
See  note,  Bender,  ed.,  17  X.  Y.  72.     Proving 
books  of  account.     See  note,  Bender,  ed.,  102 
X.  Y.  583.     Right  to  testify  to  entries.     See 
note,  Bender,  ed.,  01  X.  Y  530. 

39.  Post  v.   Kenerson,   72   Vt.  341,  47   Atl. 
1072    (1000). 

40.  4  Chamberlayne,     Evidence,    §§     3085- 
3095. 

41.  Frick    v     Kabaker,    116    Towa    494,    90 
X.   \Y.   498    (1902). 

42.  Smith  v   Smith,  163  X   Y    16S,  57  N  E 
300   (1900). 

43.  Miller  v   Shay,  145  Mass.  162,  13  X.  E. 
468,  1   Am.  St.  Rep.  449    (1887). 

44.  \Yay  v.  Cross,  95   Iowa  258,  63  X    W. 
691    f!895) 

45.  Schlicher  v    \Yhyte,  74  X.  J    Eq.   839, 
71    Atl    337    (190S) 

Original  reports  missing. —  The  testimony 
of  the  bookkeeper  is  sufficient  to  prove  the 
contents  of  a  ledger  of  a  large  mercantile 
house  where  it  is  impossible  to  prove  the 


original  reports  from  which  the  ledger  was 
made  up  or  where  the  number  of  employees 
was  so  great  that  it  would  be  impractical  to 
produce  them  all  to  testify  that  they  made 
true  reports  to  the  bookkeeper.  Givens  v. 
Pierson,  167  Ky.  574,  181  S.  \Y.  524.  A 
record  book  of  car  equipment  kept  by  railroad 
officials  as  the  result  of  reports  made  from 
time  to  time  is  admissible  in  evidence  to  show 
the  condition  of  the  cars  at  the  time  of  their 
destruction  and  their  value,  The  fact  that 
the  original  reports  are  not  put  in  evidence 
does  not  bar  them  as  the  original  reports 
were  made  by  many  men  and  it  would  be 
impossible  to  put  all  these  men  on  the  stand 
especially  as  the  work  on  the  cars  is  done  by 
various  gangs  of  men  and  it  is  impossible 
to  tell  just  who  did  the  work  or  made  the 
reports.  The  fact  that  they  were  made  in 
the  regular  course  of  business  seems  to  be 
enough.  Pittsburgh  C.  C.  &  St.  L.  R.  Co. 
v  Chicago,  242  111  178.  89  X.  E.  1022,  44 
L.  R.  A.  (X  S.)  358  (1909). 

The  record  book  of  a  physician  constituting 
his  book  of  original  entries  and  charges  is 
original  and  primary  evidence  when  proved 
by  the  living  entrant  and  is  evidence  of  a 
very  high  class  when  proven  to  have  been  con- 
temporaneous with  the  transaction  and 
where  there  could  have  been  no  motive  to 
misrepresent,  and  may  be  Tised  to  show  the 
date  of  birth  of  a  child  Griffith  v.  American 


745  COEBOBOEATION.  §§  983,984 

do  not  include  check-stubs  46  or  collection  registers,47  diaries,48  or  other  memo- 
randa but  will  include  time-books.49 

Entries  are  usually  admitted  though  not  dated  50  but  where  the  charges  are 
lumped  in  one  item  they  may  be  properly  refused  admission.51  It  is  not  fatal 
to  the  entries  that  they  are  on  separate  sheets  of  paper.52 

§  983.  [Administrative  Requirements] ;  Corroboration  Aliunde.53 —  The  pre- 
siding judge  is  justified  in  requiring  that  the  plaintiff  reinforce  the  effect  of 
his  book  by  showing  facts  tending  to  establish  its  accuracy  and  his  own 
care  in  keeping  it.  Even  without  this  evidence,  the  presiding  judge  may 
admit  the  book  de  bene,  i.e.,  conditional  upon  corroboration  of  this  nature 
being  subsequently  furnished.  If  this  corroboration  be  not  supplied,  the  judge 
may  reject  the  book,  as  his  final  action  in  the  matter.54  Corroborative  proof 
must  be  given  55  by  evidence  independent  of  the  book  itself. 

This  corroboration  may  be  made  by  the  testimony  of  an  employee  56  or  of 
other  customers  that  the  plaintiff  kept  honest  books  57  when  they  have  seen 
and  settled  by  the  books  themselves.58  It  must  be  shown  by  evidence  aliunde 
that  the  goods  were  delivered  or  the  services  were  rendered.59 

§  984.  [Administrative  Requirements] ;  Entry  Must  be  Intelligible.60 —  The 
court  may  well  insist  that  the  book  of  account,  to  be  admissible,  should  have 
been  so  kept  as  to  be  clear  and  intelligible  upon  inspection.  He  may  accord- 
Coal  Co.  75  W.  Va.  686,  84  S.  E.  621,  L.  K.  A.  52.  Jonesboro,  L.  C.  &  E.  R.  Co.  v.  United 

1915  F  803    (1915).  Iron  Wks.  Co.,   117  Mo.  App.   153,  94  S.   W. 
ledger  cards  used  by  plaintiff  in  its  system      726   (1906). 

of  bookkeeping  which  constitute  its  original,  53.  4    Chamberlayne,    Evidence,    §§    3096- 

permanent  and  only  records  of  accounts  with  3099. 

its  customers  are  admissible  in  evidence  when  54.  ''  The  judge  could  not  know,  until  the 

properly  authenticated.     Haley  &  Lang  Co.  v.  end  of  the  trial,  what  corroborating  evidepce 

Vecchio,  36  S.  D.  64,  153  N.  W.  898,  L.  R.  A.  there  would  be;   and  after  the  evidence  was 

1916  B  631    (1915).     The  courts  seem  prop-  all  in,  it  was  proper  for  the  court  to  decide 
erly  to  regard  such  sheets  as  account  books  upon  the  competency  of  the  book:     This  is  a 
under  the  statutes  when  kept  as  part  of   a  species  peculiar  in  its  nature,  of  the  compe- 
fegular  system,  tency  of  which,  in  each  case,  the  court  must 

46.  Leask  v.  Hoagland,  205  X.   Y.   171,  98      decide."     Henshaw  v.  Davis,  5  Cush.   (Mass.) 
X.   E.   395    (1912),   reversing  judgment,    128       145  (1849). 

X.  Y.  Suppl.  1017.  144  App.  Div.  138;  rehear-          55.  Conklin   v.    Stamler,   2    Hilt.    (N.   Y.) 
ing  denied.  205  X.  Y.  594,  98  X.  E.  1106.  422,   8    Abb.   Prac.    395,    17   How.   Prac.    399 

47.  U.  S.  Bank  v.  Burson,  90  Towa  191,  57        (1859). 

X.  W.  705  (1894)  ;  Larabee  v.  Klosterman,  33          56.  Matter  of  McGoldrick  v.  Traphagen,  88 

Xeb.  150,  50  X.  \V.  1102   (1891).  N.  Y.   334    (1882),   overruling  Hauptman  v. 

48.  Barber's  Appeal,  63  Conn.  393,  410,  412,  Catlin,  1  E.  D.  Smith   (X.  Y.)   729   (1854). 
27  Atl.  973,  22  L.  R.  A.  90   (1893)  ;  Hutchins  57.  Smith  v.  Smith,  163  X.  Y.   168,  57  N: 
v.  Berry,  75  X.  H.  416,  75  Atl.  650   (1910).  E.  300,  7  X.  Y.  Annot.  Cas.  470,  52  L.  R.  A. 

49.  Dicken  v.  Winters,  169  Pa.  St.  126,  32  545    (1900),  affirming   13   App.  Div.   207,  43 
Atl.  289  (1895).  X.  Y.  Suppl.  257   (1897). 

50.  Doster   v.    Brown,   25   Ga.   24,    71    Am.  58.  Matter  of  McGoldrick  v.  Traphagen,  88 
Dec.  153   (1858).  X.  Y.  334   (1882). 

51.  Putman  v.  Grant,  101  Me.  240,  63  Atl.          59.  Maine.— Godfrey  v.  Codman,  32  Me.  162 
816  (1906).  (1850). 


§§  'J85,  986  SHOP-BOOKS.  746 

ingly  decline  to  receive  evidence  of  a  charge  kept  by  arbitrary  signs  the 
meaning  of  which  is  known  only  to  the  proponent." l  The  entry,  however,  need 
not  be  absolutely  clear  on  its  face  to  oue  nut  acquainted  with  the  usages  of  a 
particular  business  or  calling.  A  charge  of  this  nature  may  be  explained  by 
those  having  special  knowledge  on  the  subject.02  For  example,  a  physician 
may,  in  satisfactory  compliance  with  the  rule,  make  his  entries  in  the  ordinary 
shorthand  employed  in  his  profession.*53  The  entry  need  not  be  in  any  par- 
ticular language04  or  form  of  bookeepiug.'53  Abbreviations  may  even  be 
used,  in  which  case  their  meaning  may  be  explained.60 

§  985.  [Administrative  Requirements] ;  Entry  on  Book  Account  Must  Have 
Been  a  Routine  One.07 —  It  is  essential  that  the  entry  be  one  made  in  the  regular 
course  of  business  °8  and  it  must  be  the  entrant's  duty  to  make  a  record  of  the 
precise  thing  which  he  has  recorded 09  and  the  same  rule  should  be  applied 
where  several  entries  are  involved  in  the  same  transaction.70 

The  nature  of  the  business  may  have  a  bearing  on  whether  it  is  a  matter 
of  routine  or  not.  The  banking  business  for  example  presents  conditions  fa- 
vorable for  grounding  a  rational  inference  of  automatism  71  while  a  train  regis- 
ter might  be  held  not  to  be  within  the  principle.72 

§  986.  [Administrative  Requirements] ;  Facts  Creating  Suspicion.73 —  The  pre- 
siding judge  may,  in  the  exercise  of  his  power  of  administration,  exclude  a 
shop  book  where  either  from  its  condition  or  appearance  or  from  other  evidence, 
there  are  circumstances  which,  unexplained,  are  such  as  to  create  a  suspi- 
cion that  it  is  not  a  true  record  of  daily  transactions  in  the  routine  of  busi- 
ness,74 as  where  entries  covering  a  period  of  several  years  appear,  from  the 

60.  4  Chamberlayne,  Evidence,  §  3100.  admissible  where  not  kept  as  a  duty  or  in  the 

61.  Remick   v.   Rumery,   69   N.  H.   601,   45  regular   course   of   business.     All   authorities 
Atl.  574  ( 1899) .  seem  to  require  that  the  entries  must  be  made 

62.  Fulton's  Estate,  179  Pa.  St.  78,  35  Atl.  in  the  regular  course  of  business.     Arnold  v. 
880,  35  L.  R.  A.  133   (1896).  Hussey,  111  Me.  224,  88  Atl.  724,  51  L.  R.  A. 

63.  Bay  v.  Cook,  22  X.  J   L.  343   (1850).  (X.  S.)    813    (1913). 

64.  Massachusetts. —  Miller    v.    Shay,     145  70.  Xew  York  v.   Second  Ave.  R.  Co.,   102 
Mass.  162,  13  X    E.  468,  1  Am.  St.  Rep.  449  N.    Y.   572,   7   X.   E.   905,   55   Am.    Rep.   839 
(1887).  (1886). 

65.  Cather  v.  Damerell,  5  Xeb.  (Unof.)  490,  71.  Taylor   County   v.   Bank  of   Campbells- 
99  X.  W.  35  .(1904).  ville,    145   Ky.   389,    140   S.   W.   680    (1911); 

66.  Richardson  v.  Benes,  115  111.  App.  532       Continental   Xat.   Bank  v.   First   Nat.   Bank, 
(1904);   Bank  v.  Richardson,   141   Iowa  738,       109  Tenn.  374,  68  S.  W.  497  (1902). 

118  X.  W.  906  (1909).  72.  People  v.  Mitchell,  94  Cal.  550,  29  Pac. 

67.  4    Chamberlayne,    Evidence,    §§    3101,       1106   (1892). 

3102.  73.  4  Chamberlayne,  Evidence,  §  3103. 

68.  Kelley  v.  Crawford,   112   Wis.  368,  88  74.  "The  court  examines  it  to  see  if  it  ap- 
X.  W.  296  ( 1901 ) .  pears,  prima  facie,  to  be  what  it  purports  to 

69.  Ridgeley  v.  Johnson,  11  Barb.    (X.  Y.)  be.     If  there  are  erasures  and  interlineations, 
527    (1851).     See  also,  Osborn  v.  Merwin,  50  and  false  or  impossible  dates,  touching  points 
How.  Pr.  (X.  Y.)  183  (1875);  Watts  v.  Shew-  that   are  material,   or   if  for  any   reason   it 
ell,  31  Ohio  St.  331   (1877).     Entries  made  in  clearly   appears   not   to  be   a   legal   book   of 
a  diary  by  a  third  party  deceased  are  not  entries,  the  court  may  reject  it  as  incompe- 


747  IDENTITY  OF  BOOK.  §§  987-990 

brightness  of  the  pencil  marks,  etc.,  all  to  have  been  written  at  one  time,75 
or  where  an  account  bears  evidence  of  material  alterations  or  erasures 7G 
or  contains  only  entries  debiting  the  persons  against  whom  the  action  ia 
brought.77  This  must  be  explained  to  the  reasonable  satisfaction  of  the  judge 
before  the  book  will  be  admitted.78 

§  987.  [Administrative  Requirements] ;  Identity  of  Book  Must  be  Estab- 
lished.79—  In  any  case  involving  the  use  of  the  book  entry  it  must  be  shown  to 
the  reasonable  satisfaction  of  the  trial  judge  that  the  book  before  the  court 
is,  in  fact,  the  book  which  it  is  said  to  be.  Xo  special  form  of  attestation  is, 
as  a  rule,  demanded.  Thus,  the  fact  that  a  certain  book  produced  in  court 
is  the  stock  ledger  of  a  bank  may  be  proved  satisfactorily  by  the  evidence  of 
the  cashier.80 

§  988.  [Administrative  Requirements] ;  Material  Used.81 —  It  is  not  deemed 
necessary  by  the  courts  that  any  particular  material,  such  as  paper,  be  selected 
to  act  as  a  vehicle  for  the  words,  figures  and  the  like  constituting  the  ac- 
count.82 

Wood  may  be  used,  as  where  an  account  is  kept  upon  a  shingle83  or  by 
notches  made  on  a  stick.84 

§  989.   [Administrative  Requirements] ;   Original  Must  be  Produced.85 —  The 

rule  of  procedure  or  canon  of  administration  known  as  the  "  best  evidence 
rule  "  applies  to  the  use  of  shop  books.  If  the  original  book  can  be  produced 
by  the  propouent,  within  the  limits  of  reasonable  exertion,  he  will  be  required 
to  offer  it.SG  Where  the  original  book  has  been  lost  or  destroyed  a  copy  which 
the  maker  swears  to  be  accurate  may  be  received  in  evidence.87 

§  990.  Scope  of  Evidence.88 —  The  doctrine  has  already  been  stated  that  an 
essential  of  the  probative  force  of  the  relevancy  of  regularity  is  that  the  book 
entries  must  have  been  made  in  the  regular  routine  of  the  entrant's  business 
or  employment.  It  is  the  habit  or  custom  of  making  such  entries  with  an 

tent"     Funk  v.  Ely,  45  Pa.  444,  449   (1863),  Cummings  v.  Nichols,   13  X.  H    420.  38  Am. 

per  Woodward,  ,T.  Dec   501   (1843). 

75.  Dunbar  v.  Wright's  Adm'r,  20  Fla.  446  83.  Kendall  v.  Field.  14  Me.  30,  30  Am.  Dec. 
(1884) .     See  also,  Davis  v.  Sanford.  91  Mass.  728   ( 1836).     See  also.  Pallman  v.  Smith,  135 
216   (1864).  Pa.  St.  188,  10  Atl.  891    (1890). 

76.  Pratt  v.  White,  132  Mass.  477   (1882).  84.  Rowland  v.  Burton,  2  Harr.  (Del.)  288 

77.  Fulton's  Estate,  178  Pa    St.  78,  35  Atl.  (1835). 

880,  35  L.  E   A.  133  (1896).  85.  4    Chamberlayne,    Evidence.    §§    3106, 

78.  Outherless  v    "Ripley,  98  Iowa  290,  67      3107. 

N.  W.  109   (1S06).  86.  Baldridge  v.    Penland,   68  Tex.  441,  4 

79.  4  Chamberlayne,  Evidence,  §  3104.  S.  W.  565   (1887).     See,  Smiley  v.  Dewey,  17 

80.  Skowheoran  Bank  v.  Cutler,  52  Me.  509       Ohio  156   (1848). 

(1864)  87.  Hodnett  v.  Gault,  64  App  Div.  (N.  Y.) 

81.  4  Chamberlayne,  Evidence.  §  3105.  163.  166,  71  N.  Y.  Suppl.  831   (1901). 

82.  Hooper  v   Taylor,  39  Me.  224   (1855);          88.  4    Chamberlayne,    Evidence,    §§    3108- 

3125. 


§  991  SHOP-BOOKS.  748 

automatic  regularity  that  gives  to  them  an  increased  proving  power.  It  there- 
fore follows  that  the  entries  should  relate  to  the  regular  business  of  the  person 
for  whom  the  books  are  kept,*0  in  order  to  be  admissible. 

Such  entries  cannot  be  used  to  prove  collateral  facts  as  in  such  matters  the 
element  of  habit  or  custom  on  the  part  of  the  entrant  is  lacking.90 

All  the  early  limitations  as  to  the  amount  of  the  entries  which  might  be 
proved  by  the  shop-books  have  been  removed.91 

The  books  may  be  used  to  show  the.  sale  and  delivery  of  goods  and  their 
prices  *2  but  large  bulky  articles  may  in  some  cases  not  be  proved  in  this  way 
as  their  delivery  may  be  proved  better  by  the  evidence  of  those  who  did  the 
work.93  The  charge  may  be  made  before  the  actual  delivery  of  the  article.94 

Loans  or  cash  payment^  cannot  be  proved  in  this  way  95  as  such  items  should 
appear  by  a  check  or  receipt  unless  where  the  money  so  charged  was  advanced 
in  payment  of  goods  or  merchandise  procured  by  the  party  for  the  defendant.06 
In  some  jurisdictions  money  payments  in  the  regular  course  of  business  as  in 
the  banking  business  may  be  shown.97 

Charges  for  board  9S  or  public  services  "  or  the  use  of  animals  1  may  be 
proved  in  this  way  but  not  charges  for  literary  services.2 

§  991.  [Scope  of  Evidence];  Nature  of  Charges;  Special  Contract.3 — Special 
contracts  or  agreements  are  susceptible,  in  respect  to  their  terms,  conditions 
and  to  performance  thereunder,  of  various  kinds  of  proof  other  than  book 
entries.  They  may  be  embodied  in  some  formal  written  or  printed  memoranda 
of  greater  or  less  length,  and  in  fact  frequently  are.  Under  such  circum- 
stances the  terms  and  conditions  are  provable  by  the  memorandum  of  the 
contract  which  may  be  spoken  of  as  the  "  best  evidence."  In  the  absence 
of  proof  of  this  nature  they  may  be  shown  by  other  evidence,  such  as  by 
correspondence  which  has  passed  between  the  parties  or  by  conversations  at 

89.  Fulton's  Estate,  178  Pa.  St.  78,  35  All.  98.  Tremain  v.  Edwards,  7  Cush     (Mass.) 
880,  35  L.  R.  A.  133   (1896).  414    (1851). 

90.  Galbraith  v.  Starks,  117  Ky.  915,  922,  99.  Kinney  v.   United   States,   54   Fed    313 
79  S.  W.   1191,  25  Ky.  L.  Rep.  2090    (1904),  (1893). 

per    O'Rear,    J.     Admissibility    of    books    or  1.  Easly    v.    Eakin,    Cooke     (Tenn.)     388 

statements   of   account   in    criminal    prosecu-  (1813). 

tion,  see  note,  Bender  ed.,  143  N    Y    107.  2.  Hirst  v.   Clarke,   3  Pa.  L.  J.   32,   1   Pa. 

91.  Richardson    v     Emery,    23    N.    H.    220  L.  J.  Rep.  398   (1842). 

(1851)  ;  Trisli  v.  Horn.  84  Hun  121,  32  N.  Y.  To  prove  a  negative.— The  old  shop-book 

Suppl.  455.  65  X.  Y.  St.  Rep    641    (1895).  exception   does   not    allow   the   proving   of   a 

92.  Copeland  v.  Boston  Dairy  Co.,  189  Mass.  negative.     So  account-books  are  not  admissi- 
342,  75  X.  E.  704  (1905).  ble  to  prove  that  certain  goods  were  not  re- 

93.  Leighton  v.  Manson,  14  Me.  208  (1837).  ceived      Winder  v.  Pollock.  151  N.  Y.  Suppl 

94.  Wollenweber  v.  Ketterlinus,  17  Pa.  St.  870      The  correctness  of  this  decision  to-day 
389   (1851)  may  well  be  doubted      Professional  entries  or 

95.  Shaffer  v.  McCrackin,  90  Towa  578,  58  memoranda,  see  note.  Bender  ed.,  31  N.  Y.  525. 
N.  W.  910,  48  Am    St.  Rep.  465  (1894)  3.4    Chamberlayne,    Evidence,    §§    3126- 

96.  Le  Franc  v.  Hewitt,  7  Cal.  186   (1857).      3129. 
•7.  Ganahl  v.  Shore,  24  Ga.  17,  24  (1858). 


749  NATUEE  OF  CHARGES.  §§  992,993 

the  time  of  making  the  alleged  contract  showing  the  agreement  entered  into. 
Performance  or  non-performance  may  also  be  established  by  various  kinds  of 
proof.  In  this  class  of  cases  the  transaction  is  not  regarded  as  arising  in 
the  usual  course  of  business  within  the  principle  which  makes  the  book  of 
account  primary  evidence.  There  are  lacking  in  the  case  of  an  entry  as  to 
terms,  conditions  4  or  performance-*  of  a  special  contract  the  elements  which  are 
essential  to  the  relevancy  of  regularity,  which  must  be  established  to  render 
the  account  Ixjok  admissible. 

Hence  book  accounts  are  not  admissible  to  prove  matters  like  the  amount 
due  under  a  contract  °  or  damages  7  though  book  entries  may  be  used  to  show 
matters  like  delivery  and  other  things  done  in  the  regular  course  of  business 
although  they  may  be  done  under  a  special  contract.8 

§  992.  [Scope  of  Evidence];  Nature  of  Charges;  Other  Matters.9 — The  rule 
does  not  penult  the  introduction  of  books  of  account  kept  by  a  fiduciary  10  or 
a  billiard  room  proprietor.11  Wholesale  dealings  may  often  not  be  proved  in 
this  way  as  the  charges  may  be  of  such  magnitude  as  to  preclude  them  12 
but  under  the  modern  development  of  the  doctrine  they  are  often  admit- 
ted 

§  993.  [Scope  of  Evidence] ;  Nature  of  Occupation.13 —  The  rule  permitting 
the  admission  of  shop  books  in  evidence  was  originally  for  the  benefit  of  the 
small  tradesman  or  handicraftsman  who  kept  no  clerk  and  was  limited  to 
books  kept  by  such  persons,  and  to  the  items  usually  embraced  in  such  accounts. 
In  the  development  of  the  rule  admitting  books  of  account,  the  early  limita- 
tatious  have  been,  as  a  general  rule,  removed.  The  reasons  which  appealed  to 
the  courts  in  the  early  days  for  the  application  of  the  rule  likewise  existed  to 
cause  an  extension  of  the  principle  so  that  it  may  be  said  generally  that  at  the 
present  day  the  rule  applies,  not  only  to  tradesmen  and  merchants,  but  to  all 
persons  dealing,  the  one  with  the  other,14  in  a  business,  occupation  or  calling 

4.  Wait  v.  Krewson,  59  X.  J.  L.  71,  35  Atl  9.  4     Chamberlayne,     Evidence,     §§     3130- 
742    (1896).     The  entries  in  the  policy  book       3132. 

of  a  deceased  insurance  agent  as  to  the  terms  10.  Fowler  v.   Hebbard,  40  App.   Div.    (N. 

of  a  lost  policy  are  not  admissible  in  evidence  Y.)    108,  57  N".  Y.  Suppl.  531    (1899). 

where  they  were  not  verified  by  any  one  know-  11.  Boyd  v.  Ladson,  4  McCord  L.    (N.  C.) 

ing  the  facts   recited  therein.     Cummings   v  76,  17  Am.  Dec.  707   (1826). 

Pennsylvania   Fire   Insurance   Co.,    153    Iowa  12.  Bustin  v.  Rogers,  11  Cush.   (Mass.)   346 

579,  134  N.  W.  79,  37  L.  R.  A.    (X.  S.)    1169  (1853),  per  Dewey.  J.,  wherein  it  was  said  of 

(1912)  an  item  of  "7  gold  American  watches  $308." 

5.  Hall  v.  Chaimbersburg  Woolen  Co.,  187  "  This  species  of  evidence  was  not  the  proper 
Pa.  St.  18,  40  Atl.  986,  67  Am    St.  Rep.  563,  evidence  to  establish  a  sale  of  this  magnitude 
52  L   R.  A.  689  (1898).  and  character."     See  also,  Coor  v.  Seller,  100 

6.  Danser  v.  Boyle,  16  X   J.  L.  395   (1838).  Pa.  St    169,  45  Am.  Rep.  370   (1882). 

7.  Wait    v     Krewson.   59    X    J.    L.    71.    35  13.  4  Chamberlayne,     Evidence,     §§     3133- 
Atl.  742   (1866).  3137. 

8.  Bailey  v    Harvey,  60  X.  H.  152   (1880)  ;  14.  Foster  v.  Coleman,  1  E.  D.  Smith   (N. 

Oliver  v.  Phelps,  21  X.  J  L.  597  (1845).  Y.)    85    (1850). 

.88 


§§  994,995  SHOP-BOOKS.  750 

where  a  record  of  transactions  in  the  regular  routine  thereof  is  necessarily  kept 
in  a  book  of  accounts. 

The  rule  now  includes  for  example  not  only  merchants  but  also  mechanics  ir 
and  professional  men.16 

§  994.  [Scope  of  Evidence] ;  Who  May  be  Charged.17 —  The  rule  permitting 
of  the  introduction  of  the  shop  book  into  evidence  is  ordinarily  interpreted 
as  limiting  its  admission  thereunder  to  those  cases  where  the  entries  show  an 
intentional  charge  in  favor  of  one  party  to  the  action  against  the  adverse 
party.18 

The  charges  may  however  be  in  the  alternative  19  but  may  not  be  used  to 
charge  a  third  person  though  the  book  may  be  used  where  it  embodies  an 
admission.20 

It  has  been  held  for  example  that  the  books  showing  a  charge  against  an- 
other are  not  conclusive  as  to  the  person  to  whom  credit  is  given21  and  the 
books  are  not  admissible  to  charge  the  defendant  with  goods  delivered  to  or 
services  performed  for  another  on  the  defendant's  order  22  but  where  the  fact 
of  such  an  order  is  established  by  evidence  aliunde  the  books  then  become 
admissible  to  show  delivery  or  the  performance  of  the  services  rendered.23 

Mistakes  in  the  account  may  be  rectified  by  parol.24  The  books  may  not 
be  used  to  establish  a  joint  liability  25  but  parol  evidence  may  be  used  to 
establish  the  liability  and  then  the  entries  may  be  used  to  show  the  items  26 
and  so  agency  being  established  to  charge  an  undisclosed  principal  the  books 
then  become  admissible.27 

§  995.  Weight.28 —  Preliminary  inquiries  as  to  the  character,  authenticity, 
regularity  of  the  book,  and  which  have  reference  to  its  admissibility,  are  ques- 

15.  Linnell  &  Foot  v.  Sutherland,  11  Wend.  special  contracts   such  as  are  not   shown  to 
(N.  Y. )  568   (1834).  be  or  to  be  inferred  from  the  entries  alone. 

16.  Bay  v.  Cook,  22  N.  J.  L.  343   (1850).  The  admission  of  such  entries  would  open  wide 

17.  4    Chamberlayne,    Evidence,    §§    3138-  the  door  to  fraud  as  a  party  might  make  any 
3145.  contract  the  subject  of  book  entry.     Wells  v. 

18.  Gill  v.  Staylor,  93  Md.  453,  49  Atl.  650  Hays,  93  S.  C.  168,  76  S.  E.  195,  42  L   R.  A. 
(1901).  (N.  S.)  727. 

19.  Burnell,   Gillett  &   Co.,   v.   Dunlap,   11  23.  Wilcox   Silver   Plate   Co.   v    Green,   72 
Iowa  446  (1861).  N.  Y.    17    (1878).     Under  a  statute  making 

20.  Loomis  v.  Stuart  (Tex.  Civ.  App.  1893),  book  entries  admissible  in  evidence  they  may 
24  S.  W.  1078.     See  also,  Winslow  v.  Dakota  be  used  in  a  suit  between  third  parties  and 
Lumber   Co.,    32   Minn.    237,    20    N.    W.    145  the  fact  that  certain  claims  were  paid  is  evi- 
(1884).  dence    as    to    third    parties    that    they    were 

21.  Myer  v    Grafflin,  31  Md.  350,   100  Am.  valid.     Richolson   v.   Ferguson,   87   Kan.   411, 
Dec.  66   (1869).  124  Pac.  360,  40  L.  R.  A.   (N.  S.)  855  (1912). 

22.  Kaiser  v.  Alexander,   144  Mass.   71,   12  24.  Schettler  v.  Jones,  20  Wis.  412   (1866). 
N.   E.   209    (1887).     The  account  books  and  25.  Severance  &  Smith  v  Lombardo.  17  Cal. 
check  stubs  of  the  defendant  with  memoranda  57    (1860)  :   Kidder  v.  Norris.   18   N.  H.  532 
thereon  are  not  admissible  in  evidence  to  show  (1847). 

that  payments  made  were  intended  to  be  used  26.  Bowers  v.  Still,  49  Pa    St  '65   (1865). 

to  pay  the  debt  of  another  than  the  payee.  27.  Davis  v.  Dyer,  60  N.  H.  400   (1880). 

Books  of  account  are  not  admissible  to  prove          28.  4  Chamberlayne,  Evidence,  §  3146. 


751  WEIGHT.  §  995 

tions  for  the  court  to  determine  in  the  exercise  of  its  powers  of  administra- 
tion.29 The  weight,  however,  which  is  to  be  given  to  such  evidence  depends 
upon  the  circumstances  surrounding  each  case  and  is  to  be  determined  by  the 
tribunal  which  decides  the  question  of  fact.30 

The  declarant  who  otfers  his  shopbook  is  open  to  the  same  kind  of  im- 
peachment as  other  witnesses  as  to  his  character  for  veracity  31  and  the  gen- 
eral character  of  the  book  may  also  be  impeached  as  where  it  appears  not  to  be 
accurately  kept.32 

29.  Pratt  v.  White,  132  Mass.  477   (1882)  ;       876   (1888)  ;  Dickens  v.  Winters,  169  Pa.  St. 
Burleson  v.  Goodman  &  Stroud,  32  Tex.  229       126,  32  Atl.  289   (1895). 

( 1869).  31.  Funk  v.  Ely,  45  Pa.  444,  448  (1863). 

30.  Rexford  v.  Comstock,  3  N.  Y.  Suppl.          32.  Merchants'  Bank  v.  Rawls,  7  Ga.  191, 

50  Am.  Dec.  394  (1849). 


' 

• 

CHAPTER  XLVI. 

RELEVANCY  OF  SIMILARITY;  UNIFORMITY  OF  NATURE. 

. 
Relevancy  of  similar  occurrences;  uniformity  of  nature,  996. 

Preliminary  observations;  rule  an  assignment  of  irrelevancy;  true  ground  of 

rejection,  997. 
Rule  stated,  998. 

Administrative  requirements;  necessity,  999. 
relevancy,  1000. 

relevancy  of  similarity,  1001. 

essentially  similar  occurrences,  1002. 
experiments,  1003. 
varying  phenomena,  1004. 
relevancy  of  dissimilarity,  1005. 
Inferences  other  than  similar  occurrences,  1006. 

Other  uniformities  than  that  of  physical  nature;  regularity  of  law  or  busi- 
ness; habits,  1007. 

§  996.  Relevancy  of  Similar  Occurrences;  "Uniformity  of  Nature.1 —  Of  the  four 
main  exclusionary  rules  under  which  relevant  evidence  is  excluded,  we  have 
already  discussed  opinion  and  hearsay  evidence.  The  remaining  two  of  such 
exclusionary  rules,  res  inter  alios  and  character,  possess  the  common  attribute 
that  they  employ,  reasoning  by  analogy,  the  happening  of  a  collateral  occur- 
rence as  evidence  of  the  doing  of  a  particular  act  or  the  happening  of  a  given 
event.  In  other  words,  the  evidence  is  designed  to  show  that  an  event  hap- 
pened under  certain  conditions  because  a  similar  one  occurred  under  the  same 
conditions,  or  that  A.  did  a  particular  act  because  he  did  a  similar  act  before 
under  a  like  situation  or  possessed  a  trait  of  character  which  predisposed  him 
to  do  it.  This  chapter  treats  especially  of  circumstances  under  which  evidence 
is  admissible  to  show  that  a  particular  event  occurred  in  the  realm  of  nature 
on  one  occasion  because  a  similar  event  happened  on  another.  , 

A  good  example  of  this  characteristic  judicial  method  is  furnished  in  actions 
of  negligence  where  generally  evidence  of  the  custom  of  others  doing  similar 
work  is  not  admissible  on  the  question  of  the  negligence  of  the  defendant  2 
although  such  evidence  is  sometimes  considered  relevant.3 

1.  4     Chamberlayne,     Evidence,     §§     3150-  113  Md.  460,  77  Atl.  1121,  45  L.  R  A.  (N,  S.) 
3152.  281    (1910).     A  custom  of  builders  as  to  the 

2.  A  custom  among  bridge  builders  to  trust  meaning  of  the  term  building  line  as  found  in 
to  the  engineer  in  charge  cannot  be  shown  to  the   ordinances   is   incompetent.     O'Gallagher 
relieve  it  of  the  duty  of  looking  after  their  v.  Lockhart,  263  111.  489,   105  N.  E.  295,  52 
employees  as  this  is  contrary  to  a  well  settled  L.  R.  A.  (N.  S.)  1044  (1914). 

rule  of  law.     Pennsylvania  Steel  Co.  v.  Nace,          3.  A  custom  among  masons  to  leave  mortar 

762 


753  KULE  STATED.  §§  997-999 

§  997.  [Preliminary  Observations ;  Rule  an  Assignment  of  Irrelevancy] ;  True 
Ground  of  Rejection.4 —  In  accordance  with  the  judicial  habit  of  assigning  the 
secondary,  if  conclusive,  reason  for  rejecting  evidence,  much  testimony  is  con- 
stantly rejected  as  res  inter  alios  when  the  real  ground  for  the  exclusion  is  that 
the  fact  oifered  is  irrelevant,  i.e.,  has  no  logical  bearing  upon  the  issue  involved.5 

Under  such  circumstances  where  the  evidence  of  the  occurrence  of  an  event  is 
such  as  to  afford  no  logical  bearing  upon  the  proof  of  the  occurrence  of  another 
event,  the  true  ground  of  rejection  is  irrelevancy.  An  irrelevant  matter  is  no 
evidence  at  all  and  requires  no  exclusionary  rule  to  warrant  its  rejection.6 
Moreover,  the  evidence  of  the  collateral  act  or  event  being  circumstantial  in  its 
nature,  it  is  deemed  secondary,  and,  under  the  principles  pertaining  to  second- 
ary evidence,  the  testimony  of  the  collateral  occurrence  may  also  in  some  cases 
be  properlv  excluded  as  such.7 

. 
§  998.  Rule  Stated.8 —  While  the  uniformity  of  nature  may  well  furnish  a 

basis  of  probative  fact  which  possesses  a  probative  force  beyond  that  shown  by 
moral  uniformity  used  as  a  basis  of  similarity  in  conduct,  the  important  ad- 
ministrative circumstance  that  the  proof  is  circumstantial  rather  than  direct 
has  led  the  courts  to  treat  the  evidence  of  similar  occurrences  as  secondary  in 
its  nature.  In  the  absence,  therefore,  of  an  adequate  administrative  necessity, 
the  inference  that  a  given  state  of  affairs  existed  or  a  particular  event  occurred 
at  a  certain  time  because  a  similar  state  of  affairs  is  shown  to  have  existed  or  a 
similar  act  occurred  at  another,  is  not  one  which  the  court  accepts  as  primary 
evidence.9  Even  when  a  suitable  forensic  necessity  is  shown  on  the  part  of  the 
proponent,  some  special  ground  of  relevancy  must  also  be  made  to  appear.  The 
two  states  or  events  must  be  connected  in  some  special  way,  other  than  the  mere 
similarity  in  certain  particulars,  in  order  that  the  existence  of  the  one,  on  a 
particular  occasion,  may  be  deemed  to  be  probative  of  that  of  the  other  on  a 

different  occasion. 

• 

§  999.  Administrative  Requirements;  Necessity.10 — Unlike  the  rule  against 
hearsay,  when  not  covered  by  a  specific  exception,  the  exclusion  prescribed  by 
the  present  rule  is  not  absolute,  but  conditional.  In  other  words,  it  is  not  so 
much  a  rule  of  procedure  as  it  is  a  principle  of  administration.  Let  but  a 

boxes  in  the  summer  unfenced  and  uncovered  5.  Churchill  v.  Hebden,  32  R.  I.  34,  78  Atl. 

may  be  shown.     Zartner  v.  George.  156  Wis.  337   (1910). 

131,  145  X.  W.  971.  52  L.  R.  A.    (X.  S.)    129  6.  Wright  v.  City  of  Chelsea,  207  Mass.  460, 

(1914).     The  custom  of  others   in   the  same  93  X.  E.  840  (1911). 

business  as  to  the  proper  height  above  tide  7.  Foster  Ex'rs  v.  Dickerson,  64  Vt.  233,  24 

water  for  a  warehouse  is  admissible  as  bear-  Atl.  253    (1891). 

ing  on  the  netrligence  of  the  defendant.     Hecht  8.  4  Chamberlayne.  Evidence.  §  3162. 

v.  Boston  Wharf  Co..  220  Mass.  307.  107  X.  9.  People   v.   Molineux,    168   X.   Y.   264,   61 

E.  990,  L.  R.  A.  1915  D  725   (1915).  X.  E.  286,   10  X.  Y.  Annot.  Cas.  256,  G2  L. 

4.  4     Chamberlayne,    Evidence,     §§     3153-  R.  A.  193  (1901). 

3161.  10.  4    Chamberlayne,    Evidence,    §§    3163- 

3165. 


§§   1000,  1001  RELEVANCY  OF  SIMILARITY.  75-1 

forensic  necessity  arise  which  the  court  deems  adequate  for  the  purpose  and  the 
paramount  administrative  canon  that  a  party  has  a  right  to  prove  a  reasonable 
case  by  the  most  probative  evidence  in  his  power  will  require  that,  so  far  as  the 
similarity  is  relevant,  the  happening  of  a  given  event  or  the  existence  of  a  par- 
ticular state  of  affairs  at  one  time  may  be  shown  by  its  happening  or  existence 
at  another.  The  factors  affecting  the  action  of  the  court  in  regard  to  admit- 
ting evidence  of  similarity  claimed  by  the  proponent  to  be  necessary  to  proof 
of  his  case  are  obvious.  They  are  practically  the  same  which  govern  the  ad- 
ministrative action  of  the  court  in  dealing  with  any  proponent  who  offers  sec- 
ondary evidence  of  a  fact.  In  proportion  as  it  appears  to  the  presiding  judge 
that  there  is  but  little  prospect  that  better  evidence  will  be  attainable,  that  the 
danger  that  the  jury  may  be  misled  or  the  trial  unduly  protracted  by  the  raising 
of  a  collateral  issue,  either  does  not  arise  or  cannot  be  avoided,  will  such  sec- 
ondary evidence  be  received.11 

This  necessity  may  arise  either  in  the  original  case  or  in  the  stage  of  rebuttal 
and  the  appellate  courts  will  disturb  the  ruling  made  only  in  case  of  abuse  of 
discretion.12 

§  1000.  [Administrative  Requirements] ;  Relevancy.13 —  That  the  secondary 
evidence  of  another  event  or  occurrence  should  be  received  as  evidence  that, 
under  the  uniformity  of  nature,  a  given  event  occurred  or  state  existed  at  a 
particular  time,  it  will  be  required,  as  a  matter  of  administration,  not  only  that 
a  suitable  forensic  necessity  should  be  shown  to  exist,  but  also  that  the  evidence 
offered  should  be  relevant.  However  great  may  be  the  necessity  for  receiving 
secondary  evidence,  the  facts  offered  must,  at  least,  be  evidence,  i.e.,  relevant  in 
some  one  of  the  aspects  of  relevancy.  It  may  be  expedient,  before  entering 
upon  the  general  subject,  to  make  two  preliminary  observations.  The  first  of 
these  is  to  the  effect  that,  in  connection  with  the  uniformity  of  nature  the  rele- 
vancy of  a  particular  state  or  event  to  the  existence  of  another  is,  in  itself,  con- 
sidered objective  rather  than  subjective.  In  other  words,  it  involves  and  is 
based  upon  the  uniformity  between  antecedent  and  consequent,  which  experi- 
ence has  observed  to  exist  in  the  physical  universe.  By  contrast,  the  relevancy 
of  moral  uniformity  is  more  largely  subjective.  In  the  second  place,  the  evi- 
dence being  used  to  establish,  in  a  circumstantial  manner,  by  means  of  a  direct 
and  clear  proposition  of  experience,  the  existence  of  a  res  gestae  fact,  its  rele- 
vancy is  probative,  while  the  slighter  causal  relation  between  antecedent  and 
consequent,  shown  in  cases -of  human  conduct  subject  to  the  operation  of  voli- 
tion, i.e.,  the  relevancy  of  moral  uniformity  is,  as  has  been  said,  more  nearly 
deliberative. 

§  1001.  [Administrative  Requirements];  Relevancy  of  Similarity.14 — In  deal- 

11.  Galveston,   etc.,   R.   Co.   v.   Ford    (Tex.       Conn.  561    (1857);    Gillrie  v.  Lockport,   122 
Civ.  App.  1898),  46  S.  W.  77.  N.  Y.  403,  25  N.  E.  357   (1890). 

12.  labell   v.   New   York,   etc.,   R.    Co.,   25  13.  4  Chamberlayne,  Evidence,  §  3166. 

14.  4  Chamberlayne,  Evidence,  §  3167. 


755  EXPERIMENTS.  §§  1002,  1003 

ing  with  the  direct  probative  force  of  the  inference  that  under  certain  ante- 
cedents an  event  happened  or  state  of  things  came  into  existence  on  a  particular 
occasion  because,  under  precisely  similar  conditions  or  antecedents,  the  same 
event  happened  or  state  of  affairs  came  into  being,  a  court  or  jury  may  well 
feel  that  they  are  treading  upon  lirm  logical  ground.  One  is  fairly  certain, 
for  example,  that  the  sun  gave  light  on  a  given  occasion  because  at  all  previous 
times  it  has  been  observed  to  do  so.  In  other  words,  the  maximum  of  probative 
relevancy  is  obtained  where,  as  in  the  uniformity  of  natural  law,  the  same  cause, 
in  itself  considered,  always  operates  in  precisely  the  same  way,  where  the  force 
is  a  powerful  one  and  not  affected  by  other  forces. 

§  1002.  [Relevancy  of  Similarity] ;  Essentially  Similar  Occurrences.15 —  The 
happening  of  an  essentially  similar  state  or  event,  shows  not  only  the  possibility 
of  such  an  occurrence,  where  that  is  disputed  —  but  furnishes  an  object  lesson, 
as  it  were,  in  education  and  explanation  of  the  state  or  event  in  question ;  — 
what  caused  it,  or  how  it  happened.16  Where  it  is  disputed  that  the  particular 
event  in  question  actually  occurred,  the  fact  that  the  same  event  happened  or 
state  of  things  came  into  being  under  similar  circumstances  is  also  highly  pro- 
bative. Essential  similarity  on  all  material  parts  being  established,  the  evi- 
dence is  probative,  and,  if  a  suitable  necessity  is  shown,  will  be  admitted.17 
For  example,  the  question  being  as  to  the  damage  caused  to  plaintiff's  trees  by 
the  escape  of  gas  from  the  defendant's  premises,  evidence  of  the  condition  of 
other  trees  in  the  vicinity  is  admissible.18 

§  1003.  [Relevancy  of  Similarity] ;  Experiments.19 —  Should  it  be  made  affirm- 
atively to  appear  to  the  presiding  judge  by  the  proponent  of  the  evidence  20 
that  the  essential  conditions  of  the  actual  state  or  event  involved  in  the  inquiry 
submitted  for  investigation  can  be  artificially  reproduced  in  an  experiment, 
the  results  of  the  latter  may  be  relevant,21  and  if  an  adequate  administrative 
necessity  exists  for  receiving  them,  will  be  admitted.22 

Difference  in  some  essential  particular  between  the  actual  transaction,  as  it 
is  claimed  to  have  existed,  and  the  conditions  of  the  experiment,  warrants  the 
exclusion  of  the  evidence  as  to  the  result  obtained  by  it.23  The  closer  the  simi- 
larity in  the  facts  proved  and  the  facts  on  which  the  experiment  is  based,  the 
greater  the  probative  force  of  the  evidence.24 

15.  4  Chamberlayne,  Evidence.  §  3168.  nlative  and  hypothetical  theories  where  they 

16.  Polly  v.  MoCall,  37  Ala.  20  (1860).  are  not  shown  to  have  been  based  upon  facts 

17.  City  of  Emporia  v.  Kowalski,  66  Kan.  connected  with  the  crime  charged  is  not  ad- 
64,  71  Pac.  232   (1903)  missible.     Harris    v.    State     (Tex.    Cr.    App. 

18.  Evans  v.  Keystone  Gas  Co.,   148  X.  Y.  1911),  137  S.  W.  373. 

112,  42  X.   E.  513,  51    Am.  St.  Rep.  681,  30  22.  Kimball  Bros.  Co   v.  Citizens  Gas,  etc., 

L.  R   A.  615  (1895).  Co.,  141   Iowa  632,   118  X.  W.  891    (1908). 

19.  4    Chamberlayne,    Evidence,    §§    3169-          23.  Mitchell  v.  Sayles,  28  R.  I.  240,  66  Atl. 
3173  574    (1907). 

20.  People  v.  Thompson,  122  Mich.  411,  81          24.  Atlanta,  etc.,  R.  Co.  v.  Hudson,  2  Ga. 
X.  W.  344   (1899).  App.  352,  58  S.  E.  500  (1907). 

21.  Evidence  of  experiments  based  on  spec- 


§§   1004,  1005  RELEVANCY  OF  SIMILARITY.  756 

Experiments  are  received  as  a  matter  of  indulgence.  The  party  offering 
such  evidence  has  no  right  to  insist  upon  evidence  of  the  experiment  being  re- 
ceived, should  the  presiding  judge  be  of  a  contrary  opinion.25  The  trial  judge 
must,  however,  act  within  the  limits  prescribed  by  reason.20 

It  has  been  held  that  the  judge  cannot  undertake  experiments  on  his  own 
initiative  to  test  the  accuracy  of  the  witness  27  and  the  jury  cannot  on  their  own 
initiative  conduct  experiments  out  of  court.28 

§  1004.  [Relevancy  of  Similarity] ;  Varying  Phenomena.29 —  While  it  mav  be 
frankly  conceded  that  should  a  collateral  occurrence  involving  the  uniformity 
of  natural  law  be  presented  which  should  be  precisely  similar  in  all  its  circum- 
stances to  the  principal  case  and  result  in  the  creation  of  a  particular  state  or 
the  happening  of  a  given  event  the  results  of  such  collateral  occurrence  would 
be  highly  probative,  the  administrative  difficulty  experienced  by  the  courts 
consists  in  the  fact  that  such  precisely  similar  collateral  occasions  are  seldom 
encountered  in  practice.  The  rule,  therefore,  as  usually  stated,  permits  the 
reception  of  collateral  occurrences  which  are  substantially  similar  in  their  cir- 
cumstances, i.e.,  are  similar  in  all  essential  particulars.  Where,  however,  the 
collateral  occasion  fails  to  present  some  substantial  similarity  to  the  one  in- 
volved in  the  inquiry,  i.e.,  where  important  or  material  variations  in  the  phe- 
nomena of  the  two  occasions  are  presented,  proof  of  what  happened  on  a  col- 
lateral occasion  will  be  rejected. 

On  the  other  hand,  where  one  continuous  state  or  condition  of  affairs  is  in- 
volved in  the  inquiry,  the  same  administrative  considerations  do  not  apply. 
The  presumption  of  continuance  or  against  change,  operates  to  render  the  infer- 
ence that,  a  state  of  affairs  once  shown  to  exist  will  continue  to  do  so  for  a 
length  of  time  proportionate  to  the  permanence  of  the  state  or  condition  and  to 
the  improbability  that  a  modifying  cause  will  intervene. 

Similar  accidents  which  have  only  features  of  resemblance  in  particulars 
which  are  not  essential  do  not  have  such  a  relation  of  relevancy  as  makes  them 
probative.  They  are,  therefore,  inadmissible ;  —  however  great  the  adminis- 
trative necessity,30  except  for  illustration.31 

§  1005.  Relevancy  of  Dissimilarity.32 —  The  administrative  necessity  for  fur- 
ther use  of  other  occasions  beyond  this  relevancy  of  similarity  is  most  largely 

25.  Com.  v.  Buxton,  205  Mass.  40,  91  N.  E.          29.  4    Chamberlayne,    Evidence,    §§    3174, 
128    (1910):    State   v.   Ronk,   91    Minn.   419,       3175. 

98  N.  W.  334  (1904).  30.  Florida  Cent.,  etc.,  R.  Co.  v.  Mooney, 

26.  Woelfel  Leather  Co.  v.  Thomas,  68  111.  45  Fla.  286,   33   So.   1010,   110  Am.   St.  Rep. 
App.  394   (1896)  ;  Ord  v.  Nash,  50  Nebr.  335,  73    (1903)  :    Georgia   Cent.  R.   Co.   v.  Duffey, 
09  X.  W.  964    (1897)  :   Streight  v.  State,  62  116  Oa.  346,  42  S.  E.  510    (1902)  :   Smart  v. 
Tex.  Cr.  App.  453,  138  S.  W.  742   (1911).  Kansas  City,  91  Mo.  App.  586    (1901). 

27.  Burke  v.  People,  148  111.  70,  35  N.  E.  31.  Aurora  v.  Brown,   12   111    App.  122,  af~ 
376   (1893).  firmed  109  111.  165   (1882). 

28.  Smith  v.  St.  Paul,  etc..  E.  Co.,  32  Minn.  32.  4    Chamberlayne,    Evidence,    §§    3176- 

1,  18  N.  W.  827,  50  Am.  Rep.  550  (1884).  3182. 

r 


757  DISSIMILARITY.  §  1006 

due  to  the  fact  that  neither  in  the  realm  of  nature  nor  the  mental  or  moral  world 
do  the  actual  phenomena  of  what  happened  on  any  particular  occasion  pre- 
sented for  investigation  come  before  the  tribunal  in  such  simplicity,  absence  of 
complexity,  as  to  leave  the  result,  the  obvious  effect  of  a  single  and  sufficient 
cause. 

Where  various  causes  united  in  producing  the  result  the  proponent  can  then 
rely  on  the  presence  of  dissimilar  features  as  showing  which  causes  produced 
a  dissimilar  result,  or  where  the  result  is  admitted  33  other  occurrences  in  which 
the  antecedent  circumstances  for  which  liability  is  claimed  were  present  and 
the  same  result  followed  may  be  received  in  evidence ; —  provided  that  the  facts 
of  the  other  occurrences  are  so  varied  as  to  leave  the  antecedent  circumstances 
claimed  to  have  been  the  cause,  the  only  constant  antecedent  circumstance.34 

Thus,  the  question  being  as  to  whether  A.  was  injured  by  the  unsafe  and 
dangerous  character  of  a  sidewalk,  evidence  of  similar  accidents  to  other  per- 
sons at  the  same  place  and  about  the  same  time  has  been  received ;  —  not  for 
the  purpose  of  showing  that  the  plaintiff  wras  injured,  but  for  that  of  exhibiting 
the  dangerous  nature  of  the  condition  of  the  sidewalk. 

In  an  action  by  an  employee  for  injuries  alleged  to  have  resulted  from  par- 
ticles of  lead  in  the  air  where  he  worked,  to  show  that  such  was  the  cause  of  his 
illness,  evidence  is  competent  that  fellow-wTorkers  were  also  affected  with  lead 
poisoning.  This  relevancy  of  dissimilarity  is  entirely  apart  from  the  inde- 
pendent relevancy  of  these  occurrences  as  showing  notice  to  the  responsible  au- 
thorities by  the  notoriety  of  these  occurrences  themselves. 

Replies  of  Opponent. —  In  reply  to  such  evidence,  it  is,  of  course,  open  to  the 
opponent  and,  indeed,  to  avoid  its  effect,  it  is  necessary  for  him  to  contend  that 
new  affirmative  hypotheses  or  explanations  are  introduced  by  the  facts  of  the 
collateral  occasion.  It  is  precisely  this  right  of  the  opponent  which  constitutes 
the  administrative  danger  of  collateral  issues  which  forms  an  important  reason 
for  rejecting  evidence  of  this  nature. 

Where  the  relation  of  cause  and  effect  is  to  be  established,  it  may  not  only 
be  shown  that  in  any  combination  of  circumstances  where  the  cause  is  present 
and  permitted  to  operate  freely,  the  result  followed,  but  also  that  when  the 
cause  is  absent,  however  the  circumstances  may  otherwise  be  similar,  the  result 
does  not  appear/'50  Thus,  where  a  person  is  sued  for  negligently  shelling  pop- 
corn, cracking  the  kernels  and  so  making  the  pop-corn  valueless,  the  plaintiff 

mav  show  that  preciselv  similar  pop-corn  was  shelled,  under  the  same  condi- 

'  ft™ 

tions,  by  other  persons  without  injuring  it.36 

§  1006.  Inferences    Other    Than    Similar    Occurrences.37 — Whether    a    given 

33.  Rowlands    v     Elgin.    66    Til.    App.    60  36.  Chase  v.  Blodgett  Milling  Co.,  Ill  Wia. 
(189o).                                               ,  655,  87  N   W.  826   (1901). 

34.  Shea   v    Glendale   Elastic  Fabrics   Co..  37.  4    Chamberlayne,    Evidence,    §§    3183- 
162  Mass.  4f>3,  38  X.  E.  1123   (1894)  3186. 

35.  A  very  v   Burrall,  118  Mich.  672,  77  N. 
W.  272  (1898) 


§  1007 


RELEVANCY  OF  SIMILARITY. 


758 


cause,  of  any  nature,  was  capable  of  producing  a  given  result  may  be  satisfac- 
torily established  by  proof  that  it  actually  accomplished  it  on  another  occa- 
sion.38 In  this  most  conclusive  way,  it  may  be  shown  that  a  certain  machine 
is  capable  of  doing  a  given  piece  of  work,39  or  indicting  a  certain  injury.40 

In  much  the  same  way  the  fact  of  change  can  usually  best  be  shown  by  com- 
paring conditions,  states,  or  events  with  later  ones.  Thus,  where  it  is  consid- 
ered desirable  to  show  the  development  of  real  property  41  in  order  to  establish 
the  possibly  essential  fact  of  a  change  in  its  value,42  no  more  appropriate  means 
for  doing  so  may  suggest  itself  than  to  show  the  different  condition  of  the  prop- 
erty on  two  or  more  occasions.  In  establishing  the  fact  of  change,  it  will  be 
necessary  to  prove  the  existence  at  different  times  of  distinct  states  or  conditions. 

In  like  manner,  the  general  properties  of  matter,  e.g.,  that  a  certain  sub- 
stance, used  as  a  beverage,  is  poisonous,43  may  be  established  by  proof  of  what 
happened  on  other  occasions  than  that  in  question. 

§  1007.  Other  Uniformities  Than  That  of  Physical  Nature;  Regularity  of  Law 
or  Business;  Habits.44 — Certain  uniformities  other  than  that  of  natural  law 
seem  to  possess  an  invariability  of  action  superior  to  that  observable  in  moral 
conduct  as  controlled  by  volition.  The  regularity  in  the  operation  of  municipal 
law,45  of  the  routine  operations  of  a  well-established  and  systematized  busi- 
ness,46 a  settled  physical  or  mental  habit 47  present,  for  example,  to  a  judicial 


38.  Lane  v.  Moore,  151  Mass.  87,  23  N.  E. 
828,  21  Am.  St.  Rep.  430  (1890). 

39.  Baber  v.  Rickart,  52  Ind.  594    (1876)  ; 
Waters'    Patent    Heating   Co.   v.    Smith,    120 
Mass.  444    (1876) 

40.  Leather  v.  Blackwell's  Durham  Tobacco 
Co..   144  N.  C.  330,  57  S.  E.    11,  9  L    K.  A. 
(X   S.)   349  n.   (1907). 

41.  Vigel  v.  Naylor,  24  How.   (U.  S.)   208, 
16  L.  ed    646  (I860). 

42    Drucker  v    Manhattan  Ry.,   106  N.  Y. 
157.  12  N.  E.  568,  60  Am    Hep   437   H887). 

43.  Com.  v    Kennedy.   170  Mass    IS,  48  N. 
E.  770    (1897);    State  v.  Thompson,   132  Mo. 
301,  34  S.  W.  31    (1895) 

44.  4    Chamberlayne,    Evidence,    §§    3187- 
3206 

45.  Rowe  v.  Brenton,  8  B.  &  C.   737,  3  M. 
4  R.  361,  15  E.  C.  t.  363   (182S). 

46.  Morisette  v    Canadian  Pat-   Ry    Co.,  76 
Vt    267,  56  Atl.   1102    (1004)     (si/e  of  switch 
lanterns).     Sheldon  v.  Hudson   R    R    Co.,   14 
N    Y    218.  221.  67  Am.  Dec    155    (1856).  per 
Denio,  C.  J.,  wherein  it  was  said  :      "  The  busi- 
ness of  running  the  trains  on  a  railroad  sup- 
poses a  unity  of  management  and   a  general 
similarity  in  the  fashion  of  the  engines  and 
the  character  of  the  operation.     I  think,  there- 


fore, it  is  competent  prima  facie  evidence,  for 
a  person  seeking  to  establish  the  responsi- 
bility of  the  company  for  a  burning  upon  the 
track  of  the  road,  after  refuting  every  other 
probable  cause  of  the  fire,  to  show  that,  about 
the  time  when  it  happened,  the  trains  which 
the  company  was  running  past  the  location 
of  the  fire  were  so  managed  in  respect  to  the 
furnaces  as  to  be  likely  to  set  on  fire  objects 
not  more  remote  than  the  property  burned." 

"  "Where  there  is  no  proof"  of  what  particu- 
lar engine  set  the  fire,  and  the  circumstantial 
evidence  is  such  that  there  is  a  strong  prob- 
ability that  some  engine  on  the  road  did  set 
the  fire,  then  it  may  be  proper  to  show  that 
the  engines  on  that  road  generally  emitted 
sparks,  or  that  some  one  or  more  of  them  did 
so  at  other  times  and  places "  Gibbons  v. 
Wisconsin  Valley  R.  Co.,  58  Wis.  335,  340, 
17  N  W.  132  (1883).  per  Orton,  J. 

Habit  is  not  primary  evidence  and  is  not 
admissible  where  direct  evidence  is  available. 
Zucker  v.  Whitridge,  205  N  Y  50.  98  N  E. 
209  (1912K  But  where  this  cannot  be  had 
evidence  of  habit  may  be  used  to  show  con- 
duct on  a  certain  occasion.  Stollery  v.  Cicero 
etc.,  Ry  Co.,  243  111  290,  90  N.  E.  709 
(1910)  ;  Devine  v.  National  Safe  Deposit  Co., 


759  HABITS.  §  1007 

tribunal,  is  the  basis  of  a  logical  inference  that  things  did  happen  or  even  that 
they  will  happen  on  a  particular  principal  occasion  in  the  same  manner  that 
they  occurred  on  a  previous  one  which  experience  shows  to  be  superior  in  pro- 
bative force  to  the  simple  inference  that  a  person  has  done  a  thing  at  one  time 
because  he  did  it  at  another.  The  first  and  second  of  these  uniformities  inter- 
mediate, as  it  were,  between  that  of  nature  and  the  one  based  on  the  regularity 
of  moral  conduct  apparently  relate  more  nearly  to  the  happening  of  physical 
occurrence  than  to  the  conduct  of  individuals  ;  the  third  —  the  force  of  habit  — 
seems  more  nearly  to  concern  the  doings  of  individuals  than  the  regular  occur- 
rence of  physical  phenomena.  It  would  follow  that  the  two  former  are  more 
closely  analogous  to  the  uniformity  of  natural  law  than  is  the  third ;  while  habit 
would  appear  more  closely  affiliated  with  moral  uniformity  and,  in  fact,  to  pre- 
sent itself  as  a  culmination  and  intensification  of  the  uniformity  of  moral  con- 
duct. The  distinction,  however,  is,  in  truth,  more  apparent  than  real ;  for  even 
where  these  several  intermediate  uniformities  control  or  otherwise  affect  the 
conduct  of  individuals,  the^y  all  operate  by  minimizing  or  removing  the  influ- 
ence of  volition.  In  so  doing,  they  remove  conduct  from  the  varying  and  di- 
vergent operation  of  the  will,  placing  it  among  the  automatic,  intuitive,  instinc- 
tive reflexes  of  bodily  action  —  analogous  to  the  unconscious  or  subconscious 
activities  of  the  vital  functions  of  the  human  body.  Such  automatic  reflexes, 
as  is  elsewhere  seen  in  connection  with  the  probative  force  of  regular  spon- 
taneous action,  are,  in  reality,  part  of  the  uniformity  of  nature,  and  thereby 
acquire,  even  for  the  inference  of  conduct,  much  of  the  probative  force  inherent 
in  the  regularity  of  natural  law. 

145  111.  App.  322   (1908);  Chicago  v   Doolan,          Habits  of  Animals. —  The  jury  may  infer 

99   III.   App.   143    (1900);   McNulta  v.  Lock-  from  the  well-known  characteristics  of  tur- 

ridge,  137  111    270,  72  N.  E.  452,  31  Am.  St.  keys    that    they    would    fly   off   the   railroad 

Rep   362,  affirmed,  141  U.  S.  327.  12  Sup.  Ct.  track   if   the   whistle   had  been   sounded   and 

11,  35  L.  ed.  196  .(1891).     In  criminal  cases  therefore    that    as   they    were    run    over   the 

evidence  of  habit  may  be  used  to  show  a  bal-  whistle  was  not  sounded.     Lewis  v.   Norfolk 

ance  of  probability.     Cox  v.  Com.,   140  Ky.  S.  R.  Co.,  163  X.  C.  33,  79  S.  E.  283,  47  L. 

65,  130  S.  W.  819    (1910).  R.  A.  (N.  S.)   1125  (1913). 


. 

CHAPTER  XLVII. 

RELEVANCY  OF  SIMILARITY;  MORAL  UNIFORMITY. 

Res  inter  alios,  1008. 
Administrative  requirements,  1009. 
relevancy  of  similarity,,  1010. 
proof  of  mental  state,  1011. 
knowledge,  1012. 
malice,  1013. 
other  mental  states,  1014. 
motive,  1015. 
urnfy  of  design,  1016. 
relevancy  of  dissimilarity,  1017. 

psychological  induction,  1018. 
Inferences  other  than  conduct,  1019. 
constituent  facts,  1020. 
contradiction,  1021. 
corroboration  or  explanation,  1022. 

identification  of  doer  of  act;  essential  conditions  for  conduct,  1023. 
probative  facts,  1024. 

§  1008.  Res  Inter  Alios.1 —  Testimony  of  collateral  occurrences,  based  solely 
upon  mental  uniformity,  is  frequently  excluded  as  res  inter  alios  or  as  res  inter 
alios  acta.  The  phrase  res  inter  alios  is  an  abbreviation  of  the  maxim,  res 
inter  alios  acta  alteri  nocere  non  debet,  meaning  a  transaction  between  two  par- 
ties ought  not  to  operate  to  the  disadvantage  of  a  third. 

The  general  rule  relative  to  the  principle  now  under  consideration  may  be 
thus  stated :  The  question  being  whether  A.  did  or  omitted  to  do  a  certain  act, 
no  evidence  is  admissible  of  other  similar  acts  or  omissions  which,  by  their 
general  resemblance,  thereto,  suggest  a  probable  inference  that  A.  did  or 
omitted  to  do  the  act  in  question,  unless  the  two  transactions  are  connected  in 
some  particular  manner. 

The  principle  involved  is  well  illustrated  in  negligence  cases.  Thus,  in  an 
action  founded  upon  an  allegation  of  negligence,  no  inference  that  a  certain 
act  was  reasonable  or  that  a  certain  person  acted  in  a  reasonably  careful  man- 
ner can  be  drawn  from  the  fact  that  others  in  the  same  business  have  or  have 
not  done  such  act  or  are  or  are  not  in  the  habit  of  acting  in  such  a  manner.2 

1.  4    Chamberlayne,     Evidence,    §§     3207-      458    (1912).     Proof  of  similar  accidents,  see 
3212.  note,  Bender  ed.,  127  N.  Y.  46.     Against  ele- 

2.  Harmon  v.  Peoria  Ry.  Co.,  160  111.  App.      vated   railway   in   adjoining  owner's   action, 

780 


7l>l  ME-XTAI.  STATE.  §§  1009-1011 

A  familiar  doctrine  of  criminal  law  of  great  importance  to  the  accused  an- 
nounces that  one  cannot  be  proved  to  have  been  guilty  of  a  particular  crime  by 
the  simple  showing  that  he  has  committed  a  similar  one  at  about  the  same  time.^ 

§  1009.  Administrative  Requirements.4 —  The  evidence  of  collateral  facts  bo- 
iiig  secondary  in  nature  must  be  shown  to  be  reasonably  necessary  to  proof  of 
the  proponent's  case  and  to  be  relevant. 

§  1010.  [Administrative  Requirements] ;   Relevancy   of  Similarity.5 —  In  the 

case  of  a  collateral  act  by  A.  whose  relevancy  is  that  of  the  uniformity  of  mind, 
the  proving  power  is  that  of  similarity.  There  is  seen  to  be  such  a  uniformity 
in  the  mental  reactions  of  a  given  individual,  say  A.,  to  a  particular  mental 
stimulus  that  the  fact  of  his  action  on  a  particular  occasion  in  a  given  way,  a 
certain  motive  being  operative,  furnishes  evidence  that,  the  same  stimulus 
being  present,  he  acted  in  a  like  \vay  on  another  occasion.  The  collateral  occur- 
rence operates,  in  many  cases,  to  corroborate  the  existence  of  the  connection 
claimed  by  the  prosecution  to  exist  between  a  particular  stimulus  and  the  actual 
conduct  of  the  accused. 

§  1011.  [Relevancy  of  Similarity];  Proof  of  Mental  State.6 — A  constituent 
element  of  many  offenses  is  a  mental  state  of  the  alleged  perpetrator  of  the 
crime.  The  crime,  for  example,  charged  against  A.  may  be  that  of  receiving 
stolen  goods,  knowing  them  to  have  been  stolen.  In  such  a  case,  A' s  knowledge 
of  the  stolen  character  of  the  goods  is  a  necessary  fact  to  be  shown  by  the  prose- 
cution. Or  a  given  act  may  be  charged  to  have  been  done  by  him  with  intent 
to  defraud.  Thus,  with  regard  to  a  great  many  offenses,  some  particular  psy- 
chological state  on  the  part  of  the  alleged  offender  is  a  constituent  element  of 
the  crime.  In  the  absence  of  admissions  by  the  person  charged  with  the  com- 
mission of  an  act,  his  mental  state  in  connection  with  the  doing  of  such  act  can 
rarely  be  shown  except  by  the  manifestations  of  such  state  to  prove  the  exist- 
ence of  which,  the  use  of  collateral  acts  may  be  of  great  value,  and,  in  many 
cases,  the  only  mode  of  proof. 

see  note.  Bender  ed.,  106  X.  Y.  165.     Propri-  3.  People  v.  Geyer,  196  X.  Y.  364,  90  X.  E. 

ety  of  showing  other  like  accidents  in  an  in-  48   ( 1909 ) .     Right  to  prove  another  crime  or 

jury  case,  see  note,  Bender  ed.,  32  X.  Y.  342.  offense,  see  note.  Bender,  ed.,  93   X.  Y.  470, 

So  similar  acts  of  negligence  by  a   party  at  104  X.  Y.  59S.  138  X.  Y.  601,  143  X.  Y.  374. 

another  time  are  not  admissible  to  show  his  147  X.  Y.  105,  175  X.  Y.  197,  177  X.  Y.  434. 

negligence    in    a    particular    case.     Oklahoma  461.     Of  other  crimes  in  a  criminal  case,  see 

R.    Co.    v.    Thomas     (Okla.),    164    Pac.    120.  note.  Bender's  ed.,   108  X.  Y.  303.     Adrnissi- 

L.  l\.  A.  1917  E  405    (1917).     Casting  water  bility   of   other    fraudulent    transactions,    see 

by  one  engine  at  a  stated  time  and  upon  a  note.  Bender's  ed..   149  X.  Y.  40. 

stated  place  cannot  be  proved  by  showing  that  4.  4     Chamberlayne,     Evidence.     §§     3213- 

other  engines  in  some  manner  cast  water  at  3215. 

different  times  near  and  by  possibility  upon  5.  4  Chamberlayne,   Evidence,   §   3216. 

that  place  although  it  is  claimed  that   this  6.  4    Chamberlayne,    Evidence,     §§     3217- 

shows  a  custom.     Eisentrager  v.  Great  Xorth-  3227. 
em  R.  Co.,  178  Iowa  713,  160  X.  W.  311,  L. 
It.  A.  1917  B  1245   (1916). 


1012 


RELEVANCY  OF  SIMILAKITY;  MOEAL. 


702 


That  a  separate  indictment  has  been  found  for  the  commission  of  the  col- 
lateral act 7  or  that  the  accused  has  been  tried  and  acquitted  s  furnishes  no 
ground  for  rejecting  evidence  which  it  supplies  as  to  the  existence  of  the  mental 
state.  So  the  running  of  the  Statute  of  Limitations  should  not  affect  its  ad- 
missibility  but  the  general  rule  is  otherwise.9  The  evidence  should  not  be  too 
remote  in  time  lu  or  show  such  slight  causal  connection  as  to  render  it  of  no 
logical  bearing.11 

The  intent  with  which  a  party  does  an  act  may  often  be  shown  by  evidence 
of  other  acts  of  a  similar  character  done  by  the  same  person.12  Intent  to  de- 
fraud for  example  may  be  shown  by  evidence  that  the  perpetrator  of  the  act 
had  committed  similar  frauds  of  a  like  nature  13  and  so  in  cases  of  homicide  14 
or  robbery  10  other  similar  crimes  may  be  snown  to  prove  intent.  The  same 
is  true  of  crimes  against  property  1(>  or  sexual  offences,17  or  other  crimes.18 

§  1012.  [Relevancy  of  Similarity] ;  Knowledge.19 —  In  many  actions  for  negli- 
gence where  it  is  important  to  show  that  the  defendant  had  knowledge  this  may 
be  shown  by  evidence  of  other  similar  happenings  as  in  case  of  actions  for 


7.  McCartney  v.  State,  3  Ind.  353,  354,  56 
Am.  Dec.  510   (1852). 

8.  State  v.  Leonard,  72  Vt.  102,  47  Atl.  395 
(1900). 

9.  State  v.  Guest,   100  N.  C.  410,  6  S.  E. 
253     (1888);     State    v.    Potter,    52    Vt.    33 
(1879);   Wolfson  v.  U.  S.,  101   Fed.  430,  41 
C.  C.  A.  422    (1900);   writ  of  certiorari  de- 
nied,  180  U.  S.  637,  21   Sup.  Ct.  919,  45  L. 
ed.  710   (1901). 

10.  Bannon  v.  P.  Bannon  Sewer  Pipe  Co., 
136  Ky.  556,  119  S.  W.  1170  (1909)  ;  Horn  v. 
State    (Tex.  Cr.  App.   1912),   150  S.  W.  948; 
Deitz  v.  State,  149  Wis.  462,  136  N.  W.  166 


11.  People  v.  Peckens,  153  N.  Y.  576,  592, 
47  N.  E.  883   (1897). 

12.  People  v.  Zito,  237  111.  434,  86  N.  E. 
1041    (1909). 

13.  State  v.  Flanagan,  83  N.  J.  L.  379,  84 
Atl.  1046   (1912). 

14.  Com.   v.   Birriolo,   197  Pa.   St.  371,  47 
Atl.  355   (1900). 

15.  State  v.  Ward    (Iowa  1902),  91  N.  W. 
898.     But  see,   State  v.   Spray,   174  Mo.  569, 
74  S.  W.  846   (1903). 

16.  Com.  v.  Sawtelle,  141  Mass.  140,  5  N. 
E.  312   (1886). 

17.  State  v.  Johnson,  133  Iowa  38,  110  N. 
W.  170   (1907):  Evers  v.  State,  84  Neb.  708. 
121  X.  W.  1005,  19  Am.  &  Eng.  Ann.  Cas.  06 
(1909)  :  Williams  v.  State,  8  Humph.  (Tenn.) 
585  (1848).     See  also,  State  v.  Leak,  156  N. 
C.  643,  72  S.  E.  567   (1911). 


18.  State  v.  Johns,  140  Iowa  125,  118  N.  W. 
295    (1908).     In   a   prosecution    for    robbery 
the  State   cannot   introduce  evidence  of  an- 
other similar  robbery   committed   by  the  de- 
fendant the  previous  night  in  the  absence  of 
evidence  of  conspiracy  or  common  plan.     Mil- 
ler  v.    State    (Okla.    Crim.    Rep.),    163    Pac. 
131,   L.    R.    A.    117    D    383    (1917).     Impor- 
tance   of    intent,    see    note,    Bender    ed.,    125 
X.  Y.  341.     Right  to  testify  to  intention,  see 
note,  Bender'e  ed.,   129  N.  Y.  61.     Of  notice 
to  employer  of  habits  of  employee,  see  note, 
Bender  ed.,  183  N.  Y.  23. 

A  prosecutrix  in  a  rape  case  may  always 
be  impeached  by  showing  acts  of  intercourse 
with  the  defendant  voluntarily  but  there  is. 
much  conflict  as  to  whether  acts  of  inter- 
course with  others  may  be  shown.  There 
seems  to  be  much  reason  in  the  view  that  such 
evidence  should  be  received  as  it  seems  much 
more  likely  that  a  woman  of  that  class  would 
submit  to  the  defendant  than  a  pure  woman. 
Lee  v.  State,  132  Tenn.  655,  179  S.  W.  145. 
L.  R.  A.  1916  B  963  (1915).  In  an  action 
for  an  assault  which  the  defendant  denies 
the  plaintiff  may  show  that  the  defendant 
was  intoxicated  at  the  time  and  was  in  a  bel- 
ligerent frame  of  mind  and  that  he  had  as- 
saulted other  persons  immediately  before  and 
after  the  assault  committed  on  the  plaintiff. 
Harshbarger  v.  Murphy.  22  Idaho  261,  125 
Pac  180.  44  L.  R.  A.  (X.  S.)  1173  (1912). 

19.  4    Chamberlayne,    Evidence,    §§    3228- 
32.38. 


763 


MALICE. 


i§  1013,1014 


personal  injury  from  machinery  20  or  for  the  defective  condition  of  a  street21 
or  from  the  incompetence  of  a  fellow  servant  "  or  from  injury  caused  by 
vicious  animals.23  So  in  criminal  cases  where  guilty  knowledge  must  be 
proved  similar  acts  of  the  defendant  may  be  shown  as  in  case  of  embezzle- 
ment 24  or  false  pretences  25  or  forgery,26  illegal  sale  of  liquor,27  larceny,28 
receiving  stolen  goods  29  or  other  felonies.30 

§  1013.  [Relevancy  of  Similarity];  Malice.31 — The  existence  of  malice  in 
connection  with  a  particular  transaction  may  be  shown  by  its  manifestation  on 
other  probative  occasions.32  In  other  words,  similar  acts  done  at  other  times, 
not  too  remote  to  be  probative,  may  be  introduced  in  evidence  for  the  purpose  of 
showing  that  a  given  act  was  done  maliciously.33  To  be  evidentiary  in  such  a 
connection  the  collateral  occasion  must  be  so  connected  with  the  principal  trans- 
action by  proximity  of  time  and  similarity  or  dissimilarity  of  conditions  as  to 
render  it  probable  that  the  same  mental  state  was  operative  on  both  occa- 
sions. 

§  1014.  [Relevancy  of  Similarity];  Other  Mental  States.34 — Other  mental 
states  may  be  proved  by  evidence  of  their  manifestations  on  other  occasions  as 


20.  Framke  v.  Hanly,  215  111.  216,  74  N.  E. 
130   (1905)  ;  Donovan  v.  Chase-Shawmut  Co., 
201  Mass.  357,  87  N.  E.  580   (1909)  ;  McCar- 
ragher  v.  Rogers,  44  Hun   (X.  Y.)   628,  8  St. 
Rep.  847    (1887);  Turner  v.  Goldsboro  Lum- 
ber Co.,  119  X.  C.  387,  26  S.  E.  23   (1896). 

21.  City   of  Goshen   v.   England,    119    Ind. 
368,  21  X.  E.  977,  5  L.  R.  A.  253  (1889). 

22.  Maine. —  Robbins  v.  Lewiston,  etc.,  Ry., 
107  Me.  42,  77  Atl.  537,  30  L.  R.  A.   (X.  S.) 
109n,  24  Am.  &  Eng.  Ann.  Cas.  92   (1910). 

23.  Arnold  v.  Xorton,  25  Conn.  92   (1856)  ; 
Kittredge  v.  Elliott,  16  X.  H.  77   (1844). 

24.  Morse  v.  Com.,  129  Ky.  294,  33  Ky.  L. 
Rep.  831,  111  S.  W.  714  (1908).     In  a  prose- 
cution for  embezzlement  the  state  may  prove 
other  transactions  of  the  defendant  not  com- 
plained of   to   show  that  the   defendant   had 
kept   his   books   in   a   manner   different   from 
what  he  had  said.     This  is  competent  as  show- 
ing a  system  or  scheme  adopted  by  the  de- 
fendant  for   obtaining   money    from   his   em- 
ployer.    State  v.  Downer,  68  Wash.  672.  123 
Pac.  1073,  43  L.  R.  A.   (X.  S.)  774   (1912). 

25.  State  v.  Briggs,  74  Kan.  377.  86  Pac. 
447,  7  L.  R.  A.   (X.  S.)   278,  10  Am.  &  Eng. 
Ann.  Cas.  904    (1906).     In  a  prosecution  for 
fraudulently  uttering  a  check  on  an  account 
containing  insufficient  funds  evidence  that  the 
defendant  uttered  other  checks  on  the  same 
account   at  the   same  time  is   admissible  to 


show  guilty  knowledge.  People  v.  Bercovitz, 
163  Cal.  636,  126  Pac.  479,  43  L.  R.  A.  (N. 
S)  667  (1912);  State  v.  Foxton,  166  Iowa 
181,  147  X.  W.  347,  52  L.  R.  A.  (X.  S.)  919 
(1914). 

26.  People  v.  Dolan,  186  X.  Y.  4,  78  X.  E. 
569,    116  Am.  St.  Rep.   521,   9  Am.  &   Eng. 
Ann.  Cas.  453  (1906). 

27.  Gray  v.  State,  44  Tex.  Cr.  App.  470,  72 
S.  W.  169  ( 1903 ) .     In  a  prosecution  for  keep- 
ing  intoxicating   liquors   with   intent   to  sell 
them  evidence  is  admissible  of  the  seizure  of  a 
large  quantity  of  liquor  and  of  the  account 
books  of  the  defendant  showing  the  purchase 
of  quantities  of  liquor.     State  v.  Barr,  94  Vt. 
38,    77    Atl.    914,   48    L.    R.   A.    (X.   S.)    302 
(1910). 

28.  Martin   v.   State.   10  Ga.   App.   795,  74 
S.  E.  304    (1912):  Territory  v.  Caldwell,  14 
X.  M.  535.  98  Pac.   167    (1908). 

29.  People  v.  Doty,  175  X.  Y.  164.  67  X.  E 
303   (1903). 

30.  People  v.  Hagenow,  236  111.  514,  86  X. 
E.  370   (1908). 

31.  4  Chamberlayne,  Evidence,  §  3239 

32.  Com.  v.  Holmes.   157  Mass.  233,  32  N. 
E.  6.  34  Am.  St.  Rep.  270   (1892). 

33.  Henry  v.  People.  198  111.  162.  65  N.  E. 
120    (1902). 

34.  4    Chamberlayne,    Evidence,    §§    3240, 
3241. 


§§  1015,1016  RELEVANCY  OF  SIMILARITY;  MOEAL.  764 

in  case  of  claim  to  property,35  good  faith 36  or  its  absence  37  or  emotions  such, 
as  purpose,38  consent,39  waiver  40  and  the  like. 

§  1015.  [Relevancy  of  Similarity] ;  Motive.41 —  While  motive  is  not  so  much, 
in  most  cases,  a  constituent  as  a  probative  fact, —  it  usually  being  immaterial 
with  what  motive  a  crime  was  committed  where  it  is  established  by  the  use  of 
direct  evidence, —  it  may  be  conveniently  observed,  in  this  connection,  that  the 
motive  with  which  an  act  was  done  may  be  established  by  evidence  of  similar 
transactions  at  about  the  same  time,  by  which  the  practical  operation  and  influ- 
ence of  the  motive  was  manifested.42 

§  1016.  [Relevancy  of  Similarity] ;  Unity  of  Design.43 —  Evidence  as  to  what 
was  done  on  other  occasions  may  be  used  with  especial  probative  force  either  to 
show  that  particular  conduct  took  place  on  another  occasion,  to  identify  the 
person  by  whom  the  act  was  done,  or  to  establish  the  mental  state  under  which 
he  did  it,  when  the  several  occasions  have  such  a  relation,  in  their  similar  or 
dissimilar  features,  as  to  show  that  they  all  were,  or  might  properly  be  regarded 
as  being,  manifestations  of  a  single  purpose. 

Several  persons  may  unite  in  the  effort  to  accomplish  a  given  result ;  —  each 
doing  on  a  separate  occasion  some  act  assumed  to  be  calculated  to  advance  the 
end  in  view  relying  upon  the  co-operation  of  his  associates  to  supply  the  other 
elements  which  may  be  relied  upon  for  the  attainment  of  a  successful  result. 
This  instance  of  unity  of  design  may  properly  be  regarded  as  the  relevancy  of 
a  common  purpose.44  On  the  other  hand,  a  single  individual  may  resolve  upon 
the  attainment  of  a  definite  object,  innocent  or  criminal,  supposed  to  be  profit- 
able or  meritorious.  Various  acts,  on  a  number  of  occasions,  may  be  done  by 
such  a  person,  in  the  effort  to  reach  the  object  in  view  and  adapted  for  that 

end ;  —  either  by  procuring  means  for  its  attainment,  securing  an  opportunity 

ES 

35.  Irvin  v.  Patchin,  164  Pa.  St.  51,  30  Atl.       324    (1875)  ;   Missouri,  etc.,  R.  Co.  of  Texas 
436,  35  W.  X.  C.  341    (1894).  v.  Mayfield,  29  Tex.  Civ.  App.  477,  68  S.  W. 

36.  Rice  v.  Bancroft,  11  Pick.   (Mass.)   469       807    (1902). 

(1831)  ;  Hunt,  T.  &  Co.  v.  Reynolds,  9  R.  I.  41.  4  Chamberlayne,  Evidence,  §  3242. 

303    (1869):    Walker   v.   Town   of   Westfield,  42.  People  v    Morse,   196  N.  Y..306.  89  N. 

39  Vt.  246   (1867)  ;  Lackarie  v.  Franklin,  12  E.  816   (1909).     Motive,  see  note,  Bender,  ed., 

Peters  (U.S.)   151,  9  L.  ed.  1035   (1838).  146   X.   Y.   270.     Proof   of   motive,   see   note, 

37.  Rex    v.   Win'  worth,    4   Car.    &    P.    441  Bender,  ed.,   136  N.  Y.  457. 

(1830).  43.  4    Chamberlayne.    Evidence,    §§    3243- 

38.  Com.   v.    Robinson.    146   Mass.   571,    16       3245. 

N.   E.  452    (1888).     Declarations  of  the  tes-  44.  Xeff  v.  Landis,  110  Pa.  St.  204,  1  Atl. 

tator  made  after  the  execution  of  a  will  are  177   (1885). 

admissible  to  show  that  he  tore  a  will  with  Proof  of  conspiracy  is  not  essential  to  the 

intent  to  revoke  it.     Burton  v.  Wylde,  261  111.  admissibility  of  the  evidence  itself.     Cox  Shoe 

397,  103  X.  E.  976.  Mfp.  Co.  v.  Adams,   105  Iowa  402,  75  X.   \V. 

39.  Montgomery  v.  Crossthwait,  90  Ala  553,  316    (1898).     Reasonable  proof  of  a  conspir- 
8  So.  498,  24  Am.  St.  Rep.  832,  12  L.  R.  A.  acy   may,   however,    be   demanded    before   the 
140   (1890).  agency    of    one    alleped    conspirator    may    be 

40.  Lambert   v.    Schmalz,    118    Cal.    33.    50  properly  held  to  affect  those  claimed  to  be  his 
Pac.  13    (1897);   Andre  v.  Hardin,  32  Mich.  associates. 


765 


DISSIMILARITY. 


§  1017 


for  the  use  of  these  means,  removing  obstacles  which  may  threaten  the  success 
of  the  enterprise ;  or,  in  case  of  a  criminal  offense,  by  eliminating  circumstances 
likely  to  assist  in  the  detection  and  punishment  of  the  principal  act  to  which 
these  successive  steps  are  subservient.  These  and  similar  occurrences  may  be 

said  to  be  fairly  typical  of  the  influence  of  a  continuous  purpose.45 

" 

§  1017.  Relevancy  of  Dissimilarity.46 —  The  probative  use  of  other  occasions 
of  the  conduct  of  a  given  individual  presenting  dissimilar  features  to  those  ex- 
hibited on  the  occasion  under  investigation  may  be  said  to  proceed,  as  it  were, 


45.  Com.  v.  Robinson,  146  Mass.  571,  578, 
16  X.  E.  452  (1888). 

Common  Purpose  Shown. —  On  the  trial  of 
a  defendant  for  unnatural  acts  with  women 
evidence  is  admissible  that  he  had  committed 
other  similar  acts  of  the  same  nature.  Frank 
v.  State,  141  Ga.  243,  SO  S.  E.  1016.  In  a 
prosecution  for  any  of  the  sexual  crimes  ex- 
cept rape  evidence  of  other  acts  of  the  same 
nature  either  before  or  as  late  as  fourteen 
months  after  the  crime  charged  may  be  put 
in  evidence.  The  law  takes  notice  of  the  fact 
that  there  is  an  extreme  probability  of  the 
continuance  of  such  relations  and  such  evi- 
dence is  admissible  to  show  the  sexual  rela- 
tions of  the  parties  covering  the  date  of  the 
indictment.  Rape  is  excepted  a&  it  would  be 
an  extraordinary  case  where  one  would  com- 
mit rape  a  second  time  upon  the  same  person. 
State  v.  Reineke,  89  Ohio  St.  390,  106  N.  E. 
52,  L.  R.  A.  1915  A  138  (1914).  In  a  prose- 
cution for  taking  a  bribe  evidence  is  admis- 
sible that  the  defendant  had  taken  other 
bribes  recently  and  had  solicited  from  others 
systematically  as  this  evidence  shows  his  guilt 
according  to  logic  and  reason.  So  other 
bribes  after  the  crime  charged  may  be  shown. 
People  v.  Duffy,  212  X.  Y.  57.  105  X.  E.  839, 
L.  R.  A.  1915  B  103  (1914).  In  a  proceeding 
against  a  commissioner  of  deeds  for  making 
a  false  certificate  where  his  knowledge  of  the 
falsity  of  the  certificate  is  in  issue  the  state 
to  show  intention  may  prove  similar  acts 
done  under  similar  circumstances  at  about 
the  same  time  with  intent  to  defraud  the 
same  person  by  the  same  means  The  com- 
mon method,  purpose  and  victim  formed  the 
connecting  links  which  strung  together  the 
various  efforts  to  defraud  pursuant  to  a  com- 
mon scheme.  People  v.  Marrin,  205  X.  Y. 
275.  98  X.  E.  474.  43  L.  R.  A.  (X.  S.)  754 
(1912).  In  a  prosecution  for  rape  evidence 
is  admissible  of  other  acts  of  intercourse  be- 
tween the  parties  when  near  enough  in  point 


of  time  to  show  the  existence  of  amorous  in- 
clinations at  the  time  charged.  They  do  not 
suddenly  arise  and  are  not  likely  to  suddenly 
disappear  and  hence  it  is  that  their  indul- 
gence prior  to  or  subsequent  to  the  specific 
occasion  charged  may  tend  to  increase  and 
strengthen  the  proof  as  to  that  occasion. 
This  appears  when  they  are  so  related  by 
brevity  of  time  or  continuity  or  otherwise  as 
to  justify  the  inference  that  the  mutual  dis- 
position of  the  parties  existed  at  the  time 
of  it.  People  v.  Thompson,  212  X.  Y.  249, 
106  X.  E.  78,  L.  R.  A.  1915  D  236  (1914). 

Common  Purpose  Lacking. —  In  a  prosecu- 
tion for  rape  evidence  of  another  rape  com- 
mitted on  a  companion  of  the  prosecutrix  im- 
mediately after  the  crime  on  the  prosecutrix 
is  not  admissible  as  mere  proximity  in  time  is 
not  enough  to  establish  causal  connection  with 
the  crime  in  question.  People  v.  Gibson,  255 
111.  302,  99  N.  E.  599,  48  L.  R.  A.  (X.  S.)  236 
(1912).  In  a  complaint  for  arson  evidence 
is  not  admissible  that  other  fires  were  set  by 
the  defendant  where  each  fire  was  a  separate 
transaction  as  in  this  country  evidence  of 
other  crimes  is  not  admissible.  People  v. 
Grutz,  212  X.  Y.  72,  105  X.  E.  843,  L.  R.  A. 
1915  D  229  (1914).  Where  one  is  charged 
with  setting  fire  to  his  yacht  evidence  is  not- 
competent  that  another  yacht  and  an  auto- 
mobile belonging  to  him  had  been  previously 
over-insured  and  burned  as  this  is  simply 
evidence  of  other  crimes  unconnected  with  the 
one  in  question.  Fish  v.  United  States.  132 
C.  C.  A.  56.  215  Fed.  544,  L.  R.  A.  1915  A 
S09  (1914).  In  a  prosecution  for  sodomy 
evidence  is  not  admissible  of  other  sodomies 
committed  by  the  defendant  at  other  times 
and  places  and  under  wholly  disconnected  cir- 
cumstances with  other  parties.  Such  testi- 
mony would  have  the  tendency  to  put  in  is=ue 
these  other  acts  and  cloud  the  issue  and  con- 
fuse the  jury.  State  v.  Start,  65  Or.  178, 
132  Pac.  512,  46  L.  R.  A.  (X.  S. )  266  <1913). 


§  1018  RELEVANCY  OF  SIMILARITY;  MORAL.  766 

by  means  of  what  may  be  called  moral  or  psychological  induction.  The  infer- 
ence that  A.  did  a  particular  act  is  not,  as  a  rule,  directly  created  by  evidence 
that,  on  another  occasion  when  the  alleged  stimulus  was  present,  he  acted  in  a 
different  manner;  or  that,  on  another  occasion  when  a  different  stimulus  was 
present,  he  acted  in  the  same  manner  as  upon  the  particular  occasion  in  ques- 
tion. .Xo  additional  probative  force  is,  in  most  cases,  directly  added  to  the 
proof  that  A.  did  the  particular  act  in  question  by  the  operation  of  any  rele- 
vancy of  dissimilarity.  The  probative  force  of  this  particular  method  of  using 
evidence  of  what  was  done  upon  other  occasions  by  a  particular  individual  is 
usually  applied  at  another  stage,  i.e.,  at  that  of  corroboration  of  an  affirmative 
case  already  established  by  other  evidence. 

In  any  particular  case  the  res  gestae  may  be  equivocal  as  to  the  mental  state 
of  the  person  in  question ;  certainly,  not  clear  beyond  a  reasonable  doubt.  The 
obvious  and  frequently  the  sole  administrative  expedient  is  to  broaden  the  tield 
of  inquiry  beyond  the  res  gestae  of  the  particular  case  by  introducing  in  evi- 
dence proof  of  what  happened  upon  other  occasions  so  related  to  the  facts  under 
investigation  that  by  the  elimination,  or  as  it  were,  the  cancellation  of  innrma- 
tive  hypotheses  or  explanations  the  steady  line  or  channel  of  a  single  sufficient 
operative  cause  may  be  shown  to  run  through  the  entire  series  of  connected 
transactions  and  stand  revealed  as  the  real  mental  state  of  the  person  in  question 
throughout  them  all. 

§  1018.  [Relevancy  of  Dissimilarity];  Psychological  Induction.47 — Closely 
analogous  in  operation  and  effect  to  the  method  of  natural  induction,48  by  which 
the  operation  of  a  particular  cause  is  established  as  efficient  in  producing  given 
results  upon  physical  phenomena  by  the  use  of  other  occasions  similar  or  dis- 
similar in  their  antecedents,  is  the  employment  of  what  may  be  called  psycho- 
logical induction;  —  by  which  the  presence  and  operation,  both  in  kind  and 
degree  of  intensity,  of  a  particular  mental  state  on  a  given  occasion  may  be 
established  by  showing  other  times  at  which  it  was  present,  so  adjusted  to  the 
principal  occurrence  as  to  prove  a  similar  operative  force  in  both  or  to  elimi- 
nate counter  infirmative  suggestions,  or  by  both  methods  in  combination. 

To  state  the  rule  in  a  slightly  different  form,  in  case  of  a  forensic  necessity 
for  proving  the  existence  of  a  given  mental  state  on  a  particular  occasion,  ad- 
ministrative indulgence  may  take  the  form  of  permitting  proof  of  other  trans- 
actions in  which  the  mental  state  was  exhibited ;  provided  such  a  connection 
shall  appear  to  exist  between  the  two  transactions,  the  collateral  and  the  present, 
as  to  render  it  probable  that  the  same  mental  state  was  present  on  both  occasions. 
The  occurrence  must,  however,  relate  to  the  acts  of  the  person  in  question  and 
not  to  those  of  third  persons. 

46.  4  Chamberlayne,  Evidence,  §  3246.  v.  Potter,  62   App.  Div.    (X.   Y.)    521,  71   X. 

47.  4  Chamberlayne,  Evidence,  §  3247.  Y.  Suppl.  134  (1910)  ;  Patterson  v.  Smith,  73 

48.  Birmingham  R.,  etc.,  Co.  v.  Franscomb,  Vt.  360,  50  Atl.  1106  (1901). 
124  Ala.  621,  27  So.  508   (1899)  ;  Millspaugh 


767  INFEBEXCES  OTHEK  THAX  CONDUCT.  §§   1019-1022 

§  1019.  Inferences  Other  Than  Conduct.49 —  It  is  to  be  observed  that  the  infer- 
ence which  is  excluded  by  the  principle  under  consideration,  except  in  the 
event  of  an  adequate  forensic  necessity  and  some  special  ground  of  relevancy 
other  than  mere  similarity,  is  simply  that  a  person  did  a  particular  act  on  one 
occasion  because  he  did  a  similar  one  at  another.  In  other  words,  that  which 
is  excluded  is  inference  of  conduct  based  upon  moral  uniformity  in  response 
to  particular  stimuli. 

§  1020.  [Inferences    Other    Than    Conduct] ;    Constituent   Facts.50 —  The    res 

gestae  of  one  transaction  may  properly,  and  even  at  times  necessarily,  involve 
proof  of  acts  of  conduct  which  might  well  form  the  res  gestae  of  another. 
Nothing  in  the  principle  under  investigation  forbids  such  a  use  of  the  acts  done 
on  another  occasion,  provided  their  evidentiary  employment  as  part  of  the 
res  gestae  of  the  pending  action  or  proceeding  is  reasonable ;  a  fortiori,  if  it  is 
necessary. 

The  right  of  a  litigant  to  prove  the  res  gestae  of  his  case  is  a  fundamental 
one  and  will  be  protected  by  the  court  in  any  civil  case,  although  making  such 
proof  may  involve  the  establishment  of  the  facts  of  other  transactions. 

For  example  in  actions  for  negligence  it  may  be  necessary  to  show  other 
facts  as  where  knowledge  is  in  issue.51  Even  in  criminal  cases,  the  prosecu- 
tion is  not  debarred  from  the  orderly  a.nd  necessary  proof  of  its  case  against 
the  prisoner  by  the  fact  that  to  do  so  involves  proving  that  the  accused  com- 
mitted another  offense  at  another  time.52 

§  1021.  [Inferences  Other  Than  Conduct] ;  Contradiction.53 —  Evidence  of 
similar  occurrences  may  be  received  regardless  of  the  principle  in  question 
when  not  offered  as  probative  on  the  issue  of  conduct  but  as  a  purely  delibera- 
tive fact  relevant  for  some  independent  purpose.  For  example,  the  evidence 
may  be  used  to  contradict  the  evidence  of  a  witness.54 

§  1022.  [Inferences  Other  Than  Conduct] ;  Corroboration  or  Explanation.55— 
In  much  the  same  way,  the  evidence  of  what  occurred  on  a  similar  occasion 
may  be  properly  received  to  corroborate  a  witness.56  Evidence  of  another 

49.  4  Chamberlayne,  Evidence,  §  3248.  and  Weber,  etc.,  44  Utah  10,  137  Pac.  635. 

50.  4    Chamberlayne,    Evidence,    §§    3249-  52.  People  v.  Furlong,   140  App.  Div.   179. 
3252.  125  N.  Y.  Suppl.  164;  affirmed,  201  X.  Y.  511, 

51.  Phila.  &  Reading  R.   Co.  v.  Hendrick-  94  X.  E.  1096  (1911. 

eon,  80  Pa.  St   182,  21  Am.  Rep.  97  (1875).  53.  4  Chamberlayne,  Evidence,  §  3253. 

Subsequent    Repairs.— In    an    action    for  54.  People  v.  Doody,  172  X.  Y.  165.  64  X.  E. 

damage  to  land  from  an  irrigation  canal  the  807   (1902)  :  Com.  v.  House,  36  Pa.  Super  Ct. 

plaintiff  may  offer  evidence  of  subsequent  re-  363   (1908)  :  State  v.  Kenny,  77  S.  C.  236.  57 

pairs  which  had  stopped  the  damage  as  this  S.  E.  859  (1907). 

evidence  bears   both   on   the   question   of   the  55.  4     Chamberlayne,    Evidence,    §§     3254, 

probable  cause  of  the  damage  and  on  the  pos-  3255. 

sibility   of  preventing  it;    although   evidence  56.  People   v.    Rogers,    192   X.    Y.    331,    85 

of  subsequent  repairs  is  not  ordinarily  admis-  X.    E.    135,    15   Am.   &   Eng.    Ann.    Cas.    177 

eible    in    negligence   cases.     Jensen   v.    Davis  (1908). 


§   1023  KKI.KVAXCY  OF  SIMIJ.AIUTY;  MOKAL.  768 

criminal  offense  committed  by  the  accused  lias,  however,  been  rejected,  although 
offered  for  this  purpose.57  This  would  seem  to  carry  the  rule  of  exclusion  to 
an  unnecessary  length,  although  very  possibly  justified  in  a  particular  case  on 
the  ground  that  its  admission  was  calculated  to  prejudice  the  accused  to  an 
extent  disproportionate  to  the  gain  to  the  cause  of  justice,  in  much  the  same 
way,  evidence  of  a  different  transaction  may  be  given  in  order  to  afford  a  rea- 
sonable explanation  of  the  res  gestae  or  probative  facts  under  consideration  in 
the  pending  case.58  For  example,  it  may  be  shown  in  this  way  who  is  the 

i    •  •  l&v     •  kijntoiWvJ 

principal  in  a  given  transaction.09 

§  1023.  [Inferences  Other  Than  Conduct];  Identification  of  Doer  of  Act;  Es- 
sential Conditions  for  Conduct.00. —  Prominent  among  the  inferences  which  may 
properly  be  drawn  from  the  conduct  of  the  given  individual  on  other  occasions 
are  those  which  arise  in  connection  with  what  may  be  called  necessary  condi- 
tions of  action  upon  the  occasion  in  question  and  which  serve  to  connect  a  given 
individual  with  the  res  gestae  of  that  transaction,  identifying  him  as  the  actor 
of  these  res  gestae. 

Among  such  essential  conditions  of  conduct  are  those  of  motive,  means  and 
opportunity.  The  actor  must,  in  most  cases,  have  had  a  motive  for  doing  that 
which  he  has  done.  He  must,  in  all  cases,  have  had  the  means  by  which  it  was 
done,  and  the  opportunity  for  using  these  means  for  achieving  the  result  at- 
tained. Any  other  conditions  of  time,  space  and  causation  which  the  res  gestae 
or  probative  facts  show  must  be  met  by  the  actual  doer  of  the  act  and  proof  of 
them,  even  as  shown  on  other  occasions,  is  often  a  necessary  method  of  circum- 
stantial proof. 

When  the  doing  of  the  act  must  be  established  by  circumstantial  evidence  it 
must  be  shown  that  the  alleged  actor  was  possessed  of  the  particular  powers 
the  possession  of  which  is  implied  by  the  doing  of  the  act  which  may  be  es- 
tablished by  his  conduct  on  other  occasions.61  So  knowledge  may  be  shown  by 
other  acts  of  the  person  showing  knowledge,62  and  opportunity  G:{  and  the  neces- 

sarv  presence  of  the  alleged  actor  or  his  necessary  skill  64  mav  be  proved  by 

•  i  ,•     i  i          /.  i  • 

evidence  of  other  conduct  of  his. 

' 

57.  People    v.    Schweitzer,    23    Mich.    301       there   are   no   eye-witnesses   of   the   accident. 
(1871).  Zucker  v.  Whitridge,  205  X.  Y.  50,  98  X.  E. 

58.  Bigcraft    v.    People.    30    Colo.    208,    70       200,  41  L.  R.  A.   (X.  S.)   683   (1912). 

Pac.  417   (1902)  ;  Mitchell  v.  People,  24  Colo.  59.  Woodward  v.  Buchanan,  39  L.  J.  Q.  B. 

532,   52    Pac.   671    (1898).     Evidence   of   the  71,  L.  R.  5  Q.  B.  285,  22  L.  T.  123   (1872). 

custom   of  the  decedent   in   crossing   railroad  60.  4    Chamberlayne,    Evidence,    §§    3256- 

tracks  is  not  competent  as  to  his  negligence  3261. 

on    a   particular    occasion    where   there   were  61.  Blalock  v.  Randall.  76  Til.  224    (1875). 

eye-witnesses  of  the  accident.     The  court  re-  62.  Du  Bois  v.  People,  200  Til.   157,  65  N. 

marks  that  the  relevancy  of  the  evidence  does  E.  658.  03  Am.  St.  Rep.  183   (1002). 

not  outweigh  the  inconvenience  of  a  multitude  63.  State   v.    Eitzsimon,    IS    R.    I.    236,    27 

of  collateral  issues  not  suggested  by  the  plead-  Atl.  446,  49  Am.  St.  Rep.  766   (1893) . 

ings  the  trial  of  which  would  take  time,  tend  64.  Com.    v.    Choate,    105    Mass.    451,    457 

to   create   confusion   and   do   little   good.     Tn  (1870). 

some  courts  such  evidence  is  received  when 


769  INFEBEXCES  OTHER  THAN  CONDUCT.  §  1024 

Where  the  question  is  whether  an  animal  could  do  a  particular  act,  as 
whether  it  could  attain  a  certain  speed  it  may  be  shown  to  have  done  so  on 
another  occasion.65 

§  1024.  [Inferences  Other  Than  Conduct] ;  Probative  Facts.66 —  Certain  facts 
such  as  those  of  continuance  in  a  mental  feeling  or  change  in  the  same  can  best 
be  established  by  collateral  occurrences  showing  the  mental  condition  at  differ- 
ent times.  In  like  manner  that  certain  action  is  habitual,  accurate,  or  the  like, 
calls,  almost  of  necessity,  for  proof  of  appropriate  action  on  other  occasions. 
With  regard  to  these,  the  collateral  transaction  may  properly  be  regarded  a 
probative  fact. 

Habit  is  best  proved  by  specific  instances  of  conduct.  Obviously,  if  the 
habit  of  a  person  for  accuracy  in  a  certain  line  of  work,  for  example,  were  in 
issue,  proof  that,  on  numerous  occasions,  he  had  done  such  work  with  absolute 
accuracy  would  be  relevant  and  admissible.67 

So  where  it  becomes  necessary  to  prove  a  change  in  condition  or  conduct 
evidence  of  similar  occurrences  may  be  relevant  and  admissible.68 

65.  Whitney  v.   Leominster,    136  Mass.  25      360    (1898);    State   v.   Shaw,   58   N.    EL    73 
(1883).  (1878)  ;  Davis  v.  Lyon,  91  X.  C.  444   (1884). 

66.  4    Chamberlayne,    Evidence,    §§    3262-          68.  Tilton  v.  Miller,  66  Pa.  St.  388,  5  Am. 
3264.  Rep.  373  (1870). 

67.  Ferner  v.  State,  151  Ind.  247,  51  N.  E. 


CHAPTER  XLVIII. 

MORAL  UNIFORMITY;  CHARACTER, 

Necessity,  1026. 

Inference  of  conduct  from  character,  1025. 
Relevancy,  1027. 
Rule  stated;  civil  cases,  1028. 
criminal  cases,  1029. 
quasi-criminal  cases,  1030. 
administratiie  details,  1031. 

physical  or  mental  impairment,  1032. 
trait  must  be  relevant,  1033. 

Inferences  other  than  conduct;  independent  relevancy,  1034. 
character  a  constituent  fact,  1035. 
character  a  probative  fact,  1036. 
Proof  of  character;  reputation  is  character,  1037. 

what  witnesses  are  qualified ;  adequate  knowledge,  1038. 
knowledge  of  the  community,  1039. 
remoteness  in  time,  1040. 

absence  of  controlling  motive  to  misrepresent,  1041. 
animals,  1042. 

probative  force ;  reputation,  1043. 
proof  other  than  by  reputation,  1044. 
particular  facts,  1045. 
animals;  illustrative  occurrences,  1046. 
Weight,  1047. 

§  1025.  Inference  of  Conduct  from  Character.1 —  Character  is  to  be  distin- 
guished from  reputation  with  which  it  is  sometimes  confused,  even  in  judicial 
opinions.  Reputation,  or  the  opinion  concerning  .a  person  which  is  entertained 
by  those  who  are  so  situated  as  to  be  able  to  form  an  opinion  with  more  or  less 
intelligence,  may  extend  to  a  variety  of  subjects.  For  example,  it  may  be  a 
reputation  for  musical  ability,  physical  strength,  wealth  and  the  like.  How- 
ever, reputation  is  more  commonly  considered  as  having  reference  to  the  dis- 
position or  character  of  a  person.  Thus  it  is  said  of  a  person  that  he  bears  a 
good  reputation,  meaning  that  the  person  in  question  has  a  reputation  for 
being  a  person  of  good  character.  For  the  purposes  of  the  present  chapter, 

1.  4     Chamberlayne,    Evidence.    §§     3265-3267. 

770 


771  XECESSITY.  §§1026,1027 

character  may  be  defined  generally  as  that  combination  of  traits  which  goes  to 
make  up  the  moral  nature  of  an  individual  and  serves  to  distinguish  him  from 
all  others. 

In  most  civil  cases  as  in  actions  for  goods  sold  and  delivered,  for  money 
loaned,  or  services  rendered  the  character  of  a  party  to  an  action  can  ordinarily 
throw  no  light  on  the  question  of  the  rights  of  the  parties.  The  reason  com- 
monly assigned  for  excluding  evidence  of  character  is  that  it  is  irrelevant,  but 
there  is  another  important  administrative  reason  that  such  evidence  would 
make  trials  long  and  tedious. 

§  1026.  Necessity.2 —  Character  whenever  evidentiary  at  all  is  primary  evi- 
dence and  no  necessity  need  be  shown  to  warrant  its  introduction.  However, 
as  actual  character  is  difficult  if  not  impossible  to  show  in  evidence,3  the  law 
has  resorted  to  the  use  of  reputation  to  prove  character.  Eeputation  is  a 
species  of  hearsay  evidence,  admitted  under  an  exception  to  the  hearsay  rule. 
It  is  in  connection  with  the  use  of  reputation  that  necessity  must  appear  as  is 
the  case  with  all  classes  of  hearsay.  The  necessity  for  resorting  to  reputation 
lies  partly  in  the  difficulty  in  obtaining  other  proof  and  partly  because  of 
legal  precedent  which  excludes  the  knowledge  and  opinion  of  individuals  con- 
cerning the  person  whose  character  is  under  consideration  and  evidence  of 
his  conduct,  and  this  often  when  such  evidence  might  be  of  great  value. 

Often  especially  in  criminal  cases  there  is  another  meaning  of  necessity 
as  where  there  is  an  entire  absence  of  direct  evidence  of  the  facts  alleged  as  in 
case  of  homicide  to  prove  who  was  the  aggressor. 

§  1027.  Relevancy.4 —  The  relevancy  of  character  to  prove  conduct  has  a 
variety  of  sources.  Among  the  more  important  of  these,  tending  to  prove 
good  conduct,  may  be  mentioned  the  force  of  habit,  religious  sanction  and  self 
respect.  That  a  person  of  good  character  has  a  decided  tendency  to  conduct 
himself  consistently  therewith  merely  from  force  of  habit  cannot  be  doubted, 
but  probably  self  respect  and  religious  sanction,  either  acting  singly  or  together, 
may  be  regarded  as  more  powerful  influences.  In  most  criminal  cases,  the 
character  of  the  accused  is  clearly  relevant  on  the  question  whether  or  not  he 
committed  the  crime  of  which  he  is  charged.  A  case  can  scarcely  be  con- 
ceived in  which  this  would  not  be  true,  where  the  offense  alleged  involves  a 
moral  quality.  The  habitua}  regard  or  disregard  for  right  doing  as  evidenced 
by  a  person's  character  cannot  fail  to  have  its  effect  upon  hi?  conduct  whenever 
he  is  confronted  with  the  necessity  for  acting  in  one  direction  or  the  other. 
This  fact,  well  known  to  all  thinking  persons,  gives  to  character  its  probative 
force  or  relevancy  by  way  of  raising  an  inference  as  to  conduct. 

So  character  may  be  useful  in  cases  where  it  is  necessary  to  prove  criminal 

2.  4     Chamberlayne,     Evidence,     §§     3268-          4.  4     Chamberlayne,     Evidence,    §§    3270- 
3269.  3272. 

3.  Ex  parte  Vandiveer.  4  Cal.  App.  650,  654, 
88  Pac.  993   (1907),  per  Chipman,  P.  J. 


§§  1028,1029  MORAL  UNIFORMITY;  CHARACTER.  772 

intent  as  in  homicide  or  in  prosecutions  for  having  counterfeit  money  with 
intent  to  utter  it. 

§  1028.  Rule  Stated;  Civil  Cases.5 —  It  may  be  laid  down  as  the  modern  gen- 
eral rule  that,  in  civil  actions,  evidence  of  the  character  of  a  party  is  not  ad- 
missible for  the  purpose  of  raising  an  inference  as  to  his  conduct.6 

It  should  be  observed  that  only  as  furnishing  a  basis  for  an  inference  of 
conduct  is  evidence  of  character  excluded.  Where  character  is  relevant  for 
any  other  purpose,  it  is  admissible  in  all  cases.  For  example,  the  character 
of  the  female  for  chastity  has  been  received  in  actions  for  breach  of  promise 
of  marriage.7  Likewise,  proof  of  a  person's  character  may  be  relevant  and 
admissible  for  the  purpose  of  mitigating  damages.  Thus,  where  the  plaintiff 
seeks  damages  because  of  an  injury  to  his  reputation,  the  defendant  may  show 
that  the  plaintiff's  character  and  reputation  at  the  time  of  the  alleged  injury 
was  such  that  he  suffered  slight  damage  or  no  damage  at  all.8 

§  1029.  [Kule  Stated] ;  Criminal  Cases.9 —  In  criminal  cases,  it  is  a  well  es- 
tablished general  rule  that  the  prosecution  may  not  introduce  evidence  of  the 
character  of  the  accused  for  the  purpose  of  raising  an  inference  that  the  latter 
is  guilty  of  the  crime  for  which  he  is  being  tried.10  The  rule  is  one  of  ad- 
ministrative policy.  The  source  of  it  may  be  found  in  the  principle  of  the  law 
of  English  speaking  people,  which  obtains  in  criminal  actions,  that  the  ac- 
cused is  presumed  to  be  innocent  until  he  is  proven  guilty.11  It  would  clearly 
be  difficult  to  maintain  this  presumption  of  innocence  in  the  minds  of  the 
jurors  if  testimony  were  given  of  a  long  list  of  crimes  alleged  to  have  been 
committed  by  the  accused. 

But  where  the  accused  takes  the  stand  as  a  witness  he  waives  his  rights  in 
this  regard  and  his  character  may  be  impeached  as  that  of  any  other  witness.12 
So  evidence  of  the  bad  character  of  a  third  person  may  be  admitted  whenever 
it  is  relevant  as  in  some  cases  of  homicide  13  where  the  character  of  the  de- 

5.  4     Chamberlayne,     Evidence,     §§     3273,  13.  "  On  all  doubtful  questions  as  to  who 
3274.  was  the  aggressor,  the  violent  or  blood-thirsty 

6.  Colburn  v.  Marble,  196  Mass.  376,  82  N.  character  of  the  deceased,  if  such  be  his  char- 
E.  28,  124  Am.  St.  Rep.  559   (1907).  acter,  enters  into  the  account:     More  prompt 

7.  Von    Storch    v.    Griffin,    77    Pa.    St.    504  and  decisive  measures  of  defense  are  justified 
(1875).  when   the  assailant  is  of  known  violent  and 

8.  Wood  v.  Custer,  86  Kan.  387,   121  Pac.  blood-thirsty    nature."     De   Arman   v.    State, 
355,  38  L.  R,  A.    (N.  S.)   1176    (1912).  71  Ala.  351,  361    (1882),  per  Stone,  .T.     The 

9.  4     Chamberlayne,    Evidence,     §§     3275-  defendant  in  a  homicide  case  may  show  the 
3279.     Of   character   of   accused   in   criminal  general  reputation  of  the  deceased  as  to  being 
cases,  see  note,  Bender  ed.,  182  X.  Y.  67,  83.  a  lawless  and  violent  character  but  not  spe- 

10.  State  v.  Hull,  18  R.  I.  207,  26  Atl.  191,  cific  acts  on  the  part  of  the  deceased.     Terri- 
20  L.  R.  A.  609    (1893).  tory  v.  Lobato.   17  X.  M.  666,   134  Pac.  222, 

11.  See,    People    v.    Fitzgerald,    156    X.    Y.  L.  R.  A.  1917  A   1226   (1913).     In  an  action 
253,  260,  50  X.  E.  846  (1898).  for  assault  and  battery  where  the  defence  is 

12.  Halloway    v.    People,    181    111.    544,    54  self-defence,  the  defendant  may  show  that  the 
N.  E.  1030  (1899).  plaintiff's  reputation  for  turbulence  and  vio- 


773  QUASI  CRIMINAL.  §  1030 

ceased  may  be  shown  or  in  prosecution  for  rape  where  Consent  may  appear 
through  the  bad  character  of  the  prosecutrix  for  chastity.14 

The  defendant  in  a  criminal  action  may  in  all  cases  give  evidence  of  his 
good  character.15  Character  being  always  relevant  in  a  criminal  case,  it  fol- 
lows that  it  is  admissible  whenever  it  is  not  excluded  by  some  reasons  of  ad- 
ministrative policy.  In  regard  to  the  good  character  of  the  accused,  no  reason 
exists  for  exclusion  on  the  ground  of  policy,  the  situation  being  quite  different 
from  that  which  is  confronted  when  bad  character  is  sought  to  be  shown. 
When  the  accused  has  introduced  evidence  of  his  good  character,  the  protection 
thrown  around  him  by  the  rule  excluding  evidence  of  bad  character  is  neces- 
sarily withdrawn  and  the  state  may  thereupon  give  such  evidence  of  his  bad 
character  as  may  be  obtainable.16 

The  inference  of  guilt  or  innocence  of  the  accused  is  deliberative  only  and 
only  a  slight  degree- of  probative  force  can  be  accredited  to  it.  Where  the 
prosecution  may  introduce  evidence  of  the  bad  character  of  the  accused  it  is  a 
very  valuable  opportunity  harmful  to  the  accused. 

§  1030.  [Rule  Stated] ;  Quasi  Criminal  Cases.17 —  Certain  actions  which  are 
conducted  as  civil  actions  and  are  commonly  spoken  of  as  being  such  are  in 
reality  on  the  border  line  between  civil  and  criminal  actions.  Features  be- 
longing to  both  classes  of  actions  are  to  be  found  in  them.  Frequently  the 
state  of  facts  out  of  which  the  cause  for  the  civil  action  arises  makes  the  de- 
fendant liable  to  criminal  prosecution  also.  It  would  seem,  upon  principle, 
that  evidence  of  the  character  of  a  party  should  be  received  in  the  majority 
of  such  cases  as  readily  as  in  criminal  cases,  for  the  same  reason  and  subject  to 
the  same  rules.  The  courts,  however,  have  commonly  held  that  evidence  of 
character  of  a  party  is  not  admissible  in  such  cases. 

This  rule  prevails  in  actions  for  penalties  18  or  where  criminal  charges  are 
made  in  civil  suits  19  as  in  actions  for  bastardy  20  or  conversion21  or  injuries 

lence  is  bad,  even  though  there  has  been  no  Bender  ed.,  179  N.  Y.  316,  326.     Character  of 
evidence  that  it  was  good  where  the  defendant  accused  as  defense  in  homicide,  see  note,  Ben- 
knows  this  reputation  as  this  may  well  jus-  der  ed..  189  X.  Y.  409.  422. 
tify  him   in   thinking  that  he   is  in   danger  16.  Com.   v.   Maddocks,   207   Mass.    152.   93 
Davenport  v.  Silvey,  265  Mo.  54.3,  178  S.  W.  N.  E.  253  (1910). 
168,  L.  R.  A.  1916  A  1240  (1915).  Veracity  distinguished  from  Peacefulness. 

14.  People  v    Gray,  251   111.  431,  96  X.  E.  —The  fact   that   a   defendant   in   a  criminal 
268    (1911).  case  offers  evidence  of  his  good  character  for 

15.  People  v.  Hinksman.  192  X.  Y.  421,  85  truth  and  veracity  does   not  deprive  him  of 
X    E.  676    (1908).     Previous  good  character  his  presumption  of  good  character  for  peace 
is   not   a   defence   to   a   charge   of   crime   but  and   quietness   as  the   two   are   to   be   di«tin- 
may  have  weight  where  the  evidence  is  con-  guished.     Durham  v   State.  128  Tenn.  636.  163 
flicting.     State  v.  McGuire.  84  Conn.  470.  SO  S.  W.  4-47.  51  L.  E.  A.    (X.  S.)    180   (1913). 
Atl.   761,  38  L.  E.  A.    (X.  S.)    1045    (1911).  17.  4    Chamberlayne,    Evidence,    §§    3280- 
Propriety   of  good   character   of   accused,   see  32S5 

note.  Bender  ed..  43  X.  Y.  6.     Of  good  char-  18.  Hall  v.  Brown.  30  Conn.  551    (1862). 

acter  in  criminal  cases,  see  note.  Bender  ed.,  19.  Contra.  Hein  v.  Foldrige.  78  Minn.  468, 

33  X.  Y.  611.     Of  good  character,  see  note,      81  N.  W.  522   (1900)    (seduction).     Evidence 


|§  1031,1032 


MORAL  UNIFORMITY;  CHARACTER. 


774 


to  the  person  as  assault  and  battery  22  though  it  is  often  admitted  in  actions 
for  slander.23  In  cases  where  immoral  conduct  not  amounting  to  a  crime  is 
charged  the  evidence  is  commonly  excluded.24 

§  1031.  [Rule  Stated] ;  Administrative  Details.25 —  The  judge  presiding  at 
the  trial,  in  his  administrative  capacity,  must  avoid  an  improper  presentation 
of  character  evidence  to  the  jury  by  observing  certain  well-settled  rules  limit- 
ing the  use  of  such  evidence  and  keeping  it  within  the  logical  bounds  of  rel- 
evancy. The  proof  of  character  received  must  be  with  reference  to  a  trait 
which  logically  has  some  probative  weight  in  assisting  to  reach  a  conclusion 
on  the  question  at  issue.  In  other  words,  the  trait  of  character  proved  must 
be  the  same  as  that  involved  in  the  commission  of  the  offense  charged.  None 
but  qualified  witnesses  must  be  allowed  to  testify.  A  witness  must  have  been 
in  a  position  to  learn  the  reputation  of  the  person  in  question  during  the  period 
covered  by  the  inquiry,  which  must  be  limited  to  a  time  prior  to  the  date  when 
the  alleged  offense  involved  in  the  action  may  reasonably  be  regarded  as  affect- 
ing such  reputation. 

§  1032.  [Rule  Stated] ;  Physical  or  Mental  Impairment.26 —  A  condition  of 
physical  or  mental  impairment  is  to  be  distinguished  from  a  trait  of  character. 


of  a  reputation  for  good  character  is  not  ad- 
missible according  to  the  weight  of  the  au- 
thorities even  to  rebut  a  charge  of  fraud. 
Great  Western  Life  Ins.  Co.  v.  Sparks,  38 
Okla.  395,  132  Pac.  1092,  49  L.  R.  A.  (N.  S.) 
724  11913)  ;  Wilson  Lumber  Co.  v.  Atkinson, 
162  N.  C.  298,  78  S.  E.  212,  49  L.  R.  A.  (N. 
S.)  733  (1913).  Evidence  of  character  for 
honesty  may  be  admitted  in  defence  of  a  civil 
action  quasi  criminal  in  nature  for  selling 
bad  meat  as  this  involves  moral  turpitude. 
De  Weese  v.  People,  61  Colo.  140,  156  Pac. 
594,  L.  R  A.  1916  E  326  (1916),  citing  text. 
In  disbarment  proceedings  though  civil  in  na- 
ture the  defendant  may  put  in  evidence  of  his 
good  character  Lenihan  v.  Commonwealth, 
165  Ky.  93,  170  S.  W.  948,  L  R.  A.  1917  B. 
1132  11915).  Where  in  an  action  on  an  in- 
surance policy  t  •  deceased  is  charged  with 
fraud  evidence  of  his  reputation  for  integrity 
and  truth  is  admissible  as  he  is  dead  and  the 
jury  cannot  pass  upon  his  credibility  by  ob- 
serving his  appearance  on  the  stand.  Ras- 
musson  v.  North  Coast  Fire  Ins.  Co.,  83 
Wash.  569,  145  Pac  610,  L.  R.  A.  1915  C  1179 
(1915). 

20.  Low  v.  Mitchell.  18  Me.  372   (1841). 

21.  Wright  v.  McKee.  37  Vt.  161   (864). 

22.  Givens  v.  Bradley,  3  Bibb.    (Ky.)    192, 
6  Am.  Dec.  646    (1813);   Noonan  v.  Luther, 


20t)  N.  Y.  105,  99  N.  E.  178  (1912)  ;  Smith- 
wick  v.  Ward,  52  N.  C.  (7  Jones'  L.)  64,  75 
Am.  Dec.  453  (1859).  See  also,  Denton  v. 
Ordway,  108  Iowa  487,  79  N.  W.  271  (1899). 

23.  Sheehey  v.   Cokley,   43    Iowa    183,   186, 
22     Am.     Rep.     236      (1876),     per     Day,     J. 
Contra:     Hallowell    v.    Guntle,    82    Ind.    554 
(1882)  ;  Stone  v.  Varney,  7  Mete.  86   (1843)  ; 
Com.  v.  Snelling,   15  Pick.  337    (1834);   Fin- 
ley  v.   Widner,   112  Mich.  230,  70  X.  W.  433 
(1897).     In  an  action  for  libel  where  there 
is  a  plea  of  justification,  it  is  error  to  allow 
the  plaintiff,  in  his  case-in-chief,  to  introduce 
evidence  of  his  good  character.     Blakeslee  v. 
Hughes,  50  Ohio  St.  490,  34  X.  E.  793   (1893). 

24.  Lamagdelaine   v.   Tremblay,    162    Mass. 
339,  341,  39  X.   E.  38    (1894).  '  A  defendant 
in  an  indictment  for  adultery  may  show  that 
the  woman    with   whom   he   is   charged   with 
committing   adultery   was   a   woman   of  good 
character    and    reputation.     Glover   v.    State, 
15  Ga.  App.  44.  82  S.  E.  602.     In  a  complaint 
for  non-support  the  wife's  adultery  cannot  be 
proved  by  evidence  of  the  wife's  bad  reputa- 
tion   for    chastity    coupled    with    evidence   of 
frequent  opportunity   for  adultery.     Land   v. 
State,  71  Fla.  270,  71  So.  279,  L.  R.  A.  1916 
E  760   (1916). 

25.  4  Chamberlayne,  Evidence.  §  3286. 

26.  4  Chamberlayne,  Evidence,  §  3287. 


775 


TKAIT  RELEVANT. 


1033 


The  former  is  more  easy  of  proof  by  direct  evidence  than  the  latter,  making 
recourse  to  composite  hearsay  unnecessary.  Consequently,  it  has  become  a 
well  established  principle  that  general  reputation  in  the  neighborhood  is  not 
admissible  to  prove  what  the  physical  or  mental  condition  of  a  person  was  at 
a  particular  time.  Thus  the  state  of  a  person's  bodily  health27  or  his  mental 
condition  with  respect  to  sanity  28  cannot  be  proved  by  evidence  of  reputation  as 
to  those  matters. 

§  1033.  [Kule  Stated] ;  Trait  must  be  Relevant.29 —  It  is  a  rule  well  enforced 
by  reason  and  sanctioned  by  authority  that  character  evidence,  introduced  for 
the  purpose  of  laying  a  basis  for  an  inference  as  to  conduct,  must  be  limited  to 
proof  of  the  existence  of  the  particular  trait  or  group  of  traits  involved  in  the 
doing  of  an  act  like  the  one  which  is  the  subject  of  the  investigation  in  which 
the  evidence  is  offered.30  This  is  for  fhe  obvious  reason  that  proof  of  the 
possession  or  non-possession,  by  the  person  whose  conduct  is  sought  to  be 
proved,  of  some  other  trait  does  not  tend  to  enlighten  a  reasoning  mind  as  to 
the  probabilities  of  the  conduct  of  that  person.31  Such  proof  is  irrelevant. 
For  instance,  that  a  man  possesses  a  good  character  for  loyalty  to  his  sovereign 
is  of  no  avail  to  him  when  on  trial  for  murder.32 

Following  this  rule  in  prosecutions  for  adultery  the  character  of  the  person 
for  chastity  is  admissible,33  in  arson  cases  his  character  for  honesty,34  in  as- 
sault his  character  as  a  peacable  citizen,35  while  in  burglary  he  may  not  show 
that  his  work  as  a  former  policeman  had  been  satisfactory.36  In  a  prosecution 
for  carrying  concealed  weapons  his  character  as  a  peacable  citizen  is  relevant,37 

31.  "  It  has  never  been  the  practice  in  this 
State  to  permit  a  witness,  in  support  of  his 
character  for  veracity,  to  prove  that  he  has 
been  honest  in  his  dealings,  or  moral  and  free 
from  vice.     It  does  not  follow  that  because  a 
man  deals  honestly,  and  is  otherwise  moral, 
he  is  therefore  truthful.     Nor  is  it  believed 
that   because   a   man   is   not   fair,   or   is   im- 
moral, he  is  therefore  untruthful  "     Tedens  v. 
Schumers,   112  111.  263,  267    (1884),  per  Mr. 
Justice  Walker. 

32.  Trial  of  Capt.  Wm.  Kidd,  14  How.  St. 
Tr.  123,  146   (1701). 

33.  State  v.  Donovan,  61   Iowa  278,   16  N. 
W.  130  (1883)  ;  Com.  v.  Gray,  129  Mass.  474, 
37  Am.  Rep.  378   (1880). 

34.  See  State  v.  Emery,  59  Vt.  84,  7  Atl. 
129   (1886). 

Schleagel,  50  Kan.  325,  31  Pac. 
State    v.    Dalton,    27    Mo.    13 


27.  Mosser  v.   Mosser's   Ex'r,   32   Ala.   551 
(1858)  ;  Home  Circle  Society  v.  Shelton  (Tex. 
Civ.  App    1!)04),  81  S.  W.  84. 

28.  Biddle  v.  Jenkins,  61   Neb.  400,  85  N. 
W.  392  ( 1901 ) .     "  Public  opinion  declared  Co- 
pernicus  a    fool,   when    he   promulgated    the 
planetary  system ;  and  Columbus  a  fool  when 
he    announced    the    sublime    idea    of    a    New 
World.     Hazardous   in  the  extreme  would  it 
be  to  the  rights  of  the  parties  under  the  law, 

.if  they  were  allowed  to  depend  upon  the  opin- 
ion of  a  neighborhood  of  the  sanity  of  indi- 
viduals." Foster  v.  Brooks,  6  Ga.  287,  292 
(1849),  per  Nisbet,  J. 

29.  4    Chamberlayne,    Evidence.   §§    3288: 
3306. 

30.  ''  In  all  criminal  prosecutions,  whether 
for  a  felony,  or  for  a  misdemeanor,  the  pre- 
vious good  character  of  the  accused,  having 
reference  and  analogy  to  the  subject   of  the 
prosecution,  is  competent  and  relevant  as  orig- 
inal testimony."     Kilgore  v.  State.  74  Ala.  1, 
7    (18«3),  per  Brickell,  C.  J.     To  same  effect 
see   United   States  v.   Wilson,    176   Fed.   806 
(1910). 


35.  State  v 
1105     (1893) 
(1858). 

36.  State  v.  Coates,  22  Wash.  601,  61  Pac. 
720    (1900). 

37.  Lann  v.  State.  25  Tex.   App.  495,  8  S. 
W.  «50,  8  Am.  St.  Rep   445  (1888). 


§§  1034,1035  MORAL  UNIFORMITY;  CHARACTER.  776 

and  in  actions  for  fraud  his  character  for  honesty,38  and  in  homicide  cases  his 
peaceableness,39  while  in  illegal  liquor  cases  he  may  not  show  his  reputation 
as  a  peaceful  citizen.40 

In  cases  of  attacks  on  women  the  chastity  of  the  female  is  often  relevant  41 
and  in  infanticide  cases  the  humane  disposition  of  the  accused,42  in  larceny  his 
reputation  for  honesty,43  while  in  libel  cases  the  reputation  of  the  accused 
for  veracity  is  not  relevant.44  In  perjury  cases  reputation  for  truth  is  ad- 
missible 45  and  in  rape  cases  his  reputation  for  chastity,  46  in  prosecutions  for 
receiving  stolen  goods  his  reputation  for  honesty,47  and  in  seduction  his  repu- 
tation for  virtue.48  *  . 

§  1034.  Inferences  Other  Than  Conduct;  Independent  Relevancy.49 — The  re- 
strictions and  limitations  to  the  use  of  character  evidence  which  have  been  dis- 
cussed in  the  preceding  sections  of  this  chapter  apply  only  where  the  proof 
of  character  is  offered  as  a  basis  for  an  inference  as  to  conduct.  Whenever 
character  is  relevant  as  a  basis  for  any  other  inference,  it  is  admissible  with- 
out restriction.  Character  may  be  an  issue  in  the  case.  Under  such  circum- 
stances, the  method  of  making  the  proof  is,  in  some  instances,  the  same  as  when 
character  is  used  in  its  evidentiary  capacity ;  but,  aside  from  that,  this  use  of 
character  has  no  connection  with  the  law  of  evidence. 

§  1035.  [Inferences  Other  Than  Conduct] ;  Character  a  Constituent  Fact.50 — 
In  actions  of  breach  of  promise  to  marry  specific  acts  of  unchastity  on  the 
part  of  the  plaintiff  are  relevant  as  a  complete  defence  to  the  action  51  and  it  is 

38.  State  v.  Dexter,   115  Iowa  678,  87  N.  45.  State  v.  Kinley,  43  Iowa  294    (1876)  ; 
W.  417    (1901)    (obtaining  goods  under  false  Edgington  v.  U.  S.,  164  U.  S.  361,  17  S.  Ct. 
pretenses).  72,  41  L.  ed.  467   (1896). 

39.  People  v.  Bezy,  67  Cal.  223,  7  Pac.  643  46.  State  v    Snover,  63   N.  J.  L.   382,  43 
(1885);     People    v.     Stewart,    28    Cal.     395  Atl.    1059    (1899):    State  v.   Wolf,    112   Iowa 
(1865):    Kahlenbeek  v.   State,   119   Ind.   118,  458,  84  N.  W.  536  (1900). 

21   N.   E.  460    (1888);   Walker  v    State,   102  47.  Hey  v.  Com.,   32  Grat.    (Va.)    946,   34 

Ind.  502,  1  X.  E   856  (1885)  ;  Basye  v.  State,  Am.  Rep.  799   (1879). 

45  Nebr.  261,  63  N.  W   811   (1895)  ;  Gandolfo  Possessing  Counterfeit  Money.— "  When  a 

v.  State,  11  Ohio  St.  114  (I860).  man    is   arrested   with   counterfeit   money   in 

40.  Baehner  v.  State,  25  Ind.  App.  597,  58  his  possession,  ...  he  may  relieve  the  charge 
NT.  E.  741   (1900).  thus    placed   upon    him    by   proof    of    former 

41.  Com.  v.  Kendall,  113  Mass.  210,  18  Am.  character,  showing  that  he  would  not  be  likely 
Rep    469   (1873).  to    be    engaged    in    that    class    of    business." 

42.  State  v.  Cunningham,  111  Iowa  233,  82  United  States  v.  Kenneally.  26  Fed    Caa    No. 
X.  W.  775  (1900).  15.522,  5  Biss.  122   (1870),  per  Blodgett,  J. 

43.  People  v.   Chrisman,    135   Cal.   282.   67  48.  State  v.  Curran,  51  Iowa  112,  49  N.  W. 
Pac.  136    (1901);  Long  v.  State,  11   Fla.  295  1006   (1879). 

(1867)  :   State  v    Bloom,  68  Ind.  54.  34  Am.  49.  4  Chamberlayne,  Evidence,  §  3307. 

Rep.  24"   (1879)  ;  People  v.  Ryder,  151  Mich.  50.  4  Chamberlayne,  Evidence,  §  3308 

187.    114   X.   W.    1021,   14   Det    Leg.  X.   912  51.  McKane  v.  Howard,  202  N.  Y.  181,  95 

<1908).  N-    E.   642,   25   Am.   &   Eng.   Ann.   Ca8.   960 

44    State  v.  Heacock,  106  Iowa  191,  76  N.  (1911). 
W.  654  (1898). 


777  A  PEOBATIVE  FACT.  §§  1036, 1037 

also  competent  to  show  her  general  bad  character  52  which  may  be  rebutted  by 
proof  of  general  good  character.53 

Under  prosecutions  for  seduction  where  the  statute  provides  that  the  female 
must  have  been  of  previous  chaste  character  specific  acts  of  lewdness  may  be 
shown  5"*  but  general  bad  reputation  for  chastity  is  not  competent  55  while  if 
the  statute  requires  that  she  must  be  of  good  repute  specific  acts  are  not 
relevant  while  general  reputation  may  be  shown.56 

In  some  cases  the  reputation  of  the  parties  must  be  determined  before  dam- 
ages can  be  fixed  as  in  actions  for  breach  of  promise  of  marriage  57  or  malicious 
prosecution  5S  or  seduction  59  or  slander.60 

§  1036.  [Inferences  Other  Than  Conduct] ;  Character  a  Probative  Fact.61 — 
The  character  of  a  person  may  be  evidentiary  in  connection  with  its  effect 
upon  the  belief  or  knowledge  of  another  person.  It  may  also  throw  some  light 
on  the  intent  or  motive  wTith  which  an  act  was  done. 

For  example  in  negligence  cases  the  knowledge  of  the  employer  of  the  in- 
competency  of  the  agent  may  be  shown  by  evidence  of  his  reputation  for  in- 
competency  62  and  in  homicide  cases  the  reputation  of  the  deceased  for  turbu- 
lence is  competent  to  show  the  fear  of  the  accused  63  and  reputation  may  be 
shown  to  prove  good  faith  of  the  defendant  in  proceedings  for  malicious  prose- 
cution64 and  it  may  be  competent  to  show  motive  or  intent.65 

§  1037.  Proof  of  Character ;  "  Reputation  is  Character.'* 66 —  Notwithstanding 
the  undoubted  probative  value  of  evidence  of  particular  acts  and  the  knowledge 
and  opinion  of  individuals  in  arriving  at  a  just  estimate  of  a  person's  char- 
acter, it  is  the  almost  universal  rule  that  character  must  be  proved  by  evidence 

52.  McCarty  v.   Coffin,    157   Mass.  478,   32          58.  O'Brien  v.  Frazier,  47  N.  J.  L.  349,  1 
N.  E.  649   (1892).  Atl.  465,  54  Am.  Rep.  170  -(1885). 

53.  See  McKane  v.  Howard,  202  N.  Y.  181,          59.  Stewart  v.  Smith,  92  Wis.  76,  65  N.  W. 
95  N.  E.  642,  25  Am.  &  Eng.  Ann.  Cas.  960       736  (1896)    (specific  acts  admissible). 
(1911).  60.  Lydiard  v.   News  Co.,    110  Minn.   140, 

54.  State  v.  Prizer,  49  Iowa  531,  31    Am.       124  N.  W.  985,  19  Am.  &  Eng.  Ann.  Cas.  985 
Rep.    155    (1878);   People  v.  Kenyon,  5  Par-       (1910). 

ker's  Cr.  Rep.  254   (1862)  ;  affirmed  26  N.  Y.  61.  4  Chamberlayne,  Evidence.  §  3309. 

203,  84  Am.  Dec.  177    (1863).  62.  Cooney  v.  Commonwealth  Ave.  St.  Ry. 

55.  State  v.  Reinheimer,   109  Iowa  624,  80       Co..  196  Mass.   11,  81  N.  E.  905    (1907). 

X.  W.  669   (1899)  ;   State  v.  Prizer,  49  Iowa  63.  Abbott  v.  People,  86  N.  Y.  460   (1881). 

531,  31  Am.  Rep.  155  (1878).  64.  Mclntire   v.    Levering,    148   Mass.    546, 

56.  State   v.   Atterbury,   59    Kan.    237.   52  20  X.  E.  191,  2  L.  R.  A.  517,  12  Am.  St.  Rep. 
Pac.  451   (1898)  ;  State  v.  Bryan,  34  Kan.  63,  594  (1889). 

8  Pac.  260   (1885):  Russell  v.  State,  77  Xeb.          65.  Kee    v.    State,    28    Ark.    155     (1873); 

519.  110  X.  W.  380   (1906):   Foley  v.  State,  Davis  v.  State,  10  Ga.  101   (1851).     See  also 

59  X.  J.  L.  1,  35  Atl.  105   (1896)  ;  Bowers  v.  State  v.  .Tones.  14  Mo.  App.  595   (1883)  :  Peo- 

State,  29  Ohio  St.  542   (1876).  pie  v.  Gleason,  1  Xev.  173   (1865)  ;  Hogan  v. 

57.  Burnett     v.     Simpkins.     24     111.     264  State,  36  Wis.  226   (1874). 

(I860);  Denslow  v.  Van  Horn,  16  Iowa  470          66.  4    Chamberlayne,    Evidence,    §§    3310- 
(1864);   McGregor  v.  McArthur,  5  U.  C.  C.      3314. 
P.  493   (1856). 


§  1038  MOUAL  UNIFORMITY;  CHARACTER.  778 

of  reputation,67  which  is  a  form  of  hearsay  and  may  be  appropriately  desig- 
nated as  composite  hearsay,  or  a  community  expression  of  opinion  in  which 
the  individual  voices  blend  and  are  indistinguishable.  The  use  of  reputation 
for  this  purpose  is  justified  on  the  ground  of  necessity,  other  evidence  not 
being  available,  as  most  jurisdictions  for  reasons  of  administrative  policy  ex- 
clude evidence  of  particular  acts  and  personal  opinions. 

The  rule  that  character  must  be  shown  by  proof  of  reputation  is  universal i;i 
except  where  the  witness  is  impeached  where  proof  of  a  prior  conviction  of  a 
crime  may  also  be  shown.  As  one  who  leads  an  exemplary  life  is  seldom 
the  subject  of  comment  as  to  his  conduct  evidence  of  reputation  may  often  be 
negative  in  character  and  a  witness  who  had  been  in  a  position  to  hear  any- 
thing said  may  testify  that  he  never  heard  any  discussion  concerning  the  mat- 
ter 69  but  this  negative  evidence  is  limited  to  evidence  of  good  character.70 
The  reputation  must  be  general  in  character  71  and  be  more  than  mere  rumors,72 
though  rumors  may  be  inquired  about  in  cross-examination.73 

§  1038.  [Proof  of  Character] ;  What  Witnesses  are  Qualified;  Adequate  Knowl- 
edge.74—  .Before  a  witness  can  testify  as  to  the  reputation  of  a  person  he  must 
have  adequate  knowledge  in  regard  thereto.75  His  personal  opinion  concern- 
ing it  is  inadmissible.76  The  circumstances  of  each  case  must  control  the 
determination  of  these  questions  to  a  great  extent.  The  decisions  indicate  that 
it  is  largely  a  matter  for  administrative  discretion.77  Although  residence  by 

67.  Hunneman  v.  Phelps,  199  Mass.  15,  85  for    veracity.     The    witness    should    be    first 
N.  E.  169   (1908).  introduced  by  showing  through  his  residence 

68.  State  v.  Coates,  22  Wash.  601,  61  Pac.  or  business  relationship  his  opportunities  for 
726    (1900);    People   v.    Haydon    (Cal.    App.  knowing   about   the   person   to   be   impeached 
1912),  123  Pac.  1102;  Basye  v.  State,  45  Nebr.  and  then  he  should  be  asked  whether  he  knows 
261,  63  N.  W.  811   (1895).  what  the  reputation  for  truth  and  veracity  of 

69.  Hallowell  v.  Guntle,  82  Ind.  554  (1882).  the  party   in  question  is.     If  his  answer  to 
See  Davis  v.  Foster,  68  Ind.  238   ( 1 879 )  ;  Na-  this    is    in    the   affirmative   he   may   then    be 
tional  Bank  v.  Scriven,  63  Hun   (N.  Y.)   375,  asked  what  this  reputation  is. 

18  N.  Y.  Suppl.  277,  44  N.  Y.  St.  Rep.  331  74.  4    Chamberlayne,    Evidence,    §§    3315- 

(1892).  3317. 

70.  See    Lenox    v.    Fuller,    39    Mich.    268  75.  Campbell  v.  Bannister,  79  Ky.  205,  2 
(1878).  Ky.    L.    Rep.    72     (abstract)     (1880*);    R.    v. 

71.  Vickers  v.  People,  31  Colo.  491,  73  Pac.  Rowton,   10  Cox  Cr.  C.  25,   11  Jur.    (N.  S.) 
845   (1903).  325,  L.  &  C.  520,  34  L.  J.  M.  C.  57,  11  L.  T. 

72.  Powers    v.    Presgroves,    38    Miss.    227  Rep.   (N.  S.)  745,  13  Wkly.  Rep.  436  (1865). 
(1859).  "Adequate  knowledge  of  the  prevailing  opin- 

73.  "  It    is    certainly    competent    on    cross-  ion   on   the  subject   is  a  prerequisite  to  the 
examination  of  a  witness  who  testified  as  to  admissibility    of    such    evidence."     Allison's 
defendant's    good    moral-  character    to    ask  Exec.  v.  Wood,    104  Va.  765,  771,  52  S.   E. 
whether   there  have   not  been  rumors  or  re-  559,  7  Am.  &  Eng.  Ann.  Cas.  721    (1906),  per 
ports  in  the  community  as  to  his  bad  charac-  Whittle,  J. 

ter  with  reference  to  particular  transactions."  76.  State  v.  Thoemke,  11  X.  T>    386,  92  N. 

State  v.  Kimes,  152  Iowa  240,  249,  132  N.  W.  W.  480  (1903)  ;  Holsey  v.  State.  -24  Tex.  App. 

180  (1911),  per  McClain,  J.  35,  5  S.  W.  523  (1887). 

Practical  Suggestions. —  There  is  only  one  77.  Hadjo  v.  Gooden,   13  Ala.  718    (1848) 

proper  way  to  put  in  evidence  of  reputation  (witness  lived  twelve  miles  away,  but  stated 


779  KNOWLEDGE  OF  COMMUNITY.  §  1039 

the  character  witness  in  the  vicinity  where  the  reputation  in  question  obtains 
is  commonly  spoken  of  as  being  essential,  it  is  simply  a  convenient  term  in- 
dicating more  or  less  continued  presence  in  the  vicinity.  It  is  the  means 
and  extent  of  the  knowledge  of  the  witness  irrespective  of  residence  which  is 
logically  controlling.78  That  the  witness  should  be  acquainted  personally 
with  the  one  whose  character  is  under  consideration  is  not  logically  essential. 
It  is  not  necessary  that  he  should  have  heard  the  majority  of  the  members  of 
the  community  express  themselves  in  reference  to  the  matter.79 

Cross-examination  may  freely  examine  into  the  extent  and  sources  of  knowl- 
edge 80  and  the  appellate 'court  may  reverse  where  a  witness  has  not  sufficient 
knowledge.81 

§  1039..  [Proof  of  Character] ;  Knowledge  of  the  Community.82 —  The  com- 
munity or  neighborhood  in  which  an  admissible  reputation  may  exist  must  be 
one  in  which  the  person  in  question  is  well  known. 

It  used  to  be  said  that  this  was  the  community  where  he  resided  83  but  in 
modern  times  a  man  may  be  less  known  where  he  lives  than  in  the  neighbor- 
ing city  where  he  works  and  it  seems  a  better  rule  that  his  reputation  where 
he  is  best  known  should  be  used.84  The  "  community  "  means  a  place  of  such 
size  as  to  make  possible  the  growth  of  an  unbiased  reputation  85  and  his  repu- 
tation at  the  place  of  trial  is  of  no  moment  as  such.86  Reputation  at  his 
former  residence  may  be  introduced  where  he  has  lived  in  his  present  abode 
but  a  short  time.87  Cross-examination  may  properly  be  concerned  with  the 
size  and  character  of  the  community,  the-  length  of  time  he  has  spent  there  and 
the  opportunity  of  the  community  for  knowing  the  character  of  the  person  in 
question. 

that  he  knew  the  reputation  of  the  person  in  tained   of   him    [person   inquired   about]    by 

question  in  the  latter's  neighborhood.     Com-  his  acquaintances,  he  is  competent  to  speak, 

petent)  ;  State  v.  McLaughlin,  149  Mo.  19,  50  subject  to  cross-examination,   as  to   sources, 

S.  W.  315  (1899)    (witness  resided  in  a  town  extent,  and  correctness  of  his  information." 

five  miles  from  person  in  question.     Compe-  Cunningham  v.  Underwood,  116  Fed.  803,  811, 

tent)  ;  People  v.  Seldner,  62  App.  Div.  (N.  Y.)  53  C.  C.  A.  99  (1902),  per  Lurton,  J. 

357,    71    N.    Y.    Suppl.    35    (1901)     (witness          80.  State  v.  Holly,  155  N.  C.  485  (1911). 

knew  party  for  fifteen  years,  knew  a  great          81.  Moore  v.  Dozier,  128  Ga.  90,  57  S.  E. 

mat     i!"«>!>lo  who  knew  him  and  had  conversed  110   (1907). 

with     i hem     concerning    him.     Competent)  ;  82.  4    Chamberlayne,    Evidence,    §§    3318- 

Com.  v.  Wilson,  44  Pa.  Super.  Ct.  183  (1910)  3326. 

(witness  had   seen  party  only  a  few  hours          83.  Younger  v.  State,  80  Neb.  201,  114  N. 

each  year  when  on  annual  vacation  visits  and  W.  170  (1907). 

did  not  know  any  people  who  knew  him.     In-          84.  State  v.  Henderson,  29  W.  Va.  147,  168, 

competent).  1  S.  E.  225  (1886),  per  Johnson,  Pres. 

78.  State  v.  Cunningham,  130  La.  749,  58          85.  Thomas  v.   People,  67  N.  Y.  218,  224 
So.  558,  559   (1912).  (1876),  in  state  prison. 

79.  Robinson  v.  State,  16  Fla.  835  (1878)  ;  86.  Fry  v.  State,  96  Term.  467,  35  S.  W. 
Cunningham  v.  Underwood,  116  Fed.  803,  53  883    (1895). 

C.   C.    A.    99    (1902).     "If   the   witness   has          87.  Pape  v.  Wright,  116  Ind.  502,  510,  19 
heard  enough  to  enable  him  to  say  that  he      N.  E.  459  (1888). 
thinks  he  knows  the  prevailing  opinion  enter- 


§§  1040,1041  MORAL  UNIFORMITY;  CHARACTER.  780 

Evidence  of  good  reputation  can  be  rebutted  only  by  evidence  of  bad  reputa- 
tion. Evidence  of  specific  acts  of  misconduct  is  inadmissible  for  that  pur- 
pose.88 

The  trial  judge  is  properly  allowed  a  wide  discretion  in  various  details  relat- 
ing to  the  use  of  character  and  unless  this  discretion  has  been  abused  it  will  not 
be  reversed  on  appeal.89  He  may  for  example  limit  the  number  of  the  wit- 
nesses 90  or  exclude  them  entirely  if  the  character  is  admitted  by  the  other 
side.91 

§  1040.  [Proof  of  Character] ;  Remoteness  in  Time.92 —  It  has  been  sometimes 
judicially  intimated  that  the  remoteness  of  the  time  when  the  reputation  of 
which  proof  is  offered  existed  should  not  be  considered  as  affecting  the  ad- 
missibility  of  the  evidence,  but  that  it  should  be  received  in  all  cases  and  the 
jury  allowed  to  give  it  whatever  weight  seems  proper.93  However,  that  the 
trial  judge  may  in  the  exercise  of  his  administrative  function  exclude  evidence 
of  a  reputation  which  existed  at  a  remote  date  seems  reasonably  clear  upon 
authority.94  This  view  is  logically  correct  as  otherwise  the  time  of  the  court 
might  often  be  occupied  in  considering  almost,  if  not  quite,  worthless  testimony. 

§  1041.  [Proof  of  Character] ;  Absence  of  Controlling  Motive  to  Misrepre- 
sent.95—  To  render  evidence  of  a  person's  reputation  in  a  given  community 
admissible,  there  should  exist  in  that  community  no  motive  or  cause  to  build 
up  an  apparent  reputation  because  of  prejudice  or  partisanship.  In  order  that 
this  result  may  be  obtained  the  reputation  which  is  received  in  evidence  for 
the  consideration  of  the  jury  must  be  one  that  was  acquired  by  the  person  in 
question  before  the  proceedings  in  which  the  reputation  is  sought  to  be  used 
could  have  influenced  it  in  any  way,  that  is,  the  reputation  must  have  been 
established  ante  litem  motam.QG 

An  exception  to  the  rule  herein  stated  is  commondly  recognized  in  the  case 
of  a  witness.  Where  the  person  whose  reputation  is  sought  to  be  shown  is  a 
witness,  his  reputation  for  truth  and  veracity  may  be  shown  down  to  the 
moment  of  testifying.97  As  the  object  of  the  rule  excluding  evidence  of  a 
reputation  formed  post  litem  motam  is  to  avoid  having  the  reputation  colored 
or  affected  in  any  way  as  -a  result  of  the  alleged  existence  of  the  facts  upon 

88.  Bullock  v.  State,  65  N.  J.  L.  557,  47       (1878).     See  also  Jones  v.  State,  104  Ala.  30, 
Atl.  788,  86  Am.  St.  Rep.  668    (1900).     See      16  So.  135  (1893). 

People  v.  Nunley,   142  Cal.  441,  76  Pac.  45          94.  State  v.  Barr,  11  Wash.  481,  492,  39 
(1904).  Pac.  1080,  48  Am.  St.  Rep.  890,  29  L.  R.  A. 

89.  State  v.  Potts,  88  Iowa  656,  43  N.  W.       154    (1895),  per  Hoyt,  C.  J. 

534.  5  L.  R.  A.  814  (1889).  95.4    Chamberlayne,    Evidence,    §§    3329- 

90.  State  v.  Albanes    (Me.   1912),  83  Atl.      3330. 

548.  96.  State  v.  Johnson,  60  N.  C.    (Winston's 

91.  Beard  v.  State,  44  Tex.  Cr.  App.  402,      L.)    151,  152    (1863),  per  Battle,  J. 

71  S.  W.  960  (1903).  97.  Smith  v.  Hine,  179  Pa.  St.  £03,  36  Atl. 

92.  4  Chamberlayne,  Evidence,  §  3327.  222  (1897). 

93.  State    v.    Lanier,    79    N.    C.    622,    623 


781  ANIMALS.  §§  1042,1043 

which  the  liability  of  the  defendant,  in  the  action  in  which  the  reputation  is 
sought  to  be  used,  is  founded,98  it  must  be  that  the  Us  mota,  using  the  term  in 
its  broad  sense,  is  initiated  at  the  moment  when  those  facts  become  known  to 
the  public,  as  at  that  moment  discussion  logically  may  be  assumed  to  com- 
mence and  the  reputations  of  the  various  persons  connected  with  the  transac- 
tion to  undergo  change." 

§  1042.  [Proof  of  Character] ;  Animals.1 —  Common  experience  indicates  that 
an  animal  will  act  even  more  consistently  in  harmony  with  its  disposition 
or  character  than  will  one  of  the  human  race.  This  being  the  case,  it  follows 
that  evidence  of  an  animal's  character  in  respect  to  a  particular  trait  is  of 
material  assistance  in  determining  how  the  animal  conducted  itself  on  a 
certain  occasion.  It  would  seem,  therefore,  that  evidence  of  an  animal's  char- 
acter, or  what  might  more  properly  be  called  its  disposition,  should  be  received 
in  all  cases  where  the  animal's  conduct  on  a  given  occasion  is  in  question.2 

§  1043.  [Proof  of  Character];  Probative  Force;  Keputation.3 — In  theory,  the 
probative  force  of  the  general  reputation  of  a  person  in  a  community  where 
he  is  well  known  as  evidence  of  his  character  lies  in  the  following  more  or  less 
generally  accepted  ideas:  that,  under  ordinary  conditions,  a  person  cannot 
conceal  his  real  self  from  those  with  whom  he  frequently  associates,  that  the 
character  of  one's  associates  is  a  natural  and  most  interesting  topic  of  con- 
versation making  inevitable  an  intelligent  and  generally  unprejudiced  dis- 
cussion of  the  character  of  each  member  of  a  community  by  the  other  members, 
resulting  in  a  crystallized  general  expression  which  sums  up  the  moral  worth 
of  each  individual  in  the  community. 

The  test  is  often  unreliable  as  the  reputation  of  an  individual  may  suffer 
from  isolated  imprudent  acts  or  from  false  rumors  while  another  more  discreet 
may  conceal  his  true  character  from  the  community.  Furthermore  modern 
city  life  has  rendered  all  more  ignorant  as  to  the  character  of  their  neighbors 
than  formerly,  but  still  the  practice  of  using  reputation  only  as  evidence  of 
character  presents  a  striking  advantage  in  avoiding  the  introduction  of  col- 
lateral issues  4  and  conserving  the  time  of  the  court  and  it  is  a  fact  which  may 
be  easily  proved  or  disproved.5 

98.  White  v.  Com.,  80  Ky.  480,  486,  4  Ky.  defence  for  a  m'te.     Tubbs  v.  Shears    (Okla. 
L.  Rep.  373  (1882).  1916),   155  Pac.  549,  L.  R.  A.   1916  D  1032. 

99.  State  v.  Malonee,   154  X.  C.  200,  202,  3.  4    Chamber layne,    Evidence,    §§     3332- 
69  S.  E.  786   (1910).  3339. 

1.  4  Chamberlayne,  Evidence.  §  3331.  4.  "The  danger  of  allowing  a   witness   to 

2.  Broderick  v.  Higginson,  169  Mass.  482,  testify  directly  as  to  moral  character  rather 
48  N.   E.  269.  61   Am.  St.   Rep.   269    (1897).  than  as  to  general  reputation  in  the  commu- 
The  fact  that  the  defendant  knew  that  his  dog  nity  is  that  the  witness'  knowledge  of  char- 
had  bitten  a  third  party  is  enough  to  charge  acter   must  almost    necessarily  be   based   on 
the  defendant  with  knowledge  of  the  vicious  specific  acts  of  immorality,  and  to  allow  such 
character   of   the   dog   even    though    the   dog  acts  to  be  gone  into  with  the  consequent  right 
acted  in  self-defence  as  self-defence  is  not  a  of  rebutting  the  testimony  as  to  such  specific 


MORAL,  UNIFORMITY;  CHARACTER.  782 

Such  evidence  may  be  tested  on  cross-examination  in  various  ways  as  by 
a  demand  for  specifications  to  support  evidence  of  bad  character  6  or  by  incon- 
sistent statements  by  the  witness,7  or  by  specific  facts  showing  the  contrary  of 
the  character  claimed.8 

§  1044.  [Proof  of  Character] ;  Proof  Other  Than  by  Reputation ;  Inference  by 
Observers.9 —  As  a  matter  of  principle,  evidence  of  a  probative  force  in  the 
proof  of  character,  superior  at  times  to  that  of  reputation  in  the  community, 
might  have  been  utilized  and  a  rule,  other  than  the  one  based  upon  the  prin- 
ciple that  "  reputation  is  character  "  developed.  Character  might  have  been, 
and  should  properly  be,  regarded  as  provable  by  evidence  of  the  effect  of  its 
manifestation  upon  the  mind  of  an  observer  or  upon  that  of  a  jury.  It  is 
settled,  however,  that  this  class  of  evidence  is  inadmissible  to  establish  char- 
acter,10 either  as  part  of  an  original  case  or  on  rebuttal.11  This  is  the  more 
remarkable  as  the  early  law  admitted  this  species  of  evidence  in  the  present 
connection.12  It  is  of  no  consequence  under  the  rule  that  the  observer  is 
entirely  competent  to  form  an  illuminating  opinion  and  has  had  adequate 
opportunities  for  observing  the  conduct  of  the  person  in  question.13 

Cogent  arguments  against  its  use  are  the  danger  of  raising  collateral  is- 
sues,14 or  creating  unfair  surprise,15  or  a  prejudice.16 

§  1045.  [Proof  of  Character;  Proof  Other  Than  by  Reputation];  Particular 
Facts.17 —  Finally,  the  law  of  evidence  might,  with  good  reason,  admit  as 
proof  of  actual  character  not  only  the  inferences  of  observers  and  probative 
instances  of  the  manifestation  of  the  trait  in  question,  but  also  probative  in- 
dividual facts  which  tend  circumstantially  to  establish  the  existence  of  a 
material  trait.  Proof  of  character  is,  however,  confined  to  proof  of  reputa- 
tion. Specific  facts  and  circumstances,  though  tending  to  prove  the  reputa- 

acts  would   be   to   introduce   immaterial   col-  11.  State  v.   Grinden,  91    Iowa  505,   60  N. 

lateral     issues     and     complicate     the    trial."  W.  37    (1894). 

State  v.  Blackburn    (Iowa  1907),  110  N.  W.  12.  Jones'  Case,  31  How.  St.  Tr.  251,  309 

275,  277,  per  McClain,  J.  (1809). 

5.  Barton  v.  Morphes,  13  N.  C.   (2  Dev.  L.)  13.  Hart  v.  McLaughlin,  51  App.  Div.    (X. 
520,  521    (1830).  Y.)    411,  64  N.  Y.  Suppl.   827    (1900);   Saw- 

6.  Leonard  v.  Allen,  11  Cush.    (Mass.)   241  yer  v.  People,  91  X.  Y.  667,  1  X.  Y.  Cr.  249 
( 1853 )  ;  Sawyer  v.  Eifert,  2  Xjatt  &  M.  ( S.  C. )  ( 1883 ) . 

511,  10  Am.  Dec.  633   (1820).  14.  People  v.  Van  Gaasbeck,  189  X.  Y.  408, 

7.  Jackson   v.   State,   78  Ala.   471    (1885);  82  X.  E.  718,  22  L.  R.  A.    (X.  S.)    650n.,  12 
State  v.  Dove,   156  X.   C.   653,  72   S.   E.   792  Am.  &  Eng.  Ann.  Cas.  745    (1907). 
(1911).  15.  Bodwell  v.  Swan,  3  Pick.    (Mass.)    376, 

8.  People  v.  Elliot,  163  X.  Y.  11,  57  X.  E.  378,  15  Am.  Dec.  228   (1825). 

103    (1900).  16.  Coleman    v.    People,    55    X.    Y.    81,    90 

9.  4     Chamberlayne,    Evidence,     §§     3340-       (1873). 

3342.  17.  4    Chamberlayne,    Evidence,    §§    3343- 

10.  People  v.  Van  Gaasbeck.  189  X.  Y.  408,       3345. 
82  N.  E.  718,  22  L.  R.  A.    (X.  S.)   650n.,  12 

Am.  &  Eng.  Ann.  Cas.  745  (1907). 


783  AXIMALS.  §§  1046,1047 

tion  or  confirm  the  statements  of  witnesses  regarding  it  are  excluded.     Neither 
good  1S  or  bad  19  character  can  be  proved  by  specific  facts. 

§  1046.  [Proof  of  Character;  Proof  Other  Than  by  Reputation];  Animals;  Il- 
lustrative Occurrences.20 —  Evidence  may  be  given  of  the  behavior  of  an  animal 
on  particular  occasions  for  the  purpose  of  showing  the  possession  of  a  trait 
relevant  to  the  inquiry.21  In  this  way  it  may  be  proved,  for  example,  that  a 
horse  is  gentle  2-  or  is  vicious  23  or  that  a  dog  24  or  a  bull  25  is  vicious  and 
dangerous  to  mankind.  It  is  not  necessary  that  the  occurrences  should  have 
preceded  the  occasion  upon  which  the  existence  of  the  trait  in  question  is 
rendered  important  by  the  evidence.26 

Furthermore  an  observer  may  state  the  inference  as  to  a  relevant  trait  of 
character  which  he  has  gained  from  his  observation  of  the  animal.27  The 
arguments  which  exclude  this  evidence  in  case  of  individuals  of  collateral 
issues,  unfair  surprise,  and  prejudice  are  not  so  weighty  in  case  of  animals. 

§  1047.  Weight.28 —  Great  variety  of  opinion  is  manifested  by  courts  as  to 
what  probative  weight  should  properly  be  attached  to  the  inference  of  conduct 
from  character.  So  great  is  the  variety  which  different  cases  present  in  this 
particular  that  generalization  can  seldom  be  helpful  to  any  marked  degree. 
It  may,  however,  not  be  entirely  without  value  to  suggest  that  while  the  in- 
ference of  conduct  from  character  is,  when  the  res  gestae  of  any  particular 
case  are  established  by  direct  evidence,  at  best  but  a  deliberative  one,  it  may, 
when  the  res  gestae  are  to  be  proved  by  circumstantial  evidence,  be  more  highly 
probative,  especially  in  connection  with  the  corroborative  influence  of  other 
facts.  The  evidentiary  weight  of  the  inference  will  be  found,  moreover,  to 
increase  in  proportion  as  the  psychological  element  becomes  constituent  pr 
probative. 

18.  Jones  v.  Duchow,  87  Cal.  109,  23  Pac.  U  S.  22,  9  Sup.  Ct.  696,  33  L.  ed.  110  (1888), 
371,  25  Pac.  256  (1890)  ;  Taylor  v.  State,  120  sustaining  this  point  in  Kennon  v.  Gilmer,  5 
Ga.  857.  48  S.  E.  361    (1904),  honorable  dis-  Mont.  257,  6  Pac.  847,  51  Am.  Rep   45  (1885). 
charge  as  soldier.  24.  Broderick  v.  Higginson.  169  Mass.  482, 

19.  People  v.  Christy,  65  Hun   (N.  Y.)   349,  48  X.  E.  269,  61   Am.  St.  Rep.  296    (1897)  ; 
20  X.  Y.  Suppl.  278,  8  X.  Y.  Cr.  480,  47  XT.  Kessler  v.  Lockwood,  62  Hun  619,   16  X.  Y. 
Y.   St.   Rep.   924    (1892),  keeping  disorderly  Suppl.  677,  42  X.  Y.  St.  Rep.  563    (1891); 
house;   State  v    Castle.  133  X.  C.  769.  46  S.  Robinson  v.  Marino,  3  Wash.  434,  28  Pac.  752, 
E.    1    (1903);    Cheney   v.   State,   7    Ohio   222  28  Am.  St.  Rep.  50  (1892). 

(1835)  ;   Holsey  v.  State,  24  Tex.  App.  35,  5  25.  Rogers  v.  Rogers,  4  X.  Y.  St.  Rep.  373 

S.  W.  523    (1887).     Proof  of  other  offenses.  (1887). 

see  note,  Bender  ed.,  186  X.  Y.  4.  15.  26.  Kennon  v.  Gilmer.  131  U.  S.  22,  9  Sup. 

20.  4    Chamberlayne,    Evidence.    §§    3346-  Ct.  696,  33  L.  ed.  110   (1888),  sustaining  the 
3348.  point  in  Kennon  v.   Gilmer,   5   Mont.  257,   6 

21.  Broderick  v.  Higginson,  169  Mass.  482.  Pac.  847,  51  Am.  Rep.  45   (1885). 

48  N.  E.  269.  61  Am.  St.  Rep.  296   (1897).  27.  Sydleman     v.    Beckwith,    43     Conn.     9 

22.  Stone   v.    Pendleton,   21    R.    I.    332,   43  (1875)  ;  Xoble  v.  St.  Joseph,  etc.,  Ry.  Co.,  98 
Atl.  643   (1899).  Mich.  249,  57  X.  W.  126   (1893). 

23.  Whittier  v.  Franklin,  46  X.  H.  23,  88  28.  4    Chamberlayne,    Evidence.    §§    3349- 
Am.  Dec.  185   (1S65)  ;  Kennon  v.  Gilmer,  131  3353. 


CHAPTER  XLIX, 

PUBLIC  DOCUMENTS. 

Public  documents;  definition  of,  1048. 

principle  controlling  admissibility,  1049. 

objection  that  they  should  not  be  removed,  1050. 

equally  admissible  as  copies,  1051. 

where  not  kept  in  strict  conformity  to  statutory  requirements,  1052. 

authentication;  necessity  of,  1053. 

mode  of,  1054. 

legislative  acts;  domestic,  1055. 
ordinances,  1056. 

^papers  and  documents  relating  to  affairs  of  state,  1057. 
compelling  production  of,  1058. 

§  1048.  Public  Documents ;  Definition  of. —  Public  documents  may  properly 
be  defined  as  records  kept  or  writings  executed  by  public  functionaries  as  such 
in  the  executive,  legislative  and  judicial  departments  of  a  government  within 
which  would  be  included  acts  of  state,  such  as  executive  messages  and  procla- 
mations, records  of  the  executive  departments,  legislative  acts  and  proceedings, 
judicial  records  and  generally  transactions  which  official  persons  in  the  per- 
formance of  their  duties  as  such  are  required,  either  expressly  or  impliedly, 
to  enter  of  record.1 

§  1049.  [Public  Documents] ;  Principle  Controlling  Admissibility.2 —  The 
fundamental  principle  underlying  the  admission  of  this  class  of  evidence  is 
that  the  writings  are  made  by  an  accredited  public  official  in  the  performance 
of  an  express  or  implied  mandate  of  the  law ;  express  in  the  sense  that  the  law 
in  so  many  words  requires  the  making  of  them ;  implied  where  in  the  perform- 
ance of  the  duties  imposed  by  law  it  is  necessary  to  make  them.  With  this 
duty  thus  imposed  its  proper  performance  is  presumed  in  view  of  the  fact  that 
they  are  made  under  the  sanction  either  of  an  oath  or  under  that  of  official 
duty.3 

1.  5     Chamberlayne,     Evidence,     §     3354.  edge  and  observation.     Foreign  acts  of  state 

Public  documents  have  been  defined  as  "  acts  and  the  judgments  of  foreign  courts  also  be- 

of  public  functionaries,  in  the  executive,  legis-  long  to  the  class  of  public  documents."     Tay- 

lative    and    judicial    departments    of    govern-  lor,  Ev.,  §   1470.     See  also,  Oreenleaf.  Ev.,  § 

ment:  including,  under  this  general  head,  the  470.     5     Chamberlayne,     Evidence,     §     3355. 

transactions    which    official    persons    are    re-  What  are  public  records,  see  note,  Bender  ed., 

quired  to  enter  in  books  or  registers,  in  the  138  N.  Y.  399. 

course  of  their  public  duties,  and  which  occur  2.  5  Chamberlayne,  Evidence,  §  3355. 

within  the  circle  of  their  own  personal  knowl-  3.  Ferguson    v.    Clifford,     37    N.    H.    86 

784 


785  COPIES,  ETC.  §§  1050-1053 

§  1050.  [Public  Documents] ;  Objection  That  They  Should  Not  be  Removed. — 

The  objection  to  the  admission  of  the  originals  on  the  ground  that  they  should 
not  be  removed  from  their  proper  depository  is  accorded  little  weight.4  While 
their  removal  is  not  to  be  commended,  yet,  on  the  other  hand,  their  rejection 
for  any  such  reason  is  not  favored.0 

§  1051.  [Public  .Documents] ;  Equally  Admissible  as  Copies —  The  authenticity 
of  a  record  having  been  established  to  the  satisfaction  of  the  presiding  judge,*5 
it  will  be  received  in  evidence  in  proof  of  the  facts  stated  therein,  being  equally 
admissible  as  a  transcript  or  copy  thereof  would  be.'  The  latter  purports  to 
correctly  transcribe  matters  contained  in  the  former  and  can  certainly  be 
placed  on  no  higher  plane,  if  as  high  a  one,  as  the  original.8  Nor  is  it  material 
that  a  statute  provides  that'  copies  of  a  record  shall  be  received  and  is  silent  in 
regard  to  the  record  itself,9  such  a  provision  not  being  considered  as  exclu- 
sionary 1(l  or  restrictive  but  rather  as  cumulative.11 

§  1052.  [Public  Documents] ;  Where  not  Kept  in  Strict  Conformity  to  Statutory 
Requirements. —  Some  minor  defect  in  the  making  of  a  record  not  required 
by  law  to  be  kept  or  a  non-compliance  with  some  express  provision  of  law,  which 
may  be  regarded  as  directory  merely,  will  not  generally  be  considered  as  a 
fatal  defect  justifying  the  exclusion  of  the  writing.12  This  principle  is  illus- 
trated in  records  of  judicial  proceedings  13  as  well  as  in  other  cases. 

§  1053.  [Public  Documents];  Authentication;  Necessity  of — A  record  offered 
as  an  original  should  be  properly  and  sufficiently  authenticated.  It  is  essential 
that  the  writing  should  be  shown  to  be  that  which  it  purports  to  be.  When 
this  is  satisfactorily  established  it  will  be  received;  otherwise  it  will  be  re- 

(1858)  ;  Gaines  v.  Relf,  12  How.   (U.  S.)  472,  Manning  v.  State,  supra;  Dobbs  v.  Justices' 

570,    13   L.   ed.   1071    (1851).     See   Sturla   v.  Inferior  Court,  etc.,   17   Ga.  624    (1855). 

Freccia,  5  App.  Cas.   (D.  C.)  623   (1880).  9.  Green     v.     Indianapolis,     25     Ind.     490 

4.  Stevenson   v.   Moody,   85   Ala.   33,   4   So.  (1865);   Miller  v.  Hale,  26  Pa.  432    (1856); 
595   (1887)  ;  Gray  v.  Davis,  27  Conn.  447;   5  Sheehan  v.  Davis,  17  Ohio  St  571   (1867). 
Chamberlayne,  Evidence.  §  3357.  10.  Miller  v.  Hale,  supra. 

5.  Lewis  v.   Bradford,   10   Watts    (Pa  )    67  11.  Rainey    v.    State,    20    Tex.    App.    455 
(1840)  ;   Garrigues  v.  Harris,   17  Pa.  St.  344  (1886).     Thus,  where  the  purpose  is  to  prove 
(1851).     Thus  originals  from  a  notary's  office  the  doings  of  selectmen  of  a  town  the  orig- 
may  be  received      Priou  v.  Adams,  5  Mart.  X.  inal  record  may  be  introduced.     Jay  v.  Car- 
S.   (La)   691    (1827).  thage,  48   Me.   353    (I860).     So  a  pardon   is 

6.  State  v.  Voight,  90  X.  C.  741   (1884) .  properly  proved  by  the  production  of  the  char- 

7.  Sellers   v.    Page,   127   Ga.   633,   56   S.   E.  ter  of  pardon  itself  under  the  great  seal  of 
1011   (1906)  ;  Carp  v.  Queen  Ins.  Co,  203  Mo.  the  state.     State  v.  Blaisdell,  33  X.  H.  388 
295,   101   S.  W.  78    (1906);    People  v    Gray,  (1856). 

25  Wend.   (X.  Y.)  465   (1841)  :  Harmening  v.  12.  People  v.  Eureka  Lake  and  Yuba  Canal 

Rowland,  25  X.  D   38.  141  X.  W.  131   (1913)  :  Co..   48   Cal     143    (1874)  ;    Mason   v.   Belfast 

Manning  v.  State,  46  Tex.  Cr!  326.  81   S.  W.  Hotel  Co.,  89 .  Me    384,  36  Atl.  624    (1896)  ; 

957     (1904);    5    Chamberlayne.    Evidence,    §  5  Chamberlayne,  Evidence,  §  3358,  n.   1,  and 

3357,  n    2,  and  cases  cited.  cases  cited. 

8.  Gray   v.   Davis,   27    Conn.   447    (1858);  13.  See  §  1059:  5  Chamberlayne,  Evidence, 

§  3373,  infra. 


§   1054 


PUBLIC  DOCUMENTS. 


786 


jected,14  unless  the  necessity  of  proof  is  dispensed  with  by  the  parties  admit- 
ting its  authenticity.15 

Execution  Denied. —  Where,  though  a  paper  or  record  thereof  is  produced 
from  the  proper  official  custody,  its  execution  is  denied,  neither  it  nor  the 
record  will  be  received  without  further  proof  of  the  genuineness  of  the  in- 
strument. 10 

§  1054.  [Public  Documents];  Authentication;  Mode  of.17 — If  the  laiv  pre- 
scribes a  certain  form  for  proving  a  record  which  is  adopted  by  the  proponent 
there  should  be  a  compliance  therewith.18  As  a  general  rule,  however,  an 
instrument  or  record  need  not,  in  all  cases,  necessarily  show  upon  its  face  the 
proper  authentication.19  Proof  of  the  custody  from  whence  it  comes  may  be 
satisfactory  to  the  tribunal  in  which  it  is  offered.20'  Similarly  an  admission 
to  the  effect  that  the  writing  comes  from  the  proper  depository  may  satisfy  the 
requirement 21  and  dispense  with  the  necessity  of  further  authentication. 
Genuineness  of  documents  may  also  be  sufficiently  shown  by  the  testimony  of 
the  proper  custodian  that  they  are  authentic,22  or.  where  he  cannot  testify  to 
this  effect,  the  testimony  of  a  prior  holder  of  the  same  office  may  be  received.23 
Xor  will  the  fact  of  an  irregularity  in  the  official  oath  of  the  custodian  of 
records  affect  their  admissibility  where  their  genuineness  is  sworn  to  by  him.24 


14.  Tyres  v.  Kennedy,  126  Ind.  523,  26  N. 
E.  394  (1890)  ;  People  v.  Etter,  81  Mich.  570, 
45  X.  W.   1109    (18'JO);   Alexander  v.  Camp- 
bell, 74  Mo.   142    (1881);   Jackson  v.  Miller, 
6    Wend.     (N.    Y.)     228,    21    Am.    Dec.    316 
(1830);   Keim  v.   Rankin,  40  Wash    111,  82 
Pac,  169    (1905);   5  Chamberlayne,  Evidence, 
§  3359,  n    1,  and  cases  cited. 

15.  Miller    v.    Hale,    26    Pa.    432    (1856). 
Thus  a   paper   marked   "  filed   in   the   county 
clerk's    office "    but    not    signed    or    certified, 
there  being  no  other  evidence  showing  where 
it  came  from  or  when  it  was  made,  was  re- 
jected.    Atchison  &  X.  R.  Co.  v.  Maquilkin. 
12  Kan.  301  (1873).     The  fact,  however,  that 
the  officials  designated  do  not  sign  the  record, 
as    provided    in    a    statute    simply    operates, 
where  such  failure  is  not  made  fatal  to  admis- 
sibility,  to   impose   upon    the   proponent   the 
obligation  to  show  by  other  evidence  the  au- 
thenticity  of   the   record.     People   v.    Eureka 
Lake  &  Yuba  Canal  Co..  48  Cal.  143   (1874). 
Similarly,  the  absence  of  an  official  seal  will 
not  constitute  a  sufficient  reason  for  the  re- 
jection of  the  instrument,  where  its  authen- 
ticity may  be  established  by  parol.     Glaspie 
v.  Keator,  56  Fed.  203,  5  C.  C.  A.  474  (1893). 

16.  Craw  v.  Abrams,  68  Xeb.  546,  94  X.  W 
639,  97  N.  W.  296   (1903)  ;  5  Chamberlayne, 


Evidence,  §  3360.  It  would  seem,  however, 
that  where  the  identity  of  the  purported 
signers  of  the  instrument  is  not  in  question 
and  the  record  is  made  in  conformity  to  law, 
it  or  a  copy  thereof  should  be  received,  Kello 
v.  Maget,  18  X.  C.  414  (1835),  it  being  open 
to  the  alleged  obligors  to  show  that  though 
it  purports  to  have  been  executed  by  them, 
it,  in  fact,  never  was.  Short  v.  Currie,  53 
X.  C.  (8  Jones  L.)  42  (I860). 

17.  5  Chamberlayne,  Evidence,  §  1054. 

18.  Coler  v.   Board  of  Com'rs  of  Santa  Fe 
County,  6  X.  M.  88,  27  Pac.  619  (1891).     See 
also,  Morgan  County  Bank  v.  People,  21   111. 
304   (1859). 

19.  Olaspie  v.  Keator,  56  Fed.  203,  5  C.  C. 
A.  474   (1893). 

20.  Sumner   v.    Lebee,    3   Me.   223    (1824); 
Richardson    v.    Smith,    1    Allen    (Mass.)    541 
(1861). 

21.  Little  v.  Downing,  37  X.  H.  355  (1858). 

22.  Stewart  v.  Conner,  9  Ala.  803   (1846)  ; 
Williams  v.  Jarrot,  6  111.   120    (1844):   Pem- 
broke v  '  Allenstown.  41   X    H.  365    (1860). 

23.  Sanborn  v.  School  Dist.  Xo.  10,  12  Minn. 
17  (1866). 

24.  Mason  v.  Belfast  Hotel  Co.,  89  Me.  384, 
36  Atl    624    (1896).     See  also  Day  v.  Peas- 
ley,  54  Vt.  310  (1881). 


787  LEGISLATIVE  ACTS.  §   1055 

In  case,  also,  of  a  mutilation  as  where  the  certificate  of  authentication  has  been 
torn  off,  the  necessary  proof  may  be  supplied  by  the  testimony  of  the  clerk 
in  whose  custody  it  had  been  placed.25  The  testimony  of  a  third  person  is  also 
frequently  received  for  the  purpose  of  identifying  and  establishing  the  genuine- 
ness of  a  record  or  instrument  offered  in  evidence.26 

§  1055.  [Public  Documents] ;  Legislative  Acts;  Domestic.27 —  State  public  laws 
need  not  ordinarily  be  authenticated  when  offered  in  evidence  in  State  courts 
since  such  courts  take  judicial  notice  of  such  public  laws  and  of  such  other 
statutes  as  the  legislature  or  the  constitution  may  require  that  they  shall 
know.28  Private  statutes,  however,  with  some  exceptions  29  are  not  judicially 
known  to  the  courts,30  and  must  be  proved  before  they  will  be  admitted,  in  ac- 
cordance with  the  requirements  of  the  particular  state.  Officially  printed  copies 
are  generally  admissible  under  express  provision  of  statute.31 

Foreign. —  Courts  do  not  judicially  know  foreign  written  32  or  unwritten  33 
laws,  but  their  existence  is  a  matter  of  fact  34  which  must  be  proved.  This 
may  be  done  by  a  copy  properly  authenticated  in  the  case  of  written  laws  or 
by  the  parol  testimony  of  experts  in  case  of  the  unwritten.35  A  mode  of  prov- 
ing the  former  laws  is  by  the  production  of  a  book  in  which  they  are  printed 
with  proof  that  such  book  was  officially  published  by  the  government  whose 
laws  they  purport  to  contain.36  This  method  has  been  recognized  in  legisla- 
tive enactments  in  many  States.  Exclusive  thereof,  however,  the  courts  in 
some  jurisdictions  early  began  to  receive  such  copies  in  evidence,  both  for  the 
purpose  of  proving  the  laws  of  a  sister  State  and  those  of  a  foreign  country.87 

Sister  State. —  The  courts  of  one  State  do  not  take  judicial  notice  of  the 
statutes  of  another  State,38  they  being  considered  as  foreign  laws,39  of  which 
some  satisfactory  authentication  will  be  required,  the  existence  of  such  laws 

25.  Thompson    v.    Autry     (Tex.    Civ.    App.  §  135.     See  also,  Polk  v.  Butter  field,  9  Colo. 
1900),  57  S.  W.  47.  325,  12  Pac.  216  (1886)  ;  Jackson  v.  Jackson, 

26.  Acme  Brewing  Co.  v.  Central  R.  &  B.  80  Md.    176,   30  Atl.   752    (1894);    People  v. 
Co.,   115  Ga.  494,  42  S.  E.  8    (1902)  ;   Cuttle  McQuaid,  85  Mich.  123,  48  X.  W.  161  (1891)  ; 
v.  Brackway,  24  Pa.   145    (1854);   Hathaway  Lincoln    v.    Battle,    6    Wend      (X.    Y.)     475 
v.  Addison,  48  Me.  440    (1860)  ;   5  Chamber-  (1831)  ;  Hanley  v.  Donoghue,  116  U.  S.  1,  29 
layne,  Evidence,  §  3361,  n.  9,  and  cases  cited.  L.  ed.  535,  6  S.  Ct.  242    (1885)  ;  5  Chamber- 

27.  5  Chamberlayne,  Evidence,  §  3362.  layne,  Evidence,  §  3363,  n.  3,  and  cases  cited. 
23.  §  329,  supra;  1  Chamberlayne  Evidence,          35.  Baltimore  &  0.  R.  Co.  v.  Glenn,. 28  Md. 

§  605.  287   (1867)  ;  Ennis  v.  Smith,  14  How.  (U.  S.) 

29.  §§  329,    supra;    1    Chamberlayne,    Evi-       400,  14  L.  ed.  473  (1852). 

dence,  §§  609,  610.  36.  Ennis  v.  Smith,  supra;  The  Pawashick, 

30.  §§  329   et  seg.;    1    Chamberlayne,  Evi-      2  Lowell  (U.  S.)   142   (1872). 

dence,  §§  609  et  seq.  37.  The  Pawashick,  supra;  Jones  v.  Maffett, 

31.  5  Chamberlayne,  Evidence.  §  3362;  Bid-       5  Serg.  &  R.   (Pa.)   523,  532   (1820). 

dis  v.  James,  6  Binn  (Pa.)  321   (1814).  38.  §  329,  supra;  1  Chamb.,  Ev.,  §  614. 

32.  §  328,    supra;    1    Chamberlayne,    Evi-  39.  Hempstead     v.     Reed,     6     Conn.     480 
dence,  §  601.  (1827);   Bayley's  Adm.  v.  Chubb,   16  Gratt. 

33.  §  323,    supra;    1     Chamberlayne,    Evi-  (Va.)     284     (1862);     Hanley    v.    Donoghue, 
dence,  §  589.  supra. 

34.  §  61,  supra;  1  Chamberlayne,  Evidence, 


§   1056 


PUBLIC  DOCUMENTS. 


'88 


being  a  question  of  fact.40  The  provision  in  the  Act  of  Congress  of  May 
26th,  1790,  that  u  The  acts  of  the  legislatures  of  the  several  States  shall  be 
authenticated  by  having  the  seal  of  their  respective  States  affixed  thereto  "  41 
is  considered  as  only  an  affirmative  act  42  and  not  exclusive  of  other  methods,43 
as  for  instance  by  a  sworn  copy  u  or  by  some  mode  provided  by  State  law.45 
Aii  officially  printed  edition  of  the  statutes  is  also  in  many  cases  received,40 
sometimes  by  virtue  of  statutory  enactment,47  though  it  seems  that  to  au- 
thorize admission  in  evidence  of  such  a  publication  it  must  appear  to  have 
been  officially  printed.48 

§  1056.  [Public  Documents] ;  Ordinances.49 —  The  general  rule  seems  to  be  to 
regard  the  printed,  bound  volume  of  ordinances  published  by  the  authority  of 
a  city  as  prima  facie  evidence  of  the  existence  of  the  enactments,50  especially 
where  the  book  or  pamphlet  contains  a  proper  certification  of  its  authenticity,51 
although  a  seal  or  attestation  is  regarded  as  unnecessary  where  the  ordinances 
are  published  by  municipal  authority.52  A  printed  copy  read  in  evidence  from 
a  newspaper  and  purporting  to  be  published  by  authority  of  the  corporation 
has  been  held  sufficient,53  and  also  a  book  purporting  to  contain  all  the  or- 
dinances and  shown  to  be  in  the  custody  of  the  corporation.54 


40.  Miller   v.   Macveagh,   40   111.    App.    532 
(1891);     Moyt    v.     McNeil,     13    Minn.     390 
(1868);     Ingraham    v.     Hart,    5     Ohio    255 
(1842). 

41.  The  attestation  of  a  public  officer  is  not 
required  as  in  the  case  of  when  other  public 
documents  of  other  states  are  offered  in  evi- 
dence.    U,  S.  v.  Johns,  4  Dall.    (U.  S.)    412 

(1806). 

42.  Ellmore  v.  Mills,  1  Hayw.   (X.  C  )   359 
(1796). 

43.  Rothrock    v.    Perkinson,    61     Ind.    39 
(1878);     Emery    v.    Berry,    28    N.    H.    473 
(1854)  ;  Martin  v.  Payne,  11  Tex.  292  ( 1854)  ; 
5  Chamb.,  Ev.,  §  3364,  n.  6,  and  casesjcited. 

44.  Buskirk   v.    Mulock,    18    N.    J.    L.    184 
(1840)  ;  Smith  v.  Potter,  27  Vt.  304   (1855). 

45.  Merritield  v.  Bobbins,  8  Gray    (Mass.) 
150    (1857);   U.   S.   Vinegar' Co    v.   Foehren- 
bach,  T4  Hun  435,  26  N.  Y.  Supp.  632,  aff'd 
148  N.  Y.  58,  42  N.  E.  403   (1895). 

46.  Smith   v.   Potter,   27   Vt.   304    (1855); 
The    Pawashick,    supra;    Emery    v.    Berry, 
supra;  Mullen  v.  Morris,  2  Pa.  85   (1845)  ;  5 
Chamb.,  Ev.,  §  3364,  n.  9,  and  cases  cited. 

47.  Merrifield  v.  Robbins,  supra. 

48.  Wilt    v.    Culter,    38    Mich.     189,     196 
(1878)  ;   Jones  v.   Maffett,  supra;  Van   Bus- 
kirk    v.    Mulock,    supra;    Martin    v.    Payne, 
supra. 

49.  5  Chamberlayne,  Evidence,  §  3365. 


50.  Brighton  v.  Miles,  151  Ala.  479,  44  So. 
394    (1907);   McGregor  v.   Lovington,  48   111. 
App.  208    (1892);  Boston  v.  Coon,  175  Mass. 
283,   56  X.   E.   287    (1900);    Campbell  v.   St. 
Louis  &  Sub.  R.  Co.,  175  Mo.  161,  75  S.  W. 
86    (1903)  ;  5  Chamb..  Ev.,  §  3365,  n.  1,  and 
cases  cited.     But  see  District  of  Columbia  v. 
Johnson,  1  Mackey   (D.  C.)    51    (1881).     See 
Larkin   v.   Burlington,   etc.,   R.   Co.,   85   Iowa 
492,  52  X.  VV.  480   (1892). 

51.  Heno  v    Fayetteville,  90  Ark.  292,   119 
S.  W.  287    (1909)';  Logue  v.  Gillick,  1   E.  D. 
Smith    (X.  Y.)   398    (1852);  St.  Louis  S.  W. 
Ry.  Co.  v.  Garber,  51  Tex.  Civ.  App.  70,  111 
S.  W.  227    (1908)  ;  5  Chamb.,  Ev.,  §  3365,  n. 
2,  and  cases  cited. 

52.  St.  Louis  v.  Foster,  52  Mo.  513  (1873). 
Their  admissibility  is  not  affected  by  the  fact 
that  the  publication   is  not  directly  author- 
i^ed    by    law.     Birmingham    v.    Tayloe,    105 
Ala.    170,    16   So.   576    (1894);    McCaffrey   v. 
Thomas,    4    Pen.     (Del.)     437,    56    Atl.    382 
(1903)  ;  or  that  by  the  terms  of  some  enact- 
ment a  different  mode  of  proof  is  designated 
Birmingham  v.  Tayloe,  supra.     Xor  need  the 
fact  of  their  passage  be  shown.     Byars  v.  Mt 
Vernon,  77  III.  467   (1875). 

53.  Block     v.     Jacksonville,     36     111.     301 
(1865). 

54.  Birmingham  v.  Tayloe,  supra;  Grafton 
v.  St.  Paul  M.  &  M.  Ry.  Co.,  16  X.  D.  313, 


789  AFFAIRS  OF  STATE.  §  1057 

Necessity  of  Authentication. —  Satisfactory  proof  of  the  authenticity  of  an 
ordinance  is  required.55  A  volume  offered  in  evidence  as  containing  such 
acts  should  show  that  it  purports  to  be  published  by  the  proper  authority.56 
A  printed  statement  without  any  showing  of  any  official  authorization  for  its 
publication  is  insufficient.57 

Statutes;  Requiring  Keeping  of  Record  or  Journal. —  Where  a  statute  re- 
quires that  a  municipal  corporation  shall  keep  a  record  or  journal  of  its  pro- 
ceedings in  which  all  acts  and  ordinances  of  the  corporation  shall  be  recorded, 
the  original  record  book  of  the  ordinances  of  the  city,  containing  the  ordinance 
in  question  is  admissible  5S  when  kept  in  the  office  of  the  city  clerk,59  town 
clerk  (H|  or  other  designated  official  or  produced  from  the  custody  of  some  other 
official  in  whose  keeping  it  properly  belongs61  and  by  whom  it  should  be 
identified.62  The  adoption  of  an  ordinance  may  also  be  proved  by  the  min- 
utes of  the  common  council  kept  by  the  clerk.63 

As  to  Admission  in  Evidence  of  Bound  Volumes. —  A  charter  or  statutory 
provision  that  printed  volumes  of  the  ordinances  of  the  city  shall  be  evidence 
in  all  courts,  places  them  as  to  all  suits  brought  for  a  violation  of  them  on  a 
similar  footing  to  statutes  so  far  as  relates  to  the  method  of  proving  their 
contents.64 

§  1057.  [Public  Documents] ;  Papers  and  Documents  Relating  to  Affairs  of 
State.05 — The  admission  of  publications  printed  by  legislative  authority ,  con- 
taining matters  relating  to  affairs  of  state  has  been  frequently  objected  to  on 
the  ground  that  the  originals  should  be  produced.  The  courts  have,  however, 
not  regarded  this  objection  as  tenable  and  have  generally  considered  them  as 
equally  admissible  as  the  originals.66  Thus  the  journals  of  the  House  of 

113  X  W.  598  (1907).     A  record  hook  of  the  46,  43  Pac.  392  (1896)  ;  Boyer  v.  Yates  City, 

proceedings    of    a    municipal    corporation    in  47   111    App.   115    (1892):   Jackson  v.  Kansas 

which   printed   ordinances    have   been    pasted  City,    etc.,    R.    Co.,    157    Mo.    621,    58    S.    W. 

has   been   admitted.     Ewbanks   v.   Ashley,   36  32,  80  Am.  St.  Rep.  650    (1900);   5  Chamb., 

111.  177   (1864).     A  document  which  professes  Ev.,  §  3367,  n.  2,  and  cases  cited. 

on  its  face  to  be  the  original  ordinance  and  59.  Selma  St.  &  S.  R.  Co.  v.  Owen,  132  Ala. 

which  is  properly  authenticated  may  also  be  420,  31   So.  598    (1901). 

received.     Eichenland  v.  St.  Joseph,   113  Mo.  60.  Tipton  v.  Xorman.  72  Mo.  380    (1880). 

395,  21    S    W.   8,    18   L.   R.   A.   590    (1893);  61.  Merced     County     v.     Fleming,     supra; 

where  properly  filed  and  produced  from  the  Metropolitan   St.   R.  Co.  v.   Johnson,   90  Ga. 

proper  custody.     Troy  v.  Atchison  &  A.  N   R.  500,   16  S.  E.  49    H892). 

Co.,  11  Kan.  519  (1873).  62.  Greeley  v.  Hamman,  17  Colo.  30,  28  Pac. 

55.  Kelly  v.  State,  160  Ala.  48,  49  So,  535  460    11891)*;    Met.    St.    R.    Co.    v.    Johnson, 
(1909).  supra. 

56.  Taylor  v.  Illinois  Cent.  R.  Co.,  154  111.  63.  Kennedy  v.  Newman,  1  Sandf.   (X.  Y.) 
App.    222    (1910);    Christensen    v.    Tate,    87  187    (1848). 

Neb.  848,  128  X.  W.  622   (1910):  5  Chamb.,  64.  Xapman     v.     People,     19     Mich.     352 

Ev.,   §   3366,  n    2,  and  cases  cited.  (1869):   Missouri  K.  &  T.  R.  Co.  v.  Owens 

57.  International  &  G.  X.  R.   Co    v    Hall,  (Tex.    Civ.    App.    1903),    75    S.    W.    579;    5 
35  Tex.  Civ.  App   545,  81  S.  W.  82  (1904).  Chamb.,  Ev.,  §  3368.  and  cases  cited. 

•    58.  Barnes  v.  Alexander  City.  89  Ala    602          65.  5  Chamberlayne.  Evidence.  §  3369. 
(1889)  ;  Merced  County  v.  Fleming,  111  Cal.          66.  Whiton   v.   Albany   City   Ins.   Co.,    109 


§   1057  PUBLIC  DOCUMENTS.  790 

Lords  were  early  admitted  not  only  to  prove  the  King's  address  but  the  address 
of  the  house  to  the  crown,67  as  in  fact  were  the  journals  of  either  house  to  show 
the  action  of  that  house  upon  matters  before  it.us  Likewise  legislative  jour- 
nals,09 as  for  example  the  journal  of  the  House  of  .Representatives  of  the 
United  States,70  are  admissible.  Similarly  a  State  register  containing  the 
proclamation  of  a  governor  has  been  received  to  show  both  the  existence  of 
the  proclamation  and  the  facts  stated  therein.71  Appendices  to  the  report  of 
a  State  adjutant-general  printed  by  the  State  printer  have  also  been  received.'2 
So  a  book  printed  in  pursuance  of  a  legislative  act  authorizing  it  is  a  public 
document  and  admissible  in  proof  of  facts  asserted  therein  73  and  likewise  as 
to  similar  volumes  or  papers  printed  by  authority  of  the  national  legislative 
body,74  containing  copies  of  public  documents  communicated  to  either  House 
of  Congress  by  the  President  of  the  United  States  75  or  by  the  Secretary  of 
State.  American  state  papers  published  by  order  of  Congress  76  have  also 
been  admitted  in  evidence  in  the  investigation  of  claims  to  land,77  the  copies 
which  they  contain  of  legislative  and  executive  documents  being  as  good  evi- 
dence as  the  originals  from  which  they  were  copied  78  and  in  fact  entitled  to 
the  highest  authenticity.79  Similarly  a  compendium  of  the  census  compiled 
pursuant  to  act  of  Congress  and  printed  at  the  government  printing  office  is 
admissible  to  show  the  population  of  a  town.80  The  existence  of  a  blockade 
is  similarly  prima  facie  shown  by  a  sentence  of  condemnation  for  an  attempt 
to  violate  it.81  Likewise  official  papers  of  the  Confederate  government  pre- 
served by  the  United  States  government  in  the  bureau  known  as  the  Con- 
federate Archives  Office  or  copies  thereof  are  admissible.82  A  government 
gazette  is  not,  however,  admissible  to  prove  facts  of  a  private  nature,  it  being 
confined  to  those  cases  where  public  acts  of  government  or  matters  of  state 
are  involved.83 

Mass.  24  (1871)  ;  Bryan  v.  Forsyth,  19  How.  County  Drainage  Ditch,  30  S.  D.  79,  137  N. 

(U.  S.)  334,  15  L.  ed.  674   (1856)  ;  5  Chamb.,  W.  608   (1912). 

Ev.,  §  3369,  n.  1,  and  cases  cited.  75.  Radcliffe  v.   United   Ins.   Co.,   7   Johns. 

67.  Rex  v.   Franklin,  9  St.  R.  259    (1731).  (N.  Y.)   38.  50   (1810). 

68.  Root    v     King,    7    Cow.    (N.    Y.)    613  76.  Dutillet  v.  Blanchard,   14  La.  Ann.  97 
(1827)  ;  Jones  v.  Randall,  1  Cowp.  17  (1774).  (1859). 

69.  Rio  Grande  Sampling  Co.  v.  Catlin,  40  77.  Doe  v.  Roe,  13  Fla   602   (1871)  ;  Nixon 
Colo.  450,  94  Pac.  323   (1907);  Post  v.  Super-  v.    Porter,    34    Miss.    697,    69    Am.    Dec.   408 
visors,  105  U.  S.  667,  26  L.  ed.  1204   (1881)  ;  (1858)  ;    5   Chamb.,   Ev.,   §   3369,   n.   17,  and 
5  Chamb.,  Ev.,  §  3369,  n.  9,  and  cases  cited.  cases  cited. 

70.  Miles  v.  Stevens,  3  Pa.  21,  45  Am.  Dec.  78.  Dutillet  v.   Blanchard,   supra. 

621    (1846).  79.  Watkins   v.   Holman,    16   Pet.    (U    S.) 

71.  Lurton  v.  Gilliam,  2  111.  577,  33  Am.      25,  10  L.  ed.  873   (1842). 

Dec.  430   (1839).  80.  Fulham  v.  Howe,  60  Vt.  351,   14  Atl. 

72.  Milford  v.  Greebush,  77  Me.  335  (1885).      652  (1888).     See  also,  5  Chamb.,  Ev.,  §  3369, 

73.  Worcester  v.   Northborough,   140  Mass.       n.  20,  and  casts  cited. 

397,  5  N.  E.  270  (1886).  81.  Radcliffe  v.  United  Ins.  Co.,  supra. 

74.  Whiton  v.  Albany  City  Ins.  Co.,  supra;          82.  Oakes  v.  U.  S.,  174  U.  S.  778,  19  S.  Ct. 
Lawless    v     Roddis,    36    Okl.    616,    129    Pac.       864,  43  L.  ed.  1169    (1898). 

711    (1913).     See  also,  In  re  Yankton-Clay          83.  Del.  Hoyo  v.  Brundred,  20  N.  J.  L.  328 

(1844). 


701  COMPELLING  PRODUCTION.  §  1058 

§  1058.  [Public  Documents] ;  Compelling  Production  of.84 —  In  the  absence  of 
any  statute  which  may  be  controlling  of  the  question,  the  power  of  the  court 
to  compel  the  production  of  public  documents  while  recognized  will  not  except 
in  very  few  instances  **•*  be  exercised. so 

84.  5  Chamberlayue,  Evidence,  §  33ti9a.  Corbett  v.  Gibson,   16  Blatchf.    (U.  S.)    334 

85.  State  v.  Smithers,  14  Kan.  629   (1875)  ;  (1879)  ;  Bank  v.  Springer,  14  Can.  S.  Ct.  716, 
Treasurer    v.    Moore,    3    Brev.     (S.    C.)     550  13    Ont.    App.    390,    7    Ont.    309    (1887);    5 
(1815).  Chamb.,  Ev.,  §  336!>a,  n.  2,  and  cases  cited. 

86.  In  re  Lester,  77  Ga.  143  (1886)  ;  Dun-  For  the  reasons  underlying  the  action  of  the 
ham  v.  Chicago,  55  111.  357    (1870);   State  courts,  see  5  Chamb.,  Ev.,  §  3369a. 

V.  Baker,  35  Nev.  1,300,  126  Pac.  345  (1912)  ; 


CHAPTER  L. 

JUDICIAL  RECORDS. 

Judicial  records;  administrative  requirements,  1059. 
In  same  court  and  in  another  court,  1060. 
Minutes  or  memoranda;  when  admissible,  1061. 
Judicial  records;  effect  when  perfected,  1062. 

extent  to  which  admissible,  1063. 

justices  of  the  peace,  1064. 

probate  courts,  1065. 

§  1059.  Judicial  Records;  Administrative  Requirements.1 — The  judicial  rec- 
ord itself,  which  consists  of  the  history  of  a  suit  or  judicial  proceeding  from 
its  commencement  to  its  termination,2  is  of  course  to  be  regarded  as  the 
primary  proof  of  any  fact  contained  therein.3  Proof  of  its  authenticity  is  in 
all  cases  a  prerequisite  to  its  admission  in  evidence.4  This  may  be  shown 
either  by  testimony  by  the  keeper  of  the  records,  ordinarily  the  clerk,  to  the 
effect  that  it  is  a  paper  of  record  from  his  office  or  by  a  proper  certificate 
from  his  office  to  the  same  effect.5  Testimony  of  the  judge  out  of  whose  court 
the  record  is  produced,6  or  the  testimony  of  any  competent  witness  who  could 
identify  the  record  as  the  original,7  may  likewise  be  received  for  this  purpose. 
This  principle  applies  not  only  to  the  record  as  a  whole  but  where  parts  of  it 

1.  5  Chamberlayne,     Evidence,     §§     3370-  in  which  case  it  would  be  admissible  as  an 
3374.  admission   against   interest.     Krogh   v.   Mod- 

2.  Davidson    v.    Murphy,     13     Conn.     213  ern  Brotherhood,  153  Wis.  397,  141  N.  W.  276, 
(1839);    Surge   v.    Gandy,    41    Neb.    149,    59  45   L.   R.  A.    (N.   S.)    404    (1913). 

N.  W.  359    (1894).  4.  Carp  v.   Queens   Ins.   Co.,   203   Mo.  295, 

3.  Harper   v.    Rowe,   53    Cal.    233    (1878);  101    S.   W.   78    (1906);    Tully   v.   Lewitz,   98 
Day  v.  Moore,  13  Gray   (Mass.)   522   (1859);  N.   Y.    Supp.    829,   50   Misc.    350    (1906);    5 
5    Chamb.,    Ev.,    §    3370.     Recitals   in   record  Chamb.,  Ev.,  §  3371,  n.  1. 

'may  establish  jurisdictional  facts.     See  note,  5.  Carp  v.   Queens  Ins.  Co.,  supra;  Garri- 

Bender,    ed.,    16    N.    Y.    180.     Pleadings    as  gues  v.  Harris,  17  Pa.  344  (185.1)  ;  5  Chamb., 

evidence.     See  note,   Bender,   ed.,    116   N.   Y.  Ev.,   §   3371,  n.  2. 

423.  6.  Odiorne  v.  Bacon,  6  Cush.    (Mass.)    185 

Where  a  coroner's  verdict  in  an  inquest  is  (1850)  ;  Kolterman  v.  Chilvefs,  82  Neb.  216, 

required    to    be    sealed    up    and    returned    to  117  N.  W.  405  (1908)  ;  5  Chamb.,  Ev.,  §  3371, 

court    and    filed    it    thus    becomes    a    public  n.  3. 

record  and  as  such  is  proper  to  be  considered  7.  McLeod   v.    Crosby,    128    Mich.    641,    87 

in   another   proceeding.     Foster   v.    Shepherd,  N.  W.  883  (1901);  State  v.  Chambers,  70  Mo 

258  111.  164,  101  N.  E.  411,  45  L.  R.  A.    (N.  625    (1879)  :   5  Chamb.,  Ev.,  §  3371,  n.  4.     A 

S.)   167   (1913).     The  record  of  the  coroner's  statement  of  counsel  that  he  has  the  record 

verdict  is  not  admissible  in   evidence  in   an  in  court  is  not  sufficient.     Azzara  v.  Waller, 

action  on  an  insurance  policy  unless  put  in  88  N.  Y.  Supp.  1040   (1904). 
by  the  insured  as  part  of  his  proof  of  death 

792 


793  Ix  SAME  COURT,  ETC.  §   10(30 

.are  offered  in  evidence,  as  for  instance  an  execution,8  though  in  the  latter  case 
it  has  been  held  sufficient  if  the  officer  in  whose  hands  the  execution  was  and 
by  whom  the  return  was  made  identifies  it  as  the  one  under  which  he  acted.9 
Such  a  record  or  a  part  thereof  offered  in  evidence  must  be  competent  and 
material  to  the  issue  in  order  to  be  admitted.1"  A  judicial  record  will  not 
be  excluded  because  of  some  mere  defect  or  informality  in  connection  with 
the  making  of  the  record  or  the  papers  which  form  a  part  thereof.  If  the 
defect  is  not  one  which  affects  the  validity  of  the  writing  it  may  well  be  re- 
ceived.11 Thus,  a  record  of  judicial  proceedings  has  been  admitted  where 
the  judge  or  clerk  neglected  or  failed  to  sign  the  same  as  required  by  statute,12 
though  not  registered  with  the  official  designated  by  law,13  though  the  com- 
plaint in  a  judgment  roll  was  not  verified,14  and  though  papers  constituting 
a  judgment  roll  were  never  attached  together  in  the  form  of  a  roll  as  required 
by  statute.15  There  should,  however,  be  some  evidence  showing  jurisdiction 
of  the  court.16  A  record  is  admissible  though  obtained  in  an  irregular  man- 
ner,17 as  where  it  has  been  improperly  permitted  by  the  clerk  to  be  removed,18 
or  even  though  it  has  been  illegally  removed.19 

§  1060.  In  Same  Court  and  in  Another  Court. —  An  original  judicial  record  is 
admissible  in  the  same  court,20  which  is  presumed  to  know  its  own  proceed- 
ings and  records  21  and  will  take  judicial  notice  thereof.22  In  any  action  in 
which  any  fact  of  record  in  a  judicial  proceeding  in  another  court  is  relevant 
such  fact  may  be  established  by  the  production  of  the  original  record  of  such 
proceeding.23  Xor  will  it  be  any  objection  to  the  admission  of  the  proof 
offered  that  the  original  and  not  a  certified  copy  is  produced  24  even  though  it 

8.  Davis   v.   Ransom,   26   111.    100    (1861);  18.  Stevison  v.  Earnest,  80  111  513  (1875). 
Benjamin   v.   Shea,   83   Iowa  392,   49   X.   W.  19.  People  v.  Alden,  113  Cal.  264,  45  Pac. 
989    (1891).  327   (1896). 

9.  Hildreth  v.  Lowell,  11  Gray  (Mass.)  345          20.  Manning  v.  Webb,  136  Ga.  881,  72  S.  E. 
( 1858) .  401  (1911 );  State  v.  Logan,  33  Md   1  ( 1870)  ; 

10.  Numbers  v.  Shelly,  78  Pa.  426   (1875)  ;  Garrigues  v.  Harris,  supra;  5  Chamb.,  Ev  ,  § 
5  Chamb,  Ev.,  §  3372,  nn    1,  2.  3375,  n.  1. 

11.  See   §    1052,   supra;   5   Chamb.,   Ev.,   §  21.  \Yardv.Saunders.28X.C.382  (1846). 
3358.  See   also,    §    344,    supra ;    1    Chamb.,    Ev.,   §§ 

12.  Farley  v    Lewis,  102  Ky    234,  44  S.  W.  683,  684. 

114,   19   Ky.  L    Rep    125.)    (1897);    Eastman  22.  Taylor  v.  Adams,  115  111.  570,  4  N.  E 

v.  Harteau,   12.  Wis.  267    (I860);   5  Chamb.,  837    M886);    Wallis   v.   Beauchamp.    15   Tex. 

Ev.,  §  3373,  nn    2.  3.  303    (1855);    5    Chamb.,    Ev.,    §    3375,    notes 

13.  Lindsay  v.   Beaman,   128  X    C.  189,  38  3-11 

S.  E.  811    (1001)  23.  Rogers  v.  Riverside  Land,  etc.,  Co.,  132 

14.  Johnson  v    Puritan  Min.  Co.,  19  Mont.  Cal    9,  64  Pac.  95    (1901)  ;  Odiorne  v.  Bacon, 
30,  47  Pae.  337    (1896)  supra ;  Osburn  v.  State,  7  Ohio  212   (1835)  ; 

15.  Sharp  v.  Sumley.  34  Cal.  611    (1868).  Garrigues  v.   Harris,   supra:   5   Chamb.,   Ev., 

16.  Gould  v    U    S.,  209  Fed    730,  126  C.  C.  §  3376,  n.  1.     Contra:  Cramer  v    Truitt,  113 
A.  454    (1913)  Ga.  967,  39  S.  E.  459    (1901):   Goldsmith  v. 

17.  Brooks  v.  Daniels,  22  Pick    (Mass.)  498  Kilbourn.    46    Md.    289     (1876U    Oglesby    v 
(1839)  :  McFadden  v.  Ferris,  6  Ind   App   454,  Forman,  77  Tex   647,  14  S   W   244  (1890) 

32  X.  E.  107  (1892)  ;  5  Chamb.,  Ev.,  §  3374,  24.  McAllister  v.  People,  28  Colo.  156,  63 
n.  1.  Pac  308  (1900);  Carp  v.  Queen  Ina.  Co., 


§  1061 


JUDICIAL  RECORDS. 


794 


has  been  provided  by  statute  that  proof  of  the  records  of  one  court  in  those  of 
another  may  be  so  made.25 

§  1061.  Minutes  or  Memoranda;  When  Admissible.26 — Where  the  final  record 
has  not  been  completed,  minutes  and  entries  which  are  to  be  used  in  extending 
it  will  often  be  admitted.27  Though  perhaps  not  conclusive  until  per- 
fected,28 it  is  to  be  regarded  as  the  strongest  sort  of  presumptive  evidence.2* 
The  original  papers  have  also  been  received  as  competent  evidence  where  it  is 
not  shown  that  the  final  record  has  been  perfected.30  Minutes  have  frequently 
been  admitted  as  sufficient  evidence  of  the  facts  recited  where  there  is  no  record 
required  to  be  kept31  or  where  the  jua^ment  record  need  only  be  made  if 
required  by  one  of  the  parties.32 

When  Not  Admissible. —  There  are  several  decisions  which  might  be  taken 
as  authority  for  a  rule  that  minutes  and  entries  made  prior  to  the  final  extension 
of  the  record  will  not  be  received  in  evidence.33  This  principle  of  exclusion 
has  been  applied  to  minutes  kept  by  a  judge  merely  for  his  own  convenience  34 
as  where  he  has  made  some  memoranda  of  this  character  on  his  calendar  35 


supra;  Manning  v.  State,  46  Tex.  Cr.  326,  81 
S.  W.  957  (1904)  ;  5  Chamb.,  Ev.,  §  3376,  n.  2 

25.  Gray  v.  Davis,  27   Conn.  447    (1858); 
Lipscomb  v.   Postell,   38   Miss.   476,   77   Am. 
Dec.    651     (1860).     In    an    action    against   a 
city  for  causing  the  destruction  of  the  plain- 
tiff's building  by  fire  the  record  of  a  suit  for 
the  same  fire  against  a  contractor  is  not  ad- 
missible in  evidence.     Johnson  Co.  v.  Phila- 
delphia, 236  Pa.  510,  84  Atl.  1014,  42  L.  R.  A. 
(N.  S.)    512    (1912).     Only  clear  and  direct 
evidence  is  sufficient  to  cause  the  conviction 
for  perjury  of  one  for  giving  testimony  which 
resulted  in  his  acquittal  of  a  previous  crime. 
Allen  v.  United  States,  114  C.  C.  A.  357,  194 
Fed.   664,   39   L.  R.   A.    (N.   S.)    385    (1912). 
Admissibility  of  judgment  as  between  other 
parties.     See  note,  Bender,  ed.,  145  N.  Y.  607. 
Validity  of  a  foreign   judgment  in  rem,  Vol 
28,    X.    Y.    Rpts    Bender,   ed.,   note,   p.    511. 
Collusiveness  of  foreign  judgment,  Vol.  26, 
N.  Y    Rpts.,  Bender,  ed.,  note,  p.   1103      En- 
forceability    of   judgments    in    another    state, 
Vol.  22,  N.  Y.  Rpts.,  Bender,  ed  ,  note,  p.  556. 
Effect  of  foreign  judgment  raised  here,  Vol. 
3,    N.    Y     Rpts.,    Bender,    ed.,    note,    p     207. 
Discharge  not  prevent  action  here  on  foreign 
judgment,  Vol.   1,   N.  Y.  Rpts  ,   Bender,   ed , 
note,  p.  419. 

26.  5  Chamberlayne,     Evidence,     §§     3377. 
3379 

27.  Townsend    v     Way,    5    Allen     (Mass  ) 
426    (1862):    State  v.   Warady,   78   N.   J.   L 
687,  75  Atl.  977    (1909);  Chapman  v.  Seely, 


8   Ohio   Cir.   Ct.   179,   4  Ohio   Cir.   Dec.   395 
(1891)  ;  5  Chamb.,  Ev.,  §  3377,  n.  1. 

28.  Governor    v.    Bancroft,     16    Ala.    605 
(1849). 

29.  Gaskill  v.   State,  64  Ga.  562    (1880); 
Read  v.  Sutton,  2  Cush.  (Mass.)   115  (1848). 
The  recovery  of  a  judgment  may  be  so  shown, 
McGrath  .v.   Seagrave,   2  Allen    (Mass.)    443 
(1861)  ;  as  may  also  a  conviction  for  an  of- 
fense, Gandy  v.  State,  86  Ala.  20,  5  So.  420 
(1888)  :  and  a  discharge  in  bankruptcy,  Serv- 
ian v.  Rohr,  66  Md.  95,  5  Atl.  867   (1886). 

30.  Wharton    v.    Thomason,    78    Ala.    45 
(1884);     Sharp    v.     Lumley,     34     Cal      611 
(1868);    Morgan    v.    Burnett,    18    Ohio    535 
(1849). 

31.  Com.  v.  Bolkom,  3  Pick.    (Mass.)    281 
(1825);    Prentiss   v.    Holbrook,   2   Mich.   372 
(1852)  ;   5  Chamb.,  Ev.,  §  3378,  n.  1. 

32.  Emery  v.  Whitwell,  6  Mich.  474  ( 1859) . 

33.  Traylor  v.   Epps,    11    Ga.  App.  497,  75 
S.    E.    828     (1912);     State    v,    Baldwin,    62 
Minn    518,  65  N.  W.  80    (  1895)  ;   Handly  v. 
Greene,    15    Barb      (N.    Y.)     601     (1853);    5 
Chamb.,  Ev  ,  §  3379,  n    1.     Compare  Haddon 
v.  Lundy,  59  X.  Y.  320   (1874),  holding  that 
original  minutes  from  which  the  entries  are 
made  by  a  surrogate  in  a  book  as  required  by 
law  are  evidence  of  a  higher  character  even 
than  the  book   itself. 

34.  McCormick  v    Wheeler,  36  111.   114,  85 
Am.  Dec    388    (1864). 

35.  Miller  v.  Wolf,  63  Iowa  233,  18  N.  W. 
889   (1884). 


795  EFFECT,  §§  1062,  1063 

or  on  the  papers  in  the  case,36  though  it  would  seem  that  they  might  be  used 
as  memoranda  to  refresh  the  memory  of  the  judge  37  in  the  absence  of  other 
or  higher  evidence.38 

§  1062.  Judicial  Records;  Effect  When  Perfected.39 — Where  the  record  has 
been  perfected  it  or  a  certified  copy  thereof  then  becomes  the  only  evidence  of 
the  judgment  and  other  facts  which  should  appear  thereon  40  in  the  absence 
of  evidence  that  such  record  has  been  lost  or  destroyed,4 1  in  which  case  it  would 
seem  that  secondary  evidence  in  the  form  of  docket  entries,42  clerk's  memoran- 
dum 43  and  the  like  may  be  received. 

§  1063.  [Judicial  Records] ;  Extent  to  Which  Admissible.44 —  A  judicial  rec- 
ord when  produced  from  the  proper  custody  may  be  introduced  as  proof  of 
any  fact  or  facts,  properly  incorporated,  which  are  relevant  in  the  trial  of  the 
particular  matter  in  controversy.  Thus  for  the  purpose  of  ascertaining  what 
was  in  issue  and  determined  by  a  former  judgment,45  or  for  some  other  pur- 
pose relevant  to  the  issue  involved  between  the  parties,46  all  entries  and  papers 
in  a  record  which  are  relevant  to  the  issue  are  properly  admitted.47  Although 
there  may  not  be  an  identity  of  parties,  a  record  may  be  admitted  as  a  cir- 
cumstance from  which  to  infer  a  given  consequence.48  The  dismissal  of  a 
cause  does  not  operate  to  remove  the  papers  from  the  record  so  as  to  exclude 
their  use  as  evidence.49 

Executions  and  Returns. —  The  returns  of  an  officer  upon  process  which  has 
been  placed  in  his  hands  for  .service  become,  when  the  papers  have  been  filed 
in  the  record,  a  part  thereof  and  are  admissible  in  evidence.50  Such  returns 

36.  Gilbert    v.    McEachen,    38    Miss.    469  45.  Ward  v.  Sire,  52  App.  Div.  443,  65  X. 
{I860).  Y.  Supp.  101    (1900). 

37.  Grimm  v.  Hamel,  2  Hilt    (N.  Y.)   434  46.  James   v.    Conklin,    158    111.    App.    640 
(1859).  (1910)  ;  Bartlett  v.  Decreet,  4  Gray   (Mass.) 

38.  Keller  v.  Killion,  9  Iowa  329    (1859).  Ill    (1855);    Rapley   v.   McKinney's   Estate, 
Stenographer's  notes  are  to  be  given  no  more  143  Mich.  508,  107  N.  W.  501    (1906)  ;  Durr 
force  than  minutes  made  by  the  judge.     Ed-  v.    Wildish,    108    Wis.    401,    84    N.    W.    437 
wards  v.  Heuer,  46  Mich.  95,  8  N.  W.  717  (1900)  ;  5  Chamb.,  Ev.,  §  3381,  n.  2. 
(1881).  47.  Wallace  v.  Jones,  93  Ga.  419,  21  S.  E. 

39.  5  Chamberlayne,  Evidence,  §  3380.  89    (1893);    Cahill  v.   Standard  Marine  Ins. 

40.  Goggans   v.    Myrick,    131    Ala     286,   31  Co.,   204   X.   Y.    190,   97   X.   E.   486    (1912); 
So.  22  (1901);  Baxter  v.  Pritchard,  113  Iowa  Knapp  v.  Miller,    133   Pa.   275,    19   Atl.  555 
422,  85  N.  W.  633   (1901)  ;  5  Chamb.,  Ev.,  §  (1890)  ;  5  Chamb.,  Ev.,  §  3381,  "n.  3. 

3380,  n.  1.  48.  Van  Rensselaer  v.  Akin,  22  Wend.   (X. 

41.  Waterbury  Lumber,  etc.,  Co    v.  Hinck-      Y.)    549. 

ley,  75  Conn.  187,  52  Atl.  739  (1902)  ;  Baxter          49.  Woods  v.  Kessler,  93  Ind.  356  (1883)  ; 
v.  Pritchard,  supra.  Lyster  v.   Stickney,   12  Fed.   609,  4  McCrary 

42.  Ellis  v.  Huff,  29  111.  449    (1*62);   Bu-       109    (1882). 

chanan  v.  Moore,   10  Serg.  &  R.    (Pa.)    275  50.  State    v.    Lang,    63    Me.    215     (1874); 

(1823).  Heyfron   v.   Mahoney,   9  Mont.   497    24  Pac. 

43.  Brown  v.  Campbell,  33  Gratt.  (Va.)  402  93,   18  Am.   St.  Rep.  757    (1890);    Shoup  v. 
(1880).  Marks,  128  Fed.  32,  62  C.  €.  A.  540   (1904)  ; 

44.  5  Chamberlayne,    Evidence,    §§    3381 :  5  Chamb.,  Ev.,  §  3382,  n.  1. 
3385. 


§  1064  JUDICIAL  KECORDS.  796 

are  those  of  a  public  officer  of  an  official  act  in  the  performance  of  his  official 
duty  and  which  he  is  by  law  bound  to  make.51  Where  the  officer  to  whom  a 
writ  is  delivered  has  been  prevented,  without  negligence  or  fault  on  his  part, 
from  obeying  the  mandate  of  the  writ,  a  return  endorsed  upon  the  writ  is  a 
sufficient  return  and  evidence  of  that  which  it  recites.02  The  endorsement  by 
the  officer  must  in  all  cases  be  one  which  he  is  authorized  to  make.5-'5  An 
original  execution  has  also  been  admitted  in  evidence  to  show  that  it  was  in- 
correctly copied  into  the  record,54  or  in  proof  of  some  other  relevant  fact.55 
Where  the  execution  has  been  lost,  the  execution  docket  kept  by  the  clerk  con- 
taining entries  in  regard  thereto  is  admissible.50 

Incidental  Matters. —  Papers  which  are  incidentally  connected  with  the  pro- 
ceedings such  as  bills  of  exceptions,57  affidavits,58  depositions  in  courts  of  pro- 
bate,59 a  report  of  a  surveyor  attached  to  the  record  of  an  action  of  ejectment,60 
matters  of  evidence  61  and  a  paper  purporting  to  be  the  opinion  of  a  judge  but 
not  signed  »r  in  any  way  authenticated,62  will  not  be  received  in  evidence  as  a 
part  of  the  record. 

Matters  not  Properly  Part  of. —  The  record  as  a  whole  imports  verity.  It 
therefore  follows  that  every  part  of  it  will  be  received  to  prove  that  which  it 
legitimately  sets  forth.63  It  will  not,  however,  be  admitted  as  proof  of  any 
entry  or  statement  which  is  not  properly  a  part  thereof.64  Thus  where  the 
statute  provides  what  shall  form  the  judgment  roll,  papers  which  are  not 
among  those  specified  cannot  be  made  a  part  thereof  by  being  joined  to  it.65 

Pleadings. —  The  pleadings  constitute  a  part  of  the  record  and  as  such  are 
admissible.66 

§  1064.  [Judicial  Records] ;  Justices  of  the  Peace.67 —  Records  kept  by  jus- 
tices of  the  peace  of  proceedings  before  them  have,  where  properly  authen- 

51.  Bechstein  v.  Sammis,  10  Hun    (N.  Y.)  60.  Patton    v.    Kennedy,    1    A.    K.    Marsh. 
585    (1877),   and   are   received   though   made       (Ky.)   389,  10  Am.  Dec.  744   (1818). 

after    the    commencement    of    the    action    in  61.  Mestier  v.  New  Orleans,  etc.,  R.  Co.,  16 

which  they  are  offered.  La.  Ann.  354   ( 1861 ) . 

52.  Kowe  v.  Hardy,  97  Va.  674,  34  S.  E.  62.  Wixson  v.  Devine,  67  Cal.  341,  7  Pac. 
625,  75  Am.  St.  Eep.  811   (1899).  776    (1885). 

53.  Kimmel    v.    Meier,    106    111.    App.    251  63.  State  v.  Hawkins,   supra;  Numbers  v. 
(1902);    Wardwell   v.    Patrick,   1    Bosw.    (N.  Shelly,  78  Pa.  426   (1875);  5  Chamb.,  Ev.,  § 
Y.)   406   (1857)  ;  5  Chamb.,  Ev.,  §  3382,  n.  5.  3384,  n.  1. 

54.  Perry  v.  Whipple,  38  Vt.  278   (1865).  64.  Gunn  v.  Howell,   35  Ala.   144,   73   Am. 

55.  Nelson  v.  Brisbin,  5  Neb.   (Unoff.)  496,  Dec.  484    (1859);    Colton  Land  &  W.   Co.  v. 
98  N.  W.  1087  (1904).  Swartz,  99  Cal.  278,  33  Pac.  878  (1893). 

56.  Williams  v.  Lyon,  181  Ala.  531,  61  So.  65.  Colton  Land  &  W.  Co.  v.  Swartz,  supra. 
299   (1913)  ;  Ellis  v.' Huff,  29  111.  449   (1862).  66.  Gregory  v.  Pike,  94  Me.  27,  46  Atl.  793 

57.  O'Neall  v.  Calhoun,  67  111.  219   (1873);  (1900);   Keller  v.  Morton,   117  N.  Y)  Supp. 
State   v.    Hawkins,    81    Ind.    486    (1882);    5  200,  63  Misc.  340   (1909);  Com.  v.  Mononga- 
Chamb.,  Ev.,  §  3383,  n.  1.  hel    Bridge    Co.,    216    Pa.    108,    64    Atl.    909 

58.  Dempster  Mill   Mfg.   Co.   v.   Fitzwater,  (1906)  ;  5  Chamb.,  Ev.,  §  3385. 

6  Kan.  App.  24,  49  Pac.  624   (1897).  67.  5  Chamberlayne,    Evidence,    §§     3386: 

59.  Lipscomb  v.   Postell,  38  Miss.  476,  77      3390. 
Am.  Dec.  651   (1860). 


797  JUSTICES  OF  PEACE.  §  1064 

ticated  and  proved,68  been  received  in  proof  of  the  facts  stated  therein,69 
especially  in  those  jurisdictions  where  such  a  court  is  one  of  records.  Like- 
wise minutes  70  kept  by  justices  of  the  peace  have  been  admitted,  as  have  also 
their  files  71  and  dockets,72  though  in  .Vermont  it  has  been  the  rule  to  refuse 
to  receive  the  files  and  minutes  if  the  justice  is  alive,  it  being  declared  that 
the  only  appropriate  evidence  is  the  record  or  a  copy  thereof." 

Administrative  Requirements. —  When  in  an  action  before  a  justice  of  the 
peace  his  own  docket  is  offered  in  evidence  the  rule  prevails  that  it  is  unnec- 
essary to  introduce  proof  of  its  identity  or  of  the  official  character  of  the  jus- 
tice.74 As  in  other  cases,  however,  the  record  must  be  identified  by  evidence 
to  the  satisfaction  of  the  presiding  judge  when  it  is  offered  in  another  court.75 
This  may  be  done  by  the  oath  of  the  justice  establishing  the  identity  and 
authenticity  of  the  record,76  or  in  the  case  of  two  justices  by  the  oath  of  one  of 
them  to  the  same  effect,77  or  by  the  testimony  of  any  competent  witness.78 
Where  the  justice  is  dead  it  has  been  regarded  as  proper  to  prove  the  fact  of 
his  death  and  to  produce  the  original  minutes  in  his  handwriting  with  proof 
in  verification  of  them.79  In  some  cases  proof  of  the  handwriting  of  the  justice 
has  been  required;  so  in  others  it  has  not.81  The  fact  that  authenticated  copies 
of  the  record  of  a  justice  of  the  peace  are  admissible  does  not  exclude  the 
original.82 

Duty  Imposed  ~by  Statute. —  The  fact  that  no  statute  imposes  the  duty  upon 
a  justice  of  the  peace  to  keep  a  record  or  docket  does  not  affect  its  admis- 
sibility.83  Where  by  express  provision  of  law  the  duty  is  imposed  upon  a  jus- 
tice of  the  peace  of  keeping  a  record  or  docket  and  it  is  specified  what  shall  be 
entered  thereon,  it  or  a  transcript  thereof  is  then  only  admissible  as  evidence 

68.  Baur  v.    Beall,   14   Colo.   383,   23   Pac.  74.  Groff  v.  Griswold,.  1  Den.    (X.  Y.)   432 
345    (1890).  (1845). 

69.  People  v.  Ham,  73  111.  App.  533  (1897);  75.  Bridges   v.   Branam,    133   Ind.  488,   33 
Knapp  v.   Miller,    133   Pa.   275,   19   Atl.  555  N.  E.   271    (1892);    Michaels  v.   People,  208 
(1890);    5   Chamb.,   Ev.,   §   3386,   n.    1.     Its  111.  603,  70  N.  E.  747  ( 1904)  ;  5  Chamb.,  Ev., 
statements  cannot  be  collaterally  questioned.  §  3387,  n.  2. 

Church  v.  Pearne,  75  Conn.  350,  53  Atl.  955  76.  Chapman     v.     Dodd.     10     Minn.     350 

(1903).  (1865)  ;   Pollock  v.  Hoag,  supra. 

70.  Folsom  v.  Cressey.  73  Me.  270   (1882);  77.  Scott  v.  McCrary,  1  Stew.    (Ala.)    315 
Pollock  v.  Hoag,  4  E.  D.  Smith  (X.  Y.)  473  (1828). 

(1855).  78.  Cole  v.   Curtis,   16  Minn.   182    (1870); 

71.  Keenan   v.    Washington    Liquor   Co.,    8  State  v.  Chambers,  70  Mo.  625    (1879). 
Ida.  383,  69  Pac.  112   (1902).  79.  Baldwin  v.  Prouty,  13  Johns.    (N.  Y.) 

72.  Downey   v.    People,    117    111.    App.    591  430   (1816). 

(1905);    State   v.    Gallamore,    83    Kan.    412,  80.  Patterson  v.  Freeman,  132  X.  C.  357,  43 

111  Pac.  472  (1910)  :  McGrath  v.  Seagrave,  2  S.  E.   904    (1903). 

Allen   (Mass.)   443,  79  Am.  Dec.  797   (1861);  81.  Xeal   v.   Keller,    19   Kan.    Ill     (1877). 

5  Chamb.,  Ev.,  §  3386.  n.  6.  82.  Folsom    v.    Cressey,    supra;    Miller    v. 

73.  Xye  v.  Kellam,  18  Vt.  594  (1846).     See  State,  61  Ind.  503  (1878)  :  State  v.  Chambers, 
Gibson  v.  Holmes,  78  Vt.   110,  62  Atl.   11,  4  supra;  5  Chamb.,  Ev.,  §  3388. 

L.  R.  A.    (X.  S.)   451   (1905).  83.  Chapman  v.  Dodd,  supra.     See  Ruggles 

v.  Gaily,  2  Rawle  (Pa.)   232   (1828). 


§  1065  JUDICIAL  RECOEDS.  798 

of  the  facts  authorized  to  be  entered  therein.84  The  failure,  however,  of  the 
justice  to  enter  up  his  judgments  in  the  precise  mode  and  form  prescribed  by 
statute  will  not  vitiate  the  effect  of  the  record  as  evidence.85 

§  1065.  [Judicial  Records];  Probate-  Courts.8*5— The  records  of  probate 
courts  concerning  matters  properly  within  their  jurisdiction  may  be  received 
as  evidence  of  those  matters  so  recorded  therein  as  in  cases  of  other  courts  of 
record.87  Thus  probate'  records  will  be  received  to  prove  the  appointment  of 
an  administrator  without  accounting  for  the  non-production  of  the  original 
letters ;  88  the  final  settlement  of  an  administrator ;  8d  the  death  of  the  tes- 
tator;9" the  tiling  and  allowance  of  a  claim  against  an  estate;91  the  inven- 
torying of  a  debt  and  the  acts  of  an  executor  and  guardian;92  an  order  for 
the  specific  performance  by  the  executor  of  a  contract  made  by  the  testator ;  9S 
to  show  minority  of  wards  at  a  certain  date ;  94  issuance  of  letters  of  guardian- 
ship;95 the  appointment  of  a  person  as  guardian  of  a  non  compos;9*  the 
inventory  and  appraisement  of  an  estate  as  tending  to  prove  its  value,97  and 
other  matters  of  a  like  nature.  As  in  other  cases,  the  record  will  not  be  re- 
ceived in  evidence  as  proof  of  any  matter  which  does  not  properly  belong 
there.98 

84.  People    v.    Hayes,    63    111.    App.    427  90.  Randolph  v.  Bayne,  44  Cal.  366  ( 1872). 
(1896)  ;  Armstrong  v.  State,  21  Ohio  St.  357  91.  Jordon  v.  Bevans,  10  Kan.  App.  428,  61 
(1871)  ;  5  Chamb.,  Ev.,  §  3390,  n.  1.  Pac.   985    (1900). 

85.  Reed  v.   Whitton,   78  Ind.  579    (1881).  92.  Eckford  v.  Hogan,  44  Miss.  398  (1870). 
Nor  will  failure  of  justice  on  removing  from  93.  Williams  v.  Mitchell,   112  Mo.   300,  20 
the  town  to  deposit  his  docket  book  with  the  S.  VV.  647    (1892). 

town    clerk.     Carshore    v.    Huyck,    6    Barb.  94.  Richards    v.    Swan,    7    Gill    (Md.)    366 

(N.  Y.)   583   (1849).  (1848). 

86.  5  Chamberlayne,  Evidence,  §  3391.  95.  Davis  v.  Hudson,  29  Minn.  27,  11  X.  W. 

87.  Cox  v.  Cody,  75  Ga.  175   (1885);  Ferd  136  (1881). 

v.  Ford,   117   111.  App.  502    (1905)  ;   Lalor  v.  96.  Thomas  v.  Hatch,  3  Sumn.   (U.  S.)   170 

Tooker,    130   App.   Div.    11,    114  N.  Y.   Supp  (1838). 

403    i  1909)  :  Com.  v.  Levi,  44  Pa.  Super.  Ct.  97.  Smalley  v.  Paine  (Tex.  Civ.  App.  1910), 

253   (1910)  ;  5  Chamb.,  Ev.,  §  3391,  n.  1.  130  S.  W  739;  Bailey  v.  Robison,  233  111.  614, 

88.  McRory  v.  Sellars,  46  Ga.  550   (1872)  ;  84  N.  E   660  (1908). 

Davis    v.    Turner,    21    Kan.    131     (1878);    5  98.  Wilson  v.  Johnson,  152  Ala.  614,  44  So. 

Chamb.,  Ev.,  §  3391,  n.  2.  539    (1907). 

89.  Lalonette's  Heirs  v.  Lipscomb,  52  Ala. 
570   (1875). 


CHAPTER  LI. 

COPIES  AND  TRANSCRIPTS;  JUDICIAL  RECORDS. 

Copies  and  transcripts;  judicial  records,  1066. 
exemplifications,  1067. 
examined  or  sworn  copies.  1068. 
office  or  certified  copies,  1069. 

justice's  courts,  1070. 

probate  courts,  1071. 
federal  courts,  1072. 
of  other  states,  1073. 

attestation  of  the  cleric,  1074. 

certificate  of  the  judge,  1075. 

justices  of  the  peace,  1076. 

probate  cowts,  1077. 
state  courts  in  federal  courts,  1078. 
foreign  courts,  1079. 

§  1066.  Copies  and  Transcripts ;  Judicial  Records.1 —  It  is  a  general  rule  that 
where  the  judgment,  decree  or  proceeding  of  a  court  of  record  is  to  be  proved 
it  must  be  done  by  producing  the  original,2  which  may  be  regarded  as  primary 
proof,3  or  by  a  copy  duly  autenticated,  the  latter  being  the  usual  mode.4 
Proof  by  copy  may  be  of  three  kinds,  (1)  exemplification.  (2)  copies  made  by 
an  authorized  officer,  commonly  called  office  copies  and  (3)  sworn  or  exam- 
ined copies.5  In  order  to  render  a  copy  of  a  record  admissible  the  essential 
requirements  are  that  it  should  appear  to  the  satisfaction  of  the  presiding 
judge  that  the  record  from  which  it  was  made  came  out  of  the  proper  custody,6 
and  that  the  copy  should  only  contain  matters  which  should  properly  be  en- 
tered upon  the  record.7  and  which  it  is  the  duty  of  the  official  to  record. 

§  1067.  Exemplifications. s —  An  exemplified  copy,  which  is  one  of  the  modes 

1.  5  Chamberlayne,   Evidence,   §   3392.  Dooley    v     Wolcott,    4    Allen     (Mass.)     406 

2.  Jackson  v.   Robinson,  4  Wend.    (X.  Y.)  (1862):    Benedict   v.   Heineberg,   43   Vt.   231 
436   (1830).  (1870)  ;  5  Chamb.,  Ev.,  §  3392.  n.  3. 

3.  Harper  v.   Rowe,  53   Cal.   233    (1878);  §.  Stewart  v  Swanzy,  23  Miss.  502  (1852); 
Day  v.  Moore,  13  Gray   (Mass.)   522    (1859).  Stamper   v.    Gay,    3    Wyo.    322,    23    Pac.    69 

4.  Ramsey  v.  Flowers,  72  Ark    316.  80  S.  (1890). 

W.   147    (1904);    Abington  v.  North  Bridge-          6.  Garrigues  v.  Harris,  17  Pa.  344   (1851). 
water,  23  Pick.  (Mass.)  170  (1839)  :  Packard          7.  Globe  Mut.  L.  Ins,  Ass'n  v.  Meyer,  118 
v.   Hill,   7   Cow.    (X.   Y.)    434    (1827).     The      111.  App    155   (1905);  5  Chamb..  Ev.,  §  3393. 
rule  applies  to  copies  of  executions.     Cannon          8.  5  Chamberlayne,  Evidence,  §   3394. 
v   Gorham,  136  Ga.  167,  71  S.  E.  142  (1911)  ; 

799 


§§   1068,1069     COPIES  AND  TRANSCRIPTS  ;'  JUDICIAL  RECORD.  800 

of  proving  a  judicial  record,9  was  obtained  "  at  common  law  by  removing  the 
record  into  the  court  of  chancery  by  certiorari.  The  great  seal  was  attached 
to  a  copy,  which  was  transmitted  by  a  mittimus  to  the  court  in  which  it  was  to 
be  used  as  evidence."  ly  In  this  country  it  is  not  necessary  to  remove  tiie 
record  from  an  inferior  to  a  superior  court  by  certiorari  even  on  plea  of  nul 
tiel  record  but  an  exemplification  is  sufficient.11 

§  1068.  Examined  or  Sworn  Copies.12 —  An  examined  or  sworn  copy  which  is 
proved  by  producing  a  witness,  possibly  an  unofficial  one,13  who  has  compared 
the  copy  with  the  original  record,  word  for  word,  or  who  has  examined  the 
copy  while  another  person  read  the  original 14  is  one  of  the  ordinary  methods, 
independent  of  any  statute,  of  proving  a  public  document  or  record.15  A 
sworn  copy  of  a  copy  has  been  rejected,10  though  where  the  original  was  in  a 
dilapidated  condition  and  copies  thereof  had  been  used  for  many  years  in 
place  of  the  original  for  public  reference  a  copy  was  admitted.17  It  must  ap- 
pear that  the  copy  offered  has  been  properly  examined  and  compared  with  the 
original.18 

§  1069.  Office  or  Certified  Copies.19 — Certified  copies  made  by  the  officer  in 
custody  of  judicial  records  and  known  as  office  copies  is  another  mode  of  proof 
in  many  jurisdiction  being  made  so  by  express  provisions  of  a  statute,0 
though  according  to  the  earlier  authorities  the  admission  of  an  office  copy 
seems  to  have  been  restricted  to  those  cases  where  the  trial  was  in  the  same 
court  and  in  the  same  cause21  and  possibly  where  the  trial  was  in  another  court 
but  in  the  same  cause  in  which  the  answer  was  put  in.22  A  statute  authoriz- 
ing the  admission  of  certified  copies  of  judicial  records  is  not  exclusionary  of 
proof  by  the  original  unless  it  so  provides.23  The  general  rule  prevails  that 

9.  Weaver  v.  Tuten,  138  Ga.  101,  74  S.  E.      v.  McCadden,  15  Ohio  551   (1846)  -.  5  Chamb., 
835    (1912);   Gardere  v.  Columbian   Ins.  Co.,       Ev.,  §  3395,  n.  3. 

7  Johns.    (X.  Y.)    514    (1811);   Spaulding  v.  16.  Grimes  v   Bastrop.  26  Tex.  310  (1862). 

Vincent,  24  Vt.  501    (1852);   5  Chamb.,  Ev.,  17.  New   York,  etc.,  R.   Co.   v.   Horgan,  26 

§  3394,  n    1.  R.   I.  448,  59  Atl.   310    (1904). 

10.  West  Jersey  Traction  Co    v.   Board  of  18.  Foster    v.    People,    121     111.    App.    165 
Public  Works,  57  N.  J.   L    313,  30   Atl.  581  (1905)  ;  Kellogg  v.  Kellogg,  supra;  5  Chamb., 
(1894)  Ev.,  §  3396,  nn.  1,  2,  3  . 

11.  Id.;  Vail  v.  Smith,  4  Cow.    (N.  Y.)    71  19.  5  Chamberlayne,     Evidence,     §§     3397- 
(1825).  3403. 

12.  5  Chamberlayne,     Evidence,     §§     3395.  20.  Craig   v.   Encey,    78    Ind.    141     (1881); 
3396.  Com    v.  Quigley,   17n  Mas*.    14,  48  X    E.  782 

13.  State    v.    Lynde.    77    Me.    561,    1    Atl.  (1S97);    Bailey   v.   Fransioli.    101    App.    Div 
887    (1885);   State  v.  Collins,  68   NT.   H.  299,  140.  91   X    Y.  Supp.  8.V2    (1905):   5  Chamb, 
44   Atl    495    (1895).  Ev.,   §   3397,   n.   1. 

14.  West  Jersey  Traction  Co.  v.   Board  of  21.  West  Jersey  Traction   Co    v     Board  of 
Public  Works,  supra  Public  Works,  supra. 

15.  People    v.    Lyons,     168    111     App.    396  22.  Kellogg  v.  Kellogg,  supra. 

(1912);    State  v.  Collins,  supra;  Kellogg  v  23.  McAllister  v.   People.   28  Colo.    156.  63 

Kellogg,  6  Barb.    (N.  Y.)    116   (1849);  Lyon      Pac   308   (1900);  Vose  v.  Manlv,  19  Me.  331 

(1841)  ;  5  Chamb.,  Ev.,  §  3398. 


801  OFFICE  OR  CERTIFIED  COPIES.  §  1069 

the  official  who  has  the  legal  custody  of  the  records  of  a  court,  ordinarily  the 
clerk  of  the  court,  he  being  the  person  usually  entrusted  with  the  duty  of  keep- 
ing the  records,24  is  the  one  who  is  authorized  to  give  certified  copies  of  them, 
and  a  certificate  by  the  judge  is  not  sufficient.25  Unless  authority  to  the 
contrary  exists  by  virtue  of  some  statute  20  it  will  be  required  that  the  clerk 
shall  not  in  his  certificate  state  that  a  certain  fact  appears  of  record  or  that  in 
his  opinion  a  certain  legal  import  or  effect  results  from  what  is  there  entered. 
His  duty  in  such  case  is  to  furnish  a  copy  of  what  the  record  itself  contains.27 
The  presiding  judge  will  therefore  exclude  a  certificate  to  the  effect  that  a 
judgment  has  been  rendered,28  affirmed,29  reversed,30  that  an  abstract  thereof 
has  been  indexed,31  or  that  an  execution  thereon  has  been  issued  and  re- 
turned,32 the  only  proper  and  competent  evidence  of  such  facts  being  a  tran- 
script or  copy  of  the  record.  Similarly  a  certificate  to  the  effect' that  a  case  has 
been  dismissed,33  or  that  the  foregoing  contains  all  that  is  material  to  the  con- 
troversy,34 will  be  rejected.  Certificates  to  the  effect  that  letters  of  guardian- 
ship have  been  granted,35  a  claim  allowed,36  a  will  proved,37  letters  of  admin- 
istration granted,38  that  a  person  is  public  administrator  39  and  of  the  death  of 
a  person,  that  his  estate  has  been  administered  upon  and  who  were  his  heirs  40 
have  been  excluded.  The  clerk  cannot  certify  to  matters  which  are  not  prop- 
erly and  legally  entered  on  the  records.41 

Authentication. —  It  is  essential  to  the  admissibility  of  a  copy  that  it 
should  be  properly  authenticated.42  Statutory  requirements  should  be  at  least 
substantially  complied  with.43  If  it  is  required  that  a  copy  shall  be  authen- 
ticated by  the  seal  of  the  court,  an  absence  of  such  seal,44  if  the  court  has  one,45 

24.  Lay  v.  Sheppard,  112  Ga.  Ill,  37  S.  E.          35.  Peebles    v.     Tomlinson,    33    Ala.    336 
132    (1900);    Fitzpatrick   v.   Simonson   Bros.       (1858). 

Mfg.  Co.,  86  Minn.  140,  90  X.  W.  378  (1902)  ;  36.  Armstrong  v.   Boylan,  4   X.   J.   L.,   76 

Woolsey   v.   Saunders,   3    Barb.    (X.   Y.)    301  (1818). 

(1848)  ;  5  Chamb.,  Ev.,  §  3399,  n.  1.  37.  Staring  v.  Bowen,  6  Barb.  (X.  Y.)   109 

25.  Dibble  v.  Morris,  26  Conn.  416   (1857).  (1849). 

But  see  Cockran  v.  State,  46  Ala.  714  (1871).          38.  Morse  v.  Bellows,  7  X.  H.  549,  28  Am. 

26.  First  Xat.  Bank  v.  Lippman,   129  Ala.       Dec.  372    (1835). 

608,  30  So.    19    (1900);    Lansing  v    Russell,  39.  Littleton    v.    Christy's    Adm'r,    11    Mo. 

3  Barb.  Ch.   (X.  Y.)   325    (1848).  390    (1848). 

27.  Lamar  v.  Pearre,  90  Ga.  377    (1892);  40.  Billingsley   v.   Hiles,   6   S.   D.   445,   61 
English   v.   Sprague,   33   Me.   440    (1851)  ;    5  X.  W.  687   (1895);  5  Chamb.,  Ev.,  §  3400,  n. 
Chamb.,  Ev.,   §   3400,  n.   2.  15. 

28.  Lansing  v.  Russell,  supra ;  Thompson  v.  41.  Boardman    v.     Page,     11     X.     H.     431 
Mann.  53  W.  Va.  432,  44  S.  E.  246   (1903).  (1840)  ;   League  v.  Henecke    (Tex.  Civ.  App. 

29.  Miller  v.  Vaughan,  78  Ala.  323   (1884).  1894),  26  S.  W.  729;  5  Chamb.,  Ev.,  §  3401. 

30.  Dotbard  v.  Sherd,  69  Ala    135    (1881).  42.  McGlasson  v.   Scott,   112   Iowa  289,  83 

31.  Lindsey  v.  State,  27  Tex.  Civ.  App.  540,  X.  W.  974   (1900)  :  5  Chamb.,  Ev.,  §  3402. 

6ti  S.  W.  332   (1901).  43.  Hagan  v.  Snider,  44  Tex.  Civ.  App.  139, 

32.  Carr  v   Youse,  39  Mo.  346,  90  Am   Dec.       98  S.  W.  213    (1906). 

470   (1866).  44.  Brunt   v.    State,   36   Ind.    330    (1871); 

33.  Lamar  v.  Pearre,  supra.  Burge  v.  Gaudy,  41  Xeb.   149.  59  X.  W.  35& 

34.  Bellamy     v.     Hawkins,  17     Fla.     750       (1894)  :  5  Chamb.,  Ev.,  §  3402,  n.  3. 
(1880).  45.  Burge  v.  Gandy,  supra. 


§   1070  COPIES  AND  TRANSCRIPTS;  JUDICIAL  EECORD.  802 

will  be  a  sufficient  reason  for  its  exclusion.  Ordinarily,  however,  in  the  ab- 
sence of  a  statute,  a  transcript  of  a  judicial  record  requires  no  seal  as  an 
essential  to  admissibility.46  A  certificate  under  private  seal  of  the  clerk  has. 
in  some  cases  been  received,  there  being  no  official  seal  of  the  court.47  Where 
there  is  no  provision  of  law  as  to  what  the  certificate  shall  state,  it  is  gener- 
ally regarded  as  sufficient  if  it  contains  a  statement  indicating  that  the  copy 
is  a  true  copy.48  In  fact  it  must  be  shown  to  be  such.49  Where  the  statute 
prescribes  what  the  certificate  shall  state,  it  will  be  received  if  it  substantially 
satifies  the  requirement  of  the  statute  in  regard  thereto.50  Mere  clerical 
errors,  will  not  be  sufficient  for  the  exclusion  of  a  copy.51  Where  the  com- 
plete record  is  composed  of  several  papers  a  copy  thereof  has  been  received 
where  each  paper  is  certified  52  as  well  as  where  the  certification  is  general  and 
includes  them  all.53  If,  however,  the  papers  certified  do  not  constitute  a 
complete  copy  they  may  be  rejected.54  The  copy  or  certificate  should  identify 
the  papers  with  certainty 55  so  as  to  inform  the  court  what  is  certified 
to.50 

§  1070.  Justices'  Courts.57 —  Though  the  justice's  docket  or  record  is  the 
best  evidence  58  a  sworn  or  certified  copy  thereof  has  been  received  59  with  the 
same  effect  as  the  original,60  on  the  ground  of  convenience,61  though  in  some 
instances  its  reception  has  been  limited  to  those  cases  where  the  justice  is  dead 
or  absent.62  Proof  by  this  means  is  also  frequently  provided  for  by  statute.6'* 
Such  a  certificate  has  been  received  in  favor  of  the  justice.64  Such  a  statute 

46.  Weis  v.  Levy,  69  Ala.  209  (1881);  Con-      W.  414    (1881);    Weaver  v.  Tuten,    138   Ga. 
ley  v.  State,  85  Ga.  348,  11  S.  E.  659  (1890)  ;       101,  74  S.  E.  835   (1912). 

Com.    v.    Quigley,    170    Mass.    14,    48    N.    E.  54.  Susquehanna,  etc.,  R.  &  C.  Co.  v.  Quick, 

782    (1897);   5   Chamb.,  Ev.,  3402,  n.  5.  68   Pa.    189    (1871). 

47.  Torbett  v.  Wilson,  1  Stew.  &  P.   (Ala.)  55.  Pike  v.  Crehore,  40  Me.  503  (1855). 
200  (1831)  ;  Gates  v.  State,  13  Mo.  11  (1850).  56.  Clements  v.  Taylor,  65  Ala.  363  (1880). 

48.  Glos   v.   Stern,   213   111.   325,   72   N.   E.  57.  5  Chamberlayne,     Evidence,     §§     3404- 
1057    (1904);   Com.   v.   W7ait,   131   Mass.   417  3406. 

(1881)  ;  5  Chamb.,  Ev.,  §  3403,  n.  1.  58.  Hibbs  v.  Blair,  14  Pa.  413   (1850). 

49.  Drumm   v.   Cessnum,   58   Kan.   331,   49  59.  Com.   v.   Downing,   4   Gray    (Muss.)    29 
Pac.  78   (1897).  (1855);   French  v.  Schreeve,  18  N.  J.  L.  147 

50.  Cofer  v.  Schening,  98  Ala.  338,  13  So.  (1840)  ;  5  Chamb.,  Ev.,  §  3404,  n.  2. 

123    (1892)  ;  Old  Wayne  Mut.  Life  Assoc.  v.          60.  Welsh  v.  Crawford,  14  Serg.  &  R.  (Pa.) 

McDonough,    164    Ind.    321,    73    N.    E.    703  440   (1826). 

(1904)  ;  5  Chamb.,  Ev.,  §  3403,  n.  4.  61.  Hibbs  v.  Blair,  supra. 

51.  Daniel  v.  State,  114  Ga.  533,  40  S.  E.          62.  Pratt  v.  Peckham,  25  Barb.  (N.  Y.)  195 
805(1901).  (1855)    (under  the  statute) . 

Signature  of  judge  to  the  record. —  Absence  63.  Foster    v.    People,    121    111.    App.    165 

of  on  copy  does  not  vitiate.     Anderson  v.  Ack-  (1905);    Goodsell  v.   Leonard,  23  Mich.   374 

erman,  83  Ind.  481    (1883);   Stacks  v.  Craw-  (1871);  Belgard  v.  McLaughlin,  44  Hun   (N. 

ford,  63  Neb.  662,  88  N.  W.  852   (1902).     See  Y.)   557   (1887)  ;  5  Cbamb.,  Ev.,  §  3404,  n.  6 

Elliott    v.    Cronk's    Adm'rs.,    13    Wend.     (N.  64.  Maynard  v.  Thompson,  8  Wend.  (N.  Y.) 

Y.)    35    (1834).  393    (1832). 

52.  Goldstone    v.     Davidson,     18    Cal.     41  65.  Singer  v.   Atlantic  Mills  Co.,   126  Ga. 
(1861).  45,  54  S.  E.  821    (1906). 

53.  Sherburne  v.  Rodman,  51  Wis.  474,  8  N. 


803  PROBATE  COURTS.  §  1071 

will  not  operate  to  exclude  the  original  record.65  In  the  absence  of  any  statute 
one  who  certifies  to  copies  of  a  justice's  record  must  have  been  the  legal  cus- 
todian of  it,  which  fact  the  certificate  should  show.156  This  is  also  true  under 
the  statute  in  several  states.67  In  some  states  there  are  also  provisions  by 
statute  requiring  that  a  transcript  of  such  a  record  must  be  made  by  the  justice 
of  the  peace  or  his  successor  in  office  or  by  one  having  the  legal  custody  of  the 
docket  or  record.68  In  some  jurisdictions  a  further  authentication  by  some 
official  is  required  by  statute  to  the  certificate  given  by  a  justice  of  the  peace.69 
A  certification  by  a  justice  should  of  course  be  to  a  copy  of  the  record  and  not 
to  the  effect  that  a  certain  fact  appears  thereon.70  The  general  principles 
respecting  the  form  of  certification  of  judicial  records  to  the  effect  that  the 
certificate  should  show  or  state  that  the  copy  is  a  true  and  complete  one  have 
also  been  applied  to  copies  of  justices'  records.71  In  some  jurisdictions  a  seal 
is  required  to  the  certificate  of  a  justice  of  the  peace.72 

§  1071.  Probate  Courts.73 —  The  records  of  probate  or  surrogates'  courts,  aa 
in  the  case  of  those  of  other  courts,  may  ordinarily  be  proved  by  exemplified  74 
or  certified  copies.75  Thus  an  exemplification  76  or  certified  copy  of  a  will  or 
of  the  record  ' '  has  been  received  without  accounting  for  the  non-production 
of  the  original  record,78  while  a  sworn  copy  has  been  rejected.79  Proceedings 
in  a  probate  court  may  also  be  established  by  production  of  the  original  record 
notwithstanding  proof  by  copy  is  permitted  by  statute,  provided  such  statute  ia 
not  exclusionary  thereof.80  The  same  principle  applies  in  the  case  of  probate 
records  as  in  that  of  other  records,  viz. :  that  matters  which  do  not  properly  be- 
long there  as  a  part  thereof  cannot  become  matter  of  record  by  their  incor- 
poration therein,  and  that  a  certificate  of  such  matters  does  not  by  the  certi- 

66.  Stamper  v.  Gay,  3  Wyo.  322,  23  Pac.  73.  5  Chamberlayne,     Evidence,     §§     3407, 
69   (1890).  3408. 

67.  Anderson   v.    Miller,   4    Blackf.    (Ind.)  74.  Smith  v.   Ross,   108  Ga.   198,  33  S.  E. 
417    (1837);   Holeomb  v.  Tift,  54  Mich.  647.  953   (1899). 

20  X.  W.  627   (1884);  5  Chamb.,  Ev.,  §  3405,  75.  Lasco     v.     Casanenava,     30     Cal.     560 

n.  2.                                       .  (1866)  :   Hart  v.  Stone,  30  Conn.  94   (1861)  ; 

68.  Drumm  v.  Cessnum,  supra;  Wentworth  Fitzpatriek   v.   Simonson   Bros.   Mfg.   Co.,   86 
v.  Keazer,  30  Me.  336   (1840);  McDermott  v.  Minn.    140    (1902);    Jackson   v.    Robinson,   4 
Barnum,    12    Mo.    204    (1853);    Maynard    v.  Wend.    (X.  Y.)    436    (1830);   5  Chamb.,  Ev., 
Thompson,  8  Wend.    (X.  Y.)    393    (1832);   5  §  3407,  n.  2. 

Chamb..  Ev.,  §  3405.  n.  4.  76.  Rodney  v.  McLaughlin,  97  Mo.  426,  9  S. 

69.  Relton    v.    Fisher.   44    111.    32    (1867);       W.   726    (1888);   Kenyon  v.  Stewart,  44  Pa. 
Todd  v.  Johnson,  50  Minn.  310,  52  X.  W.  864       179   (1863). 

(1802):     Maynard    v.    Thompson,    supra;    5  77.  Chicago  Terminal  Transf.  R.  Co.  v.  Win- 

Chamb.,  Ev.,  3405,  n.  6.  slow,    216    111.    166,    74    X.    E.    815     (1905); 

70.  English  v.  Sprage,  33  Me.  440  (1851).  Fetes  v.  Volmer,  58  Hun   1,   11   X.  Y.  Supp. 

71.  Yeager  v.  Wright,   112  Ind.  230,  13  X.  552    (1890);   Musgrave  v.   Angle.  43  Can.  S. 
E.    707    (1887)  :    Starbird   v.    Moore.   21    Vt.  Ct.  484   (1910)  :  5  Chamb.,  Ev.,  §  3407,  n.  4. 
529    (1848)  ;   5  Chamb.,  Ev..  §  3406.  n.  3.  78.  Hickman  v.  Gillum,  66  Tex.  314,  1  S.  W. 

72.  Greenberg  v.  People.  125  111.  App.  626  330    (1886). 

(1906):    Wolverton   v.    Com.,   7    Serg.   &   R.  79.  Ray  v.  Mariner.  3  X.  C    385   (1806). 

(Pa.)  273   (1821).  80.  Houze  v.  Houze,  16  Tex.  598  (1856). 


§  1072  COPIES  AND  TRANSCRIPTS;  JUDICIAL  RECORD.  804 

fication  become  admissible.81  The  certificate  to  the  copy  of  a  will  should  of 
course  be  executed  in  compliance  with  the  law  relating  thereto  in  order  to  be 
admissible.82  It  must  also  be  shown  to  the  satisfaction  of  the  presiding  judge 
that  a  will  which  is  certified  to  has  been  duly  proved  and  recorded  according 
to  law  in  order  to  render  the  copy  admissible.83 

§  1072.  Federal  Courts.84 —  The  general  rule  seems  to  be  that  whenever  a 
copy  of  a  document  from  any  department  of  the  United  States  government 
would  be  received  in  evidence  in  the  Federal  courts  it  will  also  be  admitted 
in  the  State  tribunals.85  The  rule  also  is  that  the  circuit  or  district  court  of 
each  district  is  presumed  to  know  the  seals  of  every  other  circuit  or  district 
court  of  the  United  States.86  Copies  of  records  of  the  Federal  courts  whether 
of  a  circuit  or  district  court  are  not,  therefore,  when  offered  in  another  circuit 
or  district  than  that  in  which  they  are  made,87  or  offered  for  evidence  in  a 
State  88  or  territorial  court,89  subject  to  the  provisions  of  the  Federal  statute 
relating  to  the  authentication  of  the  judicial  records  of  one  State  when  offered 
in  the  courts  of  another  State ;  the  copy  being  generally  regarded  as  admis- 
sible when  certified  to  by  the  clerk  of  the  court  under  the  seal  of  that  court.90 
In  some  cases  they  have  been  received  under  State  statutes  91  or  excluded  be- 
cause of  noncompliance  therewith.92  On  the  other  hand,  however,  the  fact 
that  the  act  of  congress  respecting  copies  of  records  of  a  State  court  when  of- 
fered in  a  court  of  another  State  does  not  apply  to  copies  of  records  of  Federal 
courts  when  introduced  in  a  State  court  does  not  operate  to  exclude  copies  in 
the  latter  case  because  authenticated  in  accordance  with  that  act,93  which  in 
fact  is  said  to  be  the  uniform  practice  in  authenticating  the  records  of  Federal 
courts.94  Where  by  statute  the  deputy  clerk  is  authorized,  in  the  absence  of 
the  clerk,  to  do  and  perform  all  duties  pertaining  to  the  office,  a  certificate  by 
a  deputy  clerk  has  been  received  though  it  does  not  affirmatively  appear  that 
the  clerk  was  absent,  it  being  said  that  his  absence  will  be  presumed.95  The 

81.  Bowersock  v.  Adams,  55  Kan.  681,  41  88.  Allison   v.   Robinson,    136   Ala.  434,   34 
Pac.   971    (1895).  So.  966    (1902);   Gregory  v.  Pike,  94  Me.  27, 

82.  Phillips  v.  Babcock  Bros.  Lumber  Co.,  46    Atl.    793    (1900);    Pepoon    v.   Jenkins,    2 
5  Ga,  App.  634,  63  S.  E.   (1908).  Johns.   Cas.    (N.   Y.)    119    (1800);    Turnbull 

83.  Sutton     v.    Westcott,     48    N.     C.     283  v.  Payson,  supra;  5  Chamb.,  Ev.,  §  3409,  n.  4. 
(1856);  Lagow  v.  Glover,  77  Tex.  448,  14  S.  89.  Edwards  v.   Smith,  supra. 

W.  141    (1890)  ;   5  Chamb.,  Ev.,  §  3408,  n.  2.  90.  Ganow  v.  Ashton,  32  S.  D.  453,  143  X. 

84.  5  Chamberlayne,  Evidence,  §  3409.      ,  W.  383   (1913). 

85.  Gilman     v.     Riopelle,     18     Mich.     145  91.  Dean  v.  Chapin,  22  Mich.  275    (1871); 
(1869);     Williams    v.    Wilkes,  .14    Pa.    228  Rosenfeld    v.    Siegfried,    91     Mo.    App.     169 
(1850);    Edwards  v.   Smith    (Tex.   Civ.  App.  (1901);   Hamon  v.  Foust    (Tenn.   1912),   150 
]911),    137    S.    W.    1161;    5    Chamb.,    Ev.,    §  S.  W.  418;   5  Chamb.,  Ev.,  §  3409,  n.  6. 
3409,  n.   1.  92.  Pike  v.  Crehore,  40  Me.  503   (1855). 

86.  Turnbull   v.   Payson,  95   U.   S.   418,  24  93.  Ruford    v.    TTiekman,    4    Fed.    Cas.    No. 
L    ed.  437    (1877).  2,114a,  Hempst.   (U.  S.)   232   (1834). 

87.  National    Ace.    Soc.    v.    Spiro,    94    Fed.  94.  O'llara  v.  Mobile  &  0.  R.  Co.,  76  Fed. 
750,  37  C.  C.  A.  388   (1899);  5  Chamb.,  Ev.,  718,  22  C.  C.  A.  512   (1896). 

§  3409,  n.  3.  95.  National  Ace.  Soc.  v.  Spiro,  supra. 


805  OF  OTHEE  STATES.  §   1073 

certificate  of  the  clerk  should,  as  in  other  cases,  be  to  a  copy  of  the  record  and 
not  to  its  legal  effect.96 

§  1073.  Of  Other  States.97 —  Congress,  in  the  exercise  of  the  power  conferred 
upon  it  by  the  Constitution,98  has  provided  a  mode  for  the  proof  of  the  judicial 
records  of  one  State  in  the  courts  of  another  in  the  following  terms:  ''  The 
records  and  judicial  proceedings  of  the  courts  of  any  State,  shall  be  proved  or 
admitted  in  any  other  court  within  the  United  States,  by  the  attestation  of  the 
clerk,  and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together  with  a  cer- 
tificate of  the  judge,  chief  justice,  or  presiding  magistrate,  as  the  case  may  be, 
that  the  said  attestation  is  in  due  form  and  such  record  and  judicial  proceedings 
so  authenticated,  shall  have  such  faith  and  credit  given  to  them,  in  every 
court  within  the  United  States,  as  they  have  by  law  or  usage  in  the  courts  of 
the  State  from  whence  the  said  records  are,  or  shall  be  taken."  "  A  substan- 
tial compliance  with  this  requirement  has  been  considered  sufficient i  and  a 
copy  which  has  been  so  authenticated  will  be,  in  fact  must  be,2  admitted, 
though  it  may  not  confrom  to  the  law  of  the  State  in  which  the  judgment  was 
rendered  or  the  mode  at  common  law.  The  method  provided  by  the  act  of 
Congress  for  proving  such  records  is  cumulative  3  being  regarded  as  more  con- 
venient and  less  expensive,4  and  not  exclusive 5  of  other  modes  of  proof. 
Therefore,  proof  in  accordance  with  the  common  law  mode,6  as  by  a  sworn  copy,7 
a  copy  certified  to  by  the  officer  whose  duty  it  is  by  law  to  keep  the  original,8 
or  a  copy,  though  not  authenticated  according  to  the  act  of  Congress,  if  it  is 
proved  as  a  foreign  record,9  has  been  received.  The  right  of  the  states  to  pass 
legislation  affecting  this  subject  is  also  recognized.  In  many  cases  the  provi- 
sions of  the  Federal  act  have  been  substantially  adopted  by  the  States.10  With 
this  recognition  of  the  power  of  the  State,  however,  is  imposed  the  qualification 
that  Congress  having  exercised  the  authority  vested  in  it  by  the  Constitution, 

96.  Barber  v.  International  Co.  of  Mexico,       225,  41   X.   E.   753    (1895);    State  v.   Hinch- 
73  Conn.  587,  48  Atl.  758  (1901).  man,  27   Pa.   479    (1856);    5  Chamb.,   Ev.,   § 

97.  5  Chamberlayne,     Evidence,     §§     3410,       3411,  n.  3. 

3411.  6.  Karr   v.   Jackson,   28   Mo.   316    (1859); 

98.  U.  S.  Const.  Art.  iv,  §  1.  Wolf  v.  King,  49  Tex.  Civ.  App.  41,  107  S. 

99.  Act  of  Cong.  May  26,  1790;  U.  S.  Rev.  W.  617    (1908)  ;  5  Chamb.,  Ev.,  §  3411,  n.  4. 
Stat.  §  005;  I'.  S.  Comp.  Stat.   1901,  p.  677.  7.  Smith  v.  Strong,   14   Pick.    (Mass.)    128 

1.  Homer  v.  Spelman,  78  111.  206    (1875)  ;  (1833)  ;   Otto  v.  Trump,  115  Pa.  425,  8  Atl. 
Taylor  v.  Heitz,  87  Mo.  660    (1885).  786    (1886);  Tourtellot  v.  Booker    (Tex.  Civ. 

2.  Xadel  v.  Campbell,  18  Ida.  335,  110  Pac.  App.  1913),  160  S.  W.  293;  5  Chamb.,  Ev.,  § 
262    (1910);    Joslin   v.   Fuller,    100   111.  App.  3411,  n.  5. 

43    (1911);   Murphy  v.  Marscheider,  4  X.  Y.  8.  Holyoke   v.    Holyoke's    Estate,    110    Me. 

Supp.  799    (1889);   Yarn  v.  Arnold  Hat  Co.  469,  87  Atl.  40    (19131. 

(Tex.    Civ.    App.    1910),    124    S.    W.    693;    5  9.  Lothrop  v.  Blake,  3  Pa.  483   (1846). 

Chamb.,  Ev.,  §  1910,  n.  4.  10.  Bean   v.   Loryea,   81    Cal.    151.   22   Pac. 

3.  Goodwyn     v.     Goodwyn,     25     Ga.     203  513    (1889);    Phelps   v.   Tilton,    17   Ind.   423 
(1858).  (1861);   Comstock  v.  Kerwin,  57  Xeb.   1,  77 

4.  Hall  v.  Bishop,  78  Ind.  370    (1881).  X.  W.  387   (1898)  ;  5  Chamb.,  Ev.,  §  3411,  n. 

5.  Garden  City  Sand  Co.  v.  Miller,  157  111.  8. 


§  1074  COPIES  AND  TRANSCRIPTS;  JUDICIAL  RECORD.  806 

no  State  may  require  a  greater  amount  of  proof  than  that  prescribed  by  such 
act.  Subject  to  this  limitation,  State  enactments  respecting  the  mode  of  prov- 
ing such  documents  are  equally  valid  n  and  may  be  followed.  It  is  required, 
however,  that  there  should  be  a  compliance  with  its  provisions  in  order  to 
render  a  copy  admissible  under  the  act  of  Congress.12  Likewise,  in  order  to 
prove  such  a  record  under  a  State  enactment,  compliance  with  its  provisions 
is  required.13 

§  1074.  Attestation  of  the  Clerk.14 —  The  act  of  Congress  provides  that  the 
attestation  shall  be  made  by  the  clerk  and  this  designation  excludes  an  attes- 
tation by  any  other  official  as  for  instance  a  deputy  clerk,15  in  case  it  is  sought 
to  prove  the  record  under  that  act,  and  a  certificate  by  the  judge  that  attestation 
is  made  by  the  proper  officer  will  not  cure  such  a  defect.10  The  act  of  Con- 
gress prescribes  no  requirement  as  to  the  form  of  attestation.17  The  general 
rule  seems  to  be  that,  in  this  respect,  it  should  comply  with  the  forms  used  in 
the  State  in  which  the  record  is  and  from  which  the  copy  comes.18  The  certi- 
ficate of  the  clerk  need  not  state  that  he  has  the  custody  of  the  records  as,  the 
authentication  being  sufficient,  the  presumption  arises  that  he  is  the  legal  cus- 
todian ;  19  nor  need  it  state  that  the  court  is  a  court  of  record,  as  it  will  be 
presumed  from  the  presence  of  a  seal  that  it  is  such  a  court.20  Likewise  a 
copy  of  the  record  of  a  court  of  another  State  when  duly  authenticated  is  evi- 
dence not  only  of  the  acts  of  the  court  but  of  its  jurisdiction21  and  it  is  not 
essential  to  show  by  the  copy  or  otherwise  that  the  court  had  jurisdiction.22 
ISTor  does  the  law  require  that  the  clerk  should  certify  that  the  transcript  is  a 
full  transcript  of  the  whole  proceedings.23  His  certificate  that  the  transcript 
is  truly  copied  from  the  record  of  the  proceedings  of  the  court  is,  where  the 

11.  People  v.  Miller,  195  111.  621,  63  N.  E.  16.  Id.     Contra:     Young     v.     Thayer,      1 
504   (1902;   In  re  Ellis'  estate,  55  Minn.  401,  Greene      (Iowa)      196      (1848);     Steinke     v. 
56  N.  W.  1056  (1898)  ;  Willock  v.  Wilson,  178  Graves,  16  Utah  293,  52  Pac.  386   (1898). 
Mass.  68,  59  N.  E.  757   (1901)  ;  Wells,  Fargo  17.  Morris  v.  Patchin,  supra. 

&  Co.  v.  Davis,  105  N.  Y.  670,  12  N.  E.  42          18.  Forbes  v.  Davis,  187  Ala.  71,  65  So.  516 

(1887);   5  Chamb.,  Ev.,  3411,  n.  9.  (1914);   Morris  v.  Patchin,  supra;  Edwards 

12.  Mason  v.  Nashville,   etc.,   Ry.   Co.,   135  v.  Jones,  113  N.  C.  453,  18  S.  E.  500   (1893)  ; 
Ga.  741,  70  S.  E.  225   (1910)  ;  Ayres  v.  Deer-  5  Chamb.,  Ev.,  §  3413,  n.  2. 

ing,  76  Kan.   149,  90  Pac.  794    (1907);   Huie  19.  Ritchie  v.   Carpenter,  2  Wash.  512,  28 

v.  Devore,  138  App.  Div.  677,  123  X.  Y.  Supp.  Pac.  380,  26  Am.  St.  Rep.  877  (1891). 

12    (1910);  5  Chamb.,  Ev.,  §  3411,  n.  11.  20.  Steamboat   Thames   v.    Erskine,   7   Mo. 

13.  Ayres    v.    Deering,    supra;    Barlow    v.  213    (1841). 

Steel,  65  Mo.  611    (1877)  ;   Comstock  v.  Ker-  21.  Western  Assur.  Co.  v.  Walden,  238  Mo. 

win,  supra ;  Huie  v.  Devore,  supra;  5  Chamb.,  49,  141  S.  W.  595  (1911)  ;  Ransom  v.  Wheeler, 

Ev.,  §  3411,  n.  12.  12  Abb.  Pr.   (X.  Y.)    139    (1861);   5  Chamb., 

14.  5  Chamberlayne,     Evidence,    §§     3412-  Ev.,  §  3413,  n.  5. 

3416.  22.  Brown  v.  Mitchell,  88  Tex.  350,  31   S. 

15.  Willock  v.  Wilson,  supra;  Williams  v.  W.  621,  36  L.  R.  A.  64   (1895). 
Williams,   53  Mo.   App.  617    (1893):   Morris  23.  State  v.  Allen,  113  La.  705,  37  So.  614 
v.   Patchin,  24   X.   Y.  394,  82   Am.  Dec.   311,  (1904). 

397    (1862)  ;  5  Cbamb.,  Ev.,  §  3412,  n.  1. 


807  CEBTIFICATE  or  JUDGE.  §   1075 

transcript  appears  to  be  complete,  all  that  is  required.24  A  certification  that 
the  copy  is  a  true  copy  imports  that  it  is  a  complete  copy.25  A  transcript,  the 
authentication  of  which  conforms  to  the  provisions  of  the  Federal  act,  will  not 
be  excluded  because  of  the  insertion  of  any  unnecessary  matter  in  connection 
with  the  attestation  or  certification.26  Since  the  act  of  Congress  requires  a. 
seal  to  the  cler*k's  attestation  it  is  of  course  an  absolute  essential  that  if  the 
court  has  one  it  should  be  so  annexed  in  order  to  render  the  copy  admissible 
under  that  act,27  or  that  it  should  appear  by  the  certificate  either  of  the  clerk 
or  the  judge  that  the  court  has  no  seal,28  in  which  case  a  copy  attested  by  the 
private  seal  of  the  clerk  may  properly  be  received.29  If  a  court  is  abolished 
and  its  records  are  transferred  to  another  court,  the  certificate  of  the  clerk  of 
the  latter  court  to  the  effect  that  he  has  been  made  the  depository  of  the  records 
of  the  other  court  with  authority  to  certify  transcripts  of  its  proceedings, 
coupled  with  the  judge's  certificate  to  the  effect  that  the  certificate  of  the 
former  is  in  due  form  and  by  the  proper  officer  is  regarded  as  sufficient  under 
the  Federal  act,30  without  proving  the  laws  of  the  State  to  that  effect.31 

§  1075.  Certificate  of  the  Judge.32 —  In  the  absence  of  the  certificate  of  the 
judge,  chief  justice  or  presiding  magistrate  that  the  attestation  is  in  due  form 
there  is  a  want  of  proper  authentication  which  would  require  the  exclusion  of 
a  copy  of  a  judicial  record  of  a  sister  State.33  The  absence  of  such  a  certi- 
ficate creates  a  fatal  defect  which  cannot  be  aided  by  the  copy  of  the  record  34 
or  by  an  additional  certificate  of  the  clerk.35  In  cases  where  the  judge  is  also 
clerk  of  his  own  clerk,  which  frequently  occurs  in  probate  courts,  the  act  of 
Congress  is  likewise  applicable  36  and  the  judge  may  certify  to  a  copy  in  both 
capacities,  that  is  as  clerk  and  judge,37  in  which  case  the  transcript  is  prop- 
erly received.  The  certificate  should  be  so  worded  as  to  clearly  indicate  or 

24.  Shilling  v.  Seigle,  207  Pa.  381,  56  Atl.  32.  5  Chamberlayne,     Evidence,     §§     3417- 
957    (1904).  3419. 

25.  Wells  v.  Wells.  209  Mass.  282,  95  N.  E.  33.  Mason  v.  Chattanooga,  etc.,  R.  Co.,  135 
245,  35  L.  R.  A.    (X.  S.)    561    (1911)  ;   Shill-  Ga.  741,  70  S.  E.  225  (1910)  ;  Huie  v.  Devore, 
ing  v.  Seigle,  supra;  Joslin  v.  Fuller,  106  111.  supra;  Dodd   v.   Groll,   19  Ohio  Cir.  Ct.   718 
App.  43    (1911)  -.  5  Chamb.,  Ev..  §  3413,  n.  9.  (1898)  :   Snyder  v.  Wise,  10  Pa.  157   (1848)  ; 

26.  Erb  v.  Scott,  14  Pa.  20  (1850)  :  Graham  5  Chamb.,  Ev.,  §  3417,  n.  1. 

v.  Froth,  69  Kan.  861,  77  Pac.  92    (1904);  5  34.  Elliott     v.     McClelland,     17     Ala.     206 

Chamb..  Ev.,  §  3415,  n.  1.  (1850). 

27.  Mason  v.  Xashville,  etc..  Ry.  Co.,  supra;  35.  Taylor  v.  McKee,  118  Ga.  874,  45  S.  E. 
Kirschner   v.    State,    9    Wis.    140    (1859);    5  672   (1903). 

Chamb.,  Ev..  §  3415,  n.  1.  36.  Low  v.   Burrows,   12  Cal.   181    (1859)  ; 

28.  Stewart  v.  Swanzy,  23  Miss.  502  (1852).       Cox  v.  Jones,  52  Gal  438   (1874)  ;  5  Chamb., 

29.  Strode   v.   Churchill,   2   Litt.    (Ky.)    75       Ev..  §  3417.  n.  4. 

(1822).  37.  Rowe  v.   Barnes.   101   Iowa   302.   70  X. 

30.  Gatling  v.  Robbins,  Stlnd.  184   (1856);  W.   197    (1897);    State  v.  Hinchman,  27  Pa. 
Caper,  v.  Emery.  5  Mete.  (Mass.)  436  (1843):  479    (1S56)  :   Keith  Bros.  &   Co.  v.  Stiles,  92 
Manning   v.    Hogan,   26   Mo.   570    (1858)  ;    5  Wis.  15,  64  X.  W.  860,  65  N.  W.  860   (1896)  ; 
Chamb..  Ev..  §  3416.  nn.  1,  2.  5  Chamb.,  Ev.,  §  3417,  n.  5. 

31.  Id.;    Darrah   v.   Watson,   36   Iowa    116 
(1872). 


§  1076  COPIES  AND  TEANSCEIPTS;  JUDICIAL  KECOKD.  808 

show  that  the  judge  possesses  the  necessary  official  character  which  authorizes 
him  to  sign  it.38  It  must  also  appear  that  he  was  presiding  judge  of  the  par- 
ticular court  from  the  record  of  which  transcript  comes,39  which  character  he 
must  possess  at  the  time  of  giving  the  certificate,40  otherwise  it  will  be  re- 
jected.41 A  certificate  by  some  other  judge,  although  of  equal  authority  and 
rank  within  the  State,  will  not  satisfy  the  requirement  of  the  act.42  The  cer- 
tificate of  the  judge  that  the  attestation  is  in  due  form  is  authentic  evidence  of 
its  correctness,43  in  fact,  according  to  some  decisions,  is  to  be  regarded  as 
conclusive.44  The  judge  need  not  go  beyond  the  terms  of  the  act  and  certify 
to  any  matter  except  that  which  the  enactment  specifies.45  Where  it  appears 
from  the  face  of  the  record  as  shown  by  the  transcript  offered  or  from  the 
certificate  to  the  transcript  that  the  court  is  composed  of  more  than  one  judge,  a 
certificate  signed  by  one  judge  without  showing  that  he  is  the  presiding  judge 
or  chief  justice  will  be  rejected.46  Where,  however,  there  is  nothing  on  the 
face  of  the  record  adduced  from  which  it  may  be  inferred  that  the  court  from 
which  the  transcript  comes  is  composed  of  more  than  one  judge,  it  is  held  to 
be  sufficient  if  the  judge  in  his  certificate  describes  himself  as  judge  of  the 
court,  without  stating  that  he  is  sole  judge,47  since  the  presumption  is  said  to 
arise  that  he  is  the  sole  judge.48  If  the  laws  of  the  State  creating  the  court 
do  not  make  any  precedence  between  judges  of  such  court  by  providing  for 
any  chief  justice  or  presiding  justice  but  all  are  of  equal  rank,  an  authentica- 
tion by  one  49  of  such  judges  or  all  50  is  proper.  Where  such  a  situation  exists 
it  may  be  shown  by  the  certificate  of  the  judge  or  by  proving  the  statute  of  the 
State.51  Where  a  court  is  composed  of  several  judges,  each  judge  presiding 
in  turn,  a  certificate  signed  by  one  as  the  judge  who  is  presiding  "  in  turn  " 
will  be  received.52 

§  1076.  Justices'  of  the  Peace.53 —  The  general  rule  seems  to  be  that  such 
courts  having  no  clerks  are  not  so  constituted  as  to  come  within  the  provisions 

38.  Oron  v.   Felder,    15   Ala.   304    (1849);  46.  Rich   v.    Cohen,    114   X.   Y.   Supp    672, 
Williams    v      Williams,     53    Mo.     App.    617  61   Misc.   148    (1908);   Van  Storch  v.  Griffin, 
(1893)  ;  5  Chamb.,  Ev.,  §  3418,  n.  1.  71  Pa.  240   (1872)  ;  5  Chamb.,  Ev.,  §  3419,  n. 

39.  Hope  v.   First  Nat.   Bank    (Oa.    1914).  1. 

86   S.   E.   929;    Barlow  v.   Steel,   65   Mo.   611  47.  Willock     v.     Wilson,      178     Mass.     68 

(1877);    Huie   v.    Devore,   supra;   5   Chamb.,  (1901);  Keyes  v.  Mooney.  13  Or.  179,  9  Pac. 

Ev.,  §  3418,  n.  2.  400   (1886)  ;  5  Chamb.,  Ev.,  §  3419,  n.  2. 

40.  Lothrop  v.  Blake,  3  Pa.  483  (1846).  48.  Willock    v.    Wilson,    supra ;    People    v. 

41.  Id.;   Stewart  v.  Gray,  23  Fed.  Cas.  No.  Smith,  121  X.  Y.  578,  24  N.  E.  852   (1890). 
13,428a,  Hempst.   (U.  S.)   94   (1830).  49.  Wood  ley  v.  Findlay,  9  Ala.  716   (1846). 

42.  Huie  v.  Devore,  supra.  Compare,  Rich  v.  Cohen,  supra. 

43.  Lewis  v.  SutlifT,  2  Greene   (Iowa)    186  50.  Id.;    Arnold  v.  Frazier,  5   Strobh.    (S. 
(1849).  C.)   33   (18f)0). 

44.  Hatcher    v.    Rocheleau,    18    X.    Y.    86  51.  TIufT  v.   Campbell,   1   Stew.    (Ala.)    543 
(1858)  ;  Edwards  v.  Jones,  supra.  (1828).     See  Orman  v.  Xeville,  14  La.  Ann. 

45.  Duconnum    v.    Hysinger,     14     111     249  392    (1859). 

(1852);  Haynes  v.  Cowen,  15  Kan.  637  52.  Taylor  v.  Kilgore,  33  Ala.  214  (1858). 
(1875)  ;  5  Chamb.,  Ev.,  3418,  n.  8.  53.  5  Chamberlayne,  Evidence,  §  3420. 


809  PROBATE  COURTS.  §   1077 

of  the  act  of  Congress,54  not  having  the  machinery  to  comply  with  all  the 
requisitions  of  the  act.55  Xor  will  the  requirement  as  to  an  attestation  by  the 
clerk  of  the  court  from  whence  the  record  comes  be  satisfied  by  a  certificate  of 
the  clerk  of  some  other  court.56  Where,  however,  under  the  laws  of  another 
State,  a  transcript  of  a  judgment  rendered  by  a  justice  of  the  peace  becomes 
when  filed  in  a  designated  court  of  record  of  that  State,  a  judgment  of  the 
latter  court,  it  would  seem  that  a  duly  authenticated  copy  of  the  record  of 
such  court  should  be  received,57  upon  proof  of  the  law  which  so  provides.58 
Congress  not  having  provided  a  method  for  proving  such  proceedings  resort 
must,  in  the  absence  of  some  statutory  provision,  be  had  to  the  procedure  at 
common  law,59  transcripts  so  authenticated  being  admissible.""  In  many 
states  provision  is  made  by  statute  which  governs  the  mode  of  proving  proceed- 
ings before  a  justice  of  the  peace  in  another  State.61  In  such  cases  there 
should  be  a  compliance  with  the  provisions  of  the  law.62 

§  1077.  Probate  Courts.63 —  The  record  of  a  court  of  probate  in  one  State 
may,  when  relevant,  be  proved  in  the  courts  of  another  State  in  accordance 
with  the  provisions  of  the  Federal  act.64  Thus  it  is  generally  held  that  pro- 
ceedings in  connection  with  the  probate  of  a  will  are  "  judicial  proceedings  " 
within  the  meaning  of  that  term  as  used  in  the  enactment  and  that  a  record 
thereof  may  be  proved  either  as  there  provided  65  or  as  may  be  allowed  by  the 
law  of  the  State  in  which  offered.66  So  the  appointment  of  a  guardian  in 
another  State  may  be  proved  in  either  way.67  Where  lands  are  situated 
within  the  State  in  which  the  copy  is  offered  in  -evidence,  it  seems,  according 
to  the  weight  of  authority,  that  the  copy  will  be  admitted  for  the  purpose  of 
proving  title68  without  the  will  being  probated  in  the  State  in  which  the 
transcript  is  offered. 

54.  Warren  v.  Flagg,  2  Pick.    (Mass.)   448  344  (1899);  Tomlin  v.  Woods,  125  Iowa  367, 
(1824)  :    Winham   v.  Kline,   77   Mo.   App.   36  101  N.  W.  135   (1904)  ;   Bent  v.  Glaenzer,  17 
(1898)  ;  Stockwell  v.  Coleman,  10  Ohio  St.  34  Misc.   569,    40    N.   Y.    Supp.    657     (1896)  ;    5 
(1859)  ;  5  Chamb.,  Ev.,  §  3420,  n.  1.  Chamb.,  Ev.,  §  3420,  n.  8. 

55.  Ransom  v.  Wheeler,  12  Abb.  Pr.  (N.  Y.)  62.  Gay    v.    Lloyd,    1    Greene     (Iowa)     78 
139  (1861).  (1847);    Warren  v.  Flagg,  supra. 

56.  Trader   v.   McKee,   2    111.    558    (1839);  63.  5  Chamberlayne,  Evidence.  §  3421. 
Mahurin  v.   Bickford,   6   X.   H.   567    (1834);  64.  Spencer  v.  Langdon,  21  111.  192  (1859); 
5  Chamb.,  Ev.,  §  3420,  n.  3.  Washabaugh  v.  Entriken,  34  Pa.  74    (1859)  ; 

57.  Rowley  v.  Carron,  117  Pa.  52,  11  Atl.  Brown  v.  Mitchell,  88  Tex.  350,  31  S.  W.  621 
435   (1887).  (1895)  ;  5  Chamb.,  Ev.,  §  3421,  n.  1. 

58.  Hinman  v.  Missouri,  K.  &  T.  Ry.  Co.,  83  65.  First  Nat.  Bank  of  Memphis  v.  Kidd,  20 
Kan.  35.  110  Pac.  102   (1910).  Minn.   234    (1873);    Keith   v.   Keith,   80  Mo. 

59.  Blackwell  v.  Glass,  43  Ark   209  (1884)  ;  125    (1883)  ;   Walton  v.  Hall,  66  Vt.  455,  29 
State  v.  Bartlett,  47  Me.  396  (1860)  ;  Strecker  Atl.  803   (1894)  ;  5  Chamb.,  Ev.,  §  3421,  n.  2. 
v.    Railson,    16    X     D.    68,    111    N.    W.    612  66.  Gardner  v.  Ladue,  47  111.  211,  95  Am. 
(1907)  :  5  Chamb.,  Ev.,  §  3420,  n.  6.  Dec.  487    (1868). 

60.  Winham  v.  Kline,  supra;  Mahurin  v.  67.  Brack  v.  Morris,  90  Kan.  64,  132  Pac. 
Bickford,  supra.  1183  (1913). 

61.  Sloane  v.  Wolf  sf eld,  110  Ga.  70,  35  S.  E.  68.  Beatty  v.  Mason,  30  Md.  409    (1868) ; 


§§  1078)  1079     COPIES  AKD  TBANSCEIPTS;  JUDICIAL.  RECORD.  810 

§  1078.  State  Courts  in  Federal  Courts.09 —  Tke  record  of  a  judgment  in  a 
State  court  iu  order  to  be  admissible  in  a  .Federal  court,  should  be  certified 
in  accordance  with  the  mode  prescribed  by  section  905  of  the  .Federal  statutes.70 
The  certificate  should  show  that  the  person  signing  it  as  judge  was,  at  the  time 
of  so  signing,  the  judge,  chief  justice  or  presiding  magistrate  of  the  court  in 
which  the  judgment  is  of  record.71  The  certificate  of  the  presiding  judge 
that  the  attestation  is  in  due  form  is  also  held  essential.72  The  act  does  not 
apply  when  the  record  of  a  judgment  rendered  in  a  State  court  is  offered  in 
evidence  in  a  Federal  court  sitting  in  the  same  State.73 

§  1079.  Foreign  Courts.74 —  Owing  to  inability  to  produce  the  record  of  the 
proceedings  in  a  foreign  court,75  the  record  being  regarded  as  the  best  evi- 
dence,7" proof  may  be  made  either  by  a  sworn  copy  made  by  one  who  com- 
pared it  with  the  original  77  or  by  an  exemplified  copy,  certified  with  the  great 
seal  of  State,78  or  by  the  certificate  of  an  officer  authorized  by  law,  which  cer- 
tificate itself  must  be  properly  authenticated.79  These  are  said  to  be  the 
usual  if  not  the  only  modes.80  In  some  States  statutes  prescribe  requirements 
for  admission  of  copies  of  foreign  judicial  proceedings.81 

Barstow   v.   Sprague,   40   X.   H.   27    (1859);  Pickard    v.    Bailey,    26    N.   H.    152     (1852); 

Kelly  v.  Rosa,  44  X.  C.  277  (1853);  5  Chamb.,  Lincoln    v.    Battelle,    6    Wend.    (N.    Y.)    475 

Ev.,  §  3421,  n.  8.  (1831)  ;  5  Chamb.,  Ev.,  §  3423,  n.  3. 

69.  5  C'hamberlayne,  Evidence,  §  3422.  78.  Lincoln    v.    Battelle,    supra;    Gunn    v. 

70.  Act  of  Cong.  May  26,  1790;  U.  S.  Rev.  Peakes,  36  Minn.  177,  30  N.  W.  466  (1886)  ; 
Stat    §  905;   U.  S.  Comp.  Stat.   1901,  p.  677.  Spaulding  v.  Vincent,  supra;  5  Chamb.,  Ev., 

71.  United  States  v.  Biebusch,  1  Fed.  213,  1  §  3423,  n.  4. 

McC'rary   (U.  S.)   42   (1880)  :   5  Chamb.,  Ev.,  79.  Id.;  Thompson  v.  Mason,  4  111.  App.  452 

§  3422,  n.  2.  (1879)  ;  5  Chamb.,  Ev.,  §  3423,  n.  5. 

72.  looker  v.  Thompson,  24  Fed.  Cas.  No.  80.  Church  v.  Hubbard,  2  Cranch.    (U.  S.) 
14,097,  3  McLean  92   (1842).  187,   2   L.   ed.   249    (1804).     See   Buttrick   v. 

73.  Mewster  v.  Spalding,   17  Fed.  Cas.  No.  Allen,  supra;  5  Chamb.,  Ev.,  §  3423,  n.  6. 
9,513.  6  McLean  24   (1853).  81.  Wickersham       v.       Johnston,       supra; 

74.  .")  C'hamberlayne,  Evidence,  §  3423.  Thompson  v.  Mason,  supra;  Capling  v.  Her- 

75.  Spaulding     v.     Vincent,     24     Vt      501  man,  17  Mich.  524    (1869);  Linton  v.  Baker, 
(1852).  1   Xeb.    (Unoff.)    896,  96  N.  W.  251    (1901); 

76.  Wickersham  v.  Johnston,  104  Cal.  407,  Van  Deventer  v.  Mortimer,  56  Misc.  650,  107 
38  Pac.  89   (1894).  N.   Y.   Supp.  564    (1907);   5  Chamb.,  Ev.,  § 

77.  Buttrick  v.  Allen,  8  Mass.  272  (1811)  ;  3423,  n.  7. 


CHAPTER  LII. 

PUBLIC  DOCUMENTS;  OFFICIAL  REGISTERS;  PAPERS  AND  WRITINGS. 

Public  documents;  official  registers,  papers  and  writings,  1080. 
certificates  by  public  officers,  1081. 
particular  documents,  1082. 
same,  1083. 

private  writings  of  record;  conveyances,  1084. 

§  1080.  Public  Documents;  Official  Registers,  Papers  and  Writings.1 — Eecords 
kept  by  public  officers  in  the  course  of  their  official  duty  under  a  law  which 
requires  the  keeping  of  such  records  or  which  are  required  by  the  nature  of  the 
office  are  ordinarily  admissible2  as  prima  facie*  though  not  conclusive  evi- 
dence of  the  facts  which  they  assert.4  The  rule  also  applies  to  official  documents 
or  papers  which  an  official  is  required  to  prepare  in  the  performance  of  his 
duty,5  or  to  reports  so  made,6  even  though  the  action  is  one  between  third 
parties.7  A  record  to  be  admissible  as  a  public  record  should  be  intended  as 
a  mode  of  preserving  the  recollection  of  the  facts.8  It  is  further  required 
that  it  must  have  been  made  either  by  a  superior  officer  or  under  his  direction 
and  be  a  record  of  occurrences  or  acts  which  either  by  statute  or  the  duties  of 
his  office  he  was  required  to  keep,9  though  the  fact  that  the  record  may  contain 
some  matter  which  should  not  appear  thereon  will  not  operate  to  exclude  it  as 
to  those  facts  which  are  properly  entered.10  A  record  not  made  in  the  per- 
formance of  official  duty  will  not  be  received.11  The  mere  fact  of  the  entry 
of  some  matter  upon  the  record  will  not  render  it  admissible  as  proof  thereof ; 
it  must  have  been  properly  incorporated  therein.12  It  is  essential  where  such 

1.  5  Chamberlayne,     Evidence.     §§     3424-      v.    Nelson,    25    Pa.    232     (1855);    Seavey    v. 
3428.  Seavey,  37  N.  H.  125   (1858). 

2.  Chicago  v.  Fitzmaurice,  138  111.  App.  239  7.  Enfield  v.  Ellington,  supra. 

( 1907 )  :    Delaney   v.    Framingham    Gas,    etc.,  8.  Hegler   v.   Faulkner,    153   U.   S.    109,   14 

Co.,   202   Mass.   359,   88    N.    E     773    (1909)  :  S    Ct.  779,  38  L.  ed.  653   (1893). 

State    v.    Baker,    35    Nev.    1,    126    Pac.    345  9.  Allen  v.  Kidd,  197  Mass.  256,  84  N.  E. 

(1912)  :  5  Chamb.,  Ev.,  §  3424,  n.  1.  122  (1908)  ;  Taylor  v.  Jackson,  151  Mich.  639, 

3.  Trentham  v.  Waldrop,   119  Ga.    152,  45  115  N.  W.  977    (1908):   Carter  v.  Hornback, 
S.  E.  988  (1903)  ;  Hayward  v.  Bath,  38  N.  H.  139  Mo.  238,  40  S.  W.  893  ( 1897)  ;  5  Chamb., 
179   (1859).  Ev.,  §  3425,  n.  2. 

4.  Enfield  v.  Ellington,  67  Conn.  459,  34  Atl.  10.  Scott    v.    Williams,    74    Kan.    448,    87 
318   (1896).  Pac.  550    (1906). 

5.  Bruce  v.  Holden,  21   Pick.    (Mass.)    187          11.  Lloyd  v.  Simons,  90  Minn.  237,  95  N. 
(1838)  ;  City  of  Dickinson  v.  White,  25  N.  D.       W.  903    (1903). 

523,  143  N.  W.  754  (1913).  12.  Jackson  v.  Collins,  16  N.  Y.  Supp.  651 

6.  Illinois  Cent.  R.  Co.  v.  Holt,  29  Ky.  L.       (1891).     Entries    should     have    been    made 
Rep.   135,  92  S.  W.  540    (1906);   Allegheny      promptly   after  the  transaction   which  they 

811 


§   1081  PUBLIC  DOCUMENTS;  OFFICIAL  REGISTERS.  b!2 

a  book  is  offered,  that  there  should  be  some  proof  of  its  official  character.13 
It  is  not  necessary  that  such  a  book  should  be  kept  in  pursuance  of  a  mandate 
of  a  statute  or  that  its  keeping  is  indispensable  to  the  nature  of  the  office.14 
A  record  may  be  kept  by  virtue  of  a  statute  or  an  ordinance  for  specific  pur- 
poses only  and  not  be  a  public  record  in  the  sense  that  it  is  competent  evidence 
for  all  purposes.15  A  record  which  is  in  favor  of  the  official  may  be  admis- 
sible, e.g.,  to  prove  the  official's  appointment lt5  or  election  to  office ;  the  per- 
formance of  official  acts  by  him;  1T  the  rendition  of  services  in  an  action  to  re- 
cover for  their  value,18  and  the  like.  Where  the  entry  is  against  the  entrant's 
interest  and  he  is  deceased,19  it  then  becomes  admissible  also  within  the  prin- 
ciple upon  which  entries  and  memoranda  of  persons,  since  deceased,  are  ad- 
mitted.^0 

§  1081.  Certificates  by  Public  Officers.21 — Certificates  of  public  officials  ex- 
ecuted by  them  in  the  performance  of  their  duties  are  regarded  as  documents 
of  a  public  nature  and  are  admissible,22  in  many  cases  under  express  statutory 
enactment,23  at  least  as  prima  facie  evidence  of  the  facts  recited  therein,24 
upon  the  principle  that  every  one  acting  officially  is  presumed  to  have  done  his 
duty  until  the  contrary  appears.25  They  are  only  admissible,  however,  as 
evidence  of  those  facts  which  the  officer  in  the  performance  of  his  duty  is  au- 
thorized or  required  to  certify  to.26  Where  a  certificate  is  given  for  a  par- 
ticular purpose,  it  will  not  ordinarily  be  received  as  evidence  for  any  other 
purpose.27  The  official  character  of  the  one  making  a  certificate  should  be 

purport  to  record.     Birmingham  v.  Pettit,  21  20.   Id.;   5  Chamh  ,  Ev.,  §  3428,  nn.  6,  7,  8. 

D.   C.   209    (1888)  21.  5  Chamberlayne,     Evidence,     §§     3432- 

13.  Hall  v.  People,  21  Mich.  456   (1870).  3434. 

14.  County  of  La  Salle  v.  Simmons,  10  111.  22.  Whalen    v.    Gleeson,    81    Conn.    638,   71 
513    (1849)     (county    commissioners'    book)  ;  Atl.  908  (1903)  ;  Black  v.  Chicago,  B.  &  Q.  R. 
Groesbeck    v.    Seeley,    13    Mich.    329     (1865)  Co.,  237  111.  500,  86  X.  E.  1065   (1909):  Lacy 
(county  treasurer's  book  of  tax  sales)  ;  State  v.  Kossuth  County,  106  Iowa  16,  75  N.  W  689 
v.  Van  Winkle,  25  X   J.  L.  73  (1855)    (school  (1898)  ;   Erickson  v.  Smith,  2  Abb.  Dec.    (N. 
trustees'  minutes)  ;  White  v.  U.  S,  164  U.  S.  Y.)    64,  38  How.  Pr.  454    (1860)  ;   5  Chamb., 
100,  17  S.  Ct.  38,  41  L.  ed.  365   (  1896)    (jail-  Ev.,  §  3432,  n.  1. 

or's  record  book)  ;  5  Chamb.,  Ev.,  §  3426.  n   2  23.  Com.  v.  Waite,  11  Allen  (Mass.)  264,  87 

15.  Butchers  S   &  M.  Assoc    v.  Boston.  214  Am.  Dec.  711    (1865)  ;   Davis  v.  Watkina,  56 
Mass.   254,    101   X.   E.   426    (1913)     (register  Xeb.  288,  76  X.  W.  575  (1898)  ;  State  v.  Mont- 
kept  by  a  draw  tender)  ;   Buffalo  Loan,  etc.,  gomery,  57  Wash.  192,  106  Pac.  771   (1910)  ; 
Co.   v.   Knights  Templar,   126   X    Y.   450,  27  5  Chamb  ,  Ev.,  §  3432,  n.  2 

N.  E.  942  (1891)    (board  of  health  death  rec-  24.  Jonesboro  L.  C.  &  E.  R.  Co.  v.  St.  Fran- 

ord);    Kerr   v.   Metropolitan   St.    R    Co.,   27  cis  Levee  Dist.,  80  Ark.  316,  97  S.  W.  281 

Misc.  190,  57  X.  Y.  Supp.  794  (1899)    (police  (1906). 

blotter)  ;  5  Chamb.,  Ev.,  §  3427.  25.  Whalen  v.  Gleeson,  supra.     Such  a  cer- 

16.  Briggs   v.   Murdock,    13   Pick.    (Mass.)  tificate  will  be  received  in  behalf  of  the  officer 
305    (1832).  making  it.     McKnight  v.  Lewis,  5  Barb.    (X. 

17.  Bissell  v.  Hamblin,  6  Duer  (X.  Y.)  512  Y.)  681   (1849). 

(1857).  26.  Wagner  v.  Allemania,  71  Misc.  448,  128 

18.  Bissell  v.  Hamlin,  13  Abb.  Pr.   (X.  Y.)  X.  Y    Supp.  629    (1911)  :   Marlow  v.   School 
22   (I860).  Dist.  Xo.  4,  29  Okl.  304.  116  Pac.  797  (1911). 

19.  Field  v.  Boynton,  33  Ga.  239    (1862)  ;  27.  Clark  v.  Detroit  Locomotive  Works,  32 
Livingston  v.  Arnoux,  56  X.  Y.  507    (1874).  Mich.  348  (1875)  ;  Erickson  v.  Smith,  supra. 


813  PARTICULAR  DOCUMENTS.  §   106:2 

shown  to  the  satisfaction  of  the  presiding  judge,28  and  also  that  he  executed 
the  same  in  his  official  capacity  29  and  in  the  line  of  his  official  duty  or  au- 
thority.30 In  so  far  as  the  matters  certified  to  do  not  come  within  the  official 
duty  or  cognizance  of  the  officer  the  certificate  will  not  be  received  as  evidence 
of  such  statements.31  While  a  certificate  executed  by  a  deputy  in  the  name  of 
his  principle  has,  in  some  cases  been  received  where  it  appeared  that  the  person 
so  acting  was  in  fact  a  deputy,32  as  has  also  a  certificate  signed  by  a  deputy  as 
such,33  yet  iu  the  absence  of  some  provision  of  law  expressly  or  impliedly  au- 
thorizing the  appointment  of  a  deputy  who  can  authenticate  papers  in  the 
name  of  his  principal,  there  would  seem  to  be  no  sound  reason  to  justify  the 
admission  of  such  a  certificate  in  evidence.34 

§  1082.  Particular  Documents.35 —  Appraisals  made  by  official  custom  house 
appraisers  are  in  the  nature  of  documents  or  public  writings  and  while  they 
are  not  conclusive  as  to  the  cost  or  value  of  the  goods  yet  they  may  in  connection 
with  other  evidence  tend  to  establish  those  facts.36 

Birth,  Death  and  Marriage  Registers. —  A  register  of  births  required  by 
law  to  be  kept  or  a  duly  authenticated  copy  thereof,  is  legal  evidence  of  a  birth 
which  is  entered  thereon.37  A  death  may  be  proved  by  a  register  in  which 
the  law  requires  entries  of  deaths  to  be  made.38  A  record  of  marriages  which 
is  kept  in  pursuance  of  a  statutory  requirement,  or  an  attested  copy  thereof, 
is  of  course  legal  evidence  of  a  marriage  there  recorded.39 

Bond  Registers. —  Where  the  law  provides  for  the  keeping  of  a  book  in 
which  the  bonds  issued  by  corporations  shall  be  registered  and  it  is  shown  to 
the  satisfaction  of  the  presiding  judge  that  a  register,  offered  in  evidence,  was 
kept  as  provided  for  by  the  act,  it  will  be  received.40 

Clerks  of  Courts;  Records  Kept  By. —  Records  kept  by  clerks  of  courts 
either  in  pursuance  of  some  requirement  of  a  legislative  enactment  or  of  the 
express  rules  of  court,  or  in  the  performance  of  their  necessary  duties,  are 

28.  Harbers  v.  Tribby,  62   111.   56    (1871)  ;  846   (1895)  ;  Laffan  v.  U    S.,  122  Fed.  333,  58 
Prew  v.  Donahue,  118  Mass.  438   (1875).  C.  C.  A.  495  (1903). 

29.  Holtman  v.   Holtman    (Ky.    1909),    114  34.  Carter     v.     Territory,     1     X.     M.     317 
S    W.  1198.  (1859)  ;  5  Chamb.,  Ev.,  §  3434. 

30.  Sullivan   v.    State,   66   111.    75    (1872);  35.  5  Chamberlayne,     Evidence,     §§     3429- 
Reed    v.    Inhabitants    of    Scituate,    7    Allen  3431  ;  3435-3447. 

(Mass.)    141    (1863);   Parr  v.  Greenbush.  72  36.  Buckley  v.  U.  S.,  4  How.   (U.  S.)   251, 

X.   Y.   463    (1878)  :    McKinnon  v.   Fuller.   33  11  L.  ed.  961    (1846)  ;  5  Chamb.,  Ev.,  §  3429. 

S.  D.  582,  146  X.  W.  910   (1914)  ;  5  Chamb,  37.  Murray  v.  Supreme  Lodge  X.  E.  O.  P., 

Ev.,  §  3433,  n.  3.  74  Conn.  715,  52  Atl.  722   ( 1902)  :  Howard  v. 

31.  Cutter    v.    Waddincfham,    33    Mo.    269  Illinois  Trust  &   Sav.  Bank,   189  111.  568,  59 
(1862)  ;   Tripler  v    Mayor  of  Xew  York.  125  X.  E.  1106  (1901)  ;  5  Chamb,  Ev.,  §  3430. 

X.  Y.  617,  26  X.  E.  >21    (1891)  ;   5  Chamb.,  38.  Id.;  5  Chamb.,  Ev..  §  3437. 

Ev.,  §  3433,  n.  4.  39.  Id.;  Xelson  v.  State,  151-  Ala.  2,  43  So. 

32.  Byington  v.  Allen.   11   Iowa  3    (1860):  966     (1907);     Com.     v.     Hayden,    supra;    5 
Steinke  v.  Graves,  16  Utah  293,  52  Pac.  386  Chamb..  Ev.,  §  3444. 

(1898).  40.  Lovinor    v.    Warren    County,    14    Bush 

33.  Com.  v.  Hayden,  163  Mass.  453,  40  N.  E        (Ky.)  316  ( 1878). 


§  1082  PUBLIC  DOCUMENTS;  OFFICIAL  REGISTERS.  814 

subject  to  the  same  general  principles  in  respect  to  their  admission.  Thus  a 
record  kept  by  the  clerk  of  a  court  has  been  received  for  the  purpose  of  show- 
ing some  fact  in  respect  to  the  fees,41  the  issuance  and  return  of  writs,42  the 
execution  of  a  bond  by  the  sheriff,43  an  attachment  of  real  estate,44  and  other 
matters  45  thus  entered  of  record  by  him. 

County  Records. —  The  nature  and  importance  of  duties  performed  by 
county  .boards,  such  as  county  commissioners,40  are  ordinarily  of  such  a  char- 
acter that  even  though  there  is  no  statute  requiring  that  a  record  be  kept  of 
their  proceedings  it  is  not  only  proper  but  necessary  that  such  a  record  be  kept 
by  them,47  and  when  so  kept  it  will  be  received  in  evidence.48  In  like  man- 
ner records  kept  by  any  one  of  the  various  county  officials  in  the  performance 
of  his  official  duties,  as  for  instance  of  a  county  treasurer  49  or  of  a  county 
clerk,80  have  been  admitted  in  evidence  as  proof  of  the  facts  which  they 
assert. 

Election  Certificates,  Registry  Lists,  Etc. —  An  official  registry  list  of  elect- 
ors together  with  the  check  lists  are  admissible  in  evidence  to  prove  the 
domicil  of  one  whose  name  appears  thereon,51  to  show  his  qualifications  to  vote 
and  to  establish  the  fact  that  he  voted.52  Similarly  poll  books  and  certificates 
of  election  officers  of  a  township  returned  to  the  officials  designated  by  law 
have  been  received  as  prima  facie  evidence  of  an  election.53 

Federal  Official  Records. —  Full  faith  is  given  to  written  instruments  emanat- 
ing from  officers  of  the  United  States  government  in  their  official  capacity. 
Thus  the  courts  have  admitted  receipts,54  pamphlets,55  reports,50  books  of  ac- 
count,57 and  others  of  a  like  character  issued  by  government  officials  as  well  as 
records  kept  by  them  in  the  performance  of  their  official  duties.58 

Inventories. —  Inventories  of  estates  of  decedents  made  in  pursuance  of  an 
order  of  the  probate  court  issued  under  authority  of  a  statute  are  admissible 

41.  Cooper  v.  People,  28  Colo.  87,  63  Pac.          49.  Sawyer  v.   Stilson,   146   Iowa   707,   125 
514    (1900);    Lycett    v.    Wolff,   45   Mo.   App.      X.  W.  822   (1910). 

489   (1891)  ;  5  Chamb.,  Ev  ,  §  3435,  n.  1.  50.  Board  of  County  Com'rs  v.  Patrick,  18 

42.  Browning  v.  Flanagin,  22  N.  J.  L.  567  Wyo.  130,  104  Pac.  531,  107  Pac.  748   (1909). 
(1849).  51.  Enfield  v.   Ellington,  67   Conn.  459,  34 

43.  Bryan  v.  Glass'  Securities,  2  Humphr.  Atl.  318^1896). 

(Tenn.)  390  (1841).  52.  Id.;    Langhammer   v.    Munter,    80    Md. 

44.  Metcalf   v.   Munson,    10   Allen    (Mass.)       518,  31  Atl.  300   (1895). 

491    (1865).  53.  Merritt  v.  Hinton,  55  Ark.  12,  17  S.  W. 

45.  Lawrence  County  v.  Dunkle,  35  Mo.  395  270    (1891)  ;   State  v.  Baker,  35  Nev.   I,  126 
(1865).  Pac.  345   (1912)  ;  5  Chamb,  Ev.,  §  3438. 

46.  Coler  v.  Rhoda  School  Tp.,  6  S.  D.  640,  54.  Herriot    v.    Broussard,    4    Mart.    N.    S. 
63  N    W.  158   (1895).  (La.)    260    (1826). 

47.  Johnson  v.  County  of  Wakulla,  28  Fla.  55.  Nichols  v.  Chicago  &  W   M.  R.  Co.,  125 
720.  9  So.  690   (1891).  Mich.  394,  84  N    W.  470  (1900) 

48.  Bader  v.  State.  176  Ind    268,  94  N.  E.  56.  Miles    v     Stevens,    3    Pa.    21,    45    Am. 
1009   (1911);  Van  Ness  v.  Hadsell,  54  Mich.  Dec.  621    (1846). 

560,  20  N   W.  (1884)  ;  5  Chamb.,  Ev.,  §  3436,          57.  United  States  v.  Kuhn,  4  Cranch    (U. 
n.  3.  S.  C.  C.)  401    (1833). 

58.  Infra,  nn.  55-60. 


815  PARTICULAR  DOCUMENTS.  §  1082 

for  many  purposes  as  to  every  person  since  they  are  made  by  those  acting 
under  authority  of  the  law.59 

Land  Records  of  Grants  and  Patents. —  Ordinarily  the  records  of  a  land 
office  showing  the  issuance  of  a  grant,  deed  or  certificate  have  been  regarded  as 
within  the  operation  of  the  rule  permitting  the  reception  in  evidence  of  records 
kept  by  a  public  official  °°  and  the  record  of  a  patent  has  been  received  as  of  a 
grant  of  equal  dignity  with  the  patent  itself,  since  it  shows,  like  the  patent  that 
the  grant  has  been  issued.01  Its  identity  as  the  original  record  must  be  estab- 
lished.02 Documents  of.  the  United  States  Land  Office  have  been  admitted 
where  a  register  of  the  local  land  office  identified  them  as  the  originals.63 

Letters  of  an  Official  Character. —  Letters  from  government  officials  are 
frequently  to  be  considered  official  acts  and  as  such  come  within  the  applica- 
tion of  the  general  rule  controlling  official  documents  and  records.64  This 
also  applies  to  letters  received  by  such  persons  in  their  official  capacity.65 

Military  and  Naval  Records. —  Records  made  by  the  adjutant-general  of  a 
State  of  the  muster  rolls  of  different  regiments  furnished  by  the  State  for 
military  service  *>f  the  Federal  government  and  which  have  been  recognized 
by  the  legislature  of  the  State  as  public  records  of  his  office  are  competent  evi- 
dence of  the  enlistment,  mustering  and  discharge  of  members  of  such  regi- 
ments.(>c  Commissions  and  discharges  may  also  be  proved  by  a  roster  kept  as 
required  by  the  proper  recording  officers.67  Similarly  the  enrollment  of  a 
company  is  the  best  evidence  of  whether  a  certain  person  has  in  fact  been 
enrolled.08  Likewise  the  presence  or  absence  of  a  member  of  a  military  com- 
pany may  be  shown  by  the  company's  records.69  The  same  rule  applies  in 
the  case  of  naval  records.7" 

Municipal  Re.rords.-~  Records  which  have  been  kept  by  city  officials  either 
in  pursuance  of  a  statutory  requirement  71  or  as  a  necessary  part  of  their  official 
duty  72  even  in  the  absence  of  statutory  mandate  are,  as  in  the  case  of  other 

59.  Seavey  v.  Seavey.  37  X   H.  125  (1858)  ;  Am.  Dec.  598   (1847)  ;  5  Chamb.,  Ev.,  §  3443. 
Roger's  Admx.  v.   Chandler's  Admx.  3  Munf.  66.  Board  of  Com'rs  of  Monroe  County  v. 
(Va.)  65   (1811)  ;  5  Chamb.,  Ev.,  §  3440.  May,  67   Ind.  562    (1879)  ;   Allen  v.   Halsted. 

60.  Sylvester   v.    State.   46    Wash     585,   01  39  Tex.  Civ.  App.  324,  87  S.  W.  754    (1905). 
Pac    15    (1907):   William  James'  Sons  Co.  v.  67.  Matthews     v.     Bowman,     25     Me.     157 
Crouch,  72  W.  Va.  794.  79  S.  C.  815   (1913)  ;  (1845). 

5  Chamb.,  Ev.,  §  3441,  n.  2.  68.  Gale  v.   Currier.  4  N.  H.   169    (1827). 

61.  Reno  Brewing  Co    v.  Packard,  31   Nev.       Prima  facie  evidence.     See  Shattuck   v.   Gil- 
433,    103   Pac    415.    104   Pac.   801    (1909);    5       son,  19  N.  H.  296  (1848). 

Chamb,  Ev.,  §  3441,  n.  3.  69.  Robinson  v.  Foljrer,  17  Me   206   (1840). 

62.  Stewart  v.  Lead  Belt  Land  Co,  200  Mo.  Compare,  Com.  v.  Pierce,  15  Pick.  (Mass.)  170 
281,  98  S.   W    767    (1906).  (1833). 

63.  Harmerin<r   v.    Rowland,   25   X.   D    38,  70.  Wallace  v.  Cook.  5  Esp.  117   (1804);  5 
141  X.  W    131   (1913)  :  5  Chamh..  Ev..  §  3442.  Chamb.,  Ev.,  §  3445. 

64.  Carpenter    v.     Bailey,    56    X.    H.    283  71.  St.    Charles    v.    O'Mailey.    18    Til.    407 
(1876)  ;  American  Banana  Co.  v.  United  Fruit  (1857)  :  Grafton  v.  Reed,  34  W.  Va.  172,  12 
Co..  160  Fed.  184    (1908);   5  Chamb.,  Ev.,  §  S.  E.  767  (1890). 

3443,  n.  1.  72.  Fruin-Bambrick  Constr.  Co.  v.  Geist,  37 

65.  Hammatt  v.  Emerson,  27  Me.   308,  46      Mo.  App.  509   (1889). 


§  1083  PUBLIC  DOCUMENTS;  OFFICIAL,  REGISTERS.  816 

official  registers  and  records,  admissible  73  as  the  best  evidence  of  the  acts  of  a 
municipality  whenever  those  acts  are  to  be  proved.74  Thus  they  have  been 
received  to  show  the  passage  of  an  ordinance,75  the  report  of  a  board  of  public 
works  to  the  common  council  and  its  action  thereon ;  7ti  a  resolution  of  a  board 
of  health  condemning  buildings  and  ordering  their  destruction;  77  the  location 
and  alteration  of  streets,78  a  change  of  grade  made  pursuant  to  a  legal  vote  of 
the  authorities,79  the  amount  due  a  gas  company  for  gas  supplied  under  a 
contract  8U  and  other  similar  matters.  Such  records  will  only  be  received  as 
proof  of  such  facts  as  are  properly  entered  thereon  by  one  in  the  performance 
of  his  official  duties.81 

Official  Maps. —  An  official  map  made  under  the  authority  of  a  State  or  of 
the  United  States  may  also  be  considered  as  a  record  and  subject  to  the  same 
principles  controlling  the  admission  of  the  latter.82  Such  map  have  been  re- 
ceived to  show  the  jurisdiction  of  the  court;  83  an  intent  of  the  owners  of  land 
to  dedicate  and  the  extent  of  the  dedication ;  84  the  line  of  a  street ;  85  an 
accident  occurred  within  the  limits  of  a  certain  town ;  86  to  identify  the  par- 
ticular parcel  involved  in  the  controversy;  87  and  to  prove  the' identity  and  de- 
scription of  land  conveyed  by  a  patent.88  Where  the  genuineness  of  a  map  is 
disputed  some  evidence  may  be  required  of  its  authenticity.89 

§  1083.  Particular  Documents,  Continued.90 — A  post-office  record,  an  official 
registry  kept  by  a  postmaster  containing  statements  of  various  matters  required 
by  law  and  by  the  regulations  of  the  postal  department  of  the  government  to  be 
entered  therein,  will  be  generally  received  in  proof  of  any  relevant  fact  which 
it  recites.91  So  where  relevant  the  record  of  mails  received  and  sent  away 
may  be  admitted,92  as  may  also  the  record  of  registered  letters.93 

73.  Edwards  v.  Cedar  Kapids,  138  Iowa  421,  Mo.  443  (1881)  ;  People  v.  Denison,  17  Wend. 
116  N.  W.   323    (1908);   State  v.  Heffernan,  (N.    Y.)     312     (1837);    Stephenson    v.    Lees- 
243  Mo.  442,  148  S.  W.  90   (1912)  ;  Tenement  burgh,  33  Ohio  St.  475  (1878)  ;  5  Chamb.,  Ev., 
House  Dept.  v.  Weil,  134  N.  Y.  Supp.   1062  §  3447,  n.  1. 

(1912)  ;  5  Chamb.,  Ev.,  §  3446,  n.  3.  83.   United  States  v.  Beebe,  2  Dak.  292,  11 

74.  Denning   v.   Roome,   6   Wend.    (N.   Y.)       N.  W.  505    (1880). 

651   ( 1831 ) .  84.  Chicago,  B.  &  Q.  R.  Co.  v.  Banker,  44  111. 

75.  Greeley  v.  Hamman,  17  Colo.  30,  28  Pac.      26  (1867). 

460  (1891).  85.  Pittsburg,  etc.,  R.  Co.  v.  Rose,  74  Pa. 

76.  Alderman  v.  New  Haven,  81  Conn.  137,  362    (1873).     Compare,  Com.  v.  Switzer,  134 
70  Atl.  626   (1908).  Pa.  383,  19  Atl.  681   (1890). 

77.  Kwong  Lee  Yuen  &  Co.  v.  Alliance  As-  86.  Chicago,  etc.,   R.  Co.  v.  McArthur,  53 
sur.  Co.,  16  Hawaii  674   (1905).  Fed.  464,  3  C.  C.  A.  594   (1892). 

78.  Barker  v.  Fogg,  34  Me.  392   (1852).  87.  Meikel   v.  Greene,  94   Ind.  .344    (1883). 

79.  Cook  v.  Ansonia,  66  Conn.  413,  34  Atl.  88.  Surget  v.  Doe,  24  Miss.  118   (1852). 
183   (1895).  89.  Wooten  v.  Solomon,  139  Ga.  433,  77  S. 

80.  St.  Louis  Gas  Light  Co.  v.  St.  Louis,  86  E.  375   (1912)  ;  Com.  v.  King,  150  Mass.  221, 
Mo.  495   (1885).  22  N.  E.  905   (1889). 

81.  Fraser    v.     Charleston,     8     S.     C.     318  90.  5  Chamberlayne,     Evidence,     §§     3448- 
(1876).  3457. 

82.  Colton  Land  &  W.  Co.  v.  Swartz,  99  Cal.  91.  Gurney  v.  Howe,  9  Gray    (Mass.)    404, 
278,  33  Pac.  878   (1893)  ;  Henry  v.  Dulle,  74  69  Am.  Dec.  299  (1857)  ;  Haddock  v.  Kelsey, 


PARTICULAR  DOCUMENTS.  §  1083 

Prison  Records. —  Records  kept  by  the  official  in  charge  of  a  jail  or  prison 
are  admissible  to  show  the  date  of  the  commitment  and  discharge  of  a  prisoner,94 
though  no  statute  provides  for  such  a  book.'-15 

School  Records. —  Records  kept  by  the  officials  of  a  school  district  as  re- 
quired by  statute  are  admissible  !nj  and  have  been  received  to  show  the  election 
of  a  member  of  the  school  committee ;  9T  as  evidence  of  a  regular  notice  for  a 
school  district  meeting,98  and  to  show  the  amount  of  the  district's  indebted- 
ness,99 or  the  indebtedness  cf  a  school  official  to  it  in  an  action  against  him 
and  his  sureties.1  So  a  record  which  the  law  requires  to  be  kept  by  school 
authorities  concerning  the  age  of  school  children  and  the  like  will  be  received 
as  evidence  of  any  fact  required  to  be  there  entered,  though  it  is  not  conclusive 
in  regard  thereto.2 

Sheriff's  Books  and  Records. —  Records  kept  by  a  sheriff  concerning  his 
official  acts,3  such  as  entries  on  a  docket  kept  by  him  4  or  in  his  execution 
book,5  have  been  received  as  proof  of  facts  stated  therein.  Where  he  is  de- 
ceased, they  have  also  been  received  as  declarations  against  his  interest.6 

State  Officials'  Records. —  Records  and  documents  kept  by  and  in  the  cus- 
tody of  State  officers,  frequently  if  not  generally  in  pursuance  of  some  express 
legislation,  will  be  received  when  relevant."  Thus  a  bank  pass-book  regularly 
and  accurately  kept  by  a  State  treasurer,  in  connection  with  the  discharge  of 
his  duties,  has  been  received  as  a  part  of  his  official  transactions  in  an  action 
on  his  bond.8 

Surveyors'  Records. —  Reports  made  by  an  official  surveyor  or  records  kept 
by  him  in  the  performance  of  his  official  duties  are  applicable  to  the  same  gen- 
eral rules  relating  to  the  admission  in  evidence  of  public  records  and  docu- 
ments,9 as  are  also  those  of  a  deputy  surveyor.10  A  survey  need  not  recite 

3  Barb.   (X    Y.)    100   (1848)  ;  5  Chamb.,  Ev.,  3.  Albrecht  v.  State,  62  Miss.  516    (1885)  ; 

§  3448,  n.  1.  Brewster    v.   Vail,    20   X.    J.    L.   56,   38   Am. 

92.  Miller  v.  Boykin,  70  Ala.  469    (1881)  ;  Dec.  547   (1842)  ;  5  Chamb.,  Ev..  §  3451,  n.  1. 
Merriam  v.  Mitchell,  13  Me.  439,  29  Am.  Dec.  4.  Fleming  v.  Williams,  53  Ga.  556  (1875). 
514   (1836).  5.  Secrist  v.  Twitty,  1  McMull.   (S.  C.)  255 

93.  Gurney  v.  Howe,  supra.  (1840). 

94.  White  v.  U.  S.,  164  U.  S.  100,  17  S.  Ct.  6.  Field   v.    Boynton,   Adm'r.,   33    Ga.    239 
38,  41  L.  ed    365   (1S96).  (1862). 

95.  Id.:  5  Chamb.,  Ev.,  §  3440.  7.  Parrish  v.  Com.,  136  Ky.  77,  123  S.  W. 

96.  Board  of  Education  v.  Moore.  17  Minn.  339    (1909)  ;    Harper   v.   Marion   County,   33 
412   (  1871)  :  5  Chamb.,  Ev..  §  3450,  n.  1.  Tex.  Civ.  App.  653,  77  S.  W.  1044  (1903). 

97.  Peck  v.  Smith.  41  Conn.  442  (1874).  8.  Com.  v.  Tate,  89  Ky.  587,  13  S.  W.  113 

98.  Sanhorn  v.  School  Di*t.  Xo.  10,  12  Minn.  (1890).     It  is  admissible  if  written  in  pencil. 
17   (1S661.  Franklin    v.    Tiernan,   56    Tex.    618     (1882). 

99.  Wormley  v    District  Tp.  of  Carroll,  45  But    see    Meserve    v.    Hicks,    24    X.    H.    295 
Iowa  666   (1877).  (1851)  ;  5  Chamb.,  Ev..  §  3452,  n.  3. 

1.  Independent  School  Dist.  of  Sioux  City  9  Sherrard   v.   Cudney,    134   Mich.   200,   96 
v.    Hubbard,    110    Iowa    58,    81    X.    W.    241  X.  W.  15   ( 1903)  ;  Clark  v.  Williams,  29  Neb. 
(1899).  691,  46  X.  W.  82    (1890)  ;  Conkling  v.  West- 

2.  Levels  v.  St.  Louis  &  H.  R.  Co.,  196  Mo.  brook,   81   Pa.   81    (1872)  :    5   Chamb.,  Ev.,   § 
606,  94  S.  W.  275    (1906).     See  also,  Swift  3453,  n.  1. 

v.  Rennard,  119  111.  App.  173  (1905).  10.  Russell  v.  Werntz,  24  Pa.  337  (1855). 


sj   1083  PUBLIC  DOCUMENTS;  OFFICIAL  REGISTERS.  818 

the  authority  under  which  it  was  made.11  Where,  however,  a  statute  pre- 
scribes what  a  surveyor's  record  shall  contain  it  must  comply  with  these  re- 
quirements.12 

Tax  Books,  Etc. —  Books  and  records  kept  by  and  containing  entries  of  the 
official  acts  of  a  tax  assessor  13  or  collector  may  be  received  in  the  same  way  H 
as  at  least  prima  facie  evidence  of  the  facts  stated.15  So  an  entry  on  tax 
books  showing  the  amount  of  assessments  which  is  marked  ''  paid  "  has  been 
received  as  prima  facie  evidence  of  their  payment.10  Similarly  the  assessment 
roll,17  the  delinquent  tax  list,18  the  certificate  of  a  tax  sale,19  and  a  book  con- 
taining entries  regarding  the  sale  and  redemption  of  land  are  admissible.20 
So  a  stub  of  a  redemption  certificate  kept  in  the  county  auditor's  office  has  been 
received,21  as  has  also  a  tax  receipt  stub  book,22  a  receipt  given  by  a  county 
treasurer  to  a  tax  collector,23  and  one  given  by  the  latter  to  the  taxpayer  in 
pursuance  of  a  statute  requiring  it.24  There  is  authority  for  the  doctrine  that 
a  tax  list  or  assessment  roll  is  not  admissible  for  any  purpose  except  relating 
to  the  assessment  and  collection  of  a  tax,  as  where  offered  for  the  purpose  of 
showing  domicile  25  or  the  location  of  the  land.26  On  the  other  hand  they 
have  been  received  as  bearing  upon  the  question  of  solvency,27  to  show  in  whose 
name  property  was  assessed,28  and  in  the  case  of  an  agreement  between  a 
landlord  and  tenant  tha^t  the  latter  is  to  pay  the  taxes,  the  tax  roll  placed  in  the 
hands  of  the  county  treasurer  for  collection  has  been  received  as  competent  evi- 
dence.29 A  tax  return  has  also  been  received  as  an  admission.30 

11.  Sproul  v.  Plumsted,  4  Binn.    (Pa.)    189  20.  Bush  v.  Stanley,  122  111.  406,  13  X.  E. 
(1811).                                                                          249  ( 1887 )  ;  Groesbeck  v.  Seeley,  13  Mich.  329 

12.  Pugh  v.  Schindler,  127  Mich.  191,  86  N.       (18G.5). 

W.  515   (1901)  21.  Ellsworth  v.  Low,  62  Iowa  178,  17  N..W. 

13.  Milo  v.  Gardiner,  41  Me    549    (1856);       450    (1883). 

Houston  v.  Stewart,  40  Tex.  Civ.  App   499,  90  22.  Hudson   v.   Herman,   81   Kan.   627,    107 

S.  W.  49   (1905).     Where  the  financial  condi-  Pac    35  (1910). 

tion  of  a  resident  of  the  county  is  in  issue  a  23.  Williams    v.    Fitzpatrick,   20    Ala    791 

copy  of  the  tax  list  is  admissible  to  prove  it.  (1852). 

Churchill  v    Jackson,   132  Ga.   666,  64  S.   E.  24.  Johnstone  v.  Scott,  11  Mich.  232  (1863). 

691,  49  L.  R.  A.    (N.  S.)   875   (1909).  Evidence  of  date  of  assessment.     National  L. 

14.  Miller  v.  Hale,  26  Pa.  432  (1856)  ;  Day  Ins.  Co.  v.  Butler,  61  Xeb.  449,  85  X.  W.  437 
v.   Peasley,   54   Vt.   310    (1881);    Mitchell   v.  (1901). 

Pillsbury,  5  Wis.  407   (1856)  ;  5  Chamb.,  Ev.,  25.  Sewall  v.  Sewall,  122  Mass.  156,  23  Am. 

§  3454,  n.  2.  Rep.  299    (1877)  ;  5  Chamb.,  Ev.,  §  3454,  nn. 

15.  Whalen  v.  Gleeson,  81  Conn.  638,  71  Atl.       14,    15. 

908  (1909)  ;  Clark  v.  Fairley,  30  Mo.  App.  335  26.  Com.  v.  Heffron,  102  Mass.  148   (1869). 

(1888);    Ripton  v.   Brandon,  80  Vt.  234,  67  27.  Winter  v.  Bandel,  30  Ark.  362   (1875). 

Atl.  541   (1907).  28.  Indiana  Union  Traction  Co.  v   Benadum, 

16.  Scranton    Poor    Dist.    v.    Directors    of  42  Ind.  App.  121,  83  X.  E.  261  (1908).     Com- 
Poor,  106  Pa.  446  (1884).  pare    Seivel-Suessdorf    C.    &   L.    Mfg.    Co.    v. 

17.  Lake  County  v.   Sulphur  Bank  Quick-  Manufacturers  Ry.  Co.,  230  Mo    59,   130  S. 
silver  Min.  Co.,  66  Cal.  17,  4  Pac.  876  (1884).  W.  288   (1910). 

18.  State  v.  Xevada  Cent    R.  Co.,  26  Xev.  29.  Smith  v.  Scully,  66  Kan.   139,  71  Pac. 
357,  68  Pac.  294,  69  Pac.   1042    (1902).  249  (1903). 

19.  McKeen  v.  Hashell,  108  Ind.  97,  8  X.  E.  30.  Ivey  v.  Cowart,  124  Ga.  159,  52  S.  E. 
901   (1886).  436    (1905). 


819  CONVEYANCES.  §  108-i 

Upon  the  question  of  value  there  is  a  diversity'  of  opinion,  there  being  sev- 
eral decisions  holding  that  the  assessment  roll  is  not  admissible  in  this  connec- 
tion in  an  action  between  third  parties.31  In  other  cases  it  has,  however,  been 
admitted  as  competent  evidence  to  show  value,32  it  being  declared  in  one  de- 
cision that  it  should  be  received  for  what  it  is  worth  and  that  its  weight  is  for 
the  jury.33  In  many  cases  they  have  been  received  as  admissions.34 

Town  Officials'  Records. —  The  records  kept  by  town  officials  may  properly 
be  received  as  evidence  of  facts  stated  by  them  relating  to  the  performance  of 
their  duties.35  Thus  records  and  books  kept  by  selectmen,36  town  commis- 
sioners,37 town  clerks,38  town  treasurers  39  and  overseers  of  the  poor,40  have 
been  received. 

Weather  Records. —  Records  kept  by  certain  officials  under  the  direction  of 
the  United  States  government  of  weather  observations  and  conditions  in  vari- 
ous parts  of  the  country,  come  within  the  general  rule  which  permits  of  the 
introduction  into  evidence  of  official  registers  or  records  kept  by  persons  in 
public  office.41  So  weather  records  kept  by  the  United  States  weather  bureau 
at  a  place  have  been  received  as  evidence  of  what  the  weather  was  at  another 
place  ten  miles  distant,  expert  evidence  having  been  first  introduced  that  such 
records  at  any  place  would  as  a  general  rule  be  the  true  record  for  the  sur- 
rounding country.42 

§  1084.  Private  Writings  of  Record;  Conveyances.43 — Where  it  is  sought  to 
prove  the  contents  of  an  instrument  in  the  nature  of  a  conveyance  between  pri- 
vate parties  it  might  seem  that  the  record  thereof  should  not  be  received  with- 
out accounting  for  the  non-production  of  the  original,44  in  the  absence  of  some 

31.  Dudley  v.  Minnesota  &  X.  W.  R.  Co.,  77          37.  Cheatham  v.  Young,  113  N.  C.  161,  18 
Iowa  408.  42  N.  \V.  350   (1889)  ;  Kenerson  v.       S   E.  92  (1893). 

Henry,  101  Mass.  152  (1869).  38.  Lowe    v.     Aroma.    21     111.    App.     598 

32.  White  v.  Beal  &   Fletcher  Grocer  Co..       (1886):  Briggs  v.  Murdock,  13  Pick.  (Mass.) 
65  Ark.  278,  45  S.  W.  1076   (1898);  Indiana       305  -(1832). 

Union    Traction    Co.    v.    Benadum,    supra;    5  39.  Rindge  v.  Walker,  61  N.  H.  58  (1881); 

Chamh..  Ev.,  §  3455,  n.  2.  Xye  v.  Kellam,   18  Vt.  594    (1846). 

33.  Steam    Stone-Cutter   Co.    v.    Scott,    157  40.  Corinna    v.    Inhabitants    of    Hartland. 
Mo.  520,  57  S.  W.  1076   (1900).  70  Me  355  (1879)  ;  Cabot  v  Town  of  Walden, 

34.  Supra,  §  554:  2  Chamb.,  Ev..  §  1374.  46   Vt.    11    (1873). 

35.  Leavitt  v.   Somerville,   105  Me.  517,  75  41.  Chicago  &   Eastern   I.   R.   Co.  v.   Zapp, 
Atl.  54    (1909):   Pilkins  v.  Hans,  87  Neb.  7,  110  111.  App    553    (1903):   Moore  v.  Gaus  & 
126    N.    W.    864    (1910);    5   Chamb,    Ev.,    §  Sons   Mfg.   Co.,    113   Mo.    98.   20    S.    W.    975 
3456,  n.  1.  (1892)  :  Hufnagle  v.  Delaware  &  Hudson  Co., 

36.  Bow   v.   Allenstown,   34   X.   H.   351.   69  227  Pa.  476,  76  Atl.  205    (1910);   5  Chamb., 
Am.   Dec.  489    (1857)  :   Watson  v.  Xew  Mil-  Ev.,  §  3457,  n.  1. 

ford,  72  Conn.  561.  45  Atl.  167  (1900)  So  42.  Mears  v.  Xew  York,  etc.,  R.  Co..  75 

the  record  upon  which  a  warrant  issued  by  Conn.  171,  53  Atl.  610  (1902).  See  Huston 

the  selectmen  calling  for  a  town  meeting  was  v.  Council  Bluffs,  101  Iowa  33.  69  X.  W. 

entered  is  admissible.  Com.  v.  Shaw,  7  Mete.  1130  (1897). 

(Mass.)  52  (1843).  Also  the  original  war-  43.  5  Chamberlayne,  Evidence,  §§  3458- 

rant.  Bucksport  v.  Spofford,  12  Me.  487  3460. 

(1835).  44.  Peck   v.    Clark,    18   Tex.    239    (1857); 


§   1084:  PUBLIC  DOCUMENTS;  OFFICIAL  REGISTERS.  b-20 

statute  to  the  contrary.  In  some  cases,  however,  records  of  deeds  and  other 
writings  seem  to  have  been  received  without  reference  to  any  statute  authoriz- 
ing their  admission  in  evidence.45  The  question  as  to  the  admissibility  of  the 
record  of  a  deed  or  other  private  written  instrument  required  by  law  to  be  re- 
corded is,  with  possibly  few  exceptions,  controlled  by  legislative  enactments. 
The  tendency  of  such  legislation  has  been  to  make  the  record  of  the  writing 
admissible,40  without  further  proof,47  in  many  cases  it  being  made  of  equal 
force  and  effect  as  the  original.48  Under  a  statute  of  this  nature  a  record  pur- 
porting to  be  transcripts  of  deeds  from  other  records  has  been  received,49  as 
has  also  a  book  into  which  records  have  been  transcribed  from  a  temporary 
book  which  is  shown  to  have  been  lost  or  destroyed.00  Some  of  the  statutes 
merely  provide  that  the  record  may  be  received  as  secondary  evidence  of  the 
writing,  upon  satisfactory  proof  of  loss  of  or  inability  to  produce  the  original.51 
Regardless  of  such  statutes,  however,  it  would  seem  that  not  the  record  but  the 
original  instrument  should  be  produced  where  the  question  involved  is  whether 
such  instrument  has  been  forged.52 

To  render  a  record  admissible  under  a  statute  the  requirements  of  the 
enactment  must  be  complied  with  in  regard  to  proving  the  same,53  and  the 
foundation  prescribed  thereby  for  its  admission  must  be  laid  54  to  the  satisfac- 
tion of  the  presiding  judge.  If  notice  to  the  adverse  party  is  required  it  must 
be  given.55  Also  it  is  said  that  the  record  must  have  been  made  in  compliance 
with  the  law  relating  to  the  recording  of  instruments  5G  and  the  instrument 
itself  must  be  executed  in  compliance  with  the  provisions  of  the  statute.57 
It  must  be  an  instrument  which  the  law  authorizes  or  directs  to  be  recorded.58 

Bradley  v.   Silsbee,  33  Mich.   328    (1876);    5  S.    W     804     (1903):    Delaney    v.    Errickson, 

Chamb.,  Ev.,  §  3458,  nn.  1,  2.  supra;  5  Chamb.,  Ev.,  §  3459,  n    6 

45.  Trammell    v.    Thurmond,    17    Ark.    203  52.  People    v.    Svvetland,    77    Mich     53,    43 
(1856);    Robinson   v.   Pitzer,   3    W.    Va.   335  N.  W.   779    (1889). 

(1869);  5  Chamb.,  Ev.,  §  3458,  nn    3,  4.  53.  Sullivan  v.  Hense.  2  Colo.  424    (1874). 

46.  Adams  v.  Hopkins,  144  Cal.  19,  77  Pac.          54.  Stow  v  People.  25  III.  81  i!860)  ;  Peck 
712  (1904)  ;  Swank  v.  Phillips,  113  Pa.  482,  6       v.  Clark,  18  Tex.  239  (1857). 

Atl   450  (1886)  ;  5  Chamb.,  Ev.,  §  3459,  n.  1.  55.  Lasher  v.   State,  30  Tex.   App.  387,   17 

47.  Embree  v.   Emerson,   37    Ind.   App.    16,       S.  W.  1064   (1891). 

74  N.  E.  44,  1110   (1905)  ;  Wendell  v.  Heim,  56.  Einstein  v.  Holladay-Klotz  Land  &  L. 

87  Kan.  136,  123  Pac.  869    (1912)  ;  Clark  v.  Co.,  132  Mo   App.  82,  111  S.  W.  859   (1908)  ; 

Clark,  47  N.  Y.  664   (1872)  ;  Blaha  v.  Borg-  5  Chamb.,  Ev.,  §  3460,  n.  4. 

man,  142  Wis.  43,  124  X.  W.  1047  (1910)  ;  5  57.  Trowbridge  v.  Addoms,  23  Colo.  518,  48 

Chamb.,  Ev.,  §  3459,  n.  2.  Pac.   535    (1897);    Strain   v.   Fitzgerald,    128 

48.  Delaney  v.   Errickson,   10  Neb.  492,   6  N.   C    396,   38   S.   E.   929    ( 1901 )  ;    Davis   v. 
N.  W.  600   (1880);   Series  v.  Series,  35  Or.  Seybold,    195    Fed.    402    (1912);    5    Chamb., 
289,  57  Pac.  634    (1899);   5  Chamb.,  Ev.,  §  Ev.,  §  3460,  n    5.     If  not  so  executed  it  is 
3459,  n.  3.  not  entitled  to  be  recorded.     Meskimen  v.  Day, 

49.  Weisbrod  v.  Chicago  &  N.  W.  R.  Co.,  21  35  Kan.  46.  10  Pac.  14    (1886).     The  act  of 
Wis.  602   (1867).  the  official  in  recording  it  must  be  considered 

50.  Belk  v.  Meagher,  104  U.  S.  279,  26  L.  an  unofficial  act.     Stone  breaker  v.  Short,  8 
ed.  735    (1881).  Pa.  155   (1848) 

51.  McBride  v.  Lowe,  175  Ala    408,  57  So.  58.  Mullanphy    Sav     Bank    v.    Schott,    135 
832   (1912);  Patton  v.  Fox,  179  Mo.  525,  78  111.  655,  26  N.  E.  640,  25  Am.  St.  Rep.  401 


821  CONVEYANCES.  §  1084 

The  failure,  however,  of  the  register  to  sign  the  record,  especially  where  the 
statute  does  not  require  it,59  the  failure  to  affix  the  revenue  stamp  required  by 
the  laws  of  the  United  States,60  or  generally  mere  clerical  errors,01  do  not 
affect  the  question  of  admissibility. 

(1891);   State  v.  Cole,  156  N.  C.  618,  72  S.  60.  Trowbridge  v.  Addoms,  supra;  Collins 

E.  221    (1911)  ;  Midland  Gas  Co.  v.  Jefferson  v.  Vallean,  79  Iowa  626,  43  N.  W.  284,  44  N. 

County   Gas   Co.,   237   Pa.   602,   85   Atl.   853  W.  904   (1889). 

(1912);  5  Chamb.,  Ev.,  §  3460,  n.  8.  61.  People    v.    Lyons,    168    111.    App.    396 

59.  Wilt  v.  Cutler,  38  Mich.  189  (1878).  (1912). 


CHAPTER  LIII. 

COPIES  AND  TRANSCRIPTS;  OFFICIAL  REGISTERS,  PAPERS  AND  WRITINGS. 

Copies  and  transcripts;  official  registers,  papers  and  writings,  1085. 
mode  of  proof ;  certified  copies,  1086. 
land  office  records,  1087. 
ordinances,  1088. 
records  of  private  writings,  1089. 
records  of  other  states,  1090. 
foreign  records,  1091. 

§  1085.  Copies  and  Transcripts;  Official  Registers,  Papers  and  Writings.1 — 
The  method  of  proving  the  contents  of  records  by  use  of  the  originals  is  seldom 
used,  proof  by  the  use  of  copies  or  transcripts  which  have  been  duly  and  prop- 
erly authenticated  2  being  from  an  early  date  regarded  with  favor.:j  The  copy 
or  transcript  which  is  offered  in  place  of  the  original  must  be  shown  to  the 
satisfaction  of  the  court  to  be  a  copy  or  transcript  of  a  record  made  by  one  in 
the  performance  of  an  official  duty.4  In  so  far  as  it  may  include  any  matter 
which  is  not  of  this  character  and  does  not  properly  belong  upon  the  record  it 
will  be  rejected.5  It  will  also  be  required  that  it  should  be  complete  in  respect 
to  the  particular  transaction  which  it  purports  to  record  6  and  not  consist  merely 
of  a  copy  of  excerpts  from  the  record ;  7  and  that  it  be  shown  that  the  record  of 
which  it  purports  to  be  a  copy  was  in  the  custody  of  the  officer  certifying  to 
it.8  The  certificate  should  show  that  it  is  a  copy  of  the  original,  and  not  of  a 
copy  or  transcript  of  it.9  So  a  certified  copy  of  a  writ  of  error  which  contains 
a  recital  of  the  record  of  an  inferior  court  is  not  evidence  of  such  record.10 
But  where  a  cause  has  been  removed  of  sent  to  one  court  from  another  and  a 
transcript  of  the  latter  court  has  become  a  part  of  the  record  of  the  former,  a 
certified  copy  thereof  has  been  received.11  And  a  copy  of  an  officially  certi- 
fied copy  has  been  received  where  the  original  has  been  destroyed.12 

1.  5  Chamberlayne,     Evidence,     §§     3461-  7.  Letcher  v.  Bank,  134  Ky.  24,  119  S.  W. 
3465.  236   (1909). 

2.  Hammatt  v.    Emerson,   27   Me.    308,   46  8.  Woods  v.  Banks,  14  N.  H.  101  (1843). 
Am.  Dec.  598    (1847);   American  Life  Ins    &  9.  Drumm    v.    Cessnum,    58    Kan.    331,    49 
T.   Co.   v.   Rosenagle,   77   Pa.   507    (1875);    5  Pac.  78    (1897);  Handly  v.  Greene,  15  Barb. 
Chamb.,  Ev.,  §  3461,  n    1.  (N.  Y.)   601    (1853)  ;  5  Chamb.,  Ev.,  §  3463, 

3.  Gray   v.   Davis,   27    Conn.   447    (1858);  nn.  1,  2. 

State  v.  Voigbt,  90  N.  C.  741   (1884).  10.  Betts  v.   New  Hartford,  25  Conn.   180 

4.  State  v.  Dorris,  40  Conn.  145  (1873).  (1856). 

5.  Hardiman   v.   Mayor   of    New   York,   21  11.  State    v.    Rayburn,    31    Mo.    App.    385 
App.  Div.  fi!4.  47  N.  Y.  Supp.  786   (1897)  ;  5  (1888). 

Chamb.,  Ev  ,  §  3462,  n    2  12.  Nash  v.  Williams,  20  Wall.  (U.  S.)  226, 

6.  Supra,  §  261;    1  Chamb.,  Ev.,  §  506.  22  L.  ed.  254    (1873). 

822 


823  COPIES.  '§  108G 

Mode  of  Proof;  Statutory  Provisions. —  The  question  as  to  the  mode  of  proof 
of  the  contents  of  public  documents  is,  in  a  great  majority  of  American  juris- 
dictions, controlled  by  statutes  of  a  general  character  providing  for  the  recep- 
tion of  duly  certified  or  attested  copies,  covering  to  a  great  extent  if  not  en- 
tirely all  cases  in  which  proof  of  a  public  document  or  writing  may  be  de- 
sired.13 This  general  statement  applies  also  to  the  authentication  of  copies  of 
records,  documents  and  papers  in  the  various  departments  and  public  offices 
of  the  national  government  which  a  party  may  desire  to  offer  in  evidence.14 
These  statutes  are  not  exclusionary  of  other  modes  of  proof  unless  such  an  in- 
tention is  clearly  apparent  in  the  enactment.15  Therefore  an  examined  copy 
is  properly  received,  though  a  statute  provides  for  the  use  of  certified  copies 
unless  the  enactment  is  exclusionary  of  the  former  mode.16  Similarly  the  orig- 
inal writing  is  not  excluded  by  reason  of  such  a  statute.17 

§  1086.  [Copies] ;  Mode  of  Proof;  Certified  Copies.18 — A  doctrine  which  early 
received  the  sanction  of  the  English  courts  and  later  of  some  in  the  United 
States,19  was  that  certified  copies  were  not  admissible  except  where  their  re- 
ception was  enjoined  or  permitted  by  statute.  This  principle,  however,  was 
as  a  general  rule  departed  from  in  this  country  the  United  States  Supreme 
Court,  in  one  of  the  earlier  decisions,  holding  that  "  on  general  principles  of 
law  a  copy  given  by  a  public  officer  whose  duty  it  is  to  keep  the  original  ought 
to  be  given  in  evidence."  20  At  the  present  time  this  may  be  said  to  be  the 
established  rule  in  the  courts  of  the  United  States,21  properly  certified  copies 
or  transcripts  of  records  being  received  in  evidence  when  given  by  public 
officers  who  have  been  intrusted  with  the  official  custody  of  the  records,22  upon 
the  principle  as  variously  expressed  that  when  a  public  officer  is  bound  to  record 

13.  Hall   v.   Treadaway,    12   Ga.   App.   492,  17.  Harmening  v.   Howland,   25   N.   D.   38. 
77  S.  E.  878   (1913)  ;   Ramsay  v.  People,  197       141  X.  W.  131   (1913)  ;  5  Chamb.,  Ev.,  §  3465, 
111.  594,  64  X.  E.  555    (1902)  -.   Com.  v.  Hay-       n.  3. 

den.    163   Mass.   453,   40  X.  E.   846    (1895);  18.  5  Chamberlayne,    Evidence,    §§    3464- 

Hoffman   v.   Metropolitan   Life   Ins.    Co..    135  3474. 

App.  Div.  739,  119  X.  Y.  Supp.  978   (1909)  ;  19.  Francis  v.  Xewark,  58  X.  J.  522,  33  Atl. 

Emmitt  v.  Lee,  50  Ohio  St.  662,  35  N.  E.  794  853   (1896)  ;  Sykes  v.  Beck,  12  X.  D.  242,  96 

(1898)  ;  5  Chamb.,  Ev.,  §  3464,  n.  1.  X.  W.  844   (1903)  ;  5  Chamb.,  Ev.,  §  3466,  n. 

14.  Tapley     v.     Martin,     116     Mass.     275  1. 

(1874)  ;  Shelton  v.  St.  Louis  &  S.  F.  R.  Co.,  20.  United  States  v.  Percheman,  7  Pet.  (U. 

131    Mo.   App.   560,    110   S.   W.   627    (1908);  S.)   51,  8  L.  ed.  604  (1833). 

Oakes  v.  U.  S.,  174  U.  S.  778,  19  S.  Ct.  864,  21.  Cannon  v.  Gorham,  136  Ga.  167,  71  S. 

43  L.  ed.  1169   (1899)  ;  5  Chamb.,  Ev.,  §  3464.  E.  142  (1911)  ;  Gage  v.  Chicago,  225  111.  218, 

n.  2.     Such  statutes  must  be  understood  and  80  X.  E.   127    (1907)  ;   Knotts  v.  Zeigler,  58 

interpreted  by  the  same  rules  that  govern  at  Ind.  App.  503,  106  X.  E.  393  (1914)  ;  State  v. 

common  law.     Block  v.  U.  S.,  7  Ct.  Cl.  (U.S.)  Austin,   113   Mo.  538,  21   S.   W.   31    (1892); 

406    (1871).  Cortlett  v.  Pacific  Ins.  Co..  1  Wend.    (X.  Y.) 

15.  Southern    R.    Co.    v.    Wilcox,    99    Va..  561    (1828):    Hibbard   v.   Craycraft.   32   Okl. 
394,  39   S.   E.    144    (1901);    supra.   §§    1051,  160.    121    Pac.    198    (1912);    U.   S.   v.   Brelin. 
1059;   5  Chamb.,  Ev.,  §§  3357,  3370.  166    Fed.    104,    92    C.    C.    A.    SS     (1008);    5 

16.  Smithers  v.  Lowrance,  35  Tex.  Civ.  App.  Chamb  .  Ev.,  §  3466.  n.  3. 

25,  79  S.  W.  1088    (1904).  22.  Moore  v.  Gaus  &  Sons  Mfg.  Co.,  113  Mo. 


§   1086  COPIES  AND  TKANSCRIFTS.  824 

a  fact,  a  copy  of  the  record  of  it  duly  authenticated  is  competent  evidence ;  2S 
that  the  record  cannot  or  should  not  be  taken  from  his  custody,24  and  the  in- 
convenience attending  removal.25  Where  the  statute  in  respect  to  the  record 
is  unconstitutional,  it  follows  that  the  record  is  not  an  official  one  and  there- 
fore a  certified  copy  is  not  competent  evidence  of  anything,26  even  though  it 
may  have  been  authenticated  according  to  statute. 

Who  May  Certify. —  The  certificate  must  be  certified  by  one  having  au- 
thority to  so  act,27  ordinarily  the  legal  custodian  of  the  record,28  the  certificate 
of  one  who  is  unauthorized  being  of  no  avail.20  Therefore  in  the  absence  of 
any  showing  upon  the  face  of  the  certificate  that  it  is  certified  by  one  having 
authority  to  so  act  it  will  be  rejected.3"  The  certificate  may  specify  the  par- 
ticular record  from  which  the  transcript  is  taken.31  A  certificate  signed  by  an 
official  is  sufficient  where  it  identifies  him  as  the  one  who  acts  in  the  required 
capacity  and  as  such  has  custody  of  the  official  records,  a  copy  from  which  is 
offered,32  or  where  the  certificate  contains  a  recital  of  such  custody  and  is 
signed  with  the  proper  official  designation.33  And  where  a  copy  is  authen- 
ticated by  the  signature  and  seal  of  the  official  purporting  to  make  it  no  further 
verification  is  necessary  as  it  could  give  no  greater  weight  to  copies  so  at- 
tested.34 In  the  absence  of  any  mode  being  prescribed  a  certification  by  sig- 
nature which  is  irregular  has  been  admitted.35 

Limitations  on  Power. —  Unless  it  is  permitted  by  statute,36  the  authority  of 
an  official  to  certify  to  a  copy  of  a  record  carries  with  it  no  power  to  state  his 
opinion  or  conclusion  as  to  what  is  disclosed  by  the  record  or  what  its  legal 
import  or  effect  is.37  That  is  a  matter  for  the  determination  of  the  court  from 

98,  20  S.  W.  975   (1892)  ;  People  v.  Gray,  25  709,  23  Pac.  938   (1890)  ;  Woods  v.  Banks,  14 

Wend    (N.  Y.)  465   (1841)  ;  5  Chamb.,  Ev.,  §  N.  H.  101   (1843)  ;  5  Chamb.,  Ev.,  §  3468,  n  2. 

3466,  n.  4  29.  Northern  Pac.  Terminal  Co.  v.  Portland, 

23.  Herendeen    v.    DeWitt,   49    Hun    53,    1  14  Or,  24,  13  Pac.  705  (1886). 

N.  Y.  Supp   467    (1888)  30.  Citizens'    State    Bank    v.    Bonnes,    76 

24.  People  v.  Williams,  64  Cal.  87,  27  Pac.      Minn    45,  78  N.  W.  875   (1899). 

939    (1883);   Bell  v.  Kendrick,  25  Fla.  778,  31.  Mansfield  v.  Johnson,  51   Fla.  239,  40 

6' So.  868    (1889)  So.   196    (1906). 

25.  Simmons  v  Spratt,  20  Fla.  495  (1884)  ;  32.  Anderson  v.  Blair,  121  Ga.  120,  48  S.  E. 
Peck    v.    Farrington,    9    Wend     (N.    Y.)    44  951    (1904). 

(1832)      The  certification  of  copies  may  in  33.  Galvin  v.  Palmer,  113  Cal.  46,  45  Pac. 

some  cases  be  compelled  by  mandamus      State  172    (1896):    Bixby  v.  Carskaddon.  55  Iowa 

v.   Circuit   Court,   20   S.   D.    122,   104   N.   W.  533,  8  N.  W.  354    (1881);   5  Chamb.,  Ev.,  § 

1048    (1905).  3469,  n.  2. 

26.  State  v    Winbauer,  2]  N.  D.  70,  128  N.  34,  Surget  v.  Newman,  43  La   Ann.  873,  9 
W.  679    (1910);   5  Chamb.,  Ev  ,  §  3467.  So.    561     (1891);    Com.    v.    Chase,    6    Gush. 

27.  McAfee  v    Flanders,  138  Ga    403,  75  S.  (Mass.)   248    (1850). 

E  319  (1912)  :  Rich  v    Lancaster  R.  Co,  114  35.  Cooper  v.  Nelson,  38  Iowa  440   (1874). 

Mass  514  (1874)  ;  St.  Louis  v   Blast  Furnace  36.  Doe  v.  Rowe,  16  Ga    521    (1854)  ;   Peo- 

Co.,   235    Mo.    1,    138    S.    W.    641     (1911);    5  pie  v.  Willi,  147  111.  App.  207   (1909). 

Chamb.,  Ev..  §  3468.  n,  1.  37.  McMillan   v    Savannah  Guano  Co.,  133 

28.  Tifft  v    Greene,  211   111    389,  71   N.   E  Ga.  760,  66  S    E.  943    (1909)  ;  People  v.  Lee, 
1030    (1904);    Bergman  v.   Bullitt,  43   Kan  112  111.  113   (1885);  Com.  v.  Richardson,  142 


825 


COPIES. 


§   1086 


an  inspection  either  of  the  record  itself  or  of  a  true  copy  thereof,38  and  the 
presiding  judge  may  insist  that  such  official  shall  confine  himself  to  an  exercise 
of  the  authority  conferred,  viz. :  the  making  of  a  copy  of  that  which  the  record 
contains.39  Similarly  a  certificate  by  a  public  official  of  the  non-existence  of 
a  fact  upon  the  record  has  been  rejected.40  An  official  certifying  to  a  copy  of 
a  record  is  limited  in  his  powers  to  the  certification  of  matters  which  properly 
appear  of  record  and  can  not  certify  as  to  an  entry  which  does  not  belong 
there,41  nor  as  to  any  matters  which  are  not  properly  upon  the  record.42  Sim- 
ilarly, unless  the  writing  or  record  is  one  authorized  by  law  to  be  made  either 
expressly  or  as  an  act  in  the  performance  of  the  necessary  duties  of  the  office,  it 
does  not  come  within  the  principle  relating  to  official  records  and  therefore  a 
certified  copy  is  no  evidence  in  regard  thereto.43  It  will  only  be  received 
where  the  original,  if  produced,  is  competent  evidence.44 

Mode  and  Sufficiency  of  Authentication. —  The  court  will  require  that  a 
copy  of  a  record  shall  be  duly  and  properly  authenticated  45  before  it  will  be 
received  in  evidence.  It  will  be  required,  independent  of  any  statute,  in  all 
cases  that  the  paper  offered  as  a  copy  is  in  fact  that  which  it  purports  to  be. 
The  words  "  true  copy  "  or  "  correct  copy  "  are  frequently  used.  The  official 


Mass.  71,  7  N.  E.  26  (1886)  ;  Wood  v.  Knapp, 
100  N.  Y.  109,  2  N.  E.  632  (1885)  ;  State  v. 
Gottlieb,  21  N.  D.  179,  129  X.  W.  460  (1910)  ; 
5  Chamb.,  Ev.,  §  3470,  n.  2. 

38.  French  v:  Ladd,  57  Miss.  678    (1880); 
McGuire  v.  Sayward,  22  Me.  230  (1842) 

39.  Greer  v.  Fergerson,  104  Ga.  552,  30  S.  E 
943   (1898)  ;  Chicago  v.  English,  80  111    App. 
163   (1898). 

Instances. —  The  courts  have  rejected  cer- 
tificates of  a  compliance  with  the  provisions 
of  the  law  in  respect  to  becoming  a  corpora- 
tion, Boyle  v.  Trustees,  etc.,  of  M.  E  Church, 
46  Md.  359  (1876)  ;  of  the  issuance  of  a  cer 
tificate  of  incorporation.  Wall  v.  Bridget 
Mines,  130  Cal.  27,  62  Pac.  386  (1900)  ;  that 
a  grant  from  the  state  was  genuine.  Walker  v. 
Logan,  75  Ga.  759  ( 1885 1  ;  of  the  death  of 
a  prisoner,  Gill  v  Phillips,  6  Mart  X.  S. 
(La  )  298  (1827);  of  the  granting  of  a  de- 
cree of  divorce,  Jay  v.  East  Livermore,  56 
Me.  107  (1868)  ;  of  the  issuance  of  a  patent. 
Davis  v.  Gray,  17  Ohio  St.  331  (1867);  of 
the  filing  of  proofs  of  heirship  and  certificate 
in  the  adjutant-general's  office,  Byers  Bros, 
v  Wallace,  87  Tex.  503,  29  S.  W  760  I  1895)  ; 
of  the  amount  of  taxable  property  in  a  county 
and  the  amount  of  poll  and  county  taxes  for  a 
year,  Tinsley  v.  Rusk  County,  42  Tex.  40 
(1875)  :  of  the  assessment  or  non-assessment 
of  a  person  or  his  property  in  the  assessor's 
book,  Bartlett  v.  Patton,  33  W.  Va.  71,  10 


S.  E.  21  (1889);  that  land  was  regularly 
listed  for  taxation,  Dunn  v.  Games,  1  McLean 
(U.  S.)  321  (1838),  aff'd  14  Pet.  322,  10 
L.  ed.  476  (1840);  and  of  the  appointment 
of  a  certain  person  as  receiver.  Hudkins  v. 
Bush,  69  W.  Va.  194,  71  S.  E.  106  (1911); 
5  Chamb.,  Ev.,  §  3471. 

40.  Boyd  v.  Chicago,  etc.,  R.  Co.,  103  111. 
App.    199     (1902);    Chicago,   etc.,    R.    Co.    v. 
Vance,  64  Kan.  684,  68  Pac.  606  (1902)  ;  Pon- 
tier    v.    State,    107    Md     384,    68    Atl.    1059 
(1908)  ;  5  Chamb.,  Ev.,  §  3470,  n.  5. 

41.  Daggett  v.   Bonewitz,   107   Ind.  276,  7 
N.  E.  900  (1886). 

42.  Farmers'  &  Mechanics'  Bank  v.  Bron- 
son,    14  Mich.   361    (1866). 

43.  Com.   v.  O'Bryan,   153   Ky    406,   155  S. 
W     1126    (1913);    Southwestern   Surety  Ins. 
Co.  v.  Anderson   (Tex.  1913),  155  S.  W    1176; 
Cruse   v.   McCauley,  96   Fed.   369    (1899);    5 
Chamb  .  Ev.,  §  3472,  n.  3. 

44.  Donohue  v.  Whitney.  133  X.  Y.  178,  30 
X.  E    S48   (1892)  ;  State  v.  Wells  Adm'r..  11 
Ohio  261    (1842)  ;  5  Chamb.,  Ev.,  §  3472,  nn 
5,  6,  7. 

45.  Weaver  v.  Tuten,  138  Ga    101,  74  S.  E. 
835    (1912);   Brecker  v.   Fillingham.  209  Mo. 
578.   108   S.   W    41    (1907):    Lee  v.   Sterling 
Silk  Mfg    Co.,  134  App.  Dtv.  123,  118  X.  Y. 
Supp.  852   (1909);  5  Chamb.,  Ev.,  §  3473,  n. 
1. 


§  1087  COPIES  AND  TRANSCRIPTS.  826 

certifies  to  the  transcript  as  a  copy  of  the  record  and  this  necessarily  implies 
that  it  is  correct,  else  it  cannot  be  a  copy.46  In  case  there  is  a  statute  con- 
trolling, which  prescribes  a  mode  of  authenticating  such  copies,  the  certificate 
should  show  a  compliance  therewith,47  as  where  it  is  required  that  a  seal  shall 
be  affixed,48  otherwise  the  presiding  judge  will  refuse  to  admit  it.  If  it  con- 
tains, however,  in  substance  what  the  law  requires  it  is  sufficient  and  will  be 
received.49  Where  it  is  provided  that  the  certificate  of  a  public  officer  shall 
be  evidence,  a  paper  produced  with  his  name  has  been  received  as  evidence, 
prima  facie  50  unless  the  name  is  proved  not  to  have  been  signed  by  him.61 
In  some  cases  it  is  required  by  statute  that  the  certificate  shall  state  that  the 
copy  has  been  compared,  by  the  person  making  it,  with  the  original  and  that 
it  is  a  correct  transcript  thereof.52  Compliance  with  such  a  provision  is  essen- 
tial. A  mere  statement  that  it  "  has  been  compared,''  without  stating  by 
whom  is  not  sufficient.53  "  As  compared  by  me ''  has,  however,  been  held  to 
be  a  compliance  with  the  law.54 

§  1087.  [Copies] ;  Land  Office  Kecords.05 —  Ordinarily  the  rule  prevails  that 
independent  of  statute,  which  in  some  cases  expressly  authorizes  the  admis- 
sion in  evidence  of  authenticated  copies  of  land  office  records,56  including 
patents  and  grants,57  courts  will  receive  in  evidence  properly  authenticated 
copies  of  such  records,58  including  those  of  grants  and  other  instruments  of  a 
like  character,  issued  by  the  State  to  the  individual  59  without  requiring  the 

46.  Com.  v.  Quigley,  170  Mass.  14,  48  X.  E.          54.  Huntoon  v  O'Brien,  79  Mich.  227,  44  N. 
782  (1897)  ;  Robinson  v.  Lowe,  50  W.  Va.  75,      W.  601    (1890). 

40  S.  E.  454   ( 1901 ) .  55.  5  Chamberlayne,     Evidence,     §§     3475- 

47.  Knotts   v.   Zeigler,   58    Ind    App.    503,      3477. 

106  N.  E.  393    (1914);   Redford  v.  Snow,  46  56.  Stinson  v.  Geer,  42  Kan.  520,  22  Pac. 

Hun  370,  12  X.  Y.  St.  Rep.  323  (1887)  ;  Sykes  586    (1889);    Stephens    v.    Macey,    49    Mont. 

v.  Beck,  12  X.  D.  242,  96  X.  W.  844   (1903)  ;  230,  141  Pac.  649   I  1914)  ;  Richards  v.  Hitter 

5  Chamb.,  Ev.,  §  3474,  n.  1.  Lumber    Co.,    158    X.    C     54,    73    S.    E.    485 

48.  Chambers   v.   Jones,    17   Mont.    156,   42  (1911)  ;  5  Chamb.,  Ev.,  §  3475,  n.  2. 

Pac.   758    (1895)  ;   Xew  York  v.  Vanderveer,          57.  Beasley  v.  Clarke,  102  Ala.  254,  14  So. 

91  App.  Div.  303,  86  X.  Y.  Supp.  659  (1904)  ;  744    (1893)  ;    Eltzroth  v.   Ryan,  89  Cal    135, 

State   v.   Railroad,    141    X.   C.    846,  54   S.   E.  26  Pac.  647  (1891);  Xitche'v.  Earle,  117  Ind. 

294    (1906);   5   Chamb.,  Ev.,  3474,  n.  2.  270,   19  X.  E.  749    (1888:)    5  Chamb.,  Ev.  § 

49.  Turner  v.   Davis,    186   Ala.   77,   64   So.  3475,  n.  3. 

958   (1914);  Wright  v.  Glos,  264  111.201.106  58.  Chilton    v.    Xickey,    261    Mo.    232.    169 

X.  E.  200    (1914);   People  v.  Tobey,   153  X.  S.    W.    978    (1914):    Anderson    v.    Keim,    10 

Y.  381,  47  X.  E.  800  (1897);  5  Chamb.,  Ev.,  Watts    (Pa.)   251    (1840):  Kirby  v.  Hayden, 

§  3474,  n.  3.  44  Tex.  Civ.  App.  207,  99  S.  W.  746   (1906)  : 

50.  Willard    v.    Pike,    59    Vt.    202,    9    Atl.  5  Chamb.,  Ev.,  §  3475,  n.  4. 

907   (1886)  ;  Usher's  Heirs  v.  Pride,  15  Gratt.  59.  Reppard  v.  Warren,  103  Ga.  198,  29  S. 

(Va.)    190    (1858).  E.  817   (1897):  Lane  v.  Bommelmann,  17  Til. 

51.  Prather  v.  Johnson,  3  Harr.  &  J.  (Md.)  95    (1855)  :   Xew  York  Cent.  &  H.  R.  Co.  v. 
487   (1814).  Brockway   Brick    Co.,    10   App.   Div.   387,   41 

52.  Redford  v.  Snow,  46  Hun    (X.  Y.)   370      X.  Y.   Supp.   762    (1896);   5  Chamb.,  Ev.,   § 
(1887).  3475,  n.  5. 

53.  Stevens  v.  Sup'rs  of  Clark  County,  43 
Wis.  63   (1877). 


827  LAND  OFFICE  RECORDS.  §  1087 


proponent  to  account  for  the  original,00  they  being  received  upon  the  general 
priciples  of  evidence  relating  to  proof  of  public  records  at  common  law,01 
though  in  some  cases  it  is  held  that  they  are  not  admissible  without  accounting 
for  the  non-production  of  the  originals.02  In  much  the  same  way  properly 
authenticated  copies  of  maps  and  surveys  have  L*  --n  received  in  some  cases 
under  the  express  provisions  of  a  statute,03  and  in  others  independent  thereof.64 
Similarly  a  certified  copy  of  the  assignment  of  a  land  office  certificate  or  other 
similar  instrument  when  recorded  will  be  received.65 

Official  Letters. —  Certified  copies  of  letters  on  file  at  the  general  land  office 
constitute  a  part  of  the  record  where  they  relate  to  the  business  of  the  office 
and  ordinarily  under  express  statutory  provisions  will  be  received  in  evidence, 
including  both  letters  sent  to  the  commissioner66  and  those  mailed  from  the 
office,67  the  latter  having  been  preserved  in  the  usual  way  as  by  taking  an  im- 
print.68 

Administrative  Requirements. —  A  copy  of  a  land  office  record  must  be 
properly  and  sufficiently  authenticated,69  otherwise  it  will  be  rejected.70  Pri- 
vate or  other  papers  not  required  or  authorized  to  be  filed  in  a  land  office  are 
not  susceptible  of  proof  by  a  certified  copy  from  that  office;  71  the  certificate, 
so  far  as  copies  of  papers  are  concerned,  must  be  as  to  those  properly  on  file 
there.72  The  certificate  must  state  the  facts  as  they  appear  upon  the  record 
and  not  the  conclusion  of  the  official  certifying  as  to  what  the  record  contains 
or  as  to  its  legal  effect  or  import.73  A  copy  of  extracts  from  the  record  has 
been  received  where  it  is  complete  in  so  far  as  it  applies  to  the  particular  mat- 
ter in  litigation,74  such  authentication  also  being  according  to  the  practice  of 
the  department.75 

60.  Beasley  v.  Clarke,  supra;  Bernstein  v.      Pac.    104    (1886);    Hibbard  v.   Craycraft,  32 
Smith,  10  Kan.  60   (1872);  Avery  v.  Adams,      Okl.  160,  121  Pac.  198    (1912). 

69  Mo.  603  (1879)  ;  5  Chamb.,  Ev.,  §  3475,  n.  67.  Holmes  v.   State,    108  Ala.  24,   18   So. 

6.  259    (1895);   Trimble  v.   Burroughs,  41   Tex. 

61.  Wyman  v.  City  of  Chicago,  254  111.  202,  Civ.  App.  554,  95  S.  W.  614  (1906)  ;  5  Chamb., 
98  X.  E.  266  (1912)  ;  New  York  Cent.  &  H.  R.  Ev.,  §  3476,  n.  2. 

Co.  v.  Brookway  Brick  Co.,  supra;  McGarra-  68.  McKee  v.  West,  55  Tex.  Civ.  App.  460, 

han  v.  Mining  Co.,  96  U.  S.  316,  24  L.  ed.  630  118  S.  W.  1135   (1909). 

{1877)  ;  5  Chamb.,  Ev.,  §  3475,  n.  7.  69.  Beasley    v.    Clarke,    supra;    Wilson    v. 

62.  Hensley  v.  Tarpey,  7  Cal.  288    (1857)  ;  Hoffman,  54  Mich.  246,  20  N.  W.  37   (1884)  ; 
Covington   v.    Berry,   76   Ark.   460,   88   S.   W.  5  Chamb.,  Ev.,  §  3477,  n.  1. 

1005    (1905);    5   Chamb.,   Ev.,   §   3475,   n.   8.  70.  Htils  v.  Buntin,  47  111.  396    (1868);   5 

63.  Wood  v.  Xortman,  85  Mo.  298   (1884)  ;       Chamb.,  Ev.,   §   3477,  n.  2. 

Sullivan  v.  Solis,  52  Tex.  Civ.  App.  464.   114  71.  Rogers   v.   Pettus,   80   Tex.   425,    15    S. 

S.  W.  456  (1908)  ;  5  Chamb.,  Ev.,  §  3475,  n.  9.  W.  1093   (1891)  ;  5  Chamb.,  Ev.,  §  3477,  n.  3. 

64.  Goodwin  v.  McCabe,  75  Cal.  584,  17  Pac.  72.  Hatchett  v.  Conner,  30  Tex.  104  (1867). 
705    (1888)  ;   Dewey  v.  Campau,  4  Mich.  565  73.  Byers  v.  Wallace,  87  Tex.  503   (1895). 
(1857);    5   Chamb.,   Ev.,   §   3475,   n.    10.  74.  Strickland  v.   Draughan,  88  X.   C.   315 

65.  Bell  v.  Kendrick,  25  Fla.  778.  6  So.  868       (1883)  ;    Jennings  v.   McDowell,   25   Pa.   387 
41889)  ;  Clark  v.  Hall,  19  Mich.  356   (1869).       (1855)  :  5  Chamb.,  Ev..  §  3477,  n.  7. 

66.  Darcy  v.   McCarthy,   35   Kan.   722,    12          75.  Tillotson  v.  Webber,  96  Mich.   144,  55 

N.  W.  837  (1893). 


§§  1088,  1089  COPIES  AND  TRANSCRIPTS.  828 

§  1088.  [Copies] ;  Ordinances.76 —  The  principle  that  public  records  may, 
independent  of  statute,  be  proved  by  copies  thereof  certified  by  the  officer  hav- 
ing such  records  in  charge,77  applies  in  the  case  of  municipal  ordinances.78 
By  statute  also  provision  of  this  character  is  frequently  made,  such  as  that  a 
copy  may  be  admissible  when  certified  by  the  city  or  village  clerk  79  or  the 
recorder  of  the  town,80  register81  or  other  designated  official,  in  some  cases 
also  the  corporate  seal  is  required.82  The  non-existence  of  any  fact  of  record 
can  not,  however,  be  established  by  such  a  certificate.83 

§  1089.  [Copies] ;  Records  of  Private  Writings.84 —  There  is,  apparently,  con- 
siderable authority  for  the  rule  that,  independent  of  statute,  the  copy  of  the 
record  of  a  private  writing  will  be  received  in  evidence.85  It  would  seem  that 
the  qualification  should  at  least  be  imposed  that  the  enrollment  of  the  original 
upon  the  record  is  a  necessary  requirement.80  A  certified  copy  of  the  record 
of  such  a  writing  is  also  admissible  on  proof  that  the  original  has  been  lost  or 
destroyed,87  or  upon  proof  that  it  is  outside  of  the  jurisdiction  of  the  court 
and  beyond  process  to  produce,88  or  that  the  other  party  to  the  suit  is  in  pos- 
session of  the  instrument  and  refuses  to  produce  it.89 

Early  Established  Rules  in  New  England  States. —  In  some  jurisdictions 
the  rule  requiring  the  production  of  the  original  is  regarded  as  applying  only  to 
a  case  where  it  is  necessary  to  prove  a  conveyance  directly  to  the  party  in  the 
suit,  and  which  may  reasonably  be  supposed  to  be  in  his  possession,  and  not  to 
include  prior  deeds  in  a  chain  of  title.90  In  Connecticut  and  Massachusetts 
the  rule  seems  to  have  been  early  established  that  duly  certified  copies  of  deeds 
from  the  records  in  the  line  of  title,  made  and,  recorded  by  strangers  to  the 
suit,  are  admissible  without  other  evidence  of  their  execution  and  delivery  or 
of  any  excuse  for  the  non-production  of  the  original  deed.91  The  relaxation  of 

76.  5  Chamberlayne,  Evidence,  §  3478.  86.  Kelsey     v.     Hanmer,     18     Conn.     311 

77.  Supra,  §  1086;  5  Chamb.,  Ev.,  §  3468.  (1847)  ;  Warner  v.  Hardy,  6  Md.  525  (1854)  ; 

78.  Florida  Cent.,  etc.,  Ry.  Co.  v.  Seymour,  Van    Riper    v.    Morton,    61    Mo.    App.    440 
.44  Fla.  557,  33  So.  424    (1902).  (1895);  5  Chamb.,  Ev.,  §  3479,  n.  2 

79.  Boyd  v.   Chicago,  etc.,  R.  Co.,   103   111.  87.  Hayden  v  Mitchell,   10.3  Ga.  431,  30  S. 
App.    199    (1902);    Com.    v.    Chase,    6    Cush.  E.   287    (1897);    Lancaster  v.   Lee,    71    S.   C. 
(Mass.)  248  (1850);  5  Chamb.,  Ev.,  §  3478,  n.  280,  51  S.  E.  139    (1904);   5  Chamb.,  Ev.,  § 
3.  3479,  n.  3. 

80.  Bayard  v.  Baker,  76  Iowa  220,  40  N.  W.  88.  Halsey  v.  Fanning,  2  Root  (Conn.)   101 
818    (1888).  (1794). 

81.  St.  Louis  v.  Foster,  52  Mo.  513   (1873).  89.  Sally  v.   Gunter,    13  Rich.    (S.   C.)    72 

82.  Georgia  Cent.  R.  Co.  v.  Bond,  111  Ga.  (1860). 

13,  36  S.  E.  299    (1900)  ;  Logue  v.  Gillick,  1  90.  Kelsey   v.   Hanmer,   supra;   Holman   v. 

E.  D.  Smith    (N.  Y.)    398    (1852).  Lewis,  107  Me. .28,  76  Atl.  956   (1910);  Egan 

83.  Boyd  v.  Chicago,  etc.,  R.  Co.,  supra.  v.  Horrigan,  96  Me.  46,  51   Atl.  246    (1901). 

84.  5  Chamberlayne,     Evidence,     §§     3479-  91.  Colchester    Sav.    Bank    v.    Brown,    75 
3485.  Conn.    69,    52    Atl.    316     (1902);    Frazee    v. 

85.  Jones  v.   Marks,   47   Cal.   242    (1874);  Nelson,  179  Mass.  456,  61  X.  E.  40,  88  Am. 
Ricker  v.  Joy,  72  Me.  106   (1881)  ;  5  Chamb.,  St.  Rep.  391  ( 1901)  ;  5  Chamb.,  Ev.,  §  3480,  n. 
Ev.,  §  3479,  n.  1.  2. 


829  PRIVATE  WEITIXGS.  §  1089 

the  common  law  rule  in  England  was,  however,  held  to  be  subject  to  the 
limitation  that  the  instrument  must  be  one  which  was  required  by  law  to  be 
recorded  in  order  to  render  a  copy  admissible.92  In  Maine  it  was  also  early 
provided  by  rule  of  court  that  office  copies  of  deeds  pertinent  to  the  issue, 
might  be  read  in  evidence  without  proof  of  the  execution  of  the  deeds  "  in  all 
actions  touching  the  realty  "  by  one  not  a  party  to  the  deed,  nor  claiming  as 
heir,  nor  justifying  as  servant  of  the  grantee  or  of  his  heirs.93  This  subse- 
quently was  enacted,  in  substantially  the  same  form,  into  statute.94  The  rule 
referred  to  in  these  jurisdictions  does  not  permit  of  the  introduction  of  a  copy 
of  the  record  where  the  original  deed  is  presumed  to  be  in  the  possession  of 
the  adverse  party.  In  such  a  case  a  copy  will  be  excluded  in  the  absence  of 
evidence  of  notice  to  such  party  to  produce  the  original.95 

Statutory  Regulation. —  The  question  as  to  the  admissibility  of  copies  of 
records  of  private  writings  is  now  almost,  if  not  entirely,  .controlled  by  legisla- 
tive enactments.  By  statute  in  some  states  it  is  provided  that  a  certified  copy 
of  a  paper  filed  or  recorded  pursuant  to  law  in  a  public  office  of  the  State  may 
be  received  in  evidence  the  same  as  the  original.96  More  especially  has  this 
legislation  been  directed  towards  records  of  writings  conveying  or  affecting 
some  interest  in  real  property  such  as  deeds,97  mortgages,98  and  the  like,99 
though  in  some  jurisdictions  the  statutes  are  inclusive  of  copies  of  private 
writings  such  as  bills  of  sale,1  chattel  mortgages,2  written  consent  of  husband 
that  wife  may  act  as  feme  sole  trader,3  liquor  dealers'  bond  4  and  of  bond  filed 
with  the  State  insurance  commissioner.5  Under  the  statute  in  many  jurisdic- 
tions a  copy  of  the  record  of  a  private  writing  will  be  received  when  the  orig- 
inal has  been  lost  or  is  not  withing  the  custody  or  control  of  the  proponent  or 
within  his  power  to  produce,6  as  where  he  is  unable  to  produce  it  because  of  the 

92.  Kelsey  v.  Hanmer,  supra.  98.  Chase  v.  Caryl,  57  X.  J.  L.  545,  31  Atl. 

93.  Hutchinson  v.  Chadbourne,  35  Me.   189  1024   (1895)  :  Bruce  v.  Wanzer,  20  S.  D.  277, 
(1853).  105  N.  W.  282  (1905). 

94.  Holman  v.   Lewis,   107  Me.  28,  76  Atl.  99.  Kramer  v.   Settle,   1   Ida.  485    (1873); 
956    (1910)  ;    5    Chamb.,   Ev.,    §    3480,    n.    5.  Lerche  v.  Brasher,  104  N.  Y.  157,  10  X.  E.  58 
The  rule  first  referred  to  is  based  upon  the  (1887). 

system  in  these  jurisdictions  relating  to  con-  1.  Merchants'  Xav.  Co.  v.  Amsden,  25  111. 

veyancing  as   modified   by  the   local   registry  'App.    307     (1888);     Polykranas    v.    Krausz, 

laws.     Com.    v.    Emery,    2    Gray    (Mass)    80  supra. 

(1854).  2.  Van  Dervort  v.  Vye,  85  Minn.  35,  88  N. 

95.  Draper     v.     Hatfield,     124     Mass.     53  W.  2   (1901);  Van  Hassell  v.  Borden,  1  Hilt. 
(1878)  ;  Homer.v.  Cilley,  14  X.  H.  85  (1843)  ;  (X.  Y.)    128   (1856)  ;  5  Chamb.,  Ev.,  3481,  n. 
5  Chamb.,  Ev.,  §  3480,  nn.  8,  9.  6. 

96.  Polykranas    v.    Krausz,    73    App.    Div.  3.  Schwartz  v.  Baird,  100  Ala.  154,  13  So. 
583,  77  X.  Y.  Supp.  46    (1902).  947    '1893). 

97.  Brown  v.   White,   153   Ky.   452.   156   S.  4.  Bulger  v.  Prenica,   93  Xeb.  697,   142  X. 
W.  96    (1913):   Sudlow  v    Warshing,  108  X.  W.  117   (1913). 

Y.  520.  15  X.  E.  532    (1888):   Livingston  v.  5.  Southwestern  Surety  Ins.  Co.  v.  Ander- 

McDonald,    9    Ohio    168     (1839):    Pardee-  v.  son   (Tex.  Civ.  App.  1913),  152  S.  W.  816. 

Johnston,  70  W.  Va.  347,  74  S.  E.  721   (1912);  6.  Sims  v.   Seheussler,  2  Ga.  App.   466.  58 

5  Chamb.,  Ev.,  §  3481,  n.  2.  S.  E.  693    (1907)  ;   Eby  v.  Winters,  51  Kan. 


1089 


COPIES  AND  TEANSCKIPTS. 


830 


refusal  of  the  one  in  possession  to  surrender  it  after  notice,7  in  which,  case  he 
must  establish,  to  the  satisfaction  of  the  presiding  judge,8  the  existence  of  such 
facts  as  will  authorize  the  admission  of  a  copy.9  In  some  cases  the  statute 
requires  that  it  must  be  satisfactorily  shown  both  that  the  party  not  only  has 
not  possession  of  the  original,  but  also  has  not  control  of  it.10 

Administrative  Requirements. —  It  is,  as  a  general  rule,  essential  that  the 
original  must  have  been  one  the  recording  of  which  the  law  .required  or  author- 
ized; n  otherwise,  neither  the  record  nor  a  copy  thereof  will  be  received  as 
evidence.12  It  must  also  have  been  recorded  by  an  officer  having  authority  for 
that  purpose.13  But  where  the  original  is  shown  to  have  been  lost  a  copy  of 
the  record  may  properly  be  received.14  It  is  also  essential  that  it  be  recorded 
within  the  time  prescribed  by  law.15  But  where  a  deed  or  other  instrument 
required  to  be  recorded  has  been  lost,  a  copy  of  the  record  has  been  received 
in  evidence,16  likewise  a  certified  copy  of  the  deed  as  it  is  shown  by  the  record.17 
"  It  is  a  well  established  proposition  of  law  that  the  record  must  be  made  upon 
the  evidence  of  execution  required  by  the  statute  to  entitle  a  certified  copy  to 
be  used  as  evidence  in  lieu  of  the  original."  18  Thus  in  the  case  of  a  deed,l'J 
if  it  is  not  properly  executed,  proved  or  acknowledged,  as  required,  it  does  not 
become  effective  so  as  to  render  the  record  of  it  admissible  in  evidence.  Sim- 
ilarly in  the  case  of  a  mortgage  20  and  other  private  writings,21  or  in  case  of  a 


777,  33  Pac.  471  (1893)  ;  Cazier  v.  Hinchey, 
143  Mo.  203,  44  S.  W.  1052  (1897)  ;  5  Chamb., 
Ev.,  §  3481,  n.  10. 

7.  Foxworth  v.  Brown,  120  Ala.  59,  24  So. 
1   (1897). 

8.  Hayden  v.  Mitchell,  supra;  Freeman  v. 
Wm.  M.  Rice  Institute  (Tex.  Civ.  App.  1910), 
128  S.  W.  629. 

9.  Cox  v.  McDonald,  118  Ga.  414,  45  S.  E. 
401    (1903);   Hope  v.   Blair,   105  Mo.   85,   16 
S.  W.  595   (1891)  ;  Williamson  v.  Work  (Tex. 
Civ.  App.    1903),  77   S.   W.   266;    5   Chamb., 
Ev.,  §  3481,  n.  13. 

10.  Hammond  v.  Blue,  132  Ala.  337,  31  So. 
357    (1901);  Bell  v.  Kendrick,  25  Fla.  778,  6 
So.  868   (1889). 

11.  Flint  River  Lumber  Co.  v.  Smith,   134 
Ga    627,  68  S.  E.  436  (1910)  ;  Com  v.  Merrill, 
215  Mass.  204,  102  N.  E.  446  (1913)  -,  Hoskin- 
son  v.  Adkins,  77  Mo.  537    (1883)  ;  Goodman 
v.  Greenberg,   103  N.  Y.  Supp.  779,  53  Misc. 
583     (1907);    Montgomery    v.    Seaboard    Air 
Line  Ry.,  73  S.  C.  503,  53  S.  E.  987    (1905)  ; 
5  Chamb.,  Ev.,  §  3482,  n.  1. 

12.  Board    of    Com'rs    of    Lake    County    v. 
Keene   Five-Cents   Sav.   Bank,    108   Fed.   505, 
47  C.   C.   A.  464    (1901). 

13.  Smith  v.  Bannan,  13  Cal.  107    (1859)  ; 
Simpaon   v.   Loving,   3   Bush.    (Ky.)    458,   96 


Am.  Dec.  252  (1867);  Olcott  v.  Bynum,  17 
Wall.  (U.  S.)  44,  21  L.  ed.  570-  (1872). 

14.  Webster  v.  Harris,  16  Ohio  490   (1847) 

15.  Keller  v.  Moore,   51   Ala.   340    (1874); 
Jones   v.   Crowley,   57   N.   ,1.   L.   222,   30   Atl. 
871   (1894).     Compare  Reorganized  Church  of 
Jesus  Christ  of  L.  D.  S.  v.  Church  of  Christ, 
60   Fed.   937    (1894);    Hall  v.   Rea,   85   Kan. 
675,  118  Pac.  693   (1911). 

16.  Lancaster  v.  Lee,  71  S.  C.  280,  51  S.  E. 
139   (1904). 

17.  Stebbins  v.  Duncan,  108  U.  S.  32,  2  S. 
Ct.  313,  27  L.  ed.  641   (1882). 

18.  Kendrick  v.  Latham,  25  Fla.  819,  6  So. 
871    (1889). 

19.  Turner  v.  Xeisler,  141  Ga.  27,  80  S.  E. 
461    (1914);    Musick   v.   Barney,  49  Mo.  458 

(1872):  Blackmail  v.  Riley.  63  Hun  521,  18 
X.  Y.  Supp.  476  (1892);  Johnston's  Lessee 
v.  Haines,  2  Ohio  55.  15  Am.  Dec.  533  (1825)  ; 
5  Chamb.,  Ev.,  §  3483.  n.  2. 

20.  Foxworth   v.   Brown,    114   Ala.   299,   21 
So.   413    (1896);    Starnes  v.   Allen.    151    Ind. 
108,  45  X.  E.  330,  51   X.  E.  78    (1898). 

21.  Hunt  v.  Selleck,  118  Mo.  588.  24  S.  W. 
213   (1893)    (title  bond)  :  Cobb  v.  Dunlevie.  63 
W.  Va.  398,  60  S.  E.  384   (1908)    (contract)  ; 
5  Chamb..  Ev.,  §  3483,  n.  4. 


831  EECOEDS  OF  OTHER  STATES.  §   1090 

will.22  In  some  jurisdictions,  however,  the  ride  prevails  that  after  a  lapse  of 
a  certain  number  of  years  it  will  be  presumed  that  a  deed  recorded  in  the 
proper  office  was  legally  proved  or  acknowledged  and  that  a  certified  copy  of 
the  record  will  in  such  a  case  be  received.23 

Where  a  deed  purports  to  be  signed  and  sealed  by  the  grantor  a  certified 
copy  thereof  has  been  received,  though  there  was  no  representation  of  a  seal 
thereof.24  And  though  no  written  scroll  or  seal  is  copied  into  the  record,  yet 
where  the  record  copy  offered  in  evidence  contains  the  statement  of  the  official 
by  whom  the  acknowledgment  was  taken  that  he  has  affixed  his  seal  thereto,  it 
will  be  presumed  that  it  was  attached.25  Similarly,  though  the  official  seal  of 
the  officer  taking  the  acknowledgment  does  not  appear  on  the  copy,  yet  the 
latter  has  been  admitted  where  an  inspection  thereof  shows  that  it  was  affixed 
to  the  original  instrument  as  where  the  official  certifies  to  the  fact  that  it  was 
acknowledged  before  a  notary  public  who  affixed  his  seal  thereto.26 

In  order  to  render  a  copy  of  the  record  of  an  instrument  admissible  it  must 
have  been  recorded  at  a  place  designated  or  authorized  by  law  for  the  recording 
of  such  writings.27  In  case  of  a  deed,  mortgage  or  other  writing  affecting 
realty,  the  instrument  should  be  recorded  in  the  registry  district,  ordinarily 
the  county,  in  which  the  land  is  located.28  In  some  jurisdictions,  though 
there  is  authority  to  the  contrary,29  where  a  deed  conveying  land  situated  in 
two  counties  is  recorded  in  only  one  of  them,  a  copy  of  the  record  thereof  has 
been  received  in  the  courts  of  the  other ;  30  in  some  States  its  admission  being 
limited  to  those  cases  where  loss  of  the  original  has  been  established.31 

§  1090.  [Copies] ;  Records  of  Other  States.32 —  It  is  provided  by  the  Consti- 
tution of  the  United  States  that  "  Full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records  and  judicial  proceedings  of  every  other  State ; 
and  the  Congress  may  by  general  laws  prescribe  the  manner  in  which  such  acts, 
records  and  proceedings  shall  be  proved  and  the  effect  thereof."  33  In  con- 
formity with  this  provision,  it  was  provided  by  an  act  of  Congress,  passed  in 
1804,  that  "  All  records  and  exemplifications  of  books  which  may  be  kept  in 
any  public  office  of  any  State  or  territory  or  of  any  country  subject  to  the 
jurisdiction  of  the  United  States,  not  appertaining  to  a  court,  shall  be  proved 

22.  Hood  v.  Mathers,  2  A.  K.  Marsh.  (Ky.)       E.  218    (1909)  ;  Cole  v.  Ward,  79  S.  C.  573, 
553    (1820).  61  S.  E.  108  (1907)  ;  5  Chamb.,  Ev.,  §  3485,  n. 

23.  White   v.    Hutching   40    Ala.    253,    88       2. 

Am.  Dec.  766   (1866);  Robidoux  v.  Cassile«i,  29.  Garbutt  Lumber  Co.  v.  Grass  Lumber 

10  Mo.  App.  516  (1881).  Co.,  Ill  Ga.  821,  35  S.  E.  686   (1900). 

24.  McCoy  v.  Cassidy,  96  Mo.  429,  9  S.  W.  30.  Wheeler  v.  Winn,  53  Pa.   122,  91  Am. 
926    (1888);    Williams   v.   Bass.   22   Vt.    352  Dec.    186    (1866). 

(1850)  ;  5  Chamb.,  Ev.,  §  3484,  n.  1.  31.  Jackson  v.  Rice,  3  Wend.    (N.  Y.)    180, 

25.  Addis  v.  Graham,  88  Mo.  197  (1885).  20   Am.  Dec.   683    (1829)  ;   5   Chamb.,   Ev.,   § 

26.  Davis  v.  Seybold,  195  Fed.  402   (1912).       3485.  n.  6. 

See  also  Hubbard  v.  Dry  Goods  Co..  209  Mo.  32.  5  Chamberlayne,    Evidence,    §§    3486- 

495.  108  S.  W.  15   (1907).  3488. 

27.  Townsen  v.  Wilson.  9  Pa.  270  (1848).  33.  §  1,  Art.  4. 

28.  Pepper  v.  James,  7  Ga.  App.  518,  67  S. 


§  1090  COPIES  AND  TRANSCRIPTS.  832 

or  admitted  in  any  court  of  office  in  any  other  State  or  territory  or  in  any  such 
country  by  the  attestation  of  the  keeper  of  said  records  or  books  and  the  seal 
of  his  office  annexed,  if  there  be  a  seal,  together  with  a  certificate  of  the  pre- 
siding justice  of  the  court  of  the  county,  parish  or  district  in  which  such  office 
may  be  kept,  or  of  the  Governor  or  Secretary  of  State,  the  chancellor  or  keeper 
of  the  great  seal  of  the  State  or  territory  or  county  that  the  said  attestation  is 
in  due  form,  and  by  the  proper  officers.  If  the  said  certificate  is  given  by  the 
presiding  justice  of  a  court,  it  shall  be  further  authenticated  by  the  clerk  or 
prothonotary  of  the  said  court,  who  shall  certify  under  his  hand  and  the  seal 
of  his  office,  that  the  said  presiding  justice  is  duly  commissioned  and  qualified, 
or  if  given  by  such  Governor,  Secretary,  chancellor  or  keeper  of  the  great  seal, 
it  shall  be  under  the  great  seal  of  the  State,  territory  or  country  aforesaid  in 
which  it  is  made."  34  In  the  absence  of  any  legislation  by  the  State  relating 
to  proof  of  records  of  another  State  by  a  copy,  this  enactment  is  said  to  be  bind- 
ing upon  its  courts,  at  least  to  the  extent  of  defining  the  evidentiary  value  of 
a  copy  as  proof,35  and  a  party  who  seeks  to  prove  a  record  in  the  mode  thus 
provided  should  comply  with  the  terms  of  the  statute.36  Under  this  act  the 
force  and  affect  of  the  record  is  limited  to  that  which  it  had  in  the  State  where 
made  and  if  not  admissible  in  that  State  a  certified  copy  thereof  will  not  be 
received  in  the  courts  of  another  State.37  The  record  must  have  been  author- 
ized under  the  laws  of  the  State  where  made  to  render  a  copy  admissible.38 
The  certificate  of  the  Secretary  of  State  that  the  attestation  is  in  due  form 
and  by  the  proper  officer  is  sufficient,  it  not  being  necessary  under  the  act  that 
the  certificate  of  a  presiding  justice  should  also  be  affixed.39  The  federal  act 
is  not  exclusive  of  legislation  by  the  State,  a  statute  of  which  providing  for  a 
mode  of  authenticating  such  documents  may  be  followed.40  So  a  certified 
copy  will  be  received  though  it  is  not  in  all  cases  conclusive.41  It  is  essential 
that  the  proponent  should  establish  the  fact  of  the  relevancy  of  a  copy  of  such 
a  record  as  a  prerequisite  to  admission.42  On  the  other  hand  it  is  only  essen- 
tial that  such  part  of  the  record  or  document  should  be  certified  to  as  is 
relevant.43 

34.  U.  S.  Comp.  Stats.  1901,  p.  677,  §  905.  38.  Dixon  v.  Thatcher,  14  Ark.  141   (1853)  ; 

35.  Witt  v.  State,  5  Ala.  App.   137,  59  So.  Florscheim  v.  Fry,  109  Mo.  App.  487,  84  S.  W. 
715   (1912)  ;  New  York,  etc.,  Ry.  Co.  v.  Lind,  1023    (1904)  ;   5  Chamb.,  Ev.,  §  3486,  n.  6. 
180  Ind.  38,  102  N.  E.  449  (1913)  ;  5  Chamb.,  39.  Reid  v.  State,  168  Ala.  118,  53  So.  254 
Ev.,  §  3486,  n.  3.  (1910). 

36.  Taylor   v.   McKee,    118   Ga.   874,   45   S.  40.  Harmening  v.    Rowland,   25   X.    D    38, 
E    672    (1903);   State  v.  Allen,  113  La.  705,  141  X  W.  131  (1913);  Slaughter  v.  Bernards, 
37  So.  614  (1904)  ;  State  v.  Kniffen,  44  Wash.  88  Wis.  Ill,  59  X.  W.  576  (1894)  ;  5  Chamb., 
485,   87   Pac.   837    (1906)  ;   5  Chamb.,  Ev.,  §  Ev.,  §  3486,  n.  8. 

3486,  n.  4.  41.  Ins.  Co.  v.  Baker  (Tex.  1895),  31  S.  W. 

37.  Hunkers    v.    McCaskill,    64    Kan.    516,       1072. 

60  Pac.  42   (1902)  ;  Clardy  v.  Richardson,  24  42.  Ordway  v.  Couroe.  4  Wis.  45  (1855). 

Mo.  295  (1857)  ;  Quay  v.  Eagle  Fire  Ins.  Co.,  43.  Grant  v.  Henry  Clay  Coal  Co.,  80  Pa. 

Anth.  X.  P.    (X.  Y.)   237   (1816)  ;  5  Chamb.,  208   (1876)  ;  5  Chamb.,  Ev.,  §  3487,  n.  2. 
Ev.,  §  3486,  n.  5. 


833  FOREIGN  RECORDS.  §  1091 

Records  of  Private  Writings. —  The  words  in  the  act,  "  all  records  and  ex- 
emplifications of  books  which  may  be  kept  in  any  public  office,"  are  inclusive 
of  records  of  conveyances  of  real  or  personal  property,44  mortgages,45  assign- 
ments,46 powers  of  attorney  4T  and  in  fact  all  instruments  in  writing  which 
are  required  to  be  recorded.48  A  copy  of  a  recorded  conveyance  so  authenti- 
cated is  said  to  have  the  same  effect  in  the  State  in  which  it  is  offered  in  evi- 
dence as  it  would  be  entitled  to  by  the  laws  of  the  State  where  the  instrument 
is  recorded.49  A  conveyance  of  land,  however,  is  regulated  by  the  law  of  the 
situs  and  a  record  in  one  State  of  a  conveyance  of  land  situated  in  another  is 
no  evidence ;  consequently  a  copy  thereof  is  not  admissible.50  Records  of  such 
writings  may  also  be  proved  by  copies  certified  by  the  officer  having  the  lawful 
custody  of  them.5 1 

§  1091.  [Copies];  Foreign  Records.52 — Proof  of  the  records  of  a  foreign 
country  is  ordinarily  made  by  a  properly  authenticated  copy  owing  to  the  diffi- 
culty of  procuring  the  original,53  though  of  course  the  latter  is  admissible, 
being  spoken  of  as  the  best  evidence.54  Thus  for  the  purpose  of  proving  the 
contents  of  records  of  the  British  army,  it  was  held  competent  to  show  by  the 
deposition  of  an  officer  having  the  custody  of  such  records,  that  they  were  not 
allowed  to  be  removed  from  the  country ;  this  being  shown  copies  of  the  records 
sworn  to  by  the  officer  to  have  been  true  and  correct  were  admitted.55  So 
records  of  births,  marriages  and  deaths  kept  by  ecclesiastical  authorities  in 
pursuance  of  a  requirement  of  the  law,  as  is  the  case  in  England,  have  been 
received  when  properly  authenticated,56  though  as  a  prerequisite  to  their  ad- 
mission the  fact  that  they  were  ,so  kept  must  appear.57  An  examined  copy 
duly  made  and  sworn  to  by  a  competent  witness  has  also  been  received.58  In 
some  jurisdictions  provision  is  made  by  statute  for  the  mode  of  proving  for- 

44.  Schweigel    v.    Shakman    Co.,    78    Minn.       Pac.  512,  10.   Pac.  967,  106  Pac.  444  (1910); 
142,  80  X.  W.  871,  81  N.  W.  529  (1899)  ;  Trin-       5  Chamb.,  Ev.,  §  3489,  n.   1. 

ity  County  Lumber  Co.   v.   Pinckard,  4  Tex.  54.  Williams  v.  Conger,  125  U.  S.  397,  8  S. 

Civ.  App.  671,  23  S.  W.  720,  1015   (1893);  5  Ct.  933,  31   L.   ed.  778    (1887). 

Chamb.,   Ev.,   §   3488,  n.   1.  55.  In  re  MeClellan's  Estate,  20  S.  D.  498, 

45.  Chase  v.  Caryl,  57  N.  J.  L.  545,  31  Atl.  107  X.  W.  681    (1906). 

1024    (1895).  56.  Hancock  v.  Supreme  Council,  67  X.  J. 

46.  Horn    v.    Bayard,    11    Rob.     (La.)  259       L.  614,  52  Atl.  301    (1902):   Jacobs  v.  Order 
(1845).  of   Germania,   73   Hun   602,   26   X.   Y.   Supp. 

47.  Rochester  v.  Toler,  4  Bibb.    (Ky.)  106       318     (1893):    Sandberg    v.    State,    113    Wia. 
(1815).  578,  89  X.  W.  504   (1902);  5  Chamb.,  Ev.,  § 

48.  Smith    v.    McWaters,    7    La.    Ann.  145       3489,  n.  4. 

(1852).  57.  Royal  Xeighbors  of  America  v.  Hayea, 

49.  Whaun  v.  Atkinson,  84  Ala.  592,  4  So.  150  Ky.  626,  150  S.  W.  845  (1912)  ;  Stanglein 
681    (1887).  v.  State,  17  Ohio  St.  453    (1867);  Guerra  v. 

50.  Donaldson   v.   Phillips,   18   Pa.    170.   55  San  Antonio  Sewer  Pipe  Co.   (Tex.  Civ.  App. 
Am.  Dec.  614   (1851)  ;  5  Chamb.,  Ev.,  §  3488,  1914),  163  S.  W.  669;  5  Chamb.,  Ev.,  §  3489, 
n.  7.  n.  5. 

51.  \Yoods  v.  Banks,  14  X.  H.  101    (1843).  58.  American   Life  Ins.,  etc.,  Co.  v.  Rose- 

52.  5  Chamberlayne,  Evidence,  §  3489.  nagle,  77  Pa.  507   (1875). 

53.  State    v.    McDonald,    55    Or.    419,    103 


§   1091  COPIES  AND  TRANSCRIPTS.  834 

eign  documents  or  records.59  Where  there  is  no  provision  by  statute  as  to  the 
mode  of  authenticating  copies  of  foreign  documents,  the  question  whether  they 
are  properly  authenticated  is  to  be  determined  by  the  courts  as  occasion  may 
require  by  the  rules  of  common  law  or  the  usages  of  nations ;  and  by  the  usages 
of  nations  it  is  said  that  such  facts  as  are  there  recorded  may  be  proved  by  the 
certificates  of  public  officers  under  their  official  seals,  when  these  seals  are  such 
that  the  court  takes  judicial  notice  of  them.00  The  seal  of  a  notary  public 
is  regarded  as  one  of  this  description  whenever  it  is  used  to  attest  a  document 
which  by  the  usages  of  nations  may  be  so  attested.61  In  view  of  the  fact  that 
courts  of  this  country  take  judicial  notice  of  the  seals  of  State  of  other  nations 
a  copy  of  a  foreign  document  authenticated  by  such  a  seal  will  be  received.62 
The  courts  of  the  United  States  also  take  judicial  notice  of  the  seals  of  United 
States  consuls  in  authenticating  copies  of  foreign  documents.03 

59.  In  re  Kennedy,  82  Misc.  214.  143  N.  Y.          61.  Id.;  Bowman  v.  Sanborn,  25  N.  H.  87 
Supp.  404    (11)13);   State  v.  Hassing,  60  Or        (1852). 

81,  118  Pac.  195   (1911);  Sandberg  v.  State,  62.  State  v.  McDonald,  supra;  5  Chamb., 

supra;  5  Chamb.,  Ev.,  §  3489,  n.  7.  Ev..  §  3489,  n.  10. 

60.  Barber  v.  International  Co.  of  Mexico,  63.  Barber  v.  International  Co.  of  Mexico, 
73  Conn.  587,  48  Atl.  758  (1901).  supra. 


CHAPTER  LIV. 

PRIVATE  DOCUMENTS  AND  WRITINGS. 

Private  documents  and  writings;  corporation  records;  photographs,  1092. 
commercial  agencies'  records,  1093. 
ecclesiastical  records,  1094. 
nautical  records,  1095. 
secret  society  records,  1096. 
compelling  adversary  to  produce,  109T. 

§  1092.  Private  Documents  and  Writings;  Corporation  Records;  Photographs.1 

—  The  records  or  the  books  of  a  private  corporation  may  be  treated,  in  the 
first  place,  in  their  assertive  capacity  —  as  proof  of  what  they  assert.  So 
regarded  they  are  merely  hearsay  and  so  far  as  admissible  without  the  testimony 
of  their  maker  are  to  be  received  either  as  admissions  2  or  as  primary  evidence 
by  virtue  of  the  relevancy  or  automatism  of  regularity.3  In  the  second  place, 
however,  the  memoranda  may  be  relevant  or  probative  by  virtue  of  their  truth 
or  falsity  —  independently  relevant  as  it  has  seemed  expedient  to  call  them.4 
Thus  the  organization  of  a  corporation  may  be  sufficiently  established  by  the 
production  of  its  books  for  the  inspection  of  the  court  and  jury.5  The  acts 
and  doings  of  the  corporation  may  also  be  shown  in  the  same  way,  so  far  as  the 
memoranda  are  independently  relevant.6  Documents  purporting  to  be  the 
records  and  by-laws  of  a  corporation  must  be  properly  identified.7  The  sole 
test  is  as  to  what  is  reasonable  in  view  of  the  facts.8 

1.  5  Chamberlayne,  Evidence,  §  3490.  (1891);   5  Chamb.,  Ev.,  §  3491,  n.  4.     Cor- 

2.  Brown  v.  First  Nat.  Bank,  49  Colo.  393,      poration  books  as  documents.     See  note,  Ben- 
113    Pac     483     (1911):    Plattdeutsche    Grot      der.  ed ,  126  N.  Y.  122. 

Gilde    v.    Ross,    117    111.    App.    247     (1904):  6.  Star  Loan  Assoc.   v.  Moore,  4  Pennew. 

Clarke  v.  Warwick  Cycle  Mfg   Co..  174  Mass.  (Del.-)    308,    55    Atl.    946    (1903);    Rudd    v. 

434,  54  N.  E   887   (187!))  :  Lederer  v.  Morrow,  Robinson,  supra;  Matter  of  Mandlebaiim,  80 

132    Mo.    App.    438,    111    S.    W.    902    (1008);  Misc.    475,    141    N.   Y.    Supp.    319    (1913);    5 

Leonard  v.  Faber,  52  App.  Div.  495,  65  N.  Y.  Chamb..   Ev.,   §   3491,   n.   5.     Irrelevant   mat- 

Supp.   391     (1900);    Stillwater   Tornpike   Co.  ters  contained  on  corporation  books  may  be  re- 

v.  Coover.  25  Ohio  St.  558   (1874);   Smith  v.  jected.     Trainor    v.    German- American    Sav., 

Moore,  199  Fed.  689.  118  C.  C.  A.  127  (1912)  ;  etc.,  Assoc.,  204  111.  616,  68  X.  E.  650  (1913)  ; 

5  Chamb.,  Ev.,  §  3401.  n.  1.     See  Admissions;  5  Chamb.,  Ev.,  §  3491,  n.  6. 

extra-judicial,  2  Chamb..  Ev..  Chap.  18.  7.  Wright  v.  Farmers'  Mut.  Live-Stock  Ins. 

3.  See  Relevancy  of  Regularity.  4  Chamb.,  Assoc.,  96  Iowa  360,  65  X.  W.  308   (1895). 
Ev..  Chap.  45.  8.  Parkerson  v.  Burke.  59  Ga.  100   (1877)  ; 

4.  Wilson  v.  U.  S.,  190  Fed.  427,  111  C.  C.  •     Barton  v.  Wilson,  9  Rich.  ( S.  C.)  273  (1856)  ; 
A.  231    (1911).  5  Chamb..  Ev.,  §  3492.  nn.  2.  3.     A  different 

5.  First    Baptist    Church    v.    Harper,    191  rule  may  be  prescribed  by  statute.     White  v. 
Mass.    196.   77    X.   E    778    (1906):    Rudd   v.  Mastin,  38  Ala.  147    (1861). 

Robinson,    126    N.    Y.    113,    26    X.    E.    1046 

835 


1092 


PKIVATE  DOCUMENTS  AND  WRITINGS. 


836 


In  What  Proceedings  Admissible. —  The  evidence  being  intrinsically  rele- 
vant, it  is  not  material  that  the  memoranda  are  offered  in  evidence  by  the 
corporation  itself,0  or  by  one  not  a  member  of  the  corporation  against  one  of 
its  members,10  or  on  a  criminal  prosecution  of  one  of  its  members,11  or  in  pro- 
ceedings between  the  corporation  and  its  members.12  The  general  rule  is  to  the 
effect  that  a  statute  alone  can  authorize  a  member  of  a  corporation  or  the  cor- 
poration itself,  to  use  the  corporate  records  as  evidence  against  a  third  person 
or  stranger,ia  in  the  absence  of  proof  that  he  knew  and  assented  thereto.14 
Such  records  have,  however,  been  admitted  in  certain  cases.15 

How  Proof  May  Be  Made. —  The  most  obvious  method  of  proving  the  exist- 
ence of  a  given  corporation  record  is  by  production  of  the  original  book  contain- 
ing it  and  authenticating  the  same  as  such  to  the  tribunal  by  the  testimony  of 
a  clerk,  secretary  lt5  or  other  person  acquainted  with  the  facts.17  The  authen- 
tication of  the  custodian  or  other  witness  18  who  saw  the  entry  made  19  will  be 
sufficient  for  admissibility  although  the  entry  is  not  in  the  handwriting  of  the 
proper  officer  of  the  company.20  Xor  need  authentication  be  under  the  seal 
of  the  corporation.21  It  must,  however,  as  a  general  rule,  be  shown  that  the 
books  have  been  kept  by  the  proper  officer  of  the  company  or  by  some  one  for 
him  in  his  absence.22  It  is  not  necessary  that  the  record  of  the  stockholders' 
meetings  should  have  been  at  once  entered  upon  the  book  of  original  perma- 


9.  Buncombe  Turnpike  Co.  v.  McCarson,  18 
N.  C.  308   (1835). 

10.  Semple   v.   Glenn,   91    Ala.    245,    6    So. 
46,  9  So.  265,  24  Am.  St.  Rep.  894  (1890). 

11.  Wilson  v.  U.  S.,  supra. 

12.  Meridian  Oil  Co.  v.  Dunham,  5  Cal.  App. 
367,  90  Pac.  469    (1907);  Fish  v.  Smith,  73 
Conn.  377,  47  Atl.  711,  84  Am.  St.  Rep.  161 
(1900)  ;  Union  Pac   Lodge  v.  Bankers  Surety 
Co.,  79  Xeb.  801,  113  X.  W.  263   ( 1907)  ;  Pop- 
penhusen  v.  Poppenhusen,  68  Misc.  548,   125 
N.   Y.   Supp.   269    (1910);    Smith   v.   Moore, 
supra;  5  Chamb.,  Ev.,  §  3493,  n    4. 

13.  Dolan   v.   Wilkerson,   57   Kan    758,  48 
Pac.   23    (1897);    Old    South   Soc.    v.    Wain- 
wright,  156  Mass.   115,  30  X.  E.  476    (1892; 
Fleming  v.   Reed,   77   N.  J.   L.   563,   72   Atl. 
299  (1908)  ;  Thayer  v.  Schley,  137  App.  Div. 
166,  121  X.  Y.  Supp.  1064   (1910);   Railroad 
Co.  v.  Cunnington,  39  Ohio  St.  327   (1883)  ;  5 
Chamb.,  Ev.,  §  3193,  n.  5. 

14.  Oregon  &  C.  R.  Co.  v.  Grubissich,  206 
Fed    577,  124  C.  C.  A.  375    (1913). 

15.  Norman   Printers  Supply  Co.  v.   Ford, 
77  Conn.  461,  59  Atl.  499   (1904)  ;  Kitman  v. 
Chicago,  B.  &  Q    R.  Co.,  113  Minn    3->0,  129 
X.  W.  844   (1911)  ;  Rudd  v.  Robinson,  supra; 
5  Chamb.,  Ev.,  §  3493,  n.  7. 

16.  Fraternal  Relief  Assoc.  v.  Edwards,  9 


Ga.  App.  43,  70  S.  E.  265  H910)  ;  Morgan  v. 
Lehigh  Valley  Coal  Co.,  215  Pa.  443,  64  Atl. 
633  (1906). 

17.  Le  Master  v.  People,  54  Colo.  416,  131 
Pac.  269  (1913)  ;  Church  of  St.  Stanislaus  v. 
Algemeine  Verein,   164   X.   Y.   606,   59   X.   E. 
1086  (1900)  ;  Wyss-Thalman  v.  Beaver  Valley 
Brewing  Co.,  219  Pa.  189,  68  Atl.  187  (1907)  ; 
5  Chamb.,  Ev.,  §  3494,  n.  2.     That  the  clerk 
or  secretary  is  interested  in  the  litigation  will 
not  justify  its  exclusion.     Stebbins  v.  Merritt, 
10  Cush.   (Mass.)  27   (1852). 

18.  Hurwitz  v.  Gross,  5  Cal.  App.  614,  91 
Pac.    109    (1907);    Syuchar  v.  Workingmen's 
Co-operative   Assoc.,    14   Misc.    10,   35   X.   Y. 
Supp.  124   (1895). 

19.  St.  Lawrence  Mut.  Ins.  Co.  v.  Paige,  1 
Hilt.    (X.  Y.)    430    (1857). 

20.  United  Growers  Co.  v.  Eisner,  22  App. 
Div.  1,  47  X.  Y.  Supp.  906  (1897). 

21.  Fleming  v.  Wallace,  2  Yeates  (Pa.)   120 
(1796). 

22.  Union  Gold  Min.  Co.  v.  Rocky  Mountain 
Xat.    Bank,    2    Colo.    565     (1875);    State    v. 
Trimble,   104  Md.  317,   64   Atl.    1026    (1900); 
Highland  Turnpike  v.  McKean,  10  Johns.   (N. 
Y.)    154,  6  Am.  Dec.  324    (1813)  ;   5  Chamb., 
Ev.,  §  3494,  n.  8.     See  Leonard  v.  Faber,  52 
App.  Div.  495,  65  X.  Y.  Supp.  291  (1900). 


837 


PHOTOGRAPHS. 


§   1092 


Dent  entries  where  good  faith  can  be  assumed.  The  contemporaneous  memo- 
randa constitute  the  record  until  it  has  been  duly  placed  in  permanent  form.23 
By  statutory  provisions  in  several  states  corporate  records  may  be  proved  by 
the  use  of  a  certified  copy,24  or  by  one  verified  as  true  by  the  oath  of  a  wit- 
ness, i.e.,  a  sworn  copy.25  Independent  of  statutory  provisions,  a  copy  of  a 
corporation  record  will  be  received  by  a  presiding  judge  upon  satisfactory  au- 
thentication of  the  correctness  of  the  copy,26  as  by  the  official  attestation  or  cer- 
tification by  the  signature  of  the  secretary  2T  appended  to  a  copy  of  a  record 
of  an  act  of  the  stockholders  or  directors  further  authenticated  by  the  se"al  of  the 
company.28  The  certification  of  a  copy  of  a  corporation's  record  made  by  one 
not  officially  connected  with  the  company  has  no  administrative  value.29  It  is 
not  imperative  that  the  copy  should  be  a  complete  one  of  the  entire  record. 
It  will  be  regarded  as  sufficient  that  it  should  be  reliable  as  to  the  point  in- 
volved in  the  inquiry.30  The  secretary  or  other  officer  of  a  corporation  may 
make  and  authenticate  by  his  certificate  copies  of  the  records  themselves,  but 
there  is  no  relevancy  of  regularity  where  he  undertakes  to  make  up  statements 
of  fact,  the  legal  or  other  effects  of  the  records  appearing  upon  his  books,  or 
the  like.  Such  statements  are  accordingly  rejected  as  mere  hearsay.31 

Photographs  32  or  X-Eay  pictures  33  may  be  put  in  evidence  when  relevant 
and  when  shown  to  have  been  taken  under  proper  circumstances.34 


23.  Vawter  v.  Franklin  College,  53  Ind.  88 
(1876);   Waters  v.  Gilbert,  2  Cush.    (Mass.) 
27   (1848)  ;  5  Chamb.,  Ev.,  §  3495,  nn.  1,  2. 

24.  Maynard  v.  Interstate  Bldg.  &  L.  Assoc., 
112  Ga.  443,  37  S.  E.  741    (1900);   Chicago, 
B.  &  Q.   R.   Co.   v.   Weber,   219   111.   372,   76 
N.  E.  489    (1905)  ;  5  Chamb.,  Ev.,  §  3496,  n. 
1. 

25.  Cantwell  v.  Welch,  187  111.  275,  58  N. 
E.  414   (1900)  ;   Ide  v.  Pierce,  134  Mass.  260 
(1883)  ;  5  Chamb.,  Ev.,  §  3496,  n.  2. 

26.  Interstate    Trust   &    B.    Co.    v.    Powell 
Bros.  &  S.  Co.,  126  La.  22,  52  So.  179  (1910). 

27.  Hallowell  &  Augusta  Bank  v.  Hamlin, 
14   Mass.    181    (1817);    Herman   v.    Supreme 
Lodge,  K.  of  P.,  66  X.  J.  L.  77,  48  Atl.  1000 
(1901)  ;  5  Chamb.,  Ev.,  §  3496,  n.  5. 

28.  Purser  v.  Eagle  Lake  Land  &  I.  Co.,  Ill 
Cal.  139,  43  Pac.  523   (1896)  ;  5  Chamb.,  Ev., 
§  3496,  n.  6. 

29.  Miller  v.  Johnston,  71  Ark.  174,  72  S. 
W.  371    (1903). 

30.  Palmer  v.  Ruland,  28  Colo.  65,  62  Pac. 
841    (1900). 

31.  Oakes   v.    Hill,    14    Pick.    (Mass.)    442 
(1833).     See  also,  Tessmann  v.  Supreme  Com- 
mandery  of  U.  P.,  103  Mich.  1S5.  61  N.  W. 
261    (1894)  :  5  Chamb.,  Ev.,  §  3497. 

32.  A  photograph   is  not  evidence  of  dis- 


tances especially  where  the  two  points  in 
question  are  not  in  the  same  line  of  vision. 
Southern  R.  Co.  v.  Vaughan,  118  Va.  692,  88 
S.  E.  305,  L.  R.  A.  1916  E  1222  (1916). 

33.  X-Ray    pictures    are    admissible    when 
taken    by    an    expert   with    a   good    machine 
under  proper   circumstances   to  make  an   ac- 
curate picture.     Griffith  v.  American  Coal  Co., 
75  W.  Va.  686,  84  S.  E.  621,  L.  R.  A.  1915  F 
803    (1915).     An   X-ray   photograph   may  be 
put   in   evidence   only   when   its   accuracy   is 
established,  so  one  should  be  excluded  where 
the  doctor  who  took  it  merely  states  that  he 
took  it  but  does  not  state  that  they  correctly 
represent    what   he   saw   or   how    they    were 
taken  or  that  he  had  ever  taken  one  before 
or  knew  how  they  ought  to  be  taken.     Ligon 
v.  Allen,  157  Ky/101,  162,  51  L.  R.  A.  (N.  S.) 
842    (1914). 

34.  Photographs    are    competent    evidence 
when  faithful   reproductions  of  the  place  or 
subject  as  it  existed  at  the  time  involved  in 
the  controversy  but  photographs  intended  to 
illustrate  a  hypothetical  situation  and  to  ex- 
plain the  theory  of  one  side  showing  persons 
and  objects  in  certain  assumed  positions  are 
not     admissible.     Colonial     Refining     Co.     v. 
Lathrop    (Okla.    1917),   166  Pac.   747,  L.  R. 
A.     1917    F    890.     Admissibility    of    photo- 


§§  1093-1095          PEIVATE  DOCUMENTS  AND  WRITINGS.  838 

§  1093.  Commercial  Agencies'  Records.'55 —  The  reports  of  commercial  agen- 
cies do  not  come  within  the  scope  of  the  relevancy  of  regularity.36  The  reason 
for  this  is  that  they  are  confessedly  not  founded  upon  the  personal  knowledge 
of  the  entrants,  but,  on  the  contrary,  are  based  upon  information  received 
from  others,  mere  hearsay.37  Circumstances  might,  however,  arise,  justifying 
their  admission.38 

§  1094.  Ecclesiastical  Records.39 —  The  relevancy  of  regularity  which  makes 
hearsay  .primary  evidence  of  the  facts  asserted  under  certain  sets  of  facts  creat- 
ing what  may  be  called  an  automatism  or  routine,40  clearly  attaches  in  case  of 
official  church  registers  kept  by  clergymen  and  other  ecclesiastical  officers. 
Original  church  records  of  births,  deaths  or  marriages  will,  therefore,  as  an 
administrative  matter,  i.e.,  apart  from  any  rule  of  law,  statutory  or  otherwise, 
be  received  in  evidence.41  The  fact  and  date  of  baptism  may  be  established  by 
the  original  entries  in  a  book  used  for  the  purpose  of  recording  the  conferring 
of  the  sacrament  by  the  proper  ecclesiastical  authority.42  But  collateral  or 
incidental  facts  as  to  which  the  entrant  can  have,  as  a  rule,  no  personal  knowl- 
edge and  which  are  not  part  of  his  duty  either  to  know  or  enter  on  the  record 
cannot  be  established  in  this  way.  Thus,  a  clergyman  who  baptizes  a  person 
cannot  add  to  his  record  the  date  of  this  person's  birth ,43  or  that  a  child  was 
baptized  as  the  legitimate  child  of  his  parents.44 

§  1095.  Nautical  Records.45 —  By  act  of  Congress  a  log  book  regularly  and 
properly  kept,  in  full  compliance  with  the  terms  of  the  statute,46  is  made  prima 
facie  evidence  of  observations  noted  therein.47  The  statement  must  be,  so  far 
as  practicable,  one  of  fact.48  The  entry  must  also  have  been  made  on  the  very 
day  of  the  occurrence  of  the  event  which  it  records.49  Apart  from  the  statute, 

graphs.     See  note,  Bender,  ed.,  106  X.  Y.  589.  ( 1865 )  ;  Collins  v.  German-American  Mut.  L. 

Photographs  as  evidence  of  places.     See  note,  Assoc.,    112    Mo.    App.    209,    86    S.    W.    891 

Bender,  ed.,  149  X.  Y.  570.  (1905)  ;   Kabok  v.  Phoenix  Mut.  L.  1.  Co.,  4 

35.  5  Chamberlayne,  Evidence,  §  3490.  N.    Y.    Supp.    718,    51    Hun    639     (1889);    5 

36.  Richardson    v.    Stringfellow,    100    Ala.  Chamb.,  Ev.,  §  3498,  n.  3. 

416,   14  So.  283    (1893)  ;   Marx  v.  Hardy,  25  43.  Whitcher  v.  McLaughlin,  115  Mass.  167 

Ky.  L.  Rep.  1770,  78  S.  W.  864,  1105   (1909)  ;  (1874)  ;  Houlton  v.  Manteuffel,  51  Minn.  185, 

Cook  v.  Penrhyn  Slate  Co.,  36  Ohio  St.   135,  53    X.    W.   541    (1892);    Jacobi   v.   Germania 

38   Am.  Rep.  568    (1880);   5  Chamb.,  Ev.,  §  Order,    73    Hun    602,    26    X.    Y.    Supp.    318 

3490,  n.   1.  (1893)  ;  5  Chamb.,  Ev.,  §  3499,  n.  1. 

37.  Van  Deman  &  Lewis  Co.  v.  Demas,  64  44.  Blackburn   v.    Crawfords,    3   Wall.    (U. 
Fla.  533,  60  So.  342   (1912).  S.)   175,  18  L.  ed.  186  (1865). 

38.  Blake  v.  Meadows,  225  Mo.   1,  33,   123  45.  5  Chamberlayne.     Evidence,     §§     3500, 
S.  W.  868    (1909).  3501. 

39.  5  Chamberlayne.  Evidence,  §   1094.  46.  Worth  v    Mumford,  1   Hilt.    (X.  Y.)    1 

40.  See   4   Chamberlayne,   Evidence,   Chap.  (1855):  5  Chamb.,  Ev.,  §  3500,  n.  1. 

<13.  47.  .Tones  v.  Tho  Phnenix,  13  Fed.  Cas.  No. 

41.  Maxwell  v.  Chapman,  8  Barb.    (X.  Y.)       7,489,   1   Pet.  Adm.  201    (1800). 
579   (1850)  ;  Meconce  v.  Mower,  37  Kan.  298,  48.  Worth  v.  Mumford,  supra. 

15    Pac.    155    (1887).  49.  Brink  v.  Lyons,  18  Fed.  605   (1883);  5 

42.  Kennedy  v.  Doyle,  10  Allen  (Mass.)  161      Chamb.,  Ev.,  §  3500.  n.  4. 


839  RECORDS.  §§  1096, 1097 

the  log  book  has  been  held  inadmissible  as  proof  of  the  facts  asserted  in  it ;  50 
especially  when  self-serving  and  offered  by  the  entrant.51  For  example,  the 
marine  protest  of  a  master  mariner  will  not,  in  the  absence  of  special  au- 
thorization, be  received  as  evidence  of  the  facts  asserted  in  favor  of  himself  or 
his  owners.52  If,  however,  it  were  called  for  by  the  opponent  of  the  entrant 
a  different  situation  would  be  presented,53  though  it  is  said  to  be  doubtful  if  a 
mere  inspection  of  a  log  book  by  the  party  against  whom  it  is  sought  to  be  used 
renders  it  evidence  in  favor  of  the  party  who  made  it.54  Under  the  general 
rules  relating  to  written  admissions,55  an  entry  in  a  log  book  is  perfectly  com- 
petent against  those  who  made,  authorized  or  directed  the  making  of  any 
entry  in  it.56 

§  1096.  Secret  Society  Records. —  The  record  of  a  secret  or  fraternal  organi- 
zation, when  properly  authenticated,  may  be  admissible  as  to  facts  which  it 
was  the  duty  of  the  officer  to  record  and  of  which  he  had  personal  knowledge.57 
No  relevancy  of  regularity  can,  however,  admit  it  as  proof  of  collateral  facts 
asserted,  such  as  the  age  5S  of  a  member  which  it  is  no  part  of  the  duty  of  the 
entrant  to  record. 

§  1097.  Compelling  Adversary  to  Produce.59 —  The  right  of  a  party  to  call 
upon  his  opponent  to  produce  some  writing  within  his  power  or  control  for 
the  inspection  of  the  former,  is  to  a  great  extent,  controlled  by  legislative  enact- 
ment, providing  a  mode  of  relief  in  addition  to  the  equitable  method  by  bill  of 
discovery.60  Among  the  earliest  statutes  were  the  act  of  Congress  by  which 
the  court  was  authorized  to  impose  a  penalty  of  nonsuit  or  default  upon  a  party 
for  the  non-production  of  papers  which  he  was  ordered  to  produce,1'1  and  the 
Xew  York  act  which  permitted  the  court  in  case  of  disobedience  of  such  an 
order  to  strike  out  a  pleading  and. order  judgment  for  the  opposite  party.62 
Other  statutes  subsequently  passed  in  the  various  States  are  along  much  the 
same  lines,63  their  object  generally  being  to  relieve  the  situation  at  common 

50.  Worth   v.   Mumford,  supra;  The  Ken-      well,  45  X.  Y.  753    (1871);   5  Chamb.,  Ev., 
tucky,  148  Fed.  500    (1906):   5  Chamb.,  Ev.,       §   3501. 

§  3500,  n.  5.  57.  Leach  v.  Dodson,  64  Tex.  185    (1885)  ; 

51.  U.  S.  v.  Gilbert,  25  Fed.  Cas.  No.  15.204,       Wiener  v.  Zweib    (Tex.  Civ.  App.   1910),   128 
2  Sumn.  (U.  S.)   19   (1834),  the  log  book  will       S.  W.  699;  5  Chamb.,  Ev.,  §  3502,  n.  1. 

not  be  received  as  proof  of  the  date  of  the  58.  Connecticut     Mut.     L.     Ins.     Co.     v. 

vessel's  sailing.  Schwenk,  94  U.  S.  593,  24  L.  ed.  294   (1876). 

52.  Peck  v.  Gale,  3  La.  320    (1832);   Cud-  59.  5  Chamberlayne.  Evidence,  §  3503. 
worth  v.  South  Carolina  Ins.  Co.,  4  Rich.   (S.  60.  Geyger    v.    Geyger,    10    Fed.    Cas.    No. 
C.)   416,  55  Am.  Dec.  692   (1851)  ;  5  Chamb..  5.375,  2   Ball.  232    (1795). 

Ev.,  §  3500,  n.  8.  61.  Tasigi  v.  Brown,  1  Curtis  C.  C.   (U.  S.) 

53.  The  Kentucky,  supra.  401    (1853). 

54.  Worrall   v.   Davis   Coal   &   C.   Co.,  113           62.  Gould  v.  MoCarty,  11  X.  Y.  575   (1854). 
Fed.  549    (1902).  63.  Morehouse  v.  Morehouse,   136  Cal.  332, 

55.  Supra,  §§   546  et  seq.;  2  Chamb.,  Ev.,       r,S  Pac.  976   (1902)  ;  Marshall  v.  McXeal.  114 
§  1356  et  seq.  Ga.  622.  40  S.  E.  796   (1901)  :  Meeth  v.  Ran- 

56.  U.   S.  v.   Gilbert,  supra;  Atkins  v.  El-      kin  Brick  Co.,  48  111.  App.  602   (1892);  Hoyt 


§  1097  PRIVATE  DOCUMENTS  AND  WRITINGS.  840 

law,  which,  except  in  a  few  cases,64  afforded  practically  no  relief.  The  only 
benefit  obtained  was  that  after  notice  and  refusal  the  door  was  then  opened  for 
the  admission  of  secondary  evidence  of  the  contents  of  the  papers  asked  for.65 

v  American  Exch.  Bank,  1  Duer  (N.  Y.)  652  Pa.  Dist.  R.  10  (1902)  ;  5  Chamb.,  Ev.,  §  3503, 

8  How.  Pr.  89  (1853)  ;  Johns  v.  Johns,  6  Ohio  n    5. 

272  (1834)  ;  5  Chamb.,  Ev.,  §  3503,  n.  4.  65.  Golden  v.  Conner,  89  Ala.  598,  8  So.  148 

64.  People  v.  Circuit  Judge,  41  Mich.  258,  (1889)  ;  Hoagland  v.  Great  Western  Tel.  Co., 

49  N.  W.  921   (1879)  ;  Utica  Bank  v.  Hillard,  30  111.  App.  304    (1888);   5  Chamb.,  Ev.,  § 

6  Cow.  (N.  Y.)  62  (1826) ;  Com.  v.  Meads,  11  3503,  n.  6. 


CHAPTER  LV. 

PRIVATE  DOCUMENTS  AND  WRITINGS;  MEMORANDA, 
Private  documents  and  writings;  memoranda,  1098. 

§  1098.  Private  Documents  and  Writings;   Memoranda.1 — Memoranda,   like 

other  forms  of  hearsay,  not  affected  by  some  special  relevancy,  such  as  that  of 
spontaneity  2  or  regularity,3  which  confers  admissibility  as  primary  evidence, 
or  of  some  "  exception  "  to  the  hearsay  rule  as  secondary,  are  inadmissible, 
regardless  of  the  forensic  necessity  of  the  proponent.  This  is  precisely  the 
striking,  practically  the  only,  anomaly  of  the  English  law  of  evidence.4 

As  Primary  Evidence;  Admissions. —  In  any  case  where  a  memorandum  is 
relevant  as  primary  evidence,  as  in  case  where  such  a  document  constitutes  an 
admission,5  the  statement  will  be  received.6  A  memorandum  may.  under  ap- 
propriate circumstances,  constitute  an  admission  more  nearly  analogous  to  those 
by  conduct;  which,  as  is  elsewhere  said,7  are  in  reality  circumstantial  or  pro- 
bative facts.  Thus,  where  a  memorandum  was  read  by  one  of  the  parties  to  a 
transaction  to  the  other,  or  by  a  third  person  to  both  of  two  contracting  parties 
and  received  without  dissent  as  expressive  of  the  terms  of  an  agreement,  the 
memorandum  is  admissible.8 

To  Refresh  Memory:  Present  Memory. —  If  a  memorandum  refreshes  the 
memory  of  the  witness  so  that  he  is  able  to  state  from  recollection  the  particu- 
lars recorded,  the  memorandum  will  not  be  received.9  In  such  a  case  it  is 

1.  See    infra.     §     1 1 73 :     5     Chamberlayne,  ments  as  a  sufficient  reason  for  receiving  hear- 
Evidence.  §§  3504-351 1.  say  memoranda.     Rowland  v.  Philadelphia  A 

2.  See    Chap.    44,    supra:    4    Chamb.,    Ev.,  B.  R.  Co.,  63  Conn.  415,  28  Atl.  102   (1893); 
Chap.  42.  5  Chamb.,  Ev.,  §  3504,  n.  5. 

3.  See    Chap.    45,    supra;    4    Chamb.,    Ev.,  5.  Nagle  v.  Fulmer,  98  Iowa  585,  67  N.  W. 
Chap.  43.  369    (1896);   House  Wrecking  Co.  v.  Senken, 

4.  See   §§   837   et  seq.:  4   Chamb.,   Ev.,   §§  152  Mo.  App.  458,   133  S.  W.  355    (1911);  5 
2574  et  seq.     Thus,  for  example,  the  maker  Chamb.,  Ev.,  §  3505,  n.  1. 

of  a  self-serving  memorandum  may  be  dead,  6.  Meyer  v.  Reichart,  112  Mass.  108  (1873). 

yet  the  declaration  may  be  probatively  rele-  7.  Supra,  §§  582  et  seq.;  2  Chamb.,  Ev.,  §§ 

vant  as   to  the  truth   of  the  facts   asserted,  1292  et  seq. 

which  may  be  provable  in  no  other  way.     The  8.  Athens  Mfg.  Co.  v.  Malcolm,  134  Ga.  600, 

memorandum  is,  nevertheless,  rejected.    Davie  68   S.   E.   329    (1910);    Monroe  v.   Snow,   131 

v.   Lloyd,  38  Colo.  250,  88  Pac.  446    (1906);  111.   126,  23  N.  E.  401    (1890);   Dickinson  v. 

Sherman    v.    Whiteside.    93    111.    App.    572,  Robbins,  12  Pick.    (Mass.)   74    (1831):  Lath- 

aff'd  190  111.  576,  60  X.  E.  838   (1900)  ;  Mair  rop   v.    Bramhall.   64   N.   Y.    365    (1876)  ;    5 

v.    Bassett,    117    Mass.   356    (1875):    Vaughn  Chamb.,  Ev..  §  3505,  n.  4. 

v.    Strong.    4    X.    Y.    Supp.    686     (1889);    5  9.  People  v.    Lanterman,  9   Cal.   App.   674, 

Chamb.,    Ev.,    §    3504,   n.    4.     Death   has   oc-  100  Pac.   720    (1909);    Hawken  v.  Daley,   85 

casionally   been   treated   in    statutory   enact-  Conn.   16,  81   Atl.    1053    (1911);    Koehler  v. 

841 


§   1098  PRIVATE  Doci  MEKTS  AND  WRITINGS.  842 

not  regarded  as  essential  that  the  memorandum  should  have  been  made  by  the 
witness  provided  the  circumstances  under  which  it  was  made  were  such  that  he 
may  be  considered  as  having  knowledge  of  its  correctness.1"  The  use  of  a 
copy  in  place  of  the  original  has  also  in  some  cases  been  allowed,11  though  it  is 
said  that  this  means  is  attended  with  suspicion.12  In  any  case,  however,  the 
genuine  nature  and  authenticity  of  the  memorandum  itself  will  be  scrutinized 
with  the  utmost  care  by  the  presiding  judge.13 

AdmissibiUty  Independent  of. —  Should  the  production  of  the  contempora- 
neous memoranda  fail  to  refresh  the  memory  of  the  maker  to  such  an  extent  as 
to  enable  him  to  testify  to  the  existence  of  the  facts  asserted  as  a  matter  of 
present  knowledge,  the  memoranda  themselves  may  be  admitted  in  evidence, 
as  constituting  proof  of  the  facts  asserted ;  14  provided  the  maker  of  the  mem- 
orandum is  able  to  testify,  not  only  that  he  made  it  under  proper  conditions 
of  contemporaneousness  and  the  like,  but  also  that  he  knows  now  that  at  the 
time  he  made  the  memorandum  he  knew  the  facts  and  that  the  memorandum 
states  them  correctly.15  It  is  also  essential  that  the  original  should  be  used 
in  such  a  case  and  not  a  copy.10 

Probative  Relevancy. —  The  probative  relevancy  of  such  documents  might 
with  propriety  be  regarded  either  as  that  of  spontaneity  1T  or  of  regularity,18 
according  to  whether  it  was  or  was  not  the  business  or  official  duty  of  the  per- 
son in  question  to  make  the  memorandum.  Also,  the  memory  is  actually,  if 
not  completely  refreshed,19  to  the  extent  at  least  of  recognition  of  the  memor- 
andum as  that  of  the  witness,  and  ability  to  assert  its  having  been  made  from 
a  personal  knowledge  at  that  time  adequate.  Apart  from  such  refreshing  of 
memory,  and  the  personal  recognition  and  authentication  which  it  renders  pos- 
sible, the  memoranda  made  by  a  person  viewed  as  evidence  of  the  facts  asserted, 

Abey,  168  Mich.  113,  133  X.  W.  923   (1911)  ;  v.  Vandalia  R.  Co..  168  Til.  App.  621   (1912)  ; 

Mattison  v.  Mattison,  203  N.  Y.  79,  96  X.  E.  Koehler  v.  Abey.  supra;  People  v.  McLaugh- 

359  (1911)  ;  5  Chamb.,  Ev  ,  §  3507,  n.  1.     Ad-  lin,  150  N    Y.  365,  44  X.  E.  1017    (1896)  ;   5 

ministrative  necessity   for  the   use  of  memo-  Chamb.,  Ev.,  §  3508,  n.  1. 

randa.     See  5  Chamb.,  Ev..  §  3506.  15.  Atlanta  &   B.  A.  L.  Ry.  Co.  v.  Brown, 

10.  Com    v.    Ford,    130   Mass.    64    (1881);  158  Ala.  607,  48  So.  73:   Briggs  v.  Rafferty, 
Douglass  v    Leighton,  57  Minn.  81,  58  X.  W.  14  Gray   (Mass.)   525   (1860)  ;  Titus  v.  Gunn, 
827    (1894)  ;    Huff  v.   Bennett,   6   X.   Y.    337  69  X.  J.  L.  410,  55  Atl.  735   (1903)  ;  Josias  v. 
(1852);  Hill  v.  State.  17  Wis    675    (1864):  Xivois,    50    Misc.    557,    107    X.    Y.    Supp.    15 
Molxahn   v    Christensen,    152    Wis.    520,    139  (1907);  5  Cliamb..  Ev..  §  3508,  n.  2. 

N.  W.  429  (1913);  5  Chamb..  Ev..  §  3507.  n.  16.  Green     v.     Caulk,     16     Md.     556,    575 

2.  ( 1H60)  :  Charleston  Xat.  Bank  Assoc.  v.  Zorn, 

11.  Finch  v.  Barclay,  87  Ga.  393,  13  S.  E.       14  R.  C.  444  (1880). 

566  (1891)  ;  Bouvet  v  Glattfeldt,  120  111   166,  17.  Supra.  Chap.  46;  4  Chamb.,  Ev.,  Chap. 

11  X.  E    250    (1887);   Com    v.  Ford,  supra;  44. 

5  Chamb.,  Ev.,  §  3507,  n   3.  18.  Supra,  Chap.  47:  4  Chamb.,  Ev.,  Chap. 

12.  Folsom  v.  Apple  River  Log-Driving  Co.,  45. 

41  Wis.  602   (1877).  19.  Costello    v.    Crowell,     133    Mass.    352 

13.  Phenix  Ins.  Co.  v.  Hart,  112  Ga.  765,  (1882)  :  McCabe  v.  Swift  &  Co.,  143  111.  App. 
38  S.  E.  67   (1990).  404   (1908). 

14.  Hawken  v.  Daley,  supra:  Davis  Bros. 


843  MEMORANDA.  §  1098 

indicated  or  intended  would  be  hearsay  and  rejected  under  that  rule.20  For 
this  reason  a  report  of  the  results  of  inspecting  railroad  cars,  locomotives, 
vessels  or  the  like,  would  not  be  admissible  in  evidence.21  The  entries  of  a 
nurse,  physician  or  surgeon  upon  a  hospital  register  as  to  the  details  of  a  case 
are  pure  hearsay  and  also  to  be  excluded  if  offered  without  the  testimony  of 
the  writer,22  unless  it  is  shown  that  the  entrant  is  dead  or  cannot  be  pro- 
duced.23 

Time  of  Making. —  The  courts  frequently  use  the  expressions  "  contem- 
poraneous with/'  u  at  or  near  the  time/'  '"  at  or  about  the  time,"  and  others  of 
a  like  nature,24  in  defining  the  required  nearness  of  the  making  of  the  mem- 
orandum to  the  occurrence  or  event  there  recorded.  Expressions  of  this  char- 
acter are  of  course  vague  and  indefinite,  and  it  is  said  that  no  precise  rule  can 
be  stated.25  In  all  cases  the  question  is  whether  the  writing  may  be  considered 
as  sufficiently  near  to  justify  the  inference  that  the  matter  to  be  recorded  was 
fresh  enough  in  the  mind  of  the  writer  to  enable  him  to  make  a  memorandum 
correctly  stating  the  fact  as  it  actually  occurred.  If  so  then  it  may  be  used; 
if  not  then  of  necessity  its  use  should  not  be  allowed.26 

Independent  Relerancy;  Res  Gestae. —  Memoranda  may  be  admissible  in 
evidence  not  only  in  their  assertive  capacity,  i.e.,  as  hearsay  evidence  of  the 
facts  asserted ;  they  may  be  independently  relevant,27  i.e.,  by  reason  of  their 
mere  existence,  irrespective  of  the  truth  or  falsity  of  the  contained  statement 
itself,  as  where  a  memorandum  constitutes  a  fact  in  the  res  gestae.2*  The 
res  gestae,  in  fact,  may  in  a  sense  result  in  the  creation  of  what  may  be  called 
a  constituent  memorandum  as  well  as  of  a  constituent  document.  It  is  not 
material  whether  such  a  memorandum  has  been  made  by  one  of  the  parties 

20.  Lowe  v.  Donnelly,  36  Colo.  292,  85  Pac.  N.   W.  968    (1894)  ;   Howard  v.  McDonough, 
318  ( 1906)  :  People  v.  McKeoun,  171  111.  App.  77  N.  Y.  592  (1879)  ;  Jones  v.  State,  54  Ohio 
146  (  1!>12)  :  Gray  v.  Boston  Elev.  Ry.  Co.,  215  St.   1,  42  N.  E.  699    (1896)  ;   5  Chamb.,  Ev., 
Mass.    143   102  X.   E.   71    (1913);    Donner  v.  §  3510,  n.  1. 

State,  72  Xeb.  263,   100  X.  W.  305    (190.4);  25.  Lawson  v.  Glass,  5  Colo.   134    (1881); 

Goldfarb  v.   Goldman,   141    X.   Y.   Supp.  479  Bates  v.  Preble,  151  U.  S.  149,  38  L.  ed.  106, 

(1907)  :  Osborne  v.  Grand  Trunk  Ry.  Co.,  87  14  S.  Ct.  277   (1893). 

Vt.    104,    88    Atl.    512     (1913);    Molzahn    v.  26.   In  any  event  it  is  a  matter  for  the  pre- 

Christensen,  supra:  5  Chamb.,  Ev.,  §  3509,  n.  siding  judge  to  determine  in  the  sound  exer- 

5.  cise  of  his  powers  of  administration.     Lawson 

21.  Baltimore,   etc.,  Ry.   Co.  v.   Tripp,   175  v.  Glass,  supra;  Chamberlin  v.  Ossipee,  60  X. 
111.  251,  51  X    E.  833   (1898)  ;  Perkins  v.  Au-  H.  212  (1880)  ;  5  Chamb.,  Ev.,  §  3510. 

gusta  Ins.  &  B.  Co.,  10  Gray   (Mass.)   312,  71  27.  Supra,  §§  838  et  seq.;  4  Chamb.,  Ev., 

Am.  Dec.  654   (1858)  :  5  Chamb.,  Ev.,  §  3509,  2581  et  seq. 

n.  6.  28.  Parkinson  Co.  v.  Tullgren,  177  111.  App. 

22.  Estate  of  Everts,  163  Cal.  449,  125  Pac.  295     (1913);    Federal    Union    Surety    Co.    v. 
1058   (1912)  ;  Griebel  v.  Brooklyn  Heights  R.  Indiana  Lumber  &  Mrg.  Co.,  176  Ind.  328.  95 
Co.,  95   App.   Div.   214,   88   X.   Y.   Supp.   767  X.    E.    1104    (1911);    Milne   v.   Chicago,   etc., 
(1904)  ;  Chamb.,  Ev.,  §  3509,  n.  7.  R.    Co.,    155    Mo.    App.    465.    135    S.    W.    85 

23.  Cashin  v.   Xew  York,  etc.,  R.  Co.,   185  (1911);  Xational  Ulster  County  Bank  v.  Mad- 
Mass.  543,  70  X.  E.  930   (1904).  den,  114  X.  Y.  280,  21  X.  E.  408,  11  Am.  St. 

24.  Morrison     v.     Chapin,     97     Mass.     72      Rep.  633  (1851)  ;  5  Chamb.,  Ev.,  §  3511,  n.  2. 
(1867)  ;  Atckison  T.  Lawler,  40  Neb.  356,  58 


§  1098  PEIVATE  DOCUMENTS  AND  WEITINGS.  844 

for  both,  or  that  it  should  have  been  made  partly  by  one  of  the  parties  and 
party  by  the  other.29  Evidently  no  such  constituent  memorandum  is  created 
except  where  both  parties  agree  to  it  or  assent  to,  or  otherwise  ratify  it,  or 
where  it  is  prepared  under  the  assent  of  both.30 

29.  Bigelow  v.  Hall,  91  N.  Y.  145   (1883).       (1877)  ;  Smith  v.  Dreyer,  228  Pa.  438,  77  Atl. 

30.  Boone   v.    Rickard,    125    111.    App.    438      628   (1910);  5  Chamb.,  Ev.,  §  3511,  nn.  4,  5. 
(1906);    Flood   v.    Mitchell,    38    N.    Y.    507 


CHAPTER  LVI. 

PRIVATE  DOCUMENTS  AND  WRITINGS;  PROOF  OF  ORIGINAL. 

Private  documents  and  writings;  proof  of  original,  1099. 
attested  writings;  general  rule,  1100. 

instruments  executed  under  a  power,  1101. 
exceptions  to  rule,  1102. 

§  1099.  Private  Documents  and  Writings;  Proof  of  Original.1 — In  the  ab- 
sence of  any  statute  which  may  be  controlling  of  the  subject,2  the  general  rule 
has  been  applied  to  private  documents,  such  as  assignments,3  bills  of  lading.4 
bills  of  sale,5  bonds,0  certificates  of  stock,7  circulars  purporting  to  give  market 
prices,8  or  issued  for  the  purpose  of  procuring  investments  or  securing  the 
patronage  of  others,9  commercial  paper,  such  as  checks,  notes  and  the  like,10 
contracts  of  various  kinds,11  deeds  and  conveyances  of  real  property,12  leases,13 
letters,14  mortgages  of  real  or  personal  property,15  newspaper  advertisements,16 


1.  5  Chamber  layne,     Evidence,     §§     3512- 
3514. 

2.  Charles  v.  Valdosta  Foundry  &  M.  Co.,  4 
Ga.  Appf  733,  62  S.  E.  493  ( 1908)  ;  Boseker  v. 
Chamberlain,    160    Ind.    114,    66    N.    E.    448 
(1902)  ;  London  &  X.  W.  Amer.  Mortg.  Co.  v. 
St.  Paul  Park  Imp.  Co.,  84  Minn.  144.  86  N. 
W.  872    (1901);   Matter  of  Pirie.l    133  App. 
Div.    431,    117    X.    Y.    Supp.    753    (1909);    5 
Chamb.,  Ev.,  §  3512.  n.  1 

3.  Pennsylvania  Min    Co.  v.  Owens,  15  Cal. 
135     (1860);    Hagins    v.    Arnett,    23    Ky.    L. 
Rep.  809,  64  S.  W.  430  (1901). 

4.  Hill  v.  Adams  Exp   Co.,  74  X.  J.  L.  338, 
68  Atl.  94  (1907).     Compare  Beach  v   Schroe- 
der,  47   Colo.   312,   107   Pac.   271    (1910);    5 
Chamb.,  Ev.,  §  3512,  n.  3 

5.  State  v.  Pirkey,  22  S.  D.  550,  118  X.  W. 
1042    (1908)  ;   Jaquith  Co.  v.  Shumway's  Es- 
tate,   80    Vt.    556,    69    Atl.    157     (1908);    5 
Chamb.,  Ev.,  §  3512,  n.  4. 

6.  Equitable  Mfg.  Co.  v.  Davis,  130  Ga.  67, 
60   S.   E.   262    (1908);    Craw  v.   Abrams.   68 
Neb.  546,  94  X.  W.  639,  97  N.  W.  296  ( 1903)  ; 
5  Chamb.,  Ev.,  §  3512,  n.  5. 

7.  Whitaker  v.  State,  11  Ga.  App.  208,  75 
S.  E.  258    (1912). 

8.  Willard  v.  Mellor,  19  Colo.  534,  36  Pac. 
148    (1894). 


9.  Atchison,  etc.,  R.  Co.  v.  Cruzen,  31  Kan. 
718,  3  Pac.  520   (1884). 

10.  Denver  Omnibus  &  Cab  Co.  v.  Cast,  54 
Colo.   17,  129  Pac.  233    (1912);   Thompson  v. 
Wilkinson,    9    Ga.    App     367,    71    S.    E.    678 
(1911)  ;  Hugumin  v.  Hinds,  97  Mo.  App.  346, 
71   S.  W.  479    (1902);   Matter  of  Pirie.  198 
N.  Y.  209,  91   N    E.  587    (1910);   5  Chamb., 
Ev.,  §  3512,  n.  9. 

11.  Outcault   Advertising  Co.  v.   American 
Furniture  Co..  10  Ga.  App.  211,  73  S.  E.  20 
(1911);    Ruckman  v.  Stone  Milling  Co.,   139 
Mo.  App.  256,  123  S.  W.  69  (1909)  ;  5  Chamb., 
Ev.,  §  3512,  n.  10. 

12.  Gray   Lumber   Co.   v.   Harris,    127   Ga. 
693,  56  S.  E.  252    (1906);  Jackson  v.  Pratt, 
10   Johns.    (X.   Y.)    381    (1813);    Harden  v. 
Hays,   14  Pa.  91    (1850);    5  Chamb.,  Ev.,  § 
3512,  n.  11. 

13.  Smith  v.  Guarantee  Dental  Co.,  114  N. 
Y.  Supp.  867    (1909). 

14.  Butterworth  v.  Cathcart,  168  Ala.  262, 
52  So.  896   (1910)  ;  Lovett  v.  Gibb,  128  X.  Y. 
Supp.  1047  (1911)  ;  5  Chamb.,  Ev.,  §  3512,  n. 
13. 

15.  Lewis    v.    Glass     (Ala.),    39    So.    771 
(1905);    Cooke   v.    Pennington,    7    S.   C.   385 
(1878)  ;  5  Chamb.,  Ev.,  §  3512,  n.  14. 


845 


1099 


PRIVATE  DOCUMENTS  AND  WRITINGS. 


846 


and  passenger  lists  published  therein,17  policies  of  insurance,18  and  applica- 
tions therefor,19  powers  of  attorney,2"  receipts 21  and  wills,22  that  where  the 
original  is  offered  in  evidence  it  must  be  authenticated  to  the  court  as  the  act 
of  the  person  against  whom  it  is  offered.  In  case  he  is  said  to  have  signed 
or  otherwise  executed  it.  the  due  and  proper  execution  of  the  same  by  him 
must  be  shown  to  the  satisfaction  of  the  presiding  judge.23  Practically  the 
same  administrative  rule  will  be  applied  in  criminal  as  in  civil  cases.24 
Where  an  instrument  executed  by  several  is  offered  in  evidence  against  one  of 
the  obligors,  his  execution  of  the  writing  only  need  be  proved;  no  proof  as 
to  the  other  parties  is  required.25  Where  the  writing  is  introduced  to  prove 
a  collateral  fact  proof  of  execution  has  been  dispensed  with.26 

Mode  of  Proof;  Evidence  to  Show  Execution. —  The  due  and  proper  execution 
of  a  private  writing,  to  which  there  is  no  attesting  witness,  may  be  established  by 
any  competent  evidence.27  It  need  not  necessarily  be  direct,  circumstantial  evi- 
dence being  frequently  equally  satisfactory,28  it  being  sufficient  if  it  be  neces- 
sarily inferable,  from  the  facts  and  circumstances  proved,  that  the  writing  was 
executed  by  the  one  whose  name  appears  thereon  as  maker.29  A  frequent  mode 
of  proving  the  execution  of  a  writing  is  by  the  testimony  of  a  witness  that  he 
was  present  at  the  time  it  was  executed  30  and  saw  the  party  affix  his  signature 

24.  State  v.  Oeder,  80  Iowa  72,  45  N.  W. 
543    (1800)  ;  People  v.  Corey,  148  X.  Y.  476, 
42   N.    E     1066    (1896):    Montieth   v.    State, 
114  Wis.  165,  89  N.  W.  828  ( 1902)  ;  5  Chamb., 
Ev.,  §  3512,  n.  23. 

25.  Conard  v.  Atlantic  Ins.  Co.,  1  Pet.   (U. 
S.)    386,  7  L.  ed.  862    (1828).     See  Kolb  v. 
Jones,  62  S    C.   193.  40  S.  E.   168    (1901);  5 
Chamb.,  Ev.,  §  3512,  n.  24. 

26.  State  v.  Waldrop,  73  S.  C    60,  52  S.  E. 
793    (1905).     See  Western  Cottage  Piano  4 
Organ  Co.  v.  Anderson,  45  Tex.  Civ.  App.  513, 
101  S.  W.  1061   (1907). 

27.  Dundy  v.  Chambers,  23  111.  369  (1860)  ; 
Oldham    v     Oldham     (R.    I.),    83    Atl.    265 
(1912)  ;  5  Chamb.,  Ev.,  §  3513,  n.  1. 

28.  Garland  v.  Gaines,  13  Conn.  662,  49  Atl. 
(1901);   Alpena  v.  Mainville,  163  Mich.  732, 
117  N.  W.  338   (1908)  :  Ashlock  v.  Com.,  108 
Va.  877,  61  S.  E.  752  (1908)  ;  5  Chamb.,  Ev., 
§  3513,  n.  2. 

29.  Garland  v.  Gaines,  supra,  the  execution 
of   a   lease   may   be   established   by   evidence 
showing  that  it  was  sent  to  a  non-resident 
lessee,  came  back  with  his  name  signed  to  it 
and  that  he  subsequently  occupied  the  prem- 
ises.    Fergerson    v.    Smith,    104    Ind.   246,    3 
N.  E.  866  (1885). 

30.  Mosely  v.  Gordon,  16  Ga.  384  (1854) ) 


16.  Mann  v.  Russell,  11  111.  586   (1850). 

17.  Johnson    v.    Johnson,    25    Or.    496,    30 
Pac.  161  (1894)  ;  5  Chamb.,  Ev.,  §  3512,  n.  16. 

18.  Crutchfield  v.   Dailey,   98  Ga.   462,  25 
S    E.   526    (1896);    American   Underwriters' 
Assoc.  v.  George,  97  Pa.  238  (1881). 

19.  Brown  v.  Rape,  136  Ga.  584,  71  S.  E. 
802    (1911);    Eminent  Household  of  Colum- 
bian  Woodmen   v.   Prater,  37   Okl.   568,   133 
Pac.  48  (1913). 

20.  Scotland  County  Nat.    Bank   v.   Hohn, 
146   Mo.   App.   699,    125   S.   W.   539    (1910); 
Jackson  v.   Hopkins,  8  Johns.    (N.   Y. )    487 
(1821). 

21.  Empire    Ranch    &    Cattle    Co.    v.    Lan- 
ning,  53  Colo.  151,  124  Pac.  579  (1912)  ;  Bell 
Bros.  v.  Western  &  A.  R.  Co.,  125  Ga.  510, 
54  S.  E.  532   (1906)  ;  5  Chamb.,  Ev.,  §  3512, 
n.  20. 

22.  Hicks  v.  Deemer,  187  111.  164,  58  N.  E. 
252    (1900). 

23.  Kidd  v.   Huff,    105   Ga    209,   31    S.   E. 
430     (1898);     Com.     v.     Eastman,     1     Cush. 
(Mass)    189,  48  Am.  Dec.  596    (1848);   Bid- 
well  v.  Overton,  13  N.  Y.  Supp.  274,  26  Abb. 
N.  Cas.  402    (1891)  ;  Archer  v.  U.  S.,  9  Okl. 
569,    60    Pac.    268     (1900);    Bomgardner    v. 
Schwartz,    26    Pa.    Super.    Ct.    263     (1904); 
Apache  County  v.  Earth,  177  U.  S.  538,  20  S. 
Ct.  718,  44  L.  ed.  878  (1900)  ;  5  Chamb.,  Ev., 
§  3512,  n.  22. 


847  OEIGINAL.  §  10(J'J 

thereto.31  Another  mode  which  is  often  employed  is  to  prove  the  handwriting 
of  the  maker  of  the  instrument  32  either  by  a  comparison  of  the  disputed  hand- 
writing with  other  writings  proved  or  admitted  to  be  genuine,33  or  by  the  identi- 
fication of  the  maker's  signature  by  a  witness  who  is  familiar  with  his  hand- 
writing.34 The  execution  of  the  writing  by  the  one  by  whom  it  purports  to  be 
made  may  be  established  by  his  admissions,  either  judicial  or  extra-judicial,36 
or  by  evidence  of  particular  acts  of  his  amounting  to  an  acknowledgment  of 
execution  of  the  instrument  by  him.3G  The  evidence  must,  in  all  cases,  be  suf- 
ficiently certain  to  satisfy  the  presiding  judge  that  the  paper  to  which  it  refers 
is  identical  with  the  one  it  is  attempted  to  establish.37 

Identification  Otherwise  than  by  Proof  of  Execution. —  Where  a  paper  is 
independently  relevant,  it  may  be  admissible,  if  sufficiently  connected  with  the 
person  to  be  affected  by  it  as  to  be  probative  to  the  effect  desired.38  The  execu- 
tion need  not  be  proved  before  the  writing  is  received  in  evidence.39  The  writ- 
ing may  be  admitted  de  bene  upon  the  assurance  that  formal  proof  will  be  of- 
fered later,  and  at  a  later  stage  of  the  trial  stricken  out  if  the  proof  is  not  pro- 
duced.40 So,  any  inadequacy  in  proof  may  be  supplied  at  a  subsequent  time  in 
the  trial.41  Where  other  writings,  plans,  diagrams  or  the  like  are  incorporated 
in  a  principal  document  by  references  contained  in  it,  identification  satisfactory 
to  the  court  is  sufficient.42  Full  proof  of  the  execution  of  these  collateral  docu- 
ments or  other  incorporated  matters  has,  however,  been  required.43 

31.  Malchow  v    State,  5  Ala.   App    99,  50  38.  Thus,  if  the  object  be  to  show  that  A 
So.  342    (1912):  Dunby  v.  Chambers,  supra:  knew   the   contents   of  a  paper,   proof  of  its 
Stoddard  v.  Hill,  38  S.  C.  385.  17  S.  E.   138  production   from  a  place  to  which   he  alone 
(1892).  had   access,    e.g.,    his    pocketbook,   may   suffi- 

32.  Pullen     v.     Hutchinson,     25     Me.     249  ciently  connect  him  with  it  for  the  purposes 
(1845);    Rogers    v     New    York    &    Brooklyn  of   the   case.     Whaley   v.    State,    11    Ga.    123 
Bridge.    11    App    Div.    141,   42    X     Y    Supp.  (1852). 

1046    (1896),  aff'd  159  X.  Y.  556.  54  X.  E.  39.  Allen   v.    State,   61    Ind.    268,   28   Am. 

1094    (1899)  ;   5  Chamb.,  Ev.,  §  3513,  n    7.  Rep.  673  (1878)  :  5  Chamb.,  Ev.,  §  3514,  n.  3. 

33.  Paulk   v.   Creech,   8   Ga.    App.   738,   70  40.  Dupree  v.   Virginia  Home  Ins.  Co.,  92 
S.  E.   145    (1910).  X.  C.  417    (1885). 

34.  Rutherford  v.   Dyer.    146   Ala.   665,  40  41.  Houck  v.  Linn,  48  Xeb.  227,  66  X.  W. 
So.    974    (1906)';    Bauer    v.    State,    144    Cal  1103   (1896) 

740,  78  Pac.  280  (1904)  ;  Hinchman  v.  Keener,  42.  Xeuval  v.  Cowell,  36  Cal.  648   (1869)  ; 

5    Colo.    App.    300,    38    Pac.    611     (1894);    5  Smith  v.  Xew  York  Cent.  R   Co.,  4  Keyes  (N. 

Chamb.,  Ev.,  §  3513,  n.  9.  Y.)    180,  4  Abb.  Dec.  262   (1868)  :  5  Chamb., 

35.  White  v.   Solomon,   164   Mass.   516,  42  Ev.,  §  3514,  n.  6. 

X.    E.    104    (1895);    Matoushek   v.    Dutcher,  43.  Lee    v.    Payne,    4    Mich.    106     (1856); 

67  Xeb.  627,  93  X.  W.  1049   ( 1903)  ;  Stewart  Jackson    v.    Sackett,    7    Wend.     (X.    Y.)    94 

v.   Gleason,   25   Pa.   Super.   Ct.   325    (1903):  (1831).     Wills  as  evidence  of  title     See  note, 

Smith  v.  Gale,  144  U.  S.  509,  12  S.  Ct.  674,  Bender,  ed.,   121   X.  Y    95      A  bill  indorsed 

36  L.  ed.  521   (1892)  ;  5  Chamb.,  Ev.,  §  3513,  may  be  given  although  copy  did  not  show  in- 

n.  11.  dorsement.     See  note,  Bender,  ed.,  7  X.  Y.  283. 

36.  Houston  &  Texas  C.  R.  Co.  v.  Chandler,  Conclusiveness  of  certificate  of  deposit.     See 
51  Tex.  416    (1879).  note,  Bender,  ed.,  48  X.  Y.  487.     Letters  in 

37.  Burgen   v.    Com.,    8    Ky.    L.    Rep.    613  evidence.     See  note,   Bender,   ed..    126   X.  Y. 
(1887);  Thatcher  v   Goff,  11  La.  94  (1837);  419.     Recitals    in    instruments    as    evidence. 
5  Chamb.,  Ev.,  §  3513,  n.  13.  See  note,  Bender,  ed.,  24  X.  Y.  346. 


§  1100 


PRIVATE  DOCUMENTS  AND  WRITINGS. 


848 


§  1100.  Attested  Writings;  General  Rule.44 —  The  testimony  of  an  attesting 
witness  will  be  required  to  prove  the  execution  of  a  private  writing  45  to  which 
he  has  affixed  his  signature  in  that  capacity,  at  the  request  or  with  the  consent 
of  the  party  or  parties  executing  it,40  providing  of  course  that  he  can  be  pro- 
duced.47 This  rule  is  regarded  by  the  courts  as  one  of  the  most  stringent  and 
inflexible  and,  consequently,  is  rigidly  adhered  to.48  This  mode  of  proof  has 
been  applied  alike  to  private  writings  without  regard  as  to  whether  they  were 
executed  under  seal  or  not,49  subject  of  course  to  statutory  provisions  regu- 
latory thereof.50  Where  the  evidence  furnished  arises  merely  incidentally  or 
collaterally,  proof  by  an  attesting  witness  of  its  execution  may  not  be  neces- 
sarv.£ 


51 


Subscribing  Witness;  Defined. —  A  subscribing  or  attesting  witness  may  be 
defined  as  one  who  was  present  at  the  time  of  the  execution  of  an  instrument, 
and  who  at  the  request  or  with  the  consent  of  the  party  or  parties,  subscribed 
his  name  thereto  as  a  witness  of  the  fact  of  the  execution.52  It  is  not  neces- 
sary, however,  that  he  should  actually  see  the  writing  executed,53  or  be  present 
at  the  precise  moment  of  the  act  of  the  party  or  parties  in  executing  it,  it  being 
sufficient  if  his  signature  was  affixed  immediately  thereafter,54  upon  the  re- 
quest or  assent  of  such  party  or  parties,  which  latter  element  is  regarded  as 
essential.55  One's  character  as  a  witness  will  not  be  affected,  in  the  absence  of 


44   5  Chamber  layne,    Evidence,     §§    3515- 
3519. 

45.  Kelsey     v.     Hanmer,     18     Conn.     311 
(1847);  Thompson  v.  Wilkinson,  9  Ga.  App. 
367,  71  S.  E.  678    (1911);   Boyle  v.  Knauss, 
81  N.  J.  L.  330,  79  Atl.  1025  (1911)  ;  Read  v. 
Metropolitan  Life  Ins.  Co.,  17  Misc.  307,  40 
N.  Y.   Supp.  374    (1896);    Warner  v.   Balti- 
more &  0.  R.  Co.,  31  Ohio  St.  265    (1877)  ; 
North  Penn  Iron  Co.  v.  International  Lithoid 
Co.,    217    Pa.    538,    66    Atl.    860    (1907);    5 
Chamb.,  Ev.,  §  3515,  n.  1. 

46.  Sherwood  v.  Pratt,  63   Barb.    (N.  Y.) 
137    (1808). 

47.  Ellis  v.  Doe,  10  Ga.  253  (1851)  ;  Samp- 
son v.  Grimes,  7  Blackf.   (Ind.)    176   (1844); 
Gelott   v.    Goodspeed,    8    Cush.    (Mass.)    411 
(1851)  ;   5  Chamb.,  Ev.,  §  3515,  n.  3. 

48.  Ellis  v.  Doe,  supra;  5   Chamb.,  Ev.,  § 
3515,  n.  4.     The  theory  is  that  when  parties 
to  a  transaction  have  called  in  a  third  per- 
son   as    a    witness    thereto,    they    preappoint 
him  as  the  one  by  whom  their  act  is  to  be 
proved  in  case  of  the  use  of  the  instrument 
as  the  basis  of  an   action   or  proceeding  be- 
tween   them.     He    is    presumed    to    have    a 
knowledge    of    the    circumstances    attending 
the  transaction  superior  to  that  possessed  by 
others.     Labarthe  v.  Gerbeau,  1  Mart.  N.  S. 


(La.)  486  (1823);  Handy  v.  State,  7  Harr. 
&  J.  (Md.)  42  (1826):  supra,  §§  120,  243: 
1  Chamb.,  Ev.,  §§  269c,  487;  5  Chamb.,  Ev., 
§  3515,  n.  7. 

49.  Henry  v.  Bishop,  2  Wend.    (X.  Y.)   575 
(1829)  ;   International  &  G.  X.  R.  Co.  v.  Mc- 
Rae,  82  Tex.  614,  18  S.  W.  672,  27  Am.  St. 
Rep.    926    (1891);    5    Chamb.,    Ev.,    3515,   n. 
8. 

50.  McKay  v.  Lasher,    121    X.   Y.   477,   24 
X.  E.  711    (1890),  aff'g  50  Hun  383,  3  X.  Y. 
Supp.  352   (1888)  ;  5  Chamb.,  Ev.,  §  3515,  n. 
9. 

51.  Smith  v.  Soper,  12  Colo.  App.     264,  55 
Pac.   195    (1898):   Goza  v.  Browning,  96  Ga. 
421     (1895):    Ayers   v.   Hewett    19   Me.    281 

(1841);   Skinner  v.   Brigham,   126  Mass.   132 
'    (1879)  ;  5  Chamb.,  Ev.,  §  3515,  n.  10. 

52.  Hollenback  v.  Fleming.  6  Hill    (X.  Y.) 
303     (1844).     For    other    definitions    to    the 
same  effect  see:     Matter  of  Chite,   37   Misc. 
586,  75  X    Y.  Supp.   1059    (1902)  ;   Luper  v. 
Werts,    19   Or.    122,   23   Pac.   850    (1890);    5 
Chamb  .  Ev.,  §  3516,  n.  1 

53.  Hale    v.    Stone,    14    Ala.    803     (1848); 
Pequawkett  Bridge  v.  Mathes,  7  X.  H.  230,  26 
Am.  Dec.  737    (1834). 

54.  Hollenback  v.  Fleming,  supra. 

55.  Matter  of  Clute,  supra;  Schomaker  v. 


849  ATTESTED  WETTINGS.  §  1100 

statute,  by  the  fact  of  his  youth  at  the  time  he  subscribed  his  name  or  that  he 
was  not  proficient  in  the  art  of  reading  and  writing;  56  even  his  absolute  in- 
ability to  read  or  write  will  not  affect  the  admissibility  of  his  testimony,  and 
signing  by  mark  may  be  disregarded,57  though  it  has  been  said  that  it  may 
affect  the  weight  to  be  accorded.58 

Number  Required. —  Where  two  or  more  persons  have  subscribed  their  names 
to  a  writing  as  witnesses,  the  proof  in  all  cases  must  be  such  as  to  satisfy  the 
court  of  the  due  and  proper  execution  of  the  document  offered  in  evidence.59 
This  result  is  ordinarily  accomplished  by  calling  one  witness  only.  60  If  the 
presiding  judge  is  not  satisfied,  from  the  testimony  of  one  witness,  with  the 
proof  of  execution,  he  may  insist  that  one  or  all  of  the  remaining  witnesses 
be  called.61 

Effect  of  Admissions. —  It  is  the  general  rule  that  an  admission  by  the  party 
executing  the  writing,  whether  in  the  pleadings,  or  in  any  other  form,63  will  not 
be  received  to  prove  the  execution  of  an  instrument,  if  an  attesting  witness 
thereto  can  be  produced.  Similarly,  in  the  case  of  testimony  by  one  or  both 
parties,  the  presiding  judge  will  likewise  insist  upon  proof  by  the  attesting 
witness  where  his  testimony  is  available.64  Nor  does  the  statute  making  parties 
competent  witnesses  abrogate  the  rule  requiring  the  calling  of  such  a  wit- 
ness.65 

Sufficiency  of  Proof. —  A  party  is  entitled  to  supplement  the  testimony  of  a 
subscribing  witness  by  other  evidence  for  the  purpose  of  establishing  by  satis- 
factory evidence  the  execution  of  the  writing  in  question ;  67  he  may  even  go 
further,  if  the  witness  should  deny  his  signature  or  the  execution  of  the  instru- 
ment, and  contradict  his  testimony  b^  evidence  showing  the  signature  to  be 

Dean,  201    Pa.  439,   50   Atl.   923    (1902);    5          63.  Id.:  Fox  v.  Reil,  3  Johns.   (N.  Y.)  477 

Chamb.,  Ev.,  §  3516,  n.  4.  (1808)  ;  Zerby  v.  Wilson,  3  Ohio  42,  17  Am. 

56.  Wyche  v.  Wyche,   10  Mart.    (La.)    408  Dec.  577  (1827)  ;  5  Chamb.,  Ev.,  §  3518,  n.  3. 
( 1821 ) .  But  see,  Jones  v.  Henry,  84  N.  C.  320,  37  Am. 

57.  Watts  v.  Kilburn,  7  Ga.  356    (1849)  ;  Rep.  624   (1881)  :  Hodges  v.  Eastman,  12  Vt. 
Kinney  v.  Flynn,  2  R.  I.  3J9    (1852).  358    (1839). 

58.  Allred  v.  Elliott,  71  Ala.  224  (1881).  64.  Barry   v.    Ryan,   4   Gray    (Mass.)    523 

59.  Jackson  v.  LeGrange.  19  Johns.  (X.  Y.)  (1855)  ;   Kayser  v.  Sichel,  34  Barb.    (N.  Y.) 
386,    10    Am.    Dec.    2.37     (1822);    Martin    v.  84    (1861);   Gaines  v.   Scott,  7  Ohio  Cir.  Ct. 
Bowie,  37  S.  C.  102,  15  S.  E.  736   (1892).  447,  4  Ohio  Cir.  Dec.  673   (1892)  ;  5  Chamb., 

60.  Cooper  v.  O'Brien,  98  Ga.  773,  26  S.  E.  Ev.,  §  3518,  n.  4. 

470  (1896)  ;  White  v.  Wood.  8  Cush.   (Mass.)  65.  Brigham  v.  Palmer,  3  Allen  (Mass.)  450 

413    (1851)  ;   Jackson  v.  Vandyke,  1  N.  J.  L.  (1862)  ;  Hodnett  v.  Smith,  2  Sweeny  (N.  Y.) 

28    (1890):   Jackson   v.  Le  Grange,  supra;  5  401,  41  How.  Pr.   190,   10  Abb.  Pr.  N.  S.  86 

Chamb.,   Ev ,  §  3517,  n.  2.  (1870);   5  Chamb.,  Ev..  §  3518,  n.  5.     Com- 

61.  Burke  v.  Miller,   7   Cush.    (Mass.)    547  pare  Bowling  v.   Hax,   55   Mo.   446    (1874); 
(1851);    Tarrant    v.    Ware,    25    X.     i.    425  Garrett  v.  Hanshue,  53  Ohio  St.  482,  42  N.  E. 
(1862)  -.  Clarke  v.  Dunnavant,  10  Leigh  (Va.)  256,  35  L.  R.  A.  321   (1895). 

13   (1839).  67.  Thompson  v.  Wilkinson,  9  Ga.  App.  367, 

62.  Ellis  v.  Doe,  10  Ga.  253   (1851)  ;  Kin-  71  S.  E.  678   (1911)  ;  Whitaker  v.  Salisbury, 
ney  v.  Flynn,  supra;  5  Chamb.,  Ev.,  §  3518,  15  Pick.  (Mass.)  534  (1834);  5  Chamb.,  Ev., 
n.  2.  §  3519,  n.  1. 


1101 


PRIVATE  DOCUMENTS  AND  WRITINGS. 


850 


genuine.08  It  will,  ordinarily,  be  sufficient,  to  warrant  the  admission  of  the 
writing  in  evidence,  if  the  witness  testifies  that  he  saw  it  executed  and  sub- 
scribed his  name  as  witness."9  The  identification  by  the  witness  of  the  signa- 
ture as  his,  coupled  with  further  testimony  to  the  effect  that,  being  genuine,  it 
would  not  be  there  unless  it  had  been  placed  there  by  him  under  the  proper 
conditions,  will  satisfy  the  requirements  imposed.70  Whether  the  evidence  is 
sufficient  to  authorize  the  admission  of  the  document  is  a  matter  of  adminis- 
tration for  the  presiding  judge.71 

§  1101.  Instruments  Executed  Under  a  Power.72 —  Lf  a  person  claims  to  act, 
in  the  execution  of  an  instrument,  under  some  authority  as  the  representative 
of  another,  it  may  very  properly  be  required  that  some  satisfactory  proof  tend- 
ing to  show  that  authority  should  be  given.73  Where  a  deed  purports  to  be 
executed  by  one  as  administrator  or  executor  74  or  as  guardian,75  it  must  be 
shown,  to  the  satisfaction  of  the  presiding  judge,  that  the  person  by  whom  the 
writing  is  thus  executed  possessed  the  requisite  authority  to  so  act,  otherwise  it 
will  be  rejected. 

Corporation  Deeds  and  Writings. —  In  the  case  of  a  deed  executed  by  one 


68.  Buchanan  v.  Simpson  Grocery  Co.,  105 
Ga.  393,  21   S.  E.   105    (1898);    Duckwall  v 
Weaver,  2  Ohio  13    (1825);  Northrop  v.  Co- 
lumbian Lumber  Co.,  186  Fed.  770,  108  C.  C. 
A.  640    (1911);  5  Chamb.,  Ev.,  §  3519,  n.  2. 

69.  Holtzclaw  v.  Miley,  172  Ala.  15,  55  So. 
150   (1911)  ;  Dawson  v.  Callaway  18  Ga.  573 
(1855)  ;  5  Chamb.,  Ev...  §  3519.  n.  4. 

70.  Robinson    v.    Brennan,    115    Mass.    582 
(1874);  Cheston  v.  Wilson,  2  Neb.    (CnofF.) 
674,  89  N.  W.  764  (1902)  ;  Hall  v.  Luther,  13 
Wend     (N.  Y.)   491    (1835);  5  Chamb.,  Ev., 
§  3519,  n.  5      Where  an  attesting  witness  to 
a  will  cannot  remember  all  the  circumstances 
of   attestation   they  may    be   proved   by   cir- 
cumstantial   evidence.     So    evidence    is    suffi- 
cient that  the  testator  came  into  the  room 
where   the   witnesses   were   with   a    pen    and 
ink  and  sat  down  to  a  table  and  then  went 
out  to  show  that  the  testator  signed  in  their 
presence    and    before    they    did.     Re    Carey, 
56  Colo.  77,  136  Pac.  1175,  51  L  R.  A.  (N.  S.) 
927    (1913).     Where  an  attesting  witness  to 
a   will   has   lost  his   eye-sight   so   he   cannot 
identify  his   signature   it   is   sufficient   if  he 
testifies  that  the  will  was  signed  and  the  other 
witnesses  identify  the  signatures  and  all  three 
testify  to  the  execution  of  the  will  in  due 
form.     Reynolds  v    Sevier,   165  Ky.   58,   176 
S.  W.  961,  L.  R.  A.  1915  E  593  (1915). 

Absence  of  witnesses. —  The  statutory  rule 
requiring  that  a  will  must  be  proved  by  all 


the  attesting  witnesses  is  of  necessity  dis- 
pensed with  when  the  production  of  all  is  im- 
possible because  one  or  more  may  be  beyond 
he  jurisdiction  of  the  court  or  are  dead  or 
insane  or  otherwise  incompetent.  In  that 
case  the  handwriting  of  the  absent  ones  may 
be  proved.  Wells  v.  Thompson,  140  Ga.  119, 
78  S.  E.  823,  47  L.  R.  A.  (N.  S.)  722  (1913). 
»  71.  Carruth  v.  Bayley,  14  Allen  (Mass.) 
532  (1867). 

72.  5  Chamber layne,     Evidence,  §§     3520- 
3526. 

73.  La  Plante  v.  Lee,  83   Ind.   155    '1882). 
Campbell    v.    Alkahest    Lyceum    System,    10 
Ha.    App.    839,   74    S.    E.   443    (1912);    Gray 
v.    Gillilan,    15    111.    453,    60    Am.    Dec.    761 
(1854);   Chaffee  v.   Blaisdell,  142  Mass.  538, 
8  N.  E.  435    (1886)  ;   5  Chamb.,  Ev.,  §  3520, 
n    1.     Such  power  may  be  presumed  after  a 
lapse  of  thirty  years.     Tucker  v.  Murphy,  66 
Tex.   356,    1    S.   W.   76    (1886).     But   not   in 
the  absence  of  all  proof  of  the  existence  of 
the  power  and  its  loss  or  destruction.     House 
v.  Brent,  69  Tex.  27.  7  S.  W.  65   (1895). 

74.  La  Plante  v.  Lee,  83  Ind.  155   (1882)  ; 
Chapman  v.  Crooks,  41   Mich.  595,  2  N.  W. 
924    (1879)  ;   Riley  v.  Pool,  5  Tex.  Civ.  App. 
346.  24  S.  W.  85    (1893)  ;   5  Chamb.,  Ev.,  § 
3521,  n.  1. 

75.  House  v.  Brent,  supra;  5  Chamb.,  Ev., 
§3523,  n.  1. 


851 


POWERS. 


§  1101 


as  president,76  or  agent,77  or  by  the  officers  78  of  a  corporation,  if  the  corporate 
seal  is  attached,  a  presumption  arises  that  the  proper  authority  to  execute  it 
existed,71*  it  not  being  necessary  that,  in  the  nrst  instance,  evidence  of  authority 
should  be  shown/"  Likewise,  iii  the  case  of  a  bill  of  sale  executed  by  the  vice- 
president,*1  or  of  any  instrument  executed  by  the  corporate  officers.82  A  similar 
rule  has  also  been  applied  in  the  case  of  a  deed  executed  by  a  mayor  pro  tern- 
pore,  under  the  corporate  seal  of  a  municipal  corporation.83  In  the  absence, 
however,  of  a  corporate  seal  to  an  instrument,  purporting  to  bind  the  corpora- 
tion, authority  to  execute  the  writing  must  be  shown.84  The  recital,  in  the 
deed,  of  authority  will  not  be  considered  as  any  evidence  of  its  existence.85 

Official  Sale  Under  Authority  of  Decree  and  Execution. —  A  sheriff's  86  au- 
thority in  executing  a  deed,  in  pursuance  of  an  alleged  decree  of  court,  should 
be  shown,  in  order  to  render  the  writing  admissible,  unless  by  statute  this  is 
not  required/7  A  similar  rule  prevails  ni  case  of  deeds  executed  by  other 
officers  under  the  same  asserted  power,88  as,  for  instance  in  the  case  of  a  deed 
given  by  a  public  official  to  a  purchaser  at  a  tax  sale,89  or  of  a  deed  given  by  a 
receiver.90  If  the  object  of  offering  the  deed  is  to  establish  some  collateral 
fact,  proof  of  the  authority  of  the  official  to  execute  it  will  not  be  required.91 


76.  Almand  v.  Equitable  Mortg.  Co.,  113  Ga. 
983,  39  S.  E.  421    (1901). 

77.  Flint   v.    Clinton    Company,    12    X.    H. 
430   (1841). 

78.  Campbell  v.  Alkahest  Lyceum  System, 
supra;  Quackenboss  v.  Globe  &  Rutgers  Fire 
Ins.   Co.,  77   App.   Div.   168,   78   X.   Y.   Supp. 
1019   (  1902)  :  5  Chamb.,  Ev.,  §  3522,  n.  3. 

79.  Trustees  Canandaigua  Academy  v.  Mc- 
Kechnie,  90  X.  Y.  618  (1882). 

80.  Gashwiler  v.  Willis,  33  Cal.  11,  91  Am. 
Dec.  607  i  1867  i  ;  Springer  v.  Bigford,  160  111. 
495,  43  X.  E.  751   (1896): 

81.  Springer  v.  Bigford.  supra. 

82.  Blackshire  v.   Iowa  Homestead   Co.,  39 
Iowa   624    (1874):    Xational    Bank   of   Com- 
merce v.  Atkinson,  8  Kan.  App.  30,  54  Pac. 
8  (1898)  ;  Tague  v.  John  Caplice  Co.,  28  Mont. 
51,   72   Pac.   297    (1903);    5   Chamb.,    Ev..   § 
3522,  n.  7. 

83.  Middletown   Sav.  Bank  v.  Dubuque,   19 
Iowa  467   (1865).     See  Holder  v.  Yonkers,  25 
Misc.  250,  55  X.  Y.  Supp   254   ( 1898  > . 

84.  Elkhart  Hydraulic   Co.   v.   Turner.    170 
Ind.  455,  84  X.  E.  812  (1908)  ;  Smith  v.  Guar- 
antee Dental  Co..  114  X.  Y.  Supp.  867  (1909)  ; 
5  Chamb  ,  Ev.,  §  3522,  n.  9. 

85.  Gashwiler  v.  Willis,  supra. 

86.  Carr  v.  Georgia  L.  &  T.  Co..   108  Ga. 
757,  33  S.  E.  190   (1899)  :  Bybee  v.  Ashby,  7 
111.   151,  43  Am.  Dec.  47    (1845);   Bowen  v. 


Bell,  20  Johns.  (X.  Y.)  338,  11  Am.  Dec. 
286  (1823)  ;  Weyand  v.  Tipton,  5  Serg.  &  R. 
(Pa.)  332  (1819)  ;  5  Chamb.,  Ev.,  §  3524,  n. 
1. 

87.  Bliss  v.  Waterbury,  27  S.  D.  429,  131 
X.  W.  731    (1911). 

88.  Peterson  v.  Weissbein,  75  Cal.   174,   16 
Pac.  769   ( 1888 )  ;  McDodrill  v.  Pardee  &  Cur- 
tin  Lumber  Co.,  40  W.  Va.  564,  21  S.  E.  878 
(1895);    5    Chamb.,   Ev.,   §    3524,   n.    3.     An 
order   or  decree  of  court  directing  the  exe- 
cution of  a  deed  by  one  in  whom  title  is  vested 
need  not  be  shown  where  the  deed  expresses 
a  valuable  consideration.     Rockwell  v.  Brown, 
58  X.  Y.  210   (1873)  ;  5  Chamb.,  Ev.,  §  3524, 
n.   3. 

89.  Anderson  v.  McCormick.  129  111.  308,  21 
X.  E.  803  (1889)  ;  Lessee  of  Carlisle  v.  Long- 
worth,  5  Ohio  368    (1832)  ;   Reusens  v.  Law- 
son,    91    Va.    226,    21    S.    E.    347     (1895);    5 
Chamb.,  Ev.,  §  3524,  n.  4 

90.  Winn  v.   Coggins,   53   Fla.   327,   42   So. 
897     (1907):    Hutchinson    v.    Patterson,    226 
Mo.  174,   126  S    W.  403    (1909);   5  Chamb., 
Ev.,  §  3524,  n.  5. 

91.  Doe  v.  Roe.  32  Ga.  448   (1861)  :   Bolles 
v.  Beach,  22  X.  J.  L.  680.  53  Am.  Dec.   263 
(1850):    5    Chamb.,    Ev.,    §    3524,    nn.    8,    9. 
For  other  instances  of  relaxation  of  the  rule, 
see  5  Chamb.,  Ev.,  §  3524,  nn.  10,  11. 


§   1102  PRIVATE  DOCUMENTS  AND  WRITINGS.  852 

Under  Power  of  Attorney. —  A  power  of  attorney  to  perform  some  act  such 
as  the  execution  of  a  deed,92  contract,93  or  other  writing,94  must  be  shown 
where  the  act  is  asserted  to  have  been  done  in  pursuance  of  such  an  authority, 
unless  by  statute  such  proof  is  dispensed  with,95  or  unless  in  the  case  of  a  deed 
it  is  not  offered  as  evidence  of  title.96 

By  Trustee. —  Where  trustees  execute  a  deed  of  corporate  property,  as  for 
instance  town  or  city  trustees  9T  or  a  board  of  a  corporation,98  their  authority 
to  so  act  should  be  shown  upon  proper  objection  by  the  party  against  whom 
they  are  offered.  The  recital  of  authority  in  the  deed  to  so  act  is  not  of  itself 
sufficient.99 

§  1102.  Exceptions  to  Rule.1 —  If,  without  any  fault  of  his  own,  a  party  is 
unable  to  prove  the  execution  of  a  writing  by  the  testimony  of  an  attesting  wit- 
ness, the  court  will,  upon  satisfactory  proof  of  such  fact,  permit  of  the  use  of 
secondary  evidence  for  the  purpose  of  establishing  the  genuineness  of  the  docu- 
ment.2 Thus  if  the  witness  is  dead,3  or  may  be  so  presumed,4  or  after  diligent 
search  or,  inquiry  cannot  be  found,5  or  is  beyond  the  seas  or  otherwise  out  of 
the  jurisdiction  of  the  court,6  or  has  become  incompetent  from  interest,  insan- 
ity or  otherwise,7  an  exception  is  created  justifying  the  admission  of  secondary 
evidence  to  establish  the  execution  of  the  proffered  document.8  Where  the 
disqualifying  interest  was  acquired  by  the  voluntary  act  of  the  witness  or  by 
operation  of  law,9  resort  may  be  had  to  proof  of  handwriting.  Where,  how- 

92.  Hughes  v.  Holliday,  3  Greene    (Iowa)  4.  Gaither  v.  Martin,  3  Md.    146    (1852); 
30   (1851);   Lamberton  v.  Windom,   18  Minn.  Jackson    v.    Chamberlain,    8    Wend.     (N.   Y.) 
506   (1872)  ;  5  Chamb.,  Ev.,  §  3525,  n.  1.  620   (1832)  ;  5  Chamb.,  Ev.,  §  3527,  n.  3. 

93.  Chaffee  v.   Blaisdell,   142   Mass.   538,   8  5.  Turner  v.  Gates,  90  Ga.  731,  16  S.  E.  971 
N.  E.  435   (1886).  (1892);    Willson    v.   Betts,   4   Den.    (N.    Y.) 

94.  Gray  v.  Gillilan,  15  111.  453,  60  Am.  Dec.  201     (1847);     Gallagher    v.    London    Assur. 
761   (1854).  Corp.,    149    Pa.    25,    24    Atl.    115    (1892);    5 

95.  Austin  v.  Townes,  10  Tex.  24  (1853).  Chamb.,   Ev.,   §   3527,  n.  4. 

96.  Waco  Bridge  Co.  v.  Waco,  85  Tex.  320,  6.  Mobile,  etc.,  R.'Co.  v.  Hawkins,  163  Ala. 
20  S.  W.  137   (1892).  565,    51    So.   37    (1909);    Trustees   of   Smith 

97.  Green  v   Barker,  47  Neb.  934,  66  N.  W.  Charities  v.   Connolly,   157   Mass.  272,   31   X. 
1032   (1896)  ;  5  Chamb.,  Ev.,  §  3526,  n.  1.  E.  1058   (1892)  ;  New  Jersey  Zinc  &  Iron  Co. 

98.  Gashwiler  v.  Willis,  33  Cal.  11,  91  Am.  v.  Lehigh  Zinc  &  Iron  Co.,  59  N.  J.  L.   189, 
Dec.    607     (1867).     Where   corporate    seal    is  35  Atl.  915   ( 1896)  ;  Richards  v.  Skiff,  8  Ohio 
attached,  see  §  1101,  supra;  5  Chamb.,  Ev.,  §  St.  586   (1858)  ;   5  Chamb.,  Ev.,  §  3527,  n.  5. 
3522.  7.  Haynes  v.  Rutter,  24  Pick.    (Mass.)   242 

99.  Gashwiler  v.  Willis,  supra;  Hancock  v.  (1842)  ;  Edwards  v.  Perry,  21  Barb.   (N.  Y.) 
Whybark.   66   Mo.   672    (1877).  600    (1855);    Kinney  v.   Flynn,   2   R.   I.   319 

1.  5  Chamberlayne,     Evidence,     §§     3527-       (1852)  ;  5  Chamb.,  Ev.,  §  3527.  n.  6. 

3532.  8.  Bowser    v.    WTarren,    4    Blackf.     (Ind.) 

2.  Job    v.    Tebbetts,    10    111.    376     (1848);  522  ( 1838)  ;  Brynjolfson  v.  Northwestern  Ele- 
Jewell  v.  Chamberlain,  41  Neb.  254,  59  N.  W.  vator  Co.,  6  X.  D.  450.  71  N.  W.  555,  66  Am. 
784    ( 1894) .  St.  Rep.  612  ( 1897)  ;  5  Chamb.,  Ev.,  §  3527,  n. 

3.  McVicker  v.  Conkle,  96  Ga.  584,  24  S.  E.  7. 

23    (1895)  ;  Gallagher  v.  Delargy,  57  Mo.  29          9.  Saunders  v.  Ferrell,  23  N.  C.  97   (1840). 
(1874)  ;  Borst  v.  Empire,  5  N.  Y.  33  (1851)  ; 
5  Chamb.,  Ev.,  §  3527,  n.  2. 


853  EXCEPTIONS.  §  1102 

ever,  the  incompetency  of  the  witness  has  been  caused  by  the  act  of  the  party 
offering  the  document  in  evidence,  it  seems  that  evidence  of  handwriting  will 
not  be  received.10  Where  a  writing  is  executed  out  of  the  State,  it  will  be 
presumed  that  the  witnesses  are  non-residents  and  evidence  will  be  admitted 
to  establish  the  genuineness  of  their  signatures.11  Where  the  witness  is  be- 
yond the  jurisdiction  of  the  court  in  which  the  instrument  is  offered  in  evi- 
dence, the  courts  will,  as  a  general  rule,  require  proof  tending  to  show  some- 
thing more  than  a  mere  casual  or  temporary  absence,  before  the  introduction  of 
secondary  evidence  will  be  permitted.12  The  fact  that  the  witness  is  so  located 
is  the  material  factor,  which  makes  the  particular  case  an  exception  to  the  gen- 
eral rule  and  authorizes  the  admission  of  secondary  evidence.13  The  rule  will 
not  apply  in  case  it  appears  that  there  was  any  fraud  or  collusion  on  the  part  of 
the  proponent  in  procuring  the  absence  of  the  witness,14  or  if  the  exercise  of 
the  required  degree  of  diligence  in  endeavoring  to  locate  a  witness  is  not  satis- 
factorily shown.15 

Mode  of  Proof. —  Where  the  testimony  of  the  attesting  witness  or  witnesses 
is  unavailable,  the  usual  mode  which  has  been  adopted  by  the  courts  is  to  admit 
evidence  to  establish  the  genuineness  of  the  signatures  of  the  person  or  persons 
so  signing.16  Where  there  are  several  subscribing  witnesses,  the  fact  must  be 
satisfactorily  established  that  the  testimony  of  all  of  them  is  unavailable ;  1T 
otherwise  secondary  evidence  will  not  be  admitted.  If  it  should  appear  that 
the  witness,  at  the  time  of  subscribing  his  name  and  at  the  time  of  the  trial, 
was,  by  reason  of  interest,  incompetent,  the  genuineness  of  the  instrument  may 
be  established  by  proof  of  the  handwriting  of  the  obligor.18  Ordinarily,  it  will 
be  sufficient  to  prove  the  handwriting  of  one  witness  19  where,  in  case  there  are 
other  signatures,  the  absence  of  all  the  signers  i&  explained  to  the  satisfaction 

10.  Edwards  v.  Perry,  supra.  Homer  v.  Wallis,  11  Mass.  308   (1814)  ;  Dun- 

11.  Mobile,  etc.,  R.  Co.  v.  Hawkins,  supra;  bar  v.  Marden,  supra;  Borst  v.  Empie,  5  N. 
McMinn  v.  Whelan.  27  Cal.  300   (1865);  Val-  Y.    33     (1851);    Clark    v.    Boyd,    2    Ohio    56 
entine  v.  Piper,  22  Pick.   (Mass.)   85,  33  Am.  (1825)  ;  Merck  v.  Merck,  89  S.  C.  347,  71  S.  E. 
Dec.  715  (1839)  ;  Boswell  v.  First  Nat.  Bank,  969   (1911)  ;  5  Chamb.,  Ev.,  §  3528,  n.  1. 

16  Wyo.  161,  92  Pac.  624,  93  Pac.  661  (1907)  ;  17.  Kelsey     v.     Hammer,     18     Conn.     311 
5    Chamb.,   Ev.,   §   3527,   n.    10.                                  (1847);  Gelott  v.  Goodspeed,  8  Cush.  (Mass.) 

12.  Gaither  v.  Martin,  3  Md.   146    (1852);       411    (1851). 

Harrel  v.  Ward,  2  Sneed  (Tenn.)  610  (1855)  ;  18.  Packard  v.  Dunsmore,  11  Cush.  (Mass.) 

5  Chamb.,  Ev.,  §  3527,  n.  11.  282    (1853)  ;   Mackrell  v.  Wolfe,  104  Pa.  421 

13.  Harris   v.   Cannon,   6   Ga.   382    (1849).  (1883).     Incompetency   of   such   a   character 
How  far  beyond  the  jurisdiction  of  the  court  arising  subsequent  to  the  date  of  execution 
he  may  be  is  immaterial.     Emery  v.  Twombly,  will  effect  no  change  in  the  mode  of  proof. 

17  Me.   65    (1840).     Likewise  the   fact   that  Keefer   v.  .Zimmerman,  22   Md.   274    (1864); 
the  residence  of  the  witness  is  known.     Dun-  Tinnin    v.    Price,    31    Miss.    422     (1856)  ;    5 
bar  v.  Marden,  13  N.  H.  311   (1842).  Chamb.,  Ev.,  §  3528,  n.  4. 

14.  Clark  v.  Sanderson,  3  Binn.   (Pa.)    192,  19.  McVicker   v.   Conkle,   supra;   Gelott   v. 
5  Am.  Dec.  368   (1810).  Goodspeed,    supra;    Borst    v.    Empie,    supra; 

15.  Grover  v.   Coffee,    19    Fla.    61    (1882);  Clark  v.  Boyd,  supra;  Sanborn  v.  Cole,  63  Vt. 
Silverman  v.  Blake,  17  Wis.  213   (1863).  590,  22  Atl.  716    (1891);   5  Chamb.,  Ev.,  § 

16.  Mobile,  etc.,  R.  Co.  v.  Hawkins,  supra;  3529,  n.  3. 


§  1102  PRIVATE  DOCUMENTS  AND  WETTINGS.  854 

of  the  court.  Upon  the  introduction  of  such  proof  the  genuineness  of  the  in- 
strument is  prima  facie  established.20 

Signature  of  Maker. —  There  is  some  authority  for  the  view  that  proof  of 
the  signature  of  the  party  by  whom  the  writing  was  executed  will  also  be  re- 
quired,21 in  addition  to  proof  of  the  signature  of  the  subscribing  witness.  This 
is  not,  however,  the  general  rule,  it  ordinarily  being  sufficient  to  prove  the  sig- 
nature of  one  witness.22  Should  such  testimony  not  be  sufficiently  satisfactory 
and  the  court  require  that  some  additional  proof  shall  be  adduced,  it  may  be 
necessary  to  prove  the  handwriting  of  the  party  executing  the  instrument.23 
Such  other  proof,  generally  of  the  handwriting  of  the  obligor,  will  also  be  re- 
quired to  establish  the  execution  of  the  writing  where  there  is  no  evidence  to 
prove  the  signature  of  the  attesting  witness.24 

Where  Attesting  Witness  Unavailable. —  Upon  the  question  of  whether, 
where  no  attesting  witness  is  available,  resort  may  be  had  to  proving  the  hand- 
writing of  the  maker,  without  adducing  any  evidence  tending  to  establish  the 
signature  of  an  attesting  witness,  there  is  much  conflict.25  In  many  jurisdic- 
tions the  rule  that  proof  must  first  be  made  of  the  handwriting  of  the  witness  is 
strictly  adhered  to  and  no  evidence  tending  to  establish  that  of  the  maker  will 
be  received,  unless  the  genuineness  of  the  witness's  signature  can  not  first  be 
satisfactorily  established.26  This  rule,  however,  has  not  received  the  universal 
approval  of  the  courts  and  the  reasons  underlying  it  have  been  questioned,  even 
in  some  jurisdictions  which  have  felt  bound  by  its  inflexibility.27  In  other 
jurisdictions  the  rule  has  been  departed  from  to  allow  proof  of  the  maker's  sig- 
nature, where  -the  witness  has  used  a  mark  in  signing,  upon  the  theory  that 
there  is  nothing  distinctive  about  the  signature,  in  such  a  case,  to  warrant  proof 

20.  Servis  v.  Nelson,  14  N.  J.  Eq.  94  (1861).      &  R.  (Pa.)  215  (1820)  ;  5  Chamb.,  Ev.,  §  3530, 

21.  Harris    v.    Patten,    2    La.    Ann.    217      n.  4. 

(1847);    Smith  v.   Stanley,   114  Va.   117,  75  25.  Boswell  v.   First  Nat.  Bank,   16   Wyo. 

S.  E.  742   (1912).     Proof  of  the  signature  of  161     (1907);    Clark    v.    Sanderson,    3    Binn. 

the  obligor,  in  addition  to  that  of  the  sub-  (Pa.)    192   (1810). 

scribing  witness,  has  in  many  cases  been  re-  26.  Gould  v.  Kely,   16  N.  H.  551    (1845); 

ceived    as    satisfactory    proof    of    execution.  Jackson  v.  Waldron,  13  Wend.    (N.  Y.)    178 

Gelott  v.  Goodspeed,  supra;  Dunbar  v.  Mar-  (1834)  ;  North  Penn  Iron  Co.  v.  International 

den,  supra;  Irwin  v   Patchen,  164  Pa.  51,  30  Lithoid  Co.,  217  Pa.  538,  66  Atl.  860  (1907)  ; 

Atl.  436    (1894)  ;   Adams  v.  Norris,  25  How.  5  Chamb.,  Ev.,  §  3531,  n.  2.     This  ruling  is 

(U.  S.)   353,  16  L.  ed.  539  (1859)  ;  5  Chamb.,  based  upon  the  theory  of  the  witness  being 

Ev.,   §   3530,   n.    1.     In   none   of   these   cases,  a  preappointed  or  preferred  one,  presumed  to 

however,  does  it  appear  that  the  proof  of  the  be  conversant  with  the  facts  surounding  the 

former's  signature  was  required  as  a  prerequi-  execution    of    the    instrument,    and    that    his 

site  to  admission  of  the  writing  in  evidence.  testimony   is   the   highest   and   best   evidence 

22.  See  note  14,  supra.  which  it  is  possible  to  procure.     When  such 

23.  Newsom  v.  Luster,  13  111.  175   (1851)  ;  witness  is  unavailable  then  proof  of  his  sig- 
Boswell  v.  First  Nat.  Bank,  supra;  5  Chamb.,  nature  becomes  the  best  and  resort  must  be 
Ev.,  §  3530,  n.  3.  had    thereto.     Clark    v.    Boyd,    2    Ohio    56 

24.  McPherson  v.  Rathbone,  11  Wend.    (N.  (1825). 

Y.)   96   (1833);  Miller  v.  Carothers,  6  Serg.          27.  Newsom  v.  Luster,  13  111.  175   (1851). 


855 


EXCEPTIONS. 


1102 


of  handwriting.28  Also  some  courts  have  permitted  such  proof  where  the  in- 
strument was  one  to  which  no  attesting  witness  was  required.29  In  still  other 
jurisdictions  the  rule  in  this  respect  is  openly  repudiated  and  where  the  witness 
is  unavailable  proof  is  allowed,  in  the  first  instance,  of  the  handwriting  of  the 
maker.30 

Ancient  Documents. —  An  exception  to  the  rule  requiring  that  attested  writ- 
ings shall  be  proved  by  the  testimony  of  the  subscribing  witness  exists  in  the 
case  of  ancient  documents,  which,  as  stated  elsewhere,31  are  regarded  as  prov- 
ing themselves,  in  so  far  as  their  execution  is  concerned,  since  the  witnesses  are 
presumed  to  be  dead. 


28.  Watts  v.  Kilburn,  7  Ga.  356    ( 1849 )  ; 
Carrier   v.   Hampton,   33   N.   C.   307    (1850); 
Gilliam    v.    Perkinson,    4    Rand.     (Va.)     325 
(1826). 

29.  Sherman    v.    Champlain    Transp.    Co., 
31  Vt.  162   (1858). 

30.  McMinn  v.  Whelan,  27  Cal.  300  (1865)  ; 
Jones  v.  Roberts,  65  Me.  273    (1876);   Trus- 
tees of  Smith  Charities  v.  Connolly,  157  Mass. 
272,  31  N.  E.  1058'  (1892)  ;  Chator  v.  Bruns- 
wick-Balke  Collender  Co.,  71  Tex.  588,  10  S. 
W.  250   (1888)  ;  5  Chamb.,  Ev.,  §  3531,  n.  7. 
In  these  cases  the  conclusion   is  based  upon 
the   view   that   the    signature   of   the    maker 
is  what  gives  the  instrument  its  legal  force, 


that  the  object  towards  which  the  proof  is 
directed  is  the  genuineness  of  such  signature 
and  that,  therefore,  this  being  the  primary 
inquiry,  evidence  tending  to  establish  the 
handwriting  of  the  maker  is  to  be  preferred 
to  that  tending  to  prove  the  signature  of  a 
witness.  In  the  former  case  the  evidence 
tends  directly  to  establish  the  validity  of  the 
instrument  by  proving  the  genuineness  of  the 
signature  of  the  maker,  while,  in  the  latter, 
this  fact  is  established  by  inference  only. 
Dismukes  v.  Musgrove,  7  Mart.  N.  S.  (La.) 
58  (1828). 

31.  See  Chap.  57,  infra. 


CHAPTER  LVII. 

ANCIENT  DOCUMENTS. 

Ancient  documents;  admissible  without  proof  of  execution,  1103. 
writings  within  rule;  copies,  1104. 
private  writings,  1105. 

deeds,  1106. 
public  documents,  1107. 

§  1103.  Ancient  Documents;  Admissible  Without  Proof  of  Execution.1 — The 
rule  that  a  writing  must  he  authenticated  as  genuine,  as  being  in  fact  that  which 
it  purports  to  he,  does  not  apply  in  the  case  of  ancient  documents,2  that  is  those 
which  are  thirty  years  of  age  or  over.  In  this  class  of  cases  a  presumption  in 
favor  of  the  genuineness  of  the  writing  arises  where  it  is  shown  to  have  been  in 
existence  for  the  period  designated,  is  free  from  suspicion  by  reason  of  altera- 
tion or  otherwise  and  comes  from  the  proper  custody.3  The  reasons  under- 
lying this  rule  are  the  difficulty,  if  not  impossibility,  after  such  a  period,  of 
procuring  witnesses  to  documents  which  are  of  that  age  or  of  proving  their 
handwriting  and,  in  the  case  of  deeds,  that  a  possession,  or  an  exercise  of  owner- 
ship thereunder,  is  calculated  to  give  authenticity  to  them.4 

1.  5  Chamberlayne,     Evidence,     §§     3533-  S.)   630   (1912).     Where  a  deed  is  more  than 
3538.  thirty   years   old   and   the  possession   of   the 

2.  Brannan  v.  Henry,  175  Ala.  454,  57  So.  locus  has  been  consistent  with  its  terms  the 
967   (1912)  ;  Stevens  v.  Smoker,  84  Conn.  569,  deed  proves  itself  on  the  theory  that  the  wit- 
80    Atl.    788    (1911);    Stalford   v.    Goldring,  nesses  are  supposed  to  be  dead.     This  prin- 
197  111.  156,  64  N.  E.  395   (1902);  Whitman  ciple  applies   to  an   executrix's  deed  and   it 
v.  Shaw,  166  Mass.  451,  44  N.  E   333   (1896)  ;  will  be  presumed  that  the  executrix  had  au- 
Anderson  v.  Cole,  234  Mo.   1,  136  S.  W.  395  thority  to  sign  the  deed  although  the  records 
(1910);   National  Commercial  Bank  v.  Gray,  to  prove  this  are  lost.     Wilson  v.  Snow,  228 
71    Hun   295,    24   N.   Y.    Supp.    997    (1893);  U.   S.   217,  57   L.   ed.   807,   33   Sup.   Ct.   Rep. 
Mineral  R.  &  M  Co.  v.  Auten,  188  Pa.  568,  41  487,  50  L.  R.  A.    (N.  S.)   604   (1913). 

Atl.    327    (1898)  ;    Dickinson   v.    Smith,    134  In  an  ancient  deed  a  recital  of  heirship  is 

Wis.  6,  114  N.  W.  133  (1907)  ;  5  Chamb.,  Ev.,  sometimes  competent  when  followed  by  long 

§  3533,  n.  1.  possession   and   acquiescence,   which   shows   a 

3.  Coleman   v.    Bruch,    132   App.   Div.   716,  recognition  of  such  heirship.     But  recitals  in 
117   N.   Y.   Supp.   582    (1909).     In   some   in-  a  deed  are  not  ordinarily  admitted  against  a 
stances  a  document  not  even  that  old  has  been  stranger  and  so  a  recital  of  heirship  in  a  mod- 
received.     Allison   v.    Little,   85    Ala.    512,    5  ern  deed  is  not  to  be  admitted  in  a  title  suit 
So.  221    (1888)  ;   5  Chamb.,  Ev.,  §  3534,  n.  2.  between  strangers.     Dyer  v.  Marriott,  89  Kan. 
Where   all   the   parties   are  dead   a  commis-  515,  131  Pac.  1185,  45  L.  R.  A.    (N.  S.)   93 
eioners'  deed  may  be  received  in  evidence  to  (1913). 

prove  the  facts  stated  in  it  where  the  deed  is  4.  Wilson  v.  Betts,  4  Den.  (N.  Y. )  201 
over  forty  years  old.  McGinnis  v.  Caldwell,  (1847)  ;  Duncan  v.  Beard,  2  Nott  &  McC.  (S. 
71  W.  Va.  375,  76  S.  E.  834,  43  L.  R.  A.  (N.  C.)  400  (1820).  Such  documents  are,  in  con- 

856 


S57 


ADMISSIBILITY. 


1103 


Administrative  Requirements;  Absence  of  Suspicion. —  An  instrument  of- 
fered in  evidence  as  an  ancient  document  must  be  free  from  suspicion  5  or,  as 
it  has  been  expressed,  "  on  inspection,  it  must  exhibit  an  honest  face."  6  If  it 
is  apparent  that  the  instrument  is  a  forgery  it  will  be  rejected;  T  the  same  re- 
sult will  also  follow  in  the  case  of  any  material  alteration,8  a  most  frequent 
instance  of  which  is  in  respect  to  the .  date  9  in  order  to  bring  it  within  the 
ancient  document  rule.  The  alteration  alone  is  said  to  be  a  circumstance  tend- 
ing to  show  fraud.10 

Proof  of  Age. —  The  existence  of  the  document  for  the  period  of  time  neces- 
sary to  make  it  an  ancient  document,  within  the  meaning  of  the  rule,  must  be 
established  to  the  satisfaction  of  the  presiding  judge.11  Direct  evidence  is  not 
essential ;  circumstantial  evidence  may  be  equally  satisfactory.12  The  date  of 
the  document  although  by  no  means  controlling,13  is  a  factor  of  much  weight  to 
be  considered  as  bearing  upon  that  question.14  The  date  of  an  endorsement 
upon  the  instrument,  or  of  a  paper  attached  thereto,  may  also  be  considered  in 
this  connection.15 


sequence  thereof,  regarded  as  proving  their 
own  execution,  that  is,  to  the  extent  of  dis- 
pensing with  proof  of  that  fact,  even  though 
an  attesting  witness  may  be  known  to  be 
alive  at  the  time.  Shaw  v.  Pershing,  57  Mo. 
416  (1874)  ;  Jackson  v.  Christman,  4  Wend. 
(N.  Y.)  277  (1830)  ;  5  Chamb.,  Ev.,  §  3535, 
n.  2.  In  this  class  of  cases  the  presumption 
arises  that,  after  thirty  years,  the  attesting 
witnesses  are  no  longer  alive,  McReynolds 
v.  Longenberger,  57  Pa.  St.  13  (1868)  ;  Lunn 
v.  Scarborough,  6  Tex.  Civ.  App.  15,  24  S. 
W.  846  (1894);  such  presumption  being 
adopted  as  a  rule  of  practical  convenience. 
Settle  v.  Allison,  8  Ga.  201,  52  Am.  Dec.  393 
(1850);  Winn  v.  Patterson,  9  Pet.  (U.  S.) 
663,  9  L.  ed.  266  (1835).  The  instrument 
offered  must  be  relevant.  King  v.  Watkins, 
98  Fed.  913  (1899). 

5.  Jordan  v.  McClure  Lumber  Co.,  170  Ala. 
289,  54  So.  415   (1911)  ;  West  v.  Houston  Oil 
Co.,   56   Tex.   Civ.   App.   341,    120   S.   W.   228 
(1909). 

6.  Hill  v.  Xisbet,  58  Ga.   586    (1877).     If 
it  does   not  fulfill  this   requirement,   further 
evidence  explaining  and  eliminating  all  sus- 
picious circumstances  will  be  required.     Wis- 
dom v.  Reeves,  110  Ala.  418,  18  So.  13  (1895)  ; 
Morgan  v.  Tutt,  52  Tex.  Civ.  App.  301,   113 
S.  W.  958    (1908). 

7.  Albright  v.  Jones,  106  Ga.  302,  31  S.  E. 
761     (1898);     Chamberlain    v.    Torrance,    14 
Grant  Ch.    (U.  C.)    181    (1868). 

8.  McConnell  v.  Slappey  134  Ga.  95,  67  S.  E. 


440  (1909)  ;  Herrick  v.  Malin,  22  Wend.  (N. 
Y.)  388  (1839).  See  Ridgeley  v.  Johnson, 
11  Barb.  (N.  Y.)  527  (1851)  ;  5  Chamb.,  Ev., 
§  3536,  n.  5. 

9.  Wisdom  v.  Reeves,  supra. 

10.  Hill  v.  Nisbet,  supra. 

11.  Whitman    v.    Heneberry,    73    111.    109 
(1874)  ;  Clark  v.  Owens,  18  N.  Y.  434  (1858)  ; 
Wright  v.  Hull,  83  Ohio  St.  385,  94  N.  E.  813 
(1911);   West  v.  Houston  Oil  Co.,  supra;  5 
Chamb.,  Ev.,   §  3537,  n.   1.     The  age  at  the 
time  the  writing  is  offered  in  evidence,  com- 
puting from  its  date,  determines  its  admissi- 
bility.     Gardner    v.    Granniss,    57    Ga.    539 
(1876);   Reuter  v.  Stuckart,  181  111.  529,  54 
X.  E.   1014    (1899);   Wright  v.  Hull,  supra; 
Ardoin  v.   Cobb    (Tex.   Civ.   App.   1911),   136 
S.  W.  271.     But  see  Jackson  v.  Blanshan,  3 
Johns.    (N.  Y.)   292,  3  Am.  Dec.  485    (1808). 

12.  Bentley  v.  McCall,   119  Ga.  530,  46  S. 
E.  645    (1903).     Thus  the  old,  worn  and  dis- 
colored appearance  of  the  writing  may  be  a 
circumstance    tending    to    establish    its    age. 
Enders  v.  Sternbergh,   1  Keyss    (N.  Y.)    264, 
33  How.  Pr.  464   (1864). 

13.  Whitman   v.   Heneberry,   supra;  Fairly 
v.  Fairly,  38  Miss.  280    (1859). 

14.  Enders  v.   Sternbergh,  supra;  West  v. 
Houston  Oil  Co.,  supra. 

15.  Brigden  v.  Green,  80  Ga.  737,  7  S.  E. 
97    (1888)  ;   Fairly  v.  Fairly,  supra;  Holt  v. 
Maverick,  5  Tex.  Civ.  App.  650,  23  S.  W.  751 
(1893). 


1104,  1105 


ANCIENT  DOCUMENTS. 


858 


Must  Have  Come  From  Proper  Custody. —  It  must  appear,  to  the  satisfac- 
tion of  the  court,  to  have  come  from  the  proper  custody,  thus  creating  a  reason- 
able presumption  of  its  gennineness.16  It  need  not  necessarily  come  from  the 
best  and  most  proper  place  of  deposit,17  since  there  may  be  several  places  which 
may  be  reasonable  and  proper  and  will  satisfy  the  requirement.18  If  the  pos- 
session was  a  proper  and  lawful  one ;  19  if  shown  to  have  a  legitimate  origin, 
or  the  circumstances  are  such  as  to  render  such  an  origin  probable,  it  is  suf- 
ficient.20 This  principle  is  illustrated  in  numerous  decisions.21 

§  1104.  [Ancient  Documents];  Writings  Within  Rule;  Copies.22 — A  copy  of 
a  private  writing,  which  has  been  lost,  may,  upon  satisfactory  proof  that  it  is  an 
ancient  document,  within  the  meaning  of  that  term,  be  admitted  in  evidence 
the  same  as  the  original  instrument  itself  would  be.23  A  certified24  or  an  ex- 
emplified,25 or  examined  copy  of  an  ancient  instrument,  which  has  been  re- 
corded, has  been  frequently  received,26  without  proof  of  execution,27  even 
though  the  failure  to  produce  the  original  is  not  explained,28  unless  it  appears 
that  the  original  was  not  properly  placed  upon  the  record.29 

§  1105.  [Ancient  Documents] ;  Private  Writings.30 —  The  rule  permitting  of 
the  introduction  of  instruments  in  evidence,  as  ancient  documents,  is  more  par- 


is.  Williamson  v.  Mosley,  110  Ga.  53,  35 
S.  E.  301  (1899);  Whitman  v.  Heneberry, 
supra;  Peterson  v.  Bauer,  83  Neb.  405,  119 
N.  W.  764  (1909)  ;  Martin  v.  Rector,  24  Hun 
(N.  Y.)  27  (1881);  Wright  v.  Hull,  supra; 
McReynolds  v.  Longenberger,  supra;  5 
Chamb.,  Ev.,  §  3538,  n.  1. 

17.  Doe    v.    Pearce,    2    Moo.    &    Rob.    240 
(1839)  ;  Doe  v  Keeling,  11  Q.  B.  884,  12  Jur. 
433,    17   L.   J.    Q.   B.    199,   63   E.   C.   L.   884 
(1848);   5  Chamb,  Ev.,  §  3538,  n.  3. 

18.  Doe  v.   Eslava,   11   Ala.    1028    (1847); 
Flores  v.  Hovel    (Tex.  Civ.  App.   1910),   125 
S.  W.  606. 

19.  Whitman  v.   Shaw,   166  Mass.  451,  44 
N.  E.  333  (1892)  ;  Havens  v.  Sea-Shore  Land 
Co.,  47  N.  J.  Eq.  365,  20  Atl.  497   (1890). 

20.  Whitman  v.  Shaw,  supra;  Nicholson  v. 
Eureka  Lumber  Co.,  156  N.  C.  59,  72  S.  E. 
86  (1911). 

21.  Bell  v.  Brewster,  44  Ohio  St.  690,  10  N. 
E.  679  (1887)  ;  Lewis  v.  Lewis,  4  Watts  &  S. 
(Pa.)    378    (1842)  ;   Burns  v.  U.  S.,  160  Fed. 
631,  87  C.  C.  A.  533   (1908)  ;  5  Chamb,  Ev., 
§  3538,  n.  7. 

22.  5  Chamberlayne,    Evidence,    §§    3539- 
3540. 

23.  Hamilton  v.   Smith,   74   Conn.   374,   50 


Atl.  884  (1902)  ;  Gibson  v.  Poor,  21  N.  H.  440 
(1850)  ;   5  Chamb.,  Ev.,  §  3539,  n.  £ 

24.  New  York,  etc.,  R.  Co.  v.  Benedict,  169 
Mass.  262,  47  N.  E.   1027    (1897);    Com.  v. 
Alburger,   1   Whart.    (Pa.)    469    (1836);   Ru- 
dolph v.  Tinsley    (Tex.  Civ.  App.   1912),  143 
S.  W.  209;  5  Chamb.,  Ev.,  §  3540,  n.  1. 

25.  Duffield  v.  Brindley,  1  Rawle   (Pa.)   91 
(1828). 

26  Little  v.  Downing,  37  N.  H.  355  (1858). 

27.  Woods  v.  Bonner,  89  Tenn.  41],  18  S.  W. 
67    (1890).     Compare   Chatman    v.    Hodnett, 
127  Ga.  360,  56  S.  E.  439   (1906). 

28.  Rowletts  v.  Daniel,  4  Munf.    (Va.)   473 
(1815).     Compare  Crispen   v.   Hannavan,   72 
Mo.  548    (1880). 

29.  Settegast  v.   Charpiot    (Tex.   Civ.   App. 
1894),  28  S.  W.  580      See  Hoddy  v.  Harry- 
man,  3  Har.  &  M.   (Md.)   581    (1797).     There 
would  of  course  be  a  much   stronger   reason 
for  the  use  of  a  cop}7  as  proof,  if  it  is  shown 
that  the  proponent  is  unable  to  produce  the 
original,    as   where    it    is    lost   or   destroyed. 
Berry    v.     Raddin,     11     Allen     (Mass.)     577 
(1866).     See   Dodge   v.   Gallatin.    130   X    Y. 
117,  29  N.  E.  107    (1891);  5  Chamb.,  Ev.,  § 
3540,  n    7. 

30.  5  Chamberlayne,    Evidence.    §§    3541- 
3544. 


859  PEIVATE.  §  1105 

ticularly  applicable  to  those  of  a  private  nature,  as  to  which  it  is  general  in  its 
scope.31 

Necessity  of  Corroborative  Proof;  Evidence  of  Possession. —  It  is  not  the  ap- 
parent lapse  of  time  alone  which  renders  such  instruments  admissible.32  There 
should  be  further  proof  introduced,  tending  to  establish  the  fact  that  it  has 
actually  been  in  existence  for  that  period  of  time  or  sufficient  to  raise  a  pre- 
sumption to  that  effect ;  33  that  the  instrument  was  actually  executed  at  the 
time  it  purports  to  be.34  This  requirement  is  ordinarily  satisfied  in  the  case 
of  a  deed,  will,  or  other  writing  conveying  an  interest  in  real  property  by 
proof  that  the  writing  has  been  accompanied  by  possession  of  the  property,35 
title  to  which  is  evidenced  by  the  instrument  in  question.  The  general  rule 
seems  to  be  that  it  will  be  sufficient,  if  proof  of  possession  for  a  part  of  the  time 
is  supplemented  by  other  evidence,  all  of  which,  taken  together,  satisfactorily 
shows  the  authenticity  of  the  writing.30 

Evidence  Oilier  Than  of  Possession. —  Although  there  is  some  authority  for 
the  doctrine  that  evidence  of  possession  accompanying  the  document  is  abso- 
lutely essential,37  yet,  in  the  absence  thereof,  proof  by  means  of  other  evidence 
is,  however,  frequently  employed,38  and  will  be  sufficient,  where  it  is  of  such  a 
character  as  to  lead  to  a  belief  in  the  genuineness  of  the  instrument.39  Thus 
evidence  of  an  entry  for  the  purpose  of  a  resurvey,40  of  the  payment  of  taxes  41 
and  of  other  acts  indicative  of  ownership,42  and  showing  actual  enjoyment 
though  not  direct  proof  of  possession  43  and  the  like,  has  been  regarded  as  suf- 

31.  Goodwin  v.  Jack,  62  Me.  414    (1872);       Y.  478    (1871);   Wilson  v.  Simpson,  80  Tex. 
King  v.  Little,  1  Cush.   (Mass.)   436   (1848);       279,   16  S.   W.  40    (1891);   5  Chamb.,  Ev.,  § 
Layton  v.  Kraft,  111  App.  Div    842,  98  X.  Y.       3542,  n.   7. 

Supp.  72    (1906)  ;   Bell  v.  Brewster,  44  Ohio  37.  Clark  v.  Wood.  34  X.  H.  447    (1857)  ; 

St.  690,  10  X.  E.  679   ( 1887)  :  McReynolds  v.  Northrop    v.    Wright,    7    Hill     (X.    Y.)     476 

Longenberger,    supra;    Magee   v.    Paul    (Tex.  (1844)  ;  5  Chamb.,  Ev.,  §  3542,  n.  1. 

Civ.  .App.   1913),  159  S.  W.  325:   5  Chamb.,  38.  White  v.  Farris,  124  Ala.  461,  27  So. 

Ev.:  §  3541,  n.  1.  251)    (1899)  ;  Pridger  v.  Green,  80  Ga.  737,  7 

32.  Havens  v.   Sea   Shore  Land  Co.,  47  X1.  S.  E.  97    (1888);   Cunningham  v.  Davis,  175 
J.  Eq  365,   20  Atl.  497    (1890)  ;   Ridgeley  v.  Mass.  213,  56  N.  E.  2  (1899)  ;  Martin  v.  Rec- 
Johnson,  11  Barb.  (X.  Y.)  527  (1851  ).  tor,  24  Hun  (X.  Y.)   27   (1881)  ;  Xicholson  v. 

33.  Fairly  v.  Fairly,  38  Miss.  2SO   (1859)  ;  Eureka  Lumber  Co.,   156  X.  C.  59,  72  S.  E. 
Fogal  v.  Pirro,  10  Bosw.  (X.  Y.)   100  (1862);  86    (1911);    Walker   v.   Walker,   67   Pa.    185 
Clark  v.  Owens,  18  X.  Y.  434   (1858).  (1870)  :  5  Chamb.,  Ev.,  §  3543.  n.  2. 

34.  Brown   v.   Wood,   6   Rich.   Eq.    (S.   C.)  39.  Havens  v.  Sea-Shore  Land  Co.,  supra; 
155,  171    (1853).  Harlan  v.  Howard,  79  Ky.  373  (1881)  ;  Fairly 

35.  Reuter  v.  Stuckart,  181  111.  529  (1899)  :  v.  Fairly,  supra. 

Buttrick,  Petitioner.  185  Mass.  107,  69  X.  E.  40.  Duncan  v.  Beard,  2  Xott  &  McC.  (S.  C.) 

1044     (1904);    Rollins    v.    Atlantic    City    R.  400  (1820K 

Co.,    73    X.    J    L.    64,    62    Atl.   929    (1905);  41.  Sloss-Sheffield  Steel  &  I.  Co.  v.  Lollar, 

Enders  v.  Sternbergh,  supra:  Wilson  v.  Snow,  170  Ala.  239,  54  So.  272    (1910)  ;   Reuter  v. 

228  U.  S    217,  33  S.  Ct.  217,  57  L.  ed.   807  Stuckart,  supra ;  5  Chamb.,  Ev.,  §  3543,  n.  5. 

(1912)  ;   5  Chamb.,  Ev.,  §  3542,  n.  4.  42.  Malcomson  v.  O'Dea.  10  H.  L.  Cas   593, 

36.  Reuter    v.    Stuckart,    supra;    Xixon    v.  9    .Tur.    X.    S.    1135,    11    Eng.    Reprint    1155 
Porter,  34  Miss.  697  (1858)  ;  Homer  v.  Cilley,  (1863). 

14  N.  H.  85  (1843)  ;  Cahill  v.  Palmer,  45  N.          43.  Boston   v.    Richardson,    105   Mass.   851 

(1870). 


§   1106  ANCIENT  DOCUMENTS.  SCO 

ficient  to  authorize  the  admission  of  the  document  in  evidence,  where,  in  other 
respects,  it  satisfies  the  requirements  relating  to  ancient  documents.44  As 
against  an  adverse  claimant,  however,  who  has  been  and  is  in  possession  of  land, 
an  instrument  offered  as  an  ancient  deed  has  been  rejected.45 

Effect  of  Irregularities  in  Execution  or  Recording. —  An  irregularity  in  the 
execution  of  a  writing  will  not,  necessarily,  be  a  sufficient  ground  for  its  rejec- 
tion,46 unless  it  should  appear  that  it  was  of  such  a  character  as  to  defeat  the 
legal  effect  and  operation  of  the  instrument,47  in  which  case,  it  will  of  course  be 
rejected,  since  the  rule  does  not  operate  to  give  validity  to  a  writing  invalid  on 
its  face.48  A  similar  conclusion  has  been  reached  where  the  writing  is  not 
properly  entered  of  record,49  or  is  not  recorded  as  required.50 

§  1106.  [Ancient  Writings];  Private  Writings;  Deeds.51 — One  of  the  most 
frequent  instances  in  which  the  rule  is  applied  is  in  the  case  of  deeds  52  and 
other  instruments  affecting  title  to  or  interest  in  real  property.53  Where  a 
deed  is  shown  to  satisfy  the  requirements  of  the  rule  as  to  ancient  documents,  a 
recital  therein  may  be  received  in  evidence  as  proof  of  the  fact  stated,54  even 
in  a  proceeding  between  strangers ;  55  in  the  absence  of  some  statute  which 
may  be  controlling.56 

Executed  Under  a  Power.- —  Where  a  deed,  which  has  apparently  been  exe- 
cuted by  one  under  a  power,  appears  to  have  been  executed  thirty  or  more  years 
prior  to  the  time  it  is  offered  in  evidence,  it  will  be  received  as  an  ancient 
document,  without  proof  of  the  authority  under  which  it  was  executed ;  in  such 
a  case  the  existence  of  the  power  will  be  presumed.57  Where,  however,  it  ap- 

44.  Stalford  v    Goldring,   197   111.    156,  64  Petitioner,  supra;  Anderson  v.  Cole,  234  Mo. 
N.  E.  395   (1902).  1,  136  S    W.  395   (1910)  ;  Coleman  v.  Burch, 

45.  Davidson  v.  Morrison,  86  Ky.  397,  9  Ky.  132    App.    Div.    716,    117    N.    Y.    Supp.    582 
L.  Rep.  629,  5  S.  W.  871,  9  Am.  St.  Rep.  295  (1909)  ;   Wilson  v.  Snow,  supra;  5   Chamb., 
(1887).  Ev.,  §  3545,  n.  1. 

46.  McConnell    Bros.    v.    Slappey,    134   Ga.          53.  Jordan  v.  McClure  Lumber  Co.,  170  Ala. 
95,  67  S.  E.  440  (1909)  ;  Bradley  v.  Lightcap,  289,  54  So.  415    (1911)  ;   Boston  v.  Richard- 
201  111.  511,  66  N.  E.  546  (1903)  ;  Hudson  v.  son,  105  Mass.  351  (1870)  ;  Dodge  v.  Gallatin, 
Webber,  104  Me.  429,  72  Atl.  184   (1908)  ;  5  130  N.  Y.  117,  29  N.  E.  107  (1891)  ;  5  Chamb., 
Chamb.,  Ev.,  §  3544,  n.  1.  Ev.,  3545,  n.  2. 

47.  O'Neil  v.  Tennessee  Coal,  I.  &  R.  Co.,  54.  Hathaway    v.    Evans,     113    Mass.    264 
140  Ala.  378,  37  So.  275   (1903).  (1873);    Russell    v.   Jackson,   22   Wend.    (N. 

48.  Id.;  Meegan  v.  Boyle,  19  How.   (U.  S.)  Y.)    277    (1839);   Jackson  v.  Gunton,  26  Pa. 
130,   15  L.  ed.  577    (1856).  Super.  Ct.  203  (1904)  ;  5  Chamb.,  Ev.,  §  3545, 

49.  Jordan  v.  Cameron,  12  Ga.  267  (1852)  ;  n.  3. 

Jackson  v.  Laroway,  3  Johns.  Cas.    (N.  Y.)  55.  Deery  v.  Cray,  5  Wall.   (U.  S.)   795,  18 

283    (1803).  L.  ed.  653  (1866). 

50.  Broussard  v.   Guidry,   127   La.   708,   53  56.  Gwin    v.    Calegaris,    139    Cal.    384,    73 
So.    946    (1911);    Mackey   v.   Armstrong,    84  Pac.  851   (1903).     Deeds,  however,  from  those 
Tex.  159,  19  S.  W.  436  (1892)  ;  5  Chamb.,  Ev.,  who  are  found  to  have  neither  title  nor  pos- 
§  3544,  n.  5.  session  are  not  entitled  to  serious  considera- 

51.  5  Chamberlayne,     Evidence,     §§     3545,  tion    in    support    of    a    claim    of    ownership. 
3546.  McMahon  v.  Stratford,  83  Conn.  386,  76  Atl. 

52.  Sloes-Sheffield  Steel  &  L  Co.  v.  Lollar,  983   (1910). 

supra;  Stalford  v.  Goldring,  supra;  Buttrick          57.  Reuter  v.  Stuckart,  181  111.  529  (1899); 


861 


PUBLIC. 


1107 


pears  that  the  power  was  exercised  in  pursuance  of  a  decree  of  court,58  or  that 
the  writing  conferring  the  power  was  one  which  was  entered  of  record,59  the 
rule  then  seems  to  be  that  some  evidence  showing  the  existence  of  the  power 
will  be  required.  But  where  it  appears  that  the  record  has  been  lost  or  de- 
stroyed and  proof  thereof  cannot  be  made,  the  existence  of  the  power  may  then 
be  presumed.60  And  in  case  of  mere  formalities,  preliminary  to  a  sale  by  one 
acting  under  authority  of  law,  it  is  presumed  that  the  things  necessary  to  be 
done  were  in  fact  done.61 

§  1107.  [Ancient  Documents] ;  Public  Documents.62 —  The  rule  permitting  the 
introduction  of  ancient  documents  has,  in  some  cases,  been  applied  to  public 
documents  and  writings.63  The  general  principle,  however,  controlling  the 
admission  of  such  instruments,  regardless  of  their  date,  is  as  stated  elsewhere, 
that  they  are  made  by  accredited  public  officials,  in  the  performance  of  their 
public  duties,  and  that  they  are  produced  from  the  proper  official  custody. 


Goodhue  v.  Cameron,  142  App.  Div.  470,  127 
N.  Y.  Supp.  120  (1911);  Wilson  v.  Snow, 
228  U.  S.  217,  33  S.  Ct.  217,  52  L.  ed.  807 
(1913)  ;  5  Chamb.,  Ev.,  §  3546,  n.  1. 

58.  Fell    v.    Young,    63    111.    106     (1872); 
Green  v.  Blake,  10  Me.  16  (1833). 

59.  Tolman   v.   Emerson,   4   Pick.    (Mass.) 
156   (1827). 

60.  Giddings  v.  Day,  84  Tex.  605,  19  S.  W. 
682    (1892). 

61.  Winkley    v.    Kaime,    32    N.    H.    268 


(1855)  ;  Pendleton  v.  Shaw,  18  Tex.  Civ.  App. 
439,  44  S.  W.  1002  (1898)  ;  5  Chamb.,  Ev.,  § 
3546,  n.  5. 

62.  5  Chamberlayne,  Evidence,  §  3547. 

63.  Enfield  v.   Ellington,  67   Conn.  459,  34 
Atl.  818  (1896)  ;  Pells  v.  Webquish,  129  Mass. 
469  (1880)  ;  Sanger  v.  Merritt,  120  X.  Y.  109, 
24  N.  E.   386    (1890);    Bell  v.  Brewster,  44 
Ohio  St.  690,  10  N.  E.  679  (1887) ;  5  Chamb., 
Ev.,  §  3547,  n.  1. 


CHAPTER  LVIII. 

PAROL  EVIDENCE  RULE. 

Parol  evidence  rule;  general  statement  of,  1108 
private  documents,  1109. 

exceptions;  collaterial  agreements;  instrument  incomplete,  1110. 
delivery  incomplete  or  conditional,  1111. 
duress  fraud  or  fraudulent  representations,  1112. 
illegality,  1113. 
incapacity,  1114. 

interpretation  and  explanation;   evidence  admissible  for  pur- 
poses of,  1115. 

modification  or  rescission  subsequent  to  execution,  1110. 
mistake,  1117. 

parties;  identification  of,  1118. 
unauthorized  signing,  1119. 
public  records,  1120. 

§  1108.  Parol  Evidence  Rule;  General  Statement  of.1 — Parol  evidence  is  in- 
admissible to  vary,  alter,  control  or  contradict  the  terms  of  a  written  instru- 
ment, in  an  action  founded  upon  such  writing,  between  the  parties  or  privies 
thereto.2  This  is  what  is  known  as  the  parol  evidence  rule,  long  recognized 
and  applied  at  common  law,  and  or\e  which  has  proved  to  be  full  of  many  dif- 
ficulties in  its  application  by  the  courts.  Whether  it  is  a  rule  of  evidence  or 
one  of  the  substantive  law  has  been  the  subject  of  some  discussion.  Whatever 
may  have  been  the  intention  of  the  parties,  the  substantive  law  forbids,  subject 

1.  5  Chamberlayne,      Evidence,      §§      3548,  (1903);    Sigafus   v.   Porter,  84   Fed.   430.  28 
3549.  C*.  C.  A.  443   (1898)  -.  Van  Winkle  v.  Crowell, 

2.  Bryan  v.  Idaho  Quartz  Mini  Co.,  73  Cal.  146  U.    S.  42,   36  L.   ed.   880,    13   S.   Ct,    18 
249,  14  Pa.  859   (1887);  Forsyth  Mfg.  Co.  v.  (1892)  :    Buty   v.   Murray.  24   Can.   S.   C.  77 
Castlen,   112  Ga.   199,  37   S.  E.  485    (1900);  (1894);   5  Chamb.,  Ev.j  §  3548,  n.   1.     Parol 
Chambers  v.   Prewitt,   172  111.  615,  50  X.  E.  qualifications  of  written  contracts.     See  note, 
145  (1898)  ;  Wentworth  v.  Manhattan  Market  Bender,  ed.,  153  X-JfJvZfi. 

Co.,  216  Mass.  374.  103  X.  E.  1105    (1914)  :  Notice  is  incidental  matter  not  covered  by 

Hapke   v.   Davidson,    180   Mich.    138,    146    X.  the  rule. —  Parol  evidence  of  the  mailing  and 

W.   624    (1914)  ;    Outcult   Advertising  Co.   v.  contents  of  a  notice  sent  is  not  excluded  by 

Barnes,    176   Mo.    App.    307.    162    S.    W     631  the  parol  evidence  rule  where  the  notice  is  a 

(1914)  ;    Finck    v.    Bauer,   40   Misc.    218,    81  mere   collateral   matter   and   not   the  subject 

N.  Y.   Supp.   625    (1903)  ;   Tuttle  v.  Burgett,  matter  of  the  litigation.     Holloman  v.  South- 

53  Ohio  St.  498,  42  X.  E.  427    (1895)  :  Cam-  ern  R   Co.  172  X.  C.  372,  90  S.  E.  292,  L.  R.  A. 

ble  v.  Pviley,  39  Okl   363,  135  Pac.  390  (1913)  ;  1917  C  416    (1916). 
Fuller    v.    Law,    207    Pa.    101,    56    Atl.    333 

862 


863 


RULE  STATED. 


1108 


to  certain  exceptions  hereinafter  considered,  that  resort  may  be  had  to  any 
extrinsic  evidence,  in  order  to  ascertain  it.  The  instrument  is  regarded  as 
expressive  of  the  actual  agreement  or, intention  of  the  parties  and  as  controll- 
ing, when  the  question  of  their  intention  is  raised.3  This  general  rule  of  ex- 
clusion has  been  applied  by  the  courts  to  assignments,4  bills  of  sale,5  bonds,6 
compromises,7  contracts,8  contracts  of  sale,9  deeds,10  leases,11  letters  constituting 


3.  Barney  v.  Indiana  R.  Co.,  157  Ind.  228, 
61  X.  E.  194   (1901);  Congower  v.  Equitable 
Mut.    L.   &   Endow.   Ass'n,   94   Iowa   499,    72 
X.  W.  416  (1895)  ;  Citizens  Bank  v.  Brigham, 
61  Kan.  727,  60  Pac.  754  (1900)  :  McCabe  v. 
Swap,  14  Allen   (Mass.)    188   (1867);  Ameri- 
can Surety  Co.  v.  Thurber,  121  N.  Y.  655,  23 
X.  E.  1129   (1890)  ;  5  Chamb.,  Ev.,  §  3548,  n. 
2. 

4.  Hard  wick    v.    McClurg,    16    Colo.    App. 
354,  65  Pac.  405  ( 1901 )  ;  Enright  v.  Franklin 
Pub.   Co.,  24  Misc.   180,  52  X.   Y.   Supp.   704 
(1898)  ;    Turner  v.   Utah   Title  Ins.  &  Trust 
Co.,  10  Utah  61,  37  Pac.  91  (1894)  ;  5  Chamb., 
Ev.,  §  3548,  n.  1. 

5.  Geiser  Mfg.  Co.  v.  Davis,  110  Ark.  449, 
162  S.  W.  59    (1914);    Wheaton  Roller  Mill 
Co.  v.  Xoye  Mfg.  Co.,  66  Minn.  156,  68  X.  W. 
854    (1896);   Watson  v.   Roode,  30  Xeb.  264, 
46  X.  W.  491   (1890)  ;  Kinney  v.  McBride,  88 
App.   Div.   92,   84   X.   Y.   Supp.   958    (1903); 
McQuaid  v.  Ross,  77  Wis.  470.  46  X.  W.  892 
(1890)  :   5  Chamb.,  Ev..  §  3548,  n.  1. 

6.  Vann   v.    Lunsford,    91    Ala.    576,    8    So. 
719   (1890)  ;   Whitney  v.  Slayton,  40  Me.  224 
(1855);    Worthington  v.   Bullitt,   6   Md.   172 
(1854)  ;  Speirs  Fish  Co.  v.  Robbins,  182  Mass. 
128,  65  X.  E.  25    (1902)  ;   Montana  Min.  Co. 
v.  St.  Louis  Min.  &  Mill.  Co.,  20  Mont.  394,  51 
Pac.    824    (1898);    American    Surety    Co.    v. 
Thurber,  supra:  Frey  v.  Heydt,  116  Pa.  601, 
11  Atl.  535   (1887)  ;  5  Chamb.,  Ev.,  §  3548,  n. 
1. 

7.  Calhoun  v.  Lane,  39  La.  Ann.  594,  2  So. 
219    (1887):   McTague  v.  Finnegan,  54  X.  J. 
Eq.  454,  35  Atl.  542   (1896)  ;  Parker  v.  Mor- 
rill,  98  X.  C.  232,  3  S.  E.  511   (1887)  :  Bonsack 
Mach.  Co.  v.  Woodrum,  88  Va.  512,  13  S.  E. 
994   (1891)  :  5  Chamb.,  Ev.,  §  3548,  n.  1. 

8.  Diamond  v.  Tay,  23  Cal.  App.  506.   138 
Pac.  933    (1914)  ;  Hildreth  v.  Hartford  M.  & 
R.   Tramway  Co.,  73  Conn.  631.  48  Atl.  963 
(1901);    Bank  of  Lavonia  v.   Bush,   140  Ga. 
594,  79  S.  E.  459    (1913):   Zickert  v.  Times 
Square    Automobile    Co.,    181    111.    App.    676 

(1914)  :  Corbin  v.  Milward,  158  Ky.  308.  164 
S.  W.  974  (1914)  ;  Williams  v.  Xew  York  Life 


Ins.  Co.,  122  Md.  141,  89  Atl.  97  (1914); 
Ennis  v.  Wright,  217  Mass.  40,  104  X.  E. 
430  (1914):  Axe  v.  Tolbert,  179  Mich.  556, 
146  X.  W.  418  (1914)  ;  Allen  v.  Oneida.  210 
X.  Y.  496,  104  X.  E.  920  (1914)  ;  Miller  Bros. 
v.  McCall  Co.,  37  Okl.  634,  133  Pac.  183 
(1913);  Pollock  v.  Cohen,  32  Ohio  St.  514 
(1877)  ;  5  Chamb.,  Ev.,  §  3548,  n.  1, 

9.  Xeal   v.    Flint,   88   Me.    72,   33   Atl.   669 
(1895)  :  Dean  v.  Washburn  &  Morn  Mfg.  Co., 
177  Mass.  137,  58  X.  E.   162    (1900);  Well- 
man  v.  O'Connor-Martin  Co.,  178  Mich.  682, 
146  X.  W.  289    (1914);   Coats  v.  Bacon,  77 
Miss.  320,  27  So.  621   (1899) ;  Lillis  v.  Mertz, 
89  App.  Div.  289,  85  X.  Y.  Supp.  800  (1903)  ; 
Monnett  v.  Monnett,  46  Ohio  30,  17  X.  E.  659 
(1888)  ;  Coman  v.  Wunderlich,  122  Wis.  138, 
99  X.   W.  612    (1904);    Stickney  v.  Hughes, 
12  Wyo.  397,  75  Pac.  945   ( 1903 )  ;  5  Chamb., 
Ev..  §  3548,  n.  1. 

10.  Poage  v.  Rollins  &  Sons,  24  Colo.  App. 
537,  135  Pac.  990  (1913)  ;  Gam  v.  Cordrey,  4 
Pennew.     (Del.)     143,    53    Atl.    334     (1902); 
Drew  v.  Wiswall,  183  Mass.  554,  67  X.  E.  666 
(1903)  :  Pascal  v.  Slavin,  144  X.  Y.  Supp.  354 
(1913)  :  Patterson  v.  Lamson,  45  Ohio  St.  77, 
12   X.   E.   531    (1887);    Miller  v.   Miller,   17 
Or.  423,  21  Pac.  938   (1889)  ;  Clark  v.  Greg- 
ory. 87  Tex.  189.  27  S.  W.  56   (1894)  ;  In  re 
Perkins    Estate,    65    Vt.    313,    26    Atl.    637 
( 1 893 )  :   Martmyer  v.  Everly,  73  W.  Va.  88, 
79  S.  E.  1093  (1913)  ;  5  Chamb.,  Ev.,  §  3548, 
n.   1. 

11.  Tietjen  v.  Snead,  3  Ariz.  195,  24  Pac. 
324    (1890):  University  Club  v.  Deakin,  182 
111.  App.  484  (1914)  :  Walker  Ice  Co.  v.  Amer- 
ican Steel  &  Wire  Co.,  185  Mass.  463,  70  X. 
E.  937   (1904)  ;  Rollins  Engine  Co.  v.  Eastern 
Forge  Co.,  73  X.  H.  92.  59  Atl.  382    (1904)  ; 
Equitable  Life  Assur.  Soc.  of  U.  S.  v.  Schum, 
40   Misc.   657,   83   X.   Y.   Supp.    161    (1903); 
Howard  v.  Thomas,  12  Ohio  St.  201    (1861)  ; 
Williams  v.  Ladew.   171  Pa.  369.  33  Atl.  329 
(1895)  :  Richmond  Ice  Co.  v.  Crystal  Ice  Co., 
103  Va.  465,  49  S.  E.  650  (1905)  ;  5  Chamb., 
Ev.,  §  3548,  n.  1. 


§  1109 


PABOL  EVIDENCE  RULE. 


864 


a  contract,12  mortgages,13  partnership  agreements,14  releases,15  subscriptions 
for  corporate  stock,™  suretyship,  etc.17  It  has  been  construed  by  the  United 
States  Supreme  Court  as  being  in  force  in  Porto  Kico  and  has  been  held  to 
apply  to  a  mortgage  executed  there  in  1885. 18 

§  1109.  Private  Documents.19 —  It  is  upon  the  theory  of  a  merger  in  the 
writing  of  all  previous  negotiations  and  that  the  parties  have  embodied  therein 
their  final  and  complete  agreement,  that  the  rule  is  founded.20  The  writing, 
subject  to  certain  exceptions  hereinafter  considered,  becomes  conclusive  upon 
them.  To  permit  the  reception  of  parol  evidence  would,  in  the  intendment  of 
law,  defeat  the  very  object  to  be  accomplished  by  reducing  the  agreement  to  a 
written  form.21 

Not  Conclusive  Against  Strangers. —  If  an  agreement  contains  something 
not  intended,  or  omits  some  terms  which  should  have  been  inserted,  the  parties 
thereto  and  their  privies  are,  nevertheless,  bound  thereby.  The  rule,  however, 
does  not  extend  further  in  its  operation  so  as  to  include  strangers  to  the  agree- 


12.  Davis  v.  Fidelity  Fire  Co.,  208  111.  375, 
70  N.  E.  359   (1904)  ;  Cook  v.  Shearman,  103 
Mass.  21    (1869);   Northwestern  Fuel  Co.  v. 
Bruns,  1  N.  D.  137,  45  N.  W.  699   (1890)  ;  5 
Chamb.,  Ev.,  §  3548,  n.  1. 

13.  Patterson     v.     Taylor,     15     Fla.     336 
(1875);     Southwick    v.    Hapgood,    10    Cush. 
(Mass.)     119     (1852);    Gage   v.    Phillips,   21 
Nev.   150,  26  Pac.   60,  37  Am.   St.  Rep.  494 

(1891)  ;  Bowery  Bank  v.  Hart,  77  App.  Div. 
121,  79  X.  Y.  Supp.  46  (1902)  ;  In  re  Schihl, 
179  Pa.  308,  36  Atl.  181  (1897);  Goon  Gan 
v.  Richardson,  16  Wash.  373,  47  Pac.  762 
(1897)  :  5  Chamb.,  Ev.,  §  3548,  n.  1. 

14.  Michigan  Sav.  Bank  v.  Butler,  98  Mich. 
381,    57    N.    W.    253     (1893);     Spingarn    v. 
Rosenfeld,  4  Misc.   523,  24  N.   Y.   Supp.   733 
(1893);    Gearing  v.   Carroll,   151   Pa.   79,  24 
Atl.  1045  (1892)  ;  5  Chamb.,  Ev.,  §  3548,  n.  1. 

15.  Clark  v.  Mallory,  185  111.  227,  56  N.  E. 
1099   (1900)  ;   Radigan  v.  Johnson,  174  Mass. 
68,  54  N.  E.  358   (1899)  ;  Moore  v.  Missouri, 
etc.,  R.  Co.,  30  Tex.  Civ.  App.  266,  69  S.  W. 
997    (1902)  ;  5  Chamb.,  Ev.,  §  3548,  n.  1. 

16.  Atchison,   etc.,   R.   Co.   v.   Truskett,   67 
Kan.   26,   72   Pac.   562    (1903);    Hanrahan  v. 
National  Bldg.,  etc.,  Ass'n,  66  N.  J.  L.  80,  48 
Atl.   517    (1901);    Davis   v.   Shafer,   50   Fed. 
764  (1892)  ;  5  Chamb.,  Ev.,  §  3548,  n.  1. 

17.  Indiana  Bicycle  Co    v.  Tuttle,  74  Conn. 
489,  51   Atl.  538    (1902)  ;   McKee  v.  Needles, 
123  Iowa  195,  98  N.  W.  618   (1904)  ;  Burns  v. 
Limerick,  178  Mo.  App.   145,  165  S    W.   1166 
(1914)  ;  Sherman  v.  Pedrick,  35  App.  Div.  15, 
54  N.  Y.  Supp.  467  (1898)  ;  Deming  v.  Board 


of  Trustees,  etc.,  31  Ohio  St.  41  (1876)  ;  Di 
lorio  v.  Di  Brasio,  21  R.  I.  208,  42  Atl.  1144 
(1899);  Traders  Nat.  Bank  v.  Washington 
Water  Power  Co.,  22  Wash.  467,  61  Pac.  152 
(1900)  ;  5  Chamb.,  Ev.,  §  3548,  n.  1. 

18.  Veve  v.  Sachez,  226   U.   S.  234,  33   S. 
Ct.  36,  59  L.  ed.  673   (1912). 

19.  5  Chamberlayne,     Evidence,     §§     3549- 
3552. 

20.  Channel  Commercial  Co.   v.   Hourihan, 
20  Cal.  App.  647,  129  Pac.  947   (1913)  ;  Tellu- 
ride   Power   Transmission   Co.    v.   Crane   Co., 
208  111.  218,  70  N.  E.  319    (1904)  ;   Tjams  v. 
Provident  Sav.  L.  Assur.  Soc.,   185  Mo.  466, 
84  S.  W.  51    (1904)  ;  Bradley  &  Co.  v.  Basta, 
71    Neb.    169,    98    N.    WT.    697     (1904);    Van 
Syckel  v.  Dalrymple,  32  N.  J.  Eq.  233  ( 1880)  ; 
King  v.  Hudson  River  Realty  Co.,  210  N.  Y. 
467,   104  N.   E.   926    (1914):    Ripy  &  Son  v. 
Art  Wall  Paper  Mills,  41   Okl.  20,   136  Pac. 
(1080);    Cressy    v.    International    Harvester 
Co.,  206   Fed.  29,   124  C.  C.  A.   163    (1913); 
5  Chamb.,  Ev.,  §  3549,  n.  1. 

21.  Bass   Dry    Goods    Co.    v.    Granite    City 
Mfg.  Co.,  113  Ga.  1142,  39  S.  E.  471    (1901)  ; 
Henry  School  Tp.  v.  Meredith,  32   Ind.  App. 
607,  70  N.  E.  393    (1903)  :   Morton  v.  Clark, 
181  Mass.  134,  63  N.  E.  409  (1902)  ;  Rough  v. 
Breitung,  117  Mich.  48,  75  N.  W.  147  (1898)  ; 
Uihlein  v.  Matthews,  172  N.  Y.  154,  64  N.  E. 
792    (1902);   Tuttle  v.  Burgett,   53  Ohio  St. 
498,  42  N.  E.  427    (1S95)  :   Harris  v.  Sharp- 
less,   15  Pa.  Super.  Ct.  643    (1901)  ;   Vogt  v. 
Shienbeck,    122    Wis.    491,    100    N.    W.    820 
(1904)  ;   5  Chamb.,  Ev.,  §  3549,  n.  2. 


865 


PRIVATE  DOCUMENTS. 


110'J 


ment.22  In  their  case  the  parol  evidence  rule  does  not  apply,  but  they  will  be 
permitted  to  go  outside  of  the  writing  and  show  the  exact  transaction. 

Consideration;  \\lien  Evidence  Admissible  to  Show. —  Parties  are  not  ordi- 
narily concluded  by  the  consideration  stated  in  a  written  instrument  but  will 
be  permitted  to  show  what  in  fact  was  the  true  consideration.23  It  frequently 
occurs,  more  often  in  assignments,  contracts  of  sale  and  deeds,  that  the  actual 
consideration  is  not  given,  but  the  instrument  recites  merely  the  payment  of 
some  nominal  sum.  In  such  case  a  recital  of  payment  is  regarded  as  merely 
in  the  nature  of  a  receipt  which,  like  other  receipts,  is  not  subject  to  the  opera- 
tion of  the  parol  evidence  rule.  In  all  such  cases  the  actual  consideration 
may  be  shown.  Where,  however,  the  statement  of  the  consideration  does  not 
consist  of  a  mere  recital  of  something  paid  or  to  be  paid,  but  sets  forth  mutual 
obligations  in  detail,  which  in  fact  constitute  the  terms  of  a  contract,  the  ex- 
clusion of  extrinsic  evidence  tending  to  vary  or  contradict  it  is  justified.24 

Receipts. —  A  receipt,  in  so  far  as  it  does  not  amount  to  a  contract  and  is 
not  an  embodiment  of  any  agreement  between  the  parties,  but  is  simply  an 
acknowledgment  of  payment,  is  regarded  as  merely  a  prima  facie  admission 
and  as  not  within  the  meaning  of  the  parol  evidence  rule.25  Xor  is  the  situa- 


22.  Knudson  v.  Wacker  &  Birk  Brewing  & 
Malting  Co.,   182  111.  App.  296    (1914):   Wil- 
liams v.  National  Cash  Register  Co.,  157  Ky. 
836,   164  S.  W.  112   (1914);   Walker  Ice  Co. 
v.  American  Steel  &  Wire  Co.,  supra;  Pfeifer 
v.  National  Live  Stove  Ins.  Co.,  62  Minn.  536, 
64  N.  W.  1018    (1895)  ;   Barro  v.  Saitta,  145 
N.  Y.  Supp.  849  (1914)  ;  Folinsbee  v.  Sawyer, 
157  N.  Y.  196,  51  N.  E.  994  (1898)  ;  Clapp  v. 
Banking  Co.,  50  Ohio  St.  528,  35  N.  E.  308 
(1893)  ;  Selser's  Estate,  141  Pa.  529,  21  Atl. 
777    (1891);   Watson  v.   Hecla  Min.   Co.,   79 
Wash.  383,  140  Pac.  317    (1914);   5  Chamb., 
Ev.,  §   3550,  n.    1. 

Rule  not  applicable  to  third  parties. —  Pa- 
rol evidence  may  be  used  to  show  that  a  bill 
of  sale  was  given  to  the  vendee  simply  to  hold 
as  agent  where  the  property  is  attached  by  a 
third  party  on  a  claim  against  the  apparent 
vendee.  The  parol  evidence  rule  does  not  ap- 
ply to  third  parties.  Ransom  v.  Wickstrom. 
84  Wash.  419,  146  Pac.  1041,  L.  R.  A.  1916 
A  588  and  note  (1915). 

23.  Seacord   v.    Seacord,    160   111.   App.   328 
(1912);    Wabash    R.    Co.    v.    Grate,    53    Tnd. 
App.  583,  102  N.  E.  155  (1913)  ;  Shoenhair  v. 
Merrill,  165  Iowa  384,  145  N.  W.  919  (1914)  ; 
Hill  v.  Whidden,  158  Mass.  267,  33  N.  E.  526 
(1893)  :  Kriling  v.  Cramer.  152  Mo.  App.  431. 
133  S.  W.  655    (1911)  ;  Franklin  State  Bank 
v.  Chancy,  94  Neb.  1,  142  N.  W.  537   (1913)  ; 


Loftus  v.  Benjamin,  122  N.  Y.  Supp.  275 
(1910)  ;  Hodges  v.  Wilson,  165  N.  C.  323,  81 
S.  E.  340  (1914)  :  Press  Pub.  Co.  v.  Reading 
News  Agency,  44  Pa.  Super.  Ct.  428  (1911)  ; 
Martin  v.  Hall,  115  Va.  358,  79  S.  E.  320 
(1913);  5  Chamb.,  Ev.,  §  3551,  n.  1.  Oral 
evidence  is  admissible  to  show  the  actual  con- 
sideration for  a  deed  even  though  the  effect 
may  be  to  convert  the  instrument  from  one  of 
bargain  and  sale  to  one  of  pure  gift.  Harman 
v.  Fisher,  90  Neb.  688,  134  N.  W.  246,  39 
L.  R.  A.  (N.  S.)  157  (1912).  Parol  to  show 
consideration  for  a  written  instrument.  See 
note,  Bender,  ed.,  26  N.  Y.  378.  Propriety  of 
parol  evidence  as  to  consideration,  sealed  and 
unsealed  instruments.  See  note.  Bender,  ed., 
70  N.  Y.  63. 

24.  Wilford    v.     Bliss,     174     111.     App.     28 
(1913);     Wabash    R.    Co.    v.    Grate,    supra; 
Dodge  v.   Cutrer,   100  Miss.  647,  58   So.  208 
(1912):    Gill    v.    Ruggles,    97    S.    C.    278,    81 
S.  E.  519   (1914)  ;  5  Chamb.,  Ev.,  §  3551,  n.  2. 

25.  Bray   v.    Arnold.    14 '  Ga.   App.   221,   80 
S.   E.  669    (1914);    Barthwell  v.  Hermanson, 
158  Iowa  329,  138  N.  W.  1108   (1913)  ;  Huf- 
facher's   Ex'r  v.   Michigan   Mut.  L.   Ins.   Co., 
154   Ky.    56.    156    S.   W.    1038    (1913);    Mac- 
Donald  v.  Dana.  154  Mass.  152.  27  N.  E.  993 
(1891)  :  Paddock  v.  Hatch,  169  Mich.  95.  134 
N.  W.  990   (1912)  :  Manse  v.  Hossington,  205 
N.  Y.  33,  98  N.  E.  203  (1912)  ;  Komp  v.  Ray- 


§  mo 


PAEOL,  EVIDENCE  RULE. 


866 


tion  altered  by  the  fact  that  it  purports  to  be  in  full  of  all  demands.26  A  re- 
ceipt may,  however,  be  in  the  nature  of  a  contract,  in  which  case,  the  rule  of 
exclusion  intervenes  and  forbids,  the  same  as  in  other  contractual  writings,  the 
admission  of  any  extrinsic  evidence  which  tends  to  contradict  or  vary  it.27 
Thus,  where  two  persons  close  an  accord  and  satisfaction,  by  a  contractual  re- 
ceipt in  writing,28  parol  evidence  will  not  be  received  which  tends  to  have  this 
effect. 

§  1110.  Exceptions;  Collateral  Agreements;  Instrument  Incomplete.'-9 — Evi- 
dence of  a  prior  or  contemporaneous  parol  agreement  or  understanding  is  fre- 
quently received,  where  it  is  consistent  with  the  writing  in  question  and  it  is 
apparent  that  the  instrument  was  not  intended  as  a  complete  embodiment  of  the 
undertaking.30  If  it  was  the  intention  of  the  parties  that  only  a  part  of  the 


mond,  175  N.  Y.  102,  67  N.  E.  113  (1903); 
Seeman  v.  Ohio  Coal  Min.  Co.,  22  Ohio  Cir. 
Ct.  311  (1901);  Spittall  v.  Alice,  55  Pa. 
Super.  Ct.  636  (1914)  ;  Gregory  v.  Huslander, 
227  Pa.  607,  76  Atl.  422  (1910);  Seeger  v. 
Manitowoc  Steam  Works,  120  Wis.  11,  97  N. 
W.  485  (1903)  ;  5  Chamb.,  Ev.,  §  3552,  n.  1. 

26.  Walrath  v.  Norton,  10  111.  437   (1878)  ; 
Clark  v.  Marbourg,  33  Kan.  471,  6  Pac.  548 
(1885);    Carpenter   v.   Jamison,   75   Mo.   285 
(1882);    Meislahn   v.   Irving  Nat.    Bank,   62 
App.  Div.  231,  70  N.  Y.  Supp.  988    (1901)  ; 
Tr>mby  v.   Andress,   175   Pa.  6,  34  Atl.   347 
(1896);   Fire  Ins.  Ass'n  v.  Wickham,  141  U. 
S.  564,  9  L.  ed.  860,  9  S.  Ct.  113    (1891)  :   5 
Chamb.,  Ev.,  §  3552,  n.  2. 

27.  Loeb    v.    Flannery,    148    111.    App.    471 
(1909)  ;   Stevens  v.  Wiley,  165  Mass.  402,  23 
N.  E.  177    (1896);   Sloma  nv.  National  Exp. 
Co.,    134    Mich.    16,   95    N.    W.    999    (1890); 
Meyer  v.  Lathrop,  73  N.  Y.  315  (1878)  ;  See- 
man v.  Ohio  Coal  Min.  Co.,  supra;  Milos  v. 
Covacevich,  40  Or.  239,  66  Pac.  914   (1901); 
Wood    v.    Donahue,    94    Pa.    128     (1880);    5 
Chamb.,  Ev.,  §  3552,  n.  3. 

28.  Richtman  v.  Watson,  150  Wis.  385,  136 
N.  W.  797   (1912). 

29.  5  Chamberlayne,     Evidence,     §§     3553, 
3554. 

30.  Webber  v.  Smith,  24  Cal.  App.  51,  140 
Pac.  37  (1914)  ;  Carter  v.  Griffin,  114  Ga.  321, 
40   S.   E.   290    (1901);    Henry  School   Tp.   v. 
Meredith,  supra;  Sutton  v.  Weber,  127  Iowa 
361,  101  N.  W.  775  (1904)  ;  Ayer  v.  Bell  Mfg. 
Co.,  147  Mass.  46,  16  N.  E.  754  (1888)  ;  Gould 
v.  Boston  Excelsior  Co.,  91  Me.  214,  39  Atl. 
554,  64  Am.  St.  Rep.  221    (1898);  Chamber- 
lain v.  Lesley,  39  Fla.  452,  22  So.  736  (1897)  ; 
Davis  v.  Tandy,  107  Mo.  App.  437,  81  S.  W. 


457  (1904);  Rochester  Folding  Box  Co.  v. 
Browne,  55  App.  Div.  444,  66  N.  Y.  Supp. 
867  (1900),  aff'd  179  N.  Y.  542,  71  N.  E. 
1139  (1904);  Alexander  v.  Righter,  240  Pa. 
22,  87  Atl.  427  (1913);  Seattle  Transfer  & 
Taxicab  Co.  v.  Kinney,  74  Wash.  179,  132 
Pac.  1013  (1913)  ;  Rymer  v.  South  Penn  Oil 
Co.,  54  W.  Va.  530,  46  S.  E.  559  (1904)  ;  5 
Chamb.,  Ev.,  §  3553,  n.  1.  See  note,  Bender, 
ed.,  163  N.  Y.  312.  Even  where  the  deed  is 
silent  as  to  the  acreage  and  price  per  acre 
this  may  be  shown  by  parol  evidence.  Caugh- 
ron  v.  Stinespring,  132  Tenn.  636,  179  S.  W. 
152,  L.  R.  A.  1916  C  403  (1915).* 

When  contract  complete. —  Where  an  order 
for  machinery  has  every  essential  of  a  con- 
tract,—  parties,  consideration,  time  subject- 
matter,  and  mutual  assent  parol  evidence  is 
not  admissible  to  show  that  it  is  a  mere  skele- 
ton. Fairbanks  Steam  Shovel  Co.  v.  Holt,  79 
Wash.  361,  140  Pac.  394,  L.  R.  A.  1915  B  477 
(1914).  Acting  under  a  letter  containing  an 
offer  to  perform  service  is  a  sufficient  accept- 
ance of  the  contract  to  make  parol  evidence 
of  it  inadmissible.  Manufacturers'  &  Mer- 
chants' Inspection  Bureau  v.  Everwear  Hos- 
iery Co.,  152  Wis.  73,  138  N.  W.  624,  42  L. 
R.  A.  (N.  S.)  847  (1912).  W7here  the  parties 
make  an  oral  contract  and  one  party  makes  a 
written  memorandum  of  his  understanding  of 
it  this  does  not  reduce  the  contract  to  writing 
as  far  as  he  is  concerned  so  that  he  cannot 
testify  concerning  it  where  this  version  of  the 
contract  is  never  accepted.  Shubert  v.  Rosen- 
berger,  123  C.  C.  A.  256,  204  Fed.  934,  45  L. 
R.  A.  (N.  S.)  1062  (1913). 

Collateral  agreement. —  A  written  agree- 
ment for  sale  of  a  dentist's  business  can  be 
supplemented  by  evidence  of  an  oral  agree- 


867 


COLLATERAL  AGREEMENTS. 


§  1110 


terms  should  be  embraced  in  the  writing,  then  the  instrument  is  not  one  which 
is  brought  within  the  protection  of  the  rule  31  and,  consequently,  evidence  of 
the  remainder  of  the  agreement,  consistent  with  the  part  which  has  been  re- 
duced to  writing,  is  in  no  way  a  contradiction,  varying  or  altering  of  the  in- 
strument. Evidence  to  supplement  the  writing  and  show  the  entire  agree- 
ment will  be  received,  even  though  the  evidence  may  be  in  reference  to  a  dif- 
ferent subject  than  that  contained  in  the  writing,32  unless  the  omission  is  one 
which  will  be  supplied  by  law,  in  which  case,  parol  evidence  has  been  re- 
jected.33 Similarly,  in  the  case  of  an  agreement  which  is  expressed  in  two  or 
more  writings,  evidence  will  be  received  to  connect  them,  for  the  purpose  of 
showing  the  completed  and  full  undertaking.34  In  all  cases,  however,  where 
such  evidence  is  offered,  the  court  will  receive  in  evidence  only  such  terms  as 
are  consistent  with  the  writing,35  •  and  where  it  satisfactorily  appears  that  the 
instrument  was  not  intended  as  a  complete  expression  of  the  agreement.36 
Thus,  evidence  has  been  rejected  when  offered  for  the  purpose  of  showing, 
where  an  instrument  was  valid  and  enforceable  upon  its  face,  that  there  was 
an  agreement  that  it  should  become  void  on  the  happening  of  a  certain  event.37 
To  permit  such  evidence  would  render  written  instruments,  relied  upon  as 
the  embodiment  of  the  undertaking  entered  into,  as  of  little  value. 


ment  that  the  seller  should  not  practice  in 
that  town  for  live  years  as  this  is  a  distinct 
agreement.  Locke  v.  Murdoch,  20  X.  M. 
522.  151  Pac.  298,  L.  R.  A  1917  B  267  (1915). 
Contemporaneous  oral  contracts  and  written 
contracts.  See  note,  Bender,  ed.,  172  N.  Y. 
292,  304. 

31.  Washburn -Crosby  Milling  Co.  v.  Brown, 
56    Ind.    App.    104.    104    X.    E.    997    (1914); 
Gebber  v.  Western  Xat.  Bank,  53  Pa.  Super. 
Ct.   155    (1913):   Wilson  v.  Scarboro,   163  N. 
C.  380,  79  S.  E.  811   (1913)  ;  see  also  cases  in 
last  preceding  note. 

32.  Durkin    v.    Cobleigh,    156    Mass.    108, 
30  X.  E.  474,  32  Am.  St.  Rep.  436,  17  L.  R.  A. 
270    (1892):    Church  of  Holy  Communion  v. 
Paterson  Extension  R.  Co  ,  63  N.  J.  L.  470, 
43  Atl.  696  (1899)  ;  Johnson  v.  Kindred  State 
Bank,  12  X.  D.  336,  96  X.  W.  588   (1903)  ;  5 
Chamb.,  Ev.,  §  3553,  n.  3. 

33.  Driver  v.  Ford.  90  111.  595  (1878)  :  War- 
ren v.  Wheeler,  b  Mete     (Mass.)    97    (1844): 
Blake  Mfg.   Co.   v    Jaeger,  81   Mo    App.   239 
(1899)  ;   Boehm  v    Lies,  60  N.  Y.  Super.  Ct. 
436.  18  X.  Y.  Supp.  577    (1892);   5  Chamb., 
Ev.,  §  3553.  n.  6 

34.  O'Reilly  v.  Burns.   14  Colo.  7,  22  Pac. 
1090  (1S90)  :  Hunt  v.  Frost,  4  Cush.   (Mass.) 
54    (1849)  :  Hanford  v.  Rogers,  11  Barb.   (N. 
Y.)    18    (1851);    White  v.   Brocaw,    14  Ohio 


St.  339  (1863);  St.  Louis,  etc.,  R.  Co.  v. 
Beidler,  45  Ark.  17  (1885);  5  Chamb.,  Ev., 
§  3553,  n.  5. 

35.  Halliday  v.  Mulligan,  113  111.  App.  177 
(1903);   Van  Fossan  v.  Gibbs.  91   Kan.  866, 
139  Pac.  174  (1914)  ;  Kelly  v.  Thompson,  175 
Mass.  427,  56  X.  E.  713    (1900)  ;   Jenkins  v. 
Springfield  Reduction  &  Chem.  Co.,   169  Mo. 
App.   534,   154  S.  W.  832    (1913):   Rochester 
Folding  Box  Co    v.  Browne,  supra;  Seitz  v. 
Brewers'   Refrig.   Mach.   Co.,    141    U.   S.   510, 
35  L.  ed.  837,  12  S.  Ct.  46  (1891)  ;  5  Chamb., 
Ev.,  §  3553,  n.  6. 

36.  Forsyth  Mfg.   Co.   v.   Castlen,   112  Ga. 

199,  37  S.  E.  485  (1888);  Hand  v.  Ryan 
Drug  Co.,  63  Minn.  539,  65  X.  W.  1081 

(1896):  Case  v.  Phoenix  Bridge  Co.,  134  X. 
Y.  78,  31  N.  E.  254  (1892)  ;  5  Chamb.,  Ev.,  § 
3553,  n.  7. 

37.  Prouty  v.  Adams,  141  Cal.  304,  74  Pac. 
845    (1903):   Ryan  v.  Cooke.   172  111.  302,  50 
X.   E.   213    (1898);   McCormick  Harv.   Mach. 
Co.   v.   Market,    107    Iowa   340,   78   N.   \V.   33 
(1899);   Torpey  v    Tvbo,   184  Mass.   307,   68 
N.    E.    223     (1903):     Pratt- Whitney    Co.    v. 
American  Pneumatic  Tool  Co..  50  App.  Div. 
369,  63  X.  Y.  Supp.  1062   (1900)  ;  Chute  Co. 
v.    Latta,    123    Minn.    69,    142    X.    W.    1048 
(1913);   5  Chamb.  Ev.,  §  3553,  n.  8. 

Deed  may  be  shown  to  be  a  mortgage. —  By 


§  1111 


PAROL  EVIDENCE  KULE. 


868 


§  1111.  Delivery  Incomplete  or  Conditional.38 —  It  is  not  a  violation  of  the 
parol  evidence  rule  to  admit  evidence  showing  that  the  instrument  never  had 
any  binding  force  owing  to  a  want  of  final  delivery,30  as  where  it  was  deliv- 
ered to  become  binding  upon  the  happening  of  some  future  event,  or  was  de- 
livered in  escrow.40  For  this  purpose,  the  admission  of  evidence  will  not  be 
restricted  to  such  agreements  as  may  have  been  made  at  the  time  of  delivery, 
but  evidence  of  prior  conversations  may  be  received.41  Proof  of  the  fact  that 
there  was  never  a  complete  and  final  delivery  of  the  instrument  is  an  establish- 
ment of  the  fact  that  the  writing,  though  ostensibly  binding,  was  never  legally 
of  any  force  or  effect.42  In  case,  however,  of  the  delivery  of  a  deed  to  the 
grantee  either  by  the  grantor  or  by  another  with  his  knowledge  and  approval, 

the  vast  preponderance  of  authority  a  deed       U.  S.  228,  14  S.  Ct.  816,  38  L.  ed.  698  (1894)  ; 
absolute  on   its  face  may  be  shown  to  be  a      5  Chamb.,  Ev.,  §  3554,  n.  2.     It  is  competent 


mortgage  by  parol  testimony.     This  principle 
has  been  advanced  by  slow  degrees  and  halt- 


to  show  that  a  written  order  for  goods  was 
given    on   an    oral    condition   that   the   goods 


ing   steps.     In   some   of   the   earlier   cases   it      were    to    be    sent    within    a    certain    period. 


was  said  to  be  necessary  to  allege  that  the 
right  of  redemption  was  omitted  by  fraud  or 
mistake.  But  this  position  was  found  to  un- 
duly shackle  a  principle  necessary  to  be  main- 


Bowser  v.  Fountain,  128  Minn.  198,  150  N. 
W.  795,  L.  K.  A.  1916  B  1036  (1915).  A 
subscription  contract  which  contains  a  con- 
dition precedent  may  be  shown  to  be  subject 


tained  that  fraud  might  not  prevail  or  confi-  to  another  condition  that  it  shall  not  go  into 
dence  be  deceived  and  betrayed.  Hobbs  v.  effect  until  the  plaintiff  should  procure  other 
Rowland,  136  Ky.  197,  123  S.  W.  11 85,  L.  ^subscribers  who  should  do  certain  things  as  it 

may  always  be  shown  that  a  contract  has  not 
become  effective.  Rutherford  v.  Holbert,  42 
Okla.  735,  14'2  Pac.  1099,  L.  R.  A.  1915  B  221 
(1914).  Parol  evidence  is  admissible  to  show 
that  a  written  instrument  was  not  signed  or 
delivered  as  a  concluded  contract  but  was 
delivered  to  be  held  pending  the  happening 
of  a  contingency  or  the  performance  of  some 
condition  and  that  subsequently  such  condi- 
tion was  not  performed  and  therefore  that 
the  written  instrument  did  not  actually  be- 
come effective  as  a  completed  contract. 
American  Sales  Book  Co.  v.  Whitaker,  100 
Ark.  360,  140  S.  W.  132,  37  L.  R.  A  (N  S.) 
91  (1911). 

Sham. —  Parol  evidence  is  competent  to 
show  that  a  written  contract  is  only  a  mere 
sham  signed  for  its  effect  on  a  third  party 
and  was  never  intended  by  the  signers  to  be 
operative.  This  evidence  does  not  vary  the 
writing  but  is  offered  to  show  a  collateral 
circumstance  which  would  control  its  opera- 
tion. Coffman  v.  Maione,  98  Xeb.  819,  154 
X.  W.  720,  L.  R.  A.  1917  B  258  (1915). 

41.  Wilson     v.     Powers,     131     Mass.     539 
(1881)  ;  5  Chamb.,  Ev.,  §  3554,  n.  3. 

42.  Sweet  v.  Stevens,  7  R.  I.  375    (1863); 
5  Chamb.,  Ev.,  §  3554,  n.  4. 


R.  A.  1916  B  1  (1909).  But  the  evidence 
must  be  clear  and  convincing.  Johnson  v. 
Xational  Bank  of  Commerce,  65  Wash.  261, 
118  Pac.  21,  L.  R.  A.  1916  B  4  (1911).  Right 
to  show  deed  absolute  was  intended  as  a  mort- 
gage. See  note,  Bender,  ed.,  46  X.  Y.  605. 
Trust. —  Parol  evidence  is  inadmissible  to 
show  that  a  deed  absolute  on  its  face  to  a 
church  was  really  given  in  trust  for  a  certain 
purpose.  Lafayette  Street  Church  v.  Xorton, 
202  X.  Y.  379,  95  X.  E.  819,  39  L.  R.  A.  (X. 
S. )  906  ( 1911 ) .  An  absolute  conveyance  may 
not  be  held  to  have  been  in  trust.  See  note, 
Bender,  ed.,  8  X.  Y.  415. 

38.  5  Chamberlayne,  Evidence,  §  3554. 

39.  Gray  v.   Blackwood,   112  Ark.  332,   165 
S.  W.  958    (1914)  ;  Xorman  v.  McCarthy,  56 
Colo.  290,  138  Pac.  28  (1914). 

40.  Osby  v.  Reynolds,  260  111.  576,  103  X.  E. 
556  (1914)  ;  Cedar  Rapids  Xat.  Bank  v.  Carl- 
son,  156  Iowa  343,    136   X.  W.   659    (1912); 
Bartholomew   v.   Fell.   92   Kan.   64,   139   Pac. 
1016   (1914)  ;  Elastic  Tip  Co.  v.  Graham,  185 
Mass.  597,  71  X.  E.  117    (1904)  ;  Mendenhall 
v.    Ulrich,    94    Minn.    100,    101    X.    W.    1057 
(1905);    Xiblock   v.   Sprague,  200  X.  Y.   390. 
93  X.  E.   1105    (1911);   Brown  v.   Willis,   13 
Ohio  26  ( 1844)  ;  Gamble  v.  Riley,  39  Okl.  363, 
135  Pac.  390   (1913)  ;   Burke  v.  Dulaney,   153 


869 


DURESS;  FRAUD. 


1112 


the  delivery  is  regarded  as  absolute  and  no  extrinsic  evidence  will  be  received 
to  show  that  it  was  in  any  way  qualified  or  conditional.43  So,  where  a  party 
executes  and  delivers  an  instrument,  such  as  a  note  for  instance,  and  receives 
a  valuable  consideration  therefor,  he  will  not  be  permitted  to  shown  an  agree- 
ment to  the  effect  that  payment  should  never  be  enforced  or  demanded.44 

§  1112.  Duress;  Fraud  or  Fraudulent  Representations.45 — Parol  evidence  of 
the  facts  and  circumstances  attending  the  execution  of  an  instrument  is  prop- 
erly admissible  where  it  is  alleged,  by  a  party  thereto,  that  he  signed  it  under 
duress.40  Such  evidence  is  not  a  violation  of  the  parol  evidence  rule.  Where 
one  of  the  parties  has,  by  any  fraud  or  misrepresentation  on  his  part,  induced 
another  to  enter  into  an  agreement,  the  innocent  party  is  not  concluded  by  the 
language  used  but  will  be  permitted  to  introduce  extrinsic  evidence  of  any 
prior  or  contemporaneous  negotiations,  acts  or  the  like,47  tending  to  show  the 


43.  Moury  v.  Heney,  86  Cal.  471,  25  Pac. 
17   (1890)  ;  Omaha  &  Grant  Sm.  &  R.  Co.  v. 
Taber,  13  Colo.  41,  21  Pac.  925   (1889)  ;  Chi- 
cago Pressed  Steel  Co.  v.  Clark,  87  111.  App. 
658  ( 1899 )  ;  Rathbun  v.  Rathbun,  6  Barb.  (N. 
Y.)  98   (1849);  Byars  v.  Byars,  11  Tex.  Civ. 
App.   565,  32   S.   W.  925    (1895):    5   Chamb., 
Ev.,  §  3554,  n.  5.     In  an  action  of  covenant  on 
a  warranty  in  a  deed  parol  evidence  is  not  a"d- 
missible  to  prove  that  at  the  time  the  deed 
was  delivered  the  grantee  agreed  to  take  sub- 
ject   to    an    outstanding    lease,    Mandler    v. 
Starks,  35  Okla.  809,  131  Pac.  912,  L.  R.  A. 
1916  E  213   (1913),  or  to  pay  outstanding  as- 
sessments;   Williams   v.   Johnson,    177    Mich. 
500,    143   N.   W.    627,   L.    R.    A.    1016    E   217 
(1913);    Hardage    v.    Durrett,    110   Ark.    63, 
160  S.  W.  883m  L.  R.  A.  1916  E  211   ( 1913)  ; 
as   such   evidence   would   contradict   the   deed 
itself. 

44.  Western  Carolina   Bank  v.   Moore,   138 
X.    C.    529.    51    S.    C.    79     (1905).     The    de- 
fence is  incompetent  that  a   note  was  to  be 
paid  only  on  a  contingency  even  in  an  action 
by  the  payee      Colvin  v.  Goff,  82  Or.  314.  161 
Pac.  5<>«,  L.  R.  A.   1917  C  300    (1916).     Evi- 
dence  may   be   offered   of  a  contemporaneous 
parol  agreement  entered  into  at  the  time  cer- 
tain rent  notes  were  signed  that  they  were  to 
be   binding   only   so   long   as   possession   con- 
tinued.    This   shows   a   separate  parol   agree- 
ment which  was  to  be  a  part  of  the  contract. 
Martin  v.  Mask,  158  X.  C.  436,  74  S.  E.  343, 
41  L.  R.  A.    (X.  S.)    (541    (1912). 

45.  5  Chamberlayne,     Evidence,     §§     3555, 
3556. 

46.  Hick  v   Thompson,  90  Cal.  289,  27  Pac. 


208  (1891);  Linkswiler  v.  Hoffman,  109  La. 
948,  34  So.  34  (1903);  Mills  v.  Young,  23 
Wend.  (X.  Y.)  314  (1840);  Heeter  v.  Glas- 
gow, 79  Pa.  79  (1875);  5  Chamb.,  Ev.,  § 
3555,  n.  1. 

47.  Swayne  v.  Felici,  84  Conn.  147,  79  Atl. 
62  (1911);  Pallister  v.  Camenisch,  21  Colo. 
App.  79,  121  Pac.  958  (1912)  -.  Briggs  v.  Rey- 
nolds, 176  111.  App.  420  (1913);  Moore  v. 
Harmon,  142  Ind.  555,  41  X.  E.  599  (1895)  ; 
Doylestown  Agricultural  Co.  v.  Brackett, 
Shaw  &  Lunt  Co.,  109  Me.  301,  84  Atl.  146 
(1912);  Trambly  v.  Ricard,  130  Mass.  259 
(1881);  Blanchard  v.  Ridgeway,  179  Mich. 
491,  146  X.  W.  139  (1914)  ;  State  v.  Cass,  52 
X.  J.  L.  77,  18  Atl.  972  (1889);  Mayer  v. 
Dean,  115  X.  Y.  556,  22  X.  E.  261.  5  L.  R.  A. 
540  (1889)  :  Fairbanks  v.  Simpson  (Tex.  Civ. 
App.)  28  S.  W.  128  (1894):  5  Chamb..  Ev., 
§  3556,  n.  1.  Application  of  rule  stated  in 
text  to. 

Contracts:  Jones  v.  Grieve,  15  Cal.  App. 
561,  115  Pac.  333  (1911);  Provident  Sav.  L. 
Assur.  Soc.  v.  Shearer,  151  Ky.  298,  151  S. 
W.  938  (1912):  Meland  v.  Youngberg,  124 
Minn.  446,  145  N.  W.  167  (1914); 
State  v.  Lovan,  245  Mo.  516,  151  S.  W.  141 
(1912)  :  Mayer  v.  Dean,  supra;  Atherholt  v. 
Hughes.  209  Pa.  156,  58  Atl.  269  (1904); 
Tevis  v.  Ryan,  233  U.  S.  273,  34  S.  Ct.  481,  58 
L.  ed.  957  (1914)  ;  5  Chamb.,  Ev.,  §  3556,  n. 
1. 

Deeds:  McCormick  v.  Smith.  127  Ind.  230, 
26  X.  E.  825  (1890):  Eckler  v.  Alden,  125 
Mich.  215,  84  X.  W.  141  (1900)  :  Van  Alstyne 
v.  Smith,  82  Hun  382,  31  X.  Y.  Supp.  277 
(1894)  ;  Cutler  v.  Roanoke,  R.  &  L.  Co.,  128 


§§  1113,  1114  PAKOL  EVIDENCE  KULE.  870 

exercise  of  fraud  or  misrepresentation  by  the  other  party,  in  the  procuring  of 
his  signature  to  the  writing.  Such  evidence,  although  it  may  contradict  the 
terms  of  the  instrument,  is  in  all  cases  admissible  and  will  be  received,  not  only 
as  a  defense  to  an  action  on  the  undertaking,  but  in  a  proceeding  where  the 
active  aid  of  the  tribunal  is  invoked.48 

§  1113.  Illegality —  Instruments  executed  for  an  illegal  object  will  not  be 
enforced  by  legal  tribunals.  The  law  recognizes  no  rights,  as  created  by  such 
writings,  and  will,  in  all  cases,  permit  proof  of  their  illegality.49  Evidence  of 
any  prior  conversations,  negotiations  or  the  like  will  be  received  for  the  purpose 
of  establishing  such  fact  and  its  admission  in  no  manner  can  be  regarded  as 
infringing  upon  the  parol  evidence  rule,  Thus  where  it  is  asserted  that  the 
agreement  is  tainted  with  usury  evidence  is  admitted  tending  to  show  its  in- 
validity on  this  ground.50  But  evidence  will  not  be  received  of  a  parol  con- 
temporaneous usurious  agreement,  where  the  usury  is  not  contained  in  the 
writing  itself.51  Nor  will  a  stranger  to  the  writing  be  permitted  to  avoid  it 
on  this  ground.52 

§  1114.  Incapacity. —  It  is  essential  to  the  validity  of  an  instrument  that  a 
person,  by  whom  it  is  executed,  shall  be  possessed  of  the  requisite  legal  capacity, 
otherwise  the  courts  will  not  enforce  it  against  him.  Therefore  it  may  always 
be  shown,  in  a  proceeding  to  enforce  a  writing,  that  the  defendant  was  in- 
capacitated at  the  time  he  signed  it.53  Thus,  in  the  case  of  a  writing  executed 
by  a  woman,  it  may  be  shown  that  she  was,  owing  to  her  being  married  at  the 
time,  incapacitated  to  act  in  the  particular  matter.54  Similarly,  a  party  has 

N.    C.    477,    39    S.    E.    30    (1901);    Cover    v.  Parol  evidence  is  always  admissible  to  show 

Mannaway,  115  Pa.  330,  8  Atl.  393  (1886)  ;  5  that  a  contract  apparently  valid  on  its  face 

Chamb.,  Ev.,  §  3556,  n.  1.  is  really  void  as  for  an  illegal  purpose.     Man- 

48.  McLean   v.   Clark,   47   Ga.   24    (1872)  ;  ufacturers'  etc.,  Bureau  v.  Everwear  Hosiery 
Turner  v.  Turner,  44  Mo.  535    (1869)  ;   Bar-  Co.,  152  Wis.  73,  138  N.  W.  624,  42  L.  R.  A. 
nard  v.   Roane  Iron  Co.,  85  Tenn.   139,  2   S.  (N.  S.)    847    (1912). 

W.  21    (1886)  ;   5  Chamb.,  Ev.,  §  3556,  n.  2.  50.  Roe  v.  Kiser,  62  Ark.  92,  34  S.  W.  534 

Right    to    prove    alteration    of    contract    by  (1896);    McGuire   v.   Campbell,   58   111.    App. 

parol.     See  note,  Bender,  ed.,  163  N.  Y.  312.  188    (1*894);   Lewis  v.  Willoughby,  43  Minn. 

The    same    rule    relative   to    admissibility    of  307,  45  N.  W.  439   (1800):  Mudgett  v.  Goler. 

parol  evidence  with  relation  to  written  con-  18    Hun     (X.    Y.)    302     (1879)  ;    Jackson    v. 

tracts  in  equity  as  at  law  except  in  case  of  Kirby,  37  Vt.  448    (1865)  ;   5  Chamb.,  Ev.,  § 

fraud.     See  note,  Bender,  ed.,   12   N.  Y.  565.  3557,   n.   2. 

49.  Smith  v.  Crockett  Co.,  85  Conn.  282,  82  51.  Allen   v.   Turnham,   83   Ala.   323,  3   So. 
Atl.  569    (1912);  McNamara  v.  Georgia  Cot-  854    (1887). 

ton    Co.,    10    Ga.  .App.    669,    73    S.    E.    1092  52.  Reading  v.  Weston,  7  Conn.  409  (1829). 

(1912)  ;    Tyler  v.  Tyler,   126   111.   525,  21   N.  53.  Leblanc  v.  Bouchereau,  16  La.  Ann.  11 

E.  616  ( 1888)  ;  Clemens  Electrical  Mfg.  Co.  v.  ( 1861 ) . 

Walton,   173  Mass.  286,  52  N.  E.   132,  53  N.  54.  Waters   v.   Pearson,   39   App.  D.   C.    10 

E.  820  (1890)  ;  Wheeler  v.  Metropolitan  Stock  (1913);    Lackey  v.   Boruff,   152   Ind.   371,  53 

Exch.,   72    N.    H.    315,   56   Atl.    756    (1903);  N.  E.  412   (1898);  Comings  v.  Leedy,  114  Mo. 

Martin   v.   Clarke,   8   R.    I.   389,   5   Am.   Rep.  454,  21  S.  W.  804   (1892)  ;  Linderman  v.  Far- 

586    (1866);    5    Chamb.,   Ev.,   §   3557,   n.    1.  quharson,  101  N.  Y.  434,  5  N.  E.  67   (1886); 


871 


CONSTRUCTION. 


§   1115 


been  permitted  to  show  his  infancy,55  or  that  he  was  mentally  incompetent,50 
or  incapacitated  by  reason  of  intoxication,57  at  the  time  he  executed  the  writ- 
ing. Such  evidence  is  in  no  way  objectionable  to  the  parol  evidence  rule,  as  it 
simply  tends  to  show  that  the  writing  had  no  legal  inception. 

§  1115.  Interpretation  and  Explanation;  Evidence  Admissible  for  Purposes  Of. 
-  Parol  evidence  is  properly  admitted,  as  an  aid  in  the  interpretation  of  a 
writing  or  for  the  purpose  of  explanation.58  This  rule  has  been  applied  by 
the  courts  to  contracts,59  contracts  of  sale,60  deeds,61  letters  constituting  a 
contract,02  and  mortgages.03  If  the  intention  of  the  parties  is  obscure,  it  is 
the  duty  of  the  tribunal  to  receive  parol  evidence  tending  to  show  their  actual 
intention  in  the  execution  of  the  instrument.04 


Bradley  Fertilizer  Co.  v.  Caswell,  65  Vt.  231, 
26  All.  950  (1893)  ;  5  Chamb.,  Ev.,  §  3558,  n. 
2. 

55.  Buzzell  v.  Bennett,  2  Cal.  101    (1852); 
Des  Moines  Ins.  Co.  v.  Mclntire.  99  Iowa  50, 
68  N.  W.  565   (1896)  ;  5  Chamb.,  Ev.,  §  3558, 
n.  3. 

56.  Wiley    v.    Ewalt,    66    111.    26     (1872): 
Mitchell   v.   Kingman,   5   Pick.    (Mass.)    431 
(1827)  :  Hosier  v.  Beard,  54  Ohio  St.  398,  43 
N.  E.  1040   (1896)  ;  5  Chamb.,  Ev.,  §  3558,  n. 
4. 

57.  Taylor  v.   Purcell,  60  Ark.  606,  31   S. 
W.  567    (1895);   Phelan  v.  Gardner,  43  Cal. 
306   (1872);  Burroughs  v.  Richman,  13  X.  J. 
L.  233,  23  Am.  Dec.  717    (1832);   5  Chamb., 
Ev.,  §  3558,  n.  5. 

58.  Tyssowski  v.  Smith  Co.,  23  App.  D.  C. 
403    (1911);    Alexander    v.    Capitol    Lumber 
Co.,  181  Ind.  527,  105  X   E.  45  (1914)  ;  White 
v.    Shippee,    216    Mass.    23,    102    X.    E.    948 
(1913)  ;  Germain  v.  Central  Lumber  Co.,  116 
Mich.  245,  74  X.   W.   644    (1898);   Tilden  v. 
Tilden,  8  App.   Div.  99,  40  X.   Y.  Supp.  403 
(1896)  ;  Masters  v.  Freeman,  17  Ohio"  St.  323 
(1867)  ;  Cohee  v.  Turner  &  Wiggins,  37  Okl. 
778,  132  Pac.  1082  (1913)  ;  Easton  Power  Co. 
v.  Sterlingworth  R.  S.  Co.,  22  Pa.  Super.  Ct. 
538  (1903)  ;  Miller  v.  Spring  Garden  Ins.  Co., 
202    Fed.    442,    120    C.    C.    A.    548     (1913); 
5  Chamb.,  Ev.,  §  3559,  n.  1. 

59.  Gould  v.  Magnolia  Metal  Co.,  207   111. 
172,  69  X.  E.  896  (1904)  ;  Lennox  v.  Murphy, 
171  Mass.  370,  50  X.  E.  644   (1898)  :  Allen  v. 
Armstrong,  58  App.  Div.  427,  68  X.  Y.  Supp. 
1079    (1901);    Proctor   v.    Snodgrass,   5   Ohio 
C.  C.  547    (1891):   Donthett  v.  Ft.   Pitt   Gas 
Co.,  202  Pa.  416,  51  Atl.  981    (1!)02)  :   Moore 
v.  Waco  Bldg.  Ass'n.  9  Tex.  Civ.  App.  404,  28 
S.  W.  1093;  5  Chamb.,  Ev.,  §  3559,  n.  1. 


60.  Brown  v.  Doane,  87  Ga.  32,  12  S.  E.  179 
(1890);   Couller  Mfg.  Co.  v.  Dodge  Grocery 
Co.,   97    Iowa   616,   66    X.    W.    875    (1896); 
Laclede  Const.  Co.  v.  Moss  Tie  Co.,  185  Mo. 
25,  84  S.  W.  76  (1904)  ;  Emmett  v.  Penoyer, 
151   N.   Y.  564,  45   X.  E.   1041    (1896):    Ex- 
celsior Wrapper  Co.  v.  Messinger,   116   Wis. 
549,  93  X.  W.  459    (1903)  ;  5  Chamb.,  Ev.,  § 
3559,  n.  1. 

61.  Mason  v.  Merrill,   129   111.  503,  21   y. 
E.  799    (1889);  Scaplen  v.  Bland,  187  Mass. 
73,  72  X.  E.  346  (1904)  ;  Freeman  v.  Moffitt, 
119  Mo.  280,  25  S.  W.  87   (1893)  ;  Perrior  v. 
Peck,  167  X.  Y.  582,  60  X.  E.  1118  (1901)  ;  5 
Chamb.,  Ev.,  §  3559,  n.  1. 

62.  Gould   v.   Magnolia   Metal   Co.,   supra; 
Butler  v.  Iron  Cliffs  Co.,  96  Mich.  70,  55  X. 
W.  670   (1893)  ;   Barney  v.  Forbes,  118  X.  Y. 
580,  23  X.  E.  890   (1890)  ;   Foster  v.  Dicker- 
son,  64  Vt.  233,  24  Atl.  253  ( 1891 )  ;  5  Chamb., 
Ev.,  §  3559,  n.  1. 

63.  Wise  v.  Collins,  121  Cal.   147,  53  Pac. 
640   (1898)  ;  Finks  v.  Hathaway,  64  Mo.  App. 
186   (1895);  Eager  v.  Crawford,  76  X.  Y.  97 
(1879)  ;  5  Chamb.,  Ev..  §  3559,  n.  1. 

64.  Ruiz    v.    Dow,    113    Cal.    490,    45    Pac. 
867  (1896)  ;  Callender,  McAuslan  &  Troup  Co. 
v.  Flint,  187  Mass.  104,  72  X.  E.  345   (1904)  ; 
Bowery  Bank  of  Xew  York  v.  Hart,  37  Misc. 
412,    75    X.    Y.    Supp.    781     (1902):    Thomas 
Mach.   Co.   v.   Voelker,  23   R.   I.  441,  50  Atl. 
838    ( 1901 )  ;    5    Chamb.,    Ev..    §    3559,   n.    2. 
Parol  evidence  to  aid  construction  of  written 
contract.     See   note,   Bender,   ed.,    193   X.   Y. 
379.     Acts,   circumstances   and   conversations 
are   admissible   on    construction    of   contract. 
See  note.  Bender,  ed..  49  X.  Y.  391,  49  X.  Y. 
464.     Right   to   give   parol   evidence   on    con- 
struction    of     written     contract.     See     note, 
Bender,  ed.,  47  X.  Y.  221.     Admissibilitv  of 


1115 


PAROL  EVIDENCE  EULE. 


872 


What  Evidence  is  Admissible. —  In  all  cases  the  court  will  endeavor  to  ascer- 
tain, and  give  effect  to,  the  true  meaning  of  the  instrument  and  evidence  of 
prior  negotiations  and  conversations  between  the  parties  may  be  received,65 
their  purpose  in  executing  the  instrument  may  in  some  cases  be  shown  66  and 
resort  may  also  be  had  to  the  circumstances  surrounding  the  transaction,  that 
the  court  may  more  intelligently  construe  the  undertaking  and,  if  possible,  give 
it  effect  according  to  the  real  intention,  which  impelled  the  parties  to  its  execu- 
tion.67 Thus  in  the  case  of  a  latent  ambiguity  the  court  will  receive  evidence 
of  this  character.68  In  all  cases,  however,  the  presiding  judge  will  be  guided 
by  the  principles  of  the  substantive  law,  which  decrees  that  the  instrument  is 
to  be  regarded  as  the  final  embodiment  of  the  agreement  of  the  parties  and  will 
be  careful  to  exclude  all  evidence  which,  offered  under  the  guise  of  an  aid  in 
the  interpretation  or  explanation  of  a  writing,  in  reality,  tends  to  contradict, 
vary  or  alter  an  instrument  which  is  clearly  expressed.69 


parol  evidence  to  extend  writing.  See  note, 
Bender,  ed.,  114  N.  Y.  200.  Parol  evidence  to 
aid  or  vary  writing.  See  note,  Bender,  ed.,  98 
N.  Y.  290.  Admissibility  of  oral  evidence  to 
supply  or  vary  writing.  See  note,  Bender, 
ed.,  78  N.  Y.  85.  When  parol  evidence  is  per- 
missible even  though  contract  is  in  writing. 
See  note,  Bender,  ed.,  127  N.  Y.  144. 

Ambiguities. — '•  Parol  evidence  to  solve  am- 
biguity. See  note,  Bender,  ed.,  143  N.  Y. 
626.  Explaining  ambiguities  in  written  con- 
tract by  parol.  See  note,  Bender,  ed.,  144  N. 
Y.  424. 

65.  Gould  v.   Magnolia   Metal   Co.,   supra; 
Proctor  v.  Hartigan,  139  Mass.  554,  2  N.  E. 
99    (1885);    New   York  House   Wrecking  Co. 
v.  O'Rourke,  92  App.  Div.  217,  86  N.  Y.  Supp. 
1116    (1904);    Colvin    v.    McCormick    Cotton 
Oil  Co.,  (56  S.  C    61,  44  S.  E.  380    (1902)  ;,   5 
Chamb.,  Ev.,  §  3560,  n.  1. 

66.  Dreyfuss  v.  Union  Nat.  Bank,   164   111. 
83,  45  N.  E.  408   (1896)  ;  Crosby  v.  Delaware 
&  H.  Canal  Co.,  128  N.  Y.  641,  28  N.  E.  363 
(1891)  ;   First  Nat.  Bank  v.  Central  Chande- 
lier Co.,  17  Ohio  C.  C.  443    (1898);   Sheaffer 
v.  Sensenig,  182  Pa.  634,  38  Atl.  473   (1897)  ; 
5  Chamb.,  Ev.,  §  3560,  n.  2. 

67.  Hardwick    v.    McClurg,    16    Colo.    App. 
354,  60   Pac.  405    (1901):   Gage  v.   Cameron, 
212  111.  146,  72  N.  E.  204    (1904)  ;  Jenkins  v. 
Kirtley,   70   Kan.   801,   79   Pac.   671    (1905); 
Alvord  v.  Cook,  174  Mass.  120,  54  N.  E.  499 
(1899)  ;  Garvin  Mach.  Co   v.  Hammond  Type- 
writer Co.,  12  App.  Div.  294,  42  N.  Y.  Supp. 
564     (1896);     Masters    v.    Freeman,    supra; 
Douthett  v.  Ft.  Pitt  Gas  Co.,  supra;  5  Chamb., 
Ev.,  §  3560,  n.  3.     Application  of  rule  stated 


in  text  to  deeds:  Baker  v.  Clark,  128  Cal.  181, 
60  Pac.  677  (1900)  ;  White  v.  Rice,  112  Mich. 
403,  70  N.  W.  1024  (1897);  Kinney  v. 
Hooker,  65  Vt.  333,  26  Atl.  690  (1892);  5 
Chamb.,  Ev.,  §  3560,  n.  3. 

68.  Tumlin  v.  Perry,  108  Ga.  520,  34  S.  E. 
171    (1899)  :   Thomas  v.  Troxel.  26  Ind.  App. 
322,  59  N.  E.  683    (1900)  ;   5  Chamb.,  Ev.,  § 
3560,  n.  4. 

69.  Eberhardt  v.   Federal  Ins.  Co.,   14  Ga. 
App.   340,   80   S.    E.   856    (1914);    Alvord   v. 
Cook,  supra ;  State  v.  Board  of  Com'rs  of  Cass 
County,  60  Neb.  566,  83  N.  W.  733    (1900); 
House  v.  Walch,  144  N.  Y.  418,  39  N.  E.  327 
(1895);   Johnson  v.   Pierce,   16  Ohio  St.  472 
(1866)  ;  King  v.  New  York  &  Cleveland  Gas 
Coal   Co.,  204  Pa.  628,   54  Atl.  477    (1903); 
5  Chamb.,  Ev.,  §  3560,  n.  5.     The  scrivener  of 
a  will  cannot   be  permitted  to  testify  as   to 
the  testator's  instructions  or  as  to  what  he 
meant  or  what  he  himself  meant.     Napier  v. 
Little,  137  Ga.  242,  73  S.  E.  3,  38  L.  R.  A. 
(N.    S.)    91     (1011).     Parol    evidence   is   ad- 
missible to  show  that  the  omission  of  a  child 
from  a  will  was  intentional,  under  a  statute 
providing  that  if  it  appears  that  the  omission 
was  not  intentional  such  child  shall  take  the 
statutory    share    of   a    child.     Re    Motz,    125 
Minn.  40,  14.3  N.  W.  623.  51  L.  R.  A.   (N.  S.) 
645     (1914).     Parole    evidence   may    be   used 
to  show  that  a  legacy  to  "  my  friend  Richard 
H.  Simpson  "  was  intended  for  his  associate 
Hamilton   Ross  Simpson   and  not  for  a  man 
named   Richard   H.   Simpson   who  was  not  a 
friend  of  the  testator  and  had  only  met  him 
once  in  twenty  years  and  then  merely  spoke 
to  him  as  they  passed  by.     Siegley  v.  Simp- 


873  USAGE.  §  1115 

Usage. —  Evidence  of  a  usage  in  the  particular  business  or  locality,  in  re- 
spect to  some  matter,  concerning  which  the  writing  is  not  clear  or  is  silent, 
may  be  received  to  show  the  actual  and  intended  meaning  of  the  instrument.70 
The  evidence  may  be  of  a  general  and  recognized  custom  of  a  particular  trade 
or  business  or  of  a  particular  locality.71  It  is  received  upon  the  assumption 
that,  where  parties  have  entered  into  an  agreement,  any  usage  which  prevails 
in  the  trade,  concerning  which  the  undertaking  is  entered  into,  or  in  the 
locality  is  tacitly  assented  to,  as  a  part  of  the  contract,  and  that  the  document 
embraces  only  the  special  terms  agreed  upon  and  is  to  be  construed  in  refer- 
ence to  such  usage,  in  the  absence  of  an  expressed  intention  to  the  contrary. 
If,  however,  such  an  intention  is  expressed,  or  is  clearly  apparent,  from  the 
language  used,  such  evidence  will  be  rejected.72 

Words  of  Doubtful  Meaning. —  Where  a  writing  contains  words  or  phrases 
which  are  ambiguous  or  of  doubtful  meaning,  or  are  used  in  a  technical  sense, 
and  which  the  court  is  unable  to  interpret  and  apply  in  the  particular  instance, 
resort  may  be  had  to  parol  evidence  of  custom,  usage  or  the  like,  so  that  the 
court  may  understand  the  sense  in  which  the  particular  word  or  words  were 
employed  and  properly  apply  them,  in  construing  the  writing.73  The  same 
rule  controls  here,  however,  as  elsewhere,  viz.,  that  the  court  will  limit  the 
admission  of  evidence  to  such  as  is  consistent  with  the  writing  and  will,  in  no 
case,  permit  the  introduction  of  extrinsic  evidence,  where  the  words  used  have 
a  clear  and  definite  meaning  and  are  susceptible  of  but  one  interpretation.74 

eon,  73  Wash.  69,  131  Pac.  479,  47  L.  R.  A.  Cal.  161,  74  Pac.  700  (1903)  ;  Shaw  v.  Jacobs, 

(N.  S.)   514    (1913).     Parol  evidence  may  be  89  Iowa  713,  55  N.  W.  333    (1893);   Menage 

used   to   show   whether   the   words   "  without  v.   Rosenthal.    175   Mass.   358,   56   N.   E.   579 

recourse''  written  on  the  back  of  a  note  refer  (1900)  ;    O'Donohue    v.    Leggett,    134    N.    Y. 

to  the  indorsement  just  above  it  or  to  that  40,  31  N.  E.  269    (1892);   Needy  v.  Western 

just  below  it.     This  does  not  change  in  any  Maryland    R.    Co.,    22    Pa.    Super.    Ct.    489 

way  the  character  of  the  instrument.     Gool-  (1903);  5  Chamb.,  Ev.,  §  3561,  n.  3. 

rick  v.  Wallace,  154  Ky.  596,  157  S.  W7.  920,  73.  Morse  v.  Tochterman,  21  Cal.  App.  726, 

49  L.  R.  A.   (N.  S.)  789   (1913).     Admissibil-  132   Pac.    1055    (1913);    Kirby   Planing  Mill 

ity  of  parol  evidence  to  vary  written.     See  Co.   v.   Hughes,    11    Ga.    App.   645,   75   S.   E. 

note,  Bender,  ed.,  114  N.  Y.  190;  note,  Bender,  1059   (1912)  ;  Gale  v.  United  States  Brewing 

ed.,   122  N.  Y.  87.  Co.,  181  111.  App.  381  (1914)  ;  Todd  v.  Howell, 

70.  Leavitt  v.   Kennicott,    157   111.   235,   41  47  Ind.  App.  665,  95  N.  E.  279  (1911)  ;  Lasar 
N   E..  737   (1895)  ;  Lane  v.  Union  Nat   Bank,  Mfg.  Co.  v.  Pelligreen  Const.  &  Inv.  Co.,  179 
3   Ind.   App.   299,  29  N.   E.   613    (1891);    De  Mo.  App.  447,  162  S.  W.  691    (1914)  ;  Keller 
Cernea  v.  Cornell,  3  Misc..241,  22  N.  Y.  Supp.  v.    Webb.    125    Mass.    88,    28    Am.    Rep.    209 
941    (1893)  ;  Hansbrough  v.  Neal,  94  Va.  722,  (1878)  ;  McKee  v.  DeWitt,  12  App.  Div.  617, 
27  S.  E.  593  (1897)  ;  5  Chamb.,  Ev.,  §  3561,  n.  43  N.  Y.   Supp.    132    (1897)  ;    Quarry   Co.  v. 
1.     Custom    of    enlarging    scope    of    certifica-  Clements,  38  Ohio  St.  587,  43  Am.  Rep.  442 
tion  on  check  inadmissible.     See  note,  Bender,  (1883)  ;  William  M.  Roylance  Co.  v.  Descalzi, 
ed.,  16  N.  Y.  390.  243  Pa.  180,  90  Atl.  55   (1914)  ;  Mills  Power 

71.  Wood  v.  Allen,  111  Iowa  97,  82  N.  W.  Co.  v.  Mohawk  Hydro-Electric  Co.,  155  App. 
451      (1900):     Brown     v.     Brown,     8     Mete.  Div.  869,  140  N.  Y.  Supp.  655   (1913)  ;  Berry 
(Mass.)  573  (1844)  ;  Stillman  v.  Burfeind,  21  v.  Williams  Oil  Co.,  156  Wis.  588,  146  N.  W. 
App.  Div    13,  47   N    Y.   Supp    280    (1897);  783   (1914);  5  Chamb.,  Ev.,  §  3562,  n.  1. 

5  Chamb.,  Ev.,  §  3561,  n.  2.  74.  Hildreth   v.   Hartford   M.   &    R.   Trans. 

72.  Swift  v.  Occidental  Min.  &  P.  Co.,  141      Co.,  73  Conn.  631,  48  Atl.  963   (1901)  ;  Davis 


§   1116 


PAEOL  EVIDENCE  RULE. 


874 


§  1116.  Modification  or  Rescission  Subsequent  to  Execution.75 —  The  rule  ex- 
cluding parol  evidence  to  contradict  or  vary  the  terms  of  a  written  instrument 
does  not  apply  to  what  may  be  don'  subsequent  to  the  execution  of  the  instru- 
ment. If  it  is  deemed  advisable  to  alter,  or  modify  the  terms  or  to  rescind 
the  obligation,  such  course  may  be  pursued.  This  is  a  right  of  which  parties 
to  instruments  may  avail  themselves  and  evidence  showing  such  action  is  ad- 
missible,70 and  in  no  way  infringes  upon  the  parol  evidence  rule.  Thus  if, 
after  the  execution  of  a  writing  the  parties  reconsider  the  matter  and  decide 
that  they  will  rescind  the  agreement  into  which  they  have  entered,  evidence  of 
the  subsequent  agreement  may  properly  be  received.77  Similarly,  in  the  case 
of  a  subsequent  agreement  modifying  the  terms  of  a  previous  undertaking, 
evidence  is  admissible  to  show  in  what  particulars  and  to  what  extent  the  new 
agreement  modifies  or  alters  the  previous  one.78  In  like  manner  it  may  be 
shown  that  performance  by  one  of  the  parties  of  some  of  the  terms  contained 
in  the  writing  has  been  waived  by  the  other,79  and  for  this  purpose  evidence  of 
facts  and  circumstances  prior  to  and  contemporaneous  with'  the  execution  of 
the  writing  have  been  received  in  connection  with  evidence  of  subsequent  acts.80 
In  case,  however,  of  an  instrument  under  seal  81  or  contract,  agreement  or  other 
undertaking  which  the  law  requires  to  be  in  written  form,82  evidence  of  any 
subsequent  parol  modification  or  rescission  of  the  instrument  has  been  held  to 
be  inadmissible. 


v.  Ball,  6  Cuah.  (Mass.)  ;  Armstrong  v.  Lake 
Champlain  Granite  Co.,  147  N.  Y.  495,  42 
N.  E.  186,  49  Am.  St.  Rep.  683  (1895); 
Thompson  v.  Pruden,  18  Ohio  Cir.  Ct.  886 
(1898);  O'Connor  v.  Camp  (Tex.  Civ.  App. 
1913),  158  S.  XV.  203;  5  Chamb.,  Ev.,  §  3562, 
n.  2, 

75.  5  Chamberlayne.  Evidence,  §  3566. 

76.  Andrews  v.  Tucker,  127  Ala.  602,  29  So. 
34    (1900);   Hurlburt  v.  Dusenbery,  26  Colo. 
240,   57   Pac.   860    (1899);    Town   v.   Jepson, 
133  Mich.  673,  95  N.  XV.  742    (1903)  ;  Davis 
v.  Scovern,  130  Mo.  303,  32  S.  W.  986  (1895)  ; 
Corse  v.  Peck,   102  N.  Y.  513,  7   X.  E.  810 
(1886);   Holoway  v.  Frick,  149  Pa.   178,  24 
Atl.  201    (1892)  ;  5  Chamb.,  Ev.,  §  3566.  n.  1. 

77.  Toledo,  etc.,   R.   Co.   v.   Levy,   127   Tnd. 
168,  26  N".  E.  773   (1890)  ;  Bryant  v.  Thesing, 
46  Neb.  244,  64  N.  XV.  967    (1895)  ;  Midland 
Roofing  Mfg.  Co.  v.  Pickens,  96  S.  C.  286,  80 
S    E.  484   (1914)  ;   Chamb.,  Ev.,  §  3566,  n.  2. 

78.  Starr  Piano  Co.  v.  Baker.  8  Ala.   App. 
449,  62  So.  549    (1913);   Thomas  v.   Barnes, 
156  Mass.  581,  31   N.  E.  683    (1892);   Law- 
rence v.  Miller,  86  N.  Y.   131    (1881)  ;   Peck 
v.  Beckwith,  10  Ohio  St.  498  (1860)  :  Putman 
Foundry  &  Mach.  Co.  v.  Canfield,  25  R.  T.  548, 
56  Atl.  1033    (1904);   Bannon  v.  Aultman  & 


Co.,  80  XVis.  307,  49  N.  XV.  967  (1891)  ;  River- 
side Tp.  v.  Stewart,  211  Fed.  873  (C.  C.  A. 
1914)  ;  5  Chamb.,  Ev.,  §  3566,  n.  3. 

79.  Elyea-Austell  Co  v.  Jackson  Garage,  13 
Ga.  App.  182,  79  S.  E.  38   (1913.1  ;  Morehouse 
v.  Terrill,  111  111.  App.  460  (1903)  :  Leathe  v. 
Bullard,  8  Gray   (Mass.)   545   (1857);  Brady 
v.    Cassidy,    145    N.    Y.    171,    39    N.    E.    814 
(1895)  ;  Raffensberger  v.  Cullison,  28  Pa.  426 
( 1857 )  ;  5  Chamb.,  Ev.,  §  3566,  n.  4. 

80.  Brady  v.  Cassidy,  supra. 

81.  Hiett   v.    Turner-Hudnut    Co.,    182    111. 
App.   524    (1914);    Farmington  v.   Brady,   11 
App.  Div.   1,  42  N.  Y.  Supp.  385    (1896)  ;   5 
Chamb.,  Ev.,  §  3566,  n.  6. 

82.  Mitchell  v.  Universal  Life  Ins.  Co.,  54 
Ga.    289     (1875);    Boggs    v.    Pacific    Steam 
Laundry  Co.,  86  Mo.  App.  616  (1900)  ;  North- 
rip   v.    Burge,   255   Mo.   641,    164   S.   XV.   584 
(1914);    5   Chamb.,   Ev.,   §   3566,   n.   7.     The 
lessee  under  a  written   lease  cannot  put   in 
evidence  in  a  suit  for  a  breach  of  the  lease  a 
subsequent  oral  agreement  modifying  the  rent 
and  agreeing  what  improvements  the   lessor 
should  make  as  this  renders  the  lease  partly 
oral  contrary  to  the  statute  of  frauds.     Boni- 
camp   v.    Starbuck,   25   Okla.   483,    106    Pac. 
839,  L.  R.  A.  1917  B  141   (1910). 


875 


MISTAKE. 


1117, 1118 


§  1117.  Mistake.83 —  The  parol  evidence  rule  is  not  infringed  upon  by  the 
admission  of  evidence  showing  that  a  written  instrument  was  executed  under 
a  mutual  mistake  of  fact.84  Evidence  for  this  purpose  is  frequently  employed 
where  the  active  aid  of  a  court  of  equity  is  invoked  for  the  reformation  or  can- 
cellation of  a  writing.85  Evidence  to  establish  a  mistake  of  this  nature  has 
also  been  received  in  an  action  at  law.86  A  mistake  of  law  is  not,  however, 
the  subject  of  proof  by  parol.87 

§  1118.  Parties;  Identification  Of. —  Where,  owing  to  some  omission  or  error, 
there  is  a  want,  in  the  instrument,  of  a  sufficient  description  of  a  party  to 
identify  him  with  certainty,  an  exception  to  the  general  rule  of  exclusion  is 
recognized,*8  and  parol  evidence  will  be  received  to  enable  the  court  to  properly 

Ins.  Co.,  244  Pa.  582,  91  Atl.  495,  L.  R.  A. 
1915  A  273  (1914).  Where  a  beneficiary  in 
a  policy  is  described  as  '  Evelyn  M.  Cum- 
mings  his  wife "  and  he  haa  a  wife  living 
named  Sophia  but  was  living  with  "  Evelyn  " 
as  his  wife  and  she  was  called  his  wife  the 
court  has  no  power  to  change  the  policy  and 
order  the  proceeds  paid  to  the  real  wife.  Mu- 
tual Life  Ins.  Co.  v.  Cummings,  66  Or.  272, 
133  Pac.  1169,47  L  R.  A.  (X.  S.)  252  (1913). 

85.  Kee  v.  Davis,  137  Cal   456,  70  Pac.  294 
(1902);    Gray    v.    Merchants'    Ins.    Co.,    113 
111.   App.   537    (1903);    Goode  v.   Riley,    153 
Mass.   585,  28  X.   E.  228    (1891):    Bryce  v. 
Lorillard  Fire  Ins.  Co.,  55  N.  Y.  240  (1873)  ; 
Finishing  &   Wa.reh.ouse  Co.  v.  Ozment,   132 
X.  C.  839,  44  S.  E.  681  (1903)  :  Gill  v.  Pelkey, 
supra;  5  Chamb.,  Ev.,  §  3567,  n.  2. 

86.  Byrd  v.  Campbell  Printing  P.  &  M.  Co., 
94    Ga.    41,    20    S.    E.    253    (1894);    McLean 
County  Bank  v.  Mitchell,  88  111.  52    (1878)  ; 
Sparks  v.  Brown,  46  Mo.  App.  529    (1891); 
Meyer  v.  Lathrop,  supra ;  Moliere  v.  Pennsyl- 
vania Fire  Ins.   Co.,  5  Rawle    (Pa.)    342,  28 
Am.  Dec.  675   (1832)  ;  5  Chamb.,  Ev.,  §  3567, 
n.  3. 

87.  Heavenridge    v.    Mondy,    49    Ind.    434 
(1875);     Gottra    v.    Sanasack,    53    111.    456 
(1870)  ;  Potter  v.  Sewall,  54  Me.  142  (1866)  ; 
McMurray  v.  St.  Louis  Oil  Co.,  33  Mo.  377 
(1863)  ;  Meokley's  Estate,  20  Pa.  478  (1853)  ; 
5  Chamb.,  Ev.,  §  3567,  n.  4. 

88.  Wolff  v.  Elliott,  68  Ark.  326,  57  S.  W. 
1111    (  1900)  :  Hogan  v.  Wallace,  166  111.  328, 
46  X.  E.  1136   (1897)  ;  Haskell  v.  Tukesbury, 
92  Me.  551.  43  Atl.  500    (1899):    Scanlan  v. 
Wright,   13  Pick.    (Mass.)    523,  25   Am.  Dec. 
344    (1833):   Harlan  County  v.  Whitney,  65 
Xeb.   105,  90  X.  W.  993    (1902)  ;   Woolsey  v. 
Morris,  96  X.  Y.  311  (1884)  ;  Cohee  v.  Turner 


83.  5  Chamberlayne,  Evidence,  §  3567. 

84.  Jersey  Farm  Co.  v.  Atlantic  Realty  Co  , 
164  Cal    412,   129  Pac.  593    (1913);   Kuck  v. 
Fulffs,   68   111    App.    134    (1896);    Maffet   v. 
Schaar,  89  Kan.  403,   131   Pac.  589    (1913); 
Breeding  v.  Tandy,  148  Ky.  345,  146  S.  W. 
742    (1912);   Gintehr  v.   Townsend,    114  Md. 
122,  78  Atl.  908  (1911)  ;  Meyer  v.  Lathrop,  73 
X.  Y.  315    (1878);   Mayor  v.  Dwight,  82  Pa. 
462    (1876);    5   Chamb.,    Ev.,    §    3567,   n.    1. 
Application  of  rule  stated  in  text  to 

Contracts:  Meyer  v.  Lathrop,  supra 
Deeds:  Wieneke  v  Deputy.  31  Ind.  App. 
621,  68  X.  E.  921  (1903)  ;  Gillespie  v.  Moon, 
2  Johns.  Ch.  (X.  Y.)  585  (1817);  Gill  v. 
Pelkey.  54  Ohio  St.  348,  43  X.  E.  991  (1896)  ; 
Chew  v.  Gillespie,  56  Pa.  308  (1867)  ;  Salmer 
v  Lathrop,  10  S.  D.  216,  72  N.  W.  570  (1897)  ; 
5  Chamb  ,  Ev.,  §  3567,  n.  1.  A  misdescription 
of  the  land  covered  in  an  insurance  policy  due 
to  the  error  of  the  company's  agent  will  not 
prevent  an  action  at  law  on  the  policy  with- 
out first  having  it  reformed  in  equity  and 
parol  evidence  may  be  introduced  to  show  the 
error.  French  v  State  Farmer's  Hail  Ins. 
Co.,  29  X.  D.  426,  151  X.  W.  7,  L.  R.  A.  1915 
D  7ti6  (1915)  An  insurance  policy  may  be 
contradicted  by  showing  that  the  insured  ap- 
plied orally  for  the  policy  and  the  agent  by 
error  described  the  property  wrongly,  and 
sent  it  to  the  insured  who  did  not  read  it  till 
after  the  fire  as  this  is  evidence  of  fraud. 
Fisher  v  Sun  Ins.  Office,  74  W.  Va.  694.  83 
S.  E.  729,  L.  R.  A.  1915  C  619  (1914).  Er- 
rors made  by  an  insurance  agent  in  writing 
down  the  answers  to  questions  as  given  to 
him  orally  by  the  insured  may  be  shown 
as  these  questions  go  to  the  very  essence  of 
the  insurance  risk,  and  a  representation  can 
always  be  explained.  Suravitz  v.  Prudential 


§  1113 


PAROL  EVIDENCE  RULE. 


876 


interpret  the  instrument  and  give  it  effect  as  intended.  Thus  in  the  case  of  a 
deed  evidence  for  this  purpose  lias  been  received.89  Similarly,  the  fact  that  a 
person,  in  executing  a  writing,  acted  as  agent  for  another,9"  or  in  some  other 
representative  capacity  91  such,  for  instance,  as  an  authorized  agent  or  officer 
of  a  corporation  '•'-'  may,  in  like  manner,  be  shown  by  parol  evidence. 

Real  Transaction  May  Be  Shown. —  Where  the  true  nature  of  the  transac- 
tion is  not  apparent  from  the  writing  itself,  the  court  may  permit  the  introduc- 
tion of  extrinsic  evidence 93  of  the  circumstances  attending  the  transaction, 
so  that  the  objects  and  purposes  of  the  parties  in  executing  the  writing  may  be 
ascertained  and  effect  given  thereto,  provided,  of  course,  as  in  other  cases,  that 
the  proof  offered  is  consistent  with  the  language  employed. 


&  Wiggins,  37  Okl.  778,  132  Pac.  1082  (1913)  ; 
5  Chamb.,  Ev.,  §  3563,  n.  1. 

89.  Wakefield  v.   Brown,  38  Minn.  361,  37 
N.  \V.  788   (1888)  •  Keith  v.  Scales  124  N.  C. 
497,  32  S.  E.  809    (1899);   5  Chamb.,  Ev.,  § 
3563,  n.  2. 

90.  Carr  v.  Louisville  &  N.  R.  Co.,  141  Ga. 
219,  80  S.  E.  716    (1914)  ;   Meyers  v.  Kilgen, 
177   Mo.    App.    724,    160   S.   W.   569    (1913); 
Brady  v.  Nally,  151  X.  Y.  258,  45  N.  E.  547 
(1896);   Crable  &  Son  v.  O'Connor,  21   VVyo. 
460,    133    Pac.   376    (1913);    5   Chamb.,   Ev., 
§  3563,  n.  3. 

Agency. —  The  parol  evidence  rule  does  not 
exclude  evidence  that  a  person  named  in  a 
written  contract  was  the  agent  of  an  undis- 
closed principal.  This  does  not  vary  the  con- 
tract but  establishes  a  collateral  fact;  that 
is  the  authority  under  which  the  agent  acts. 
Davidson  v.  Hurty,  116  Minn.  280.  133  N.  W. 
862,  39  L.  R.  A.  (X.  S.)  324  (1911). 

Parol  evidence  is  inadmissible  to  show 
parties  to  sealed  instruments  acting  as  agents. 
See  note,  Bender,  ed.,  192  X.  Y.  229. 

91.  Curran    v.    Holland.    141    Cal.    437,    75 
Pac.  46  ( 1903)  ;  .Adams  Exp.  Co.  v.  Boskowitz, 
107  111.  660    (1883);   Rank  v.  Grote,   110  X. 
Y.   12,   17  X.   E.  665    (1888);   Moore  v.  Wil- 
liams, 26  Tex.  Civ.  App.   142,  62   R.  W.  977 
(1901)  ;  5  Chamb.,  Ev.,  §  3563,  n.  4.     Where 

an  insurance  policy  is  made  in  the  name  of 
an  individual  parol  evidence  is  not  admissible 
to  show  that  he  is  an  administrator  and  that 
the  policy  was  intended  to  cover  the  interests 
of  the  estate  and  the  heirs  as  this  would  be 
varying  the  terms  of  a  written  instrument. 
Stanley  v.  Firemen's  Insurance  Co.,  34  R.  I. 
491,  84  Atl.  601,  42  L.  R.  A.  (X.  S.)  79 
(1912). 
.Sureties. —  In  a  suit  between  two  sureties 


on  a  bond  to  enforce  contribution  parol  evi- 
dence is  admissible  to  show  the  actual  rela- 
tion of  the  parties  and  that  it  was  agreed  be- 
tween them  that  the  defendant  was  not  to 
be  held  as  surety.  Frew  v.  Secular,  101  Xeb. 
131,  162  X.  W.  496,  L.  R.  A.  1917  F  1065 
(1917)  Fact  that  one  is  surety  may  be 
proved  by  parol  See  note  to  Bender,  ed.,  171 
X.  Y.  52.  Proper  to  show  by  parol  that  per- 
son who  signed  note  was  surety.  See  note, 
Bender,  ed.,  6  X.  Y.  9. 

92.  Decowski  v.  Grabarski,  181  111.  App.  279 
(1914)  ;   Kenner  v.  Decatur  County  Rochdale 
Co-operative    Ass'n,    87    Kan.    293,    123    Pac. 
739    (1912);    United   Surety   Co.   v.   Meenan, 
211  X.  Y.  39,  105  X.  E.  106  (1914)  ;  Xorthern 
Xat.  Bank  v.   Lewis,  78  Wis.  475,  47  X.  W. 
834    (1891);    5    Chamb.,    Ev.,    §    3563,   n     5. 
Compare  Crelier  v  Mackey,  243   Pa.  363,  90 
Atl.    158    (1914)       If  a  note   is   signed   with 
the  name  of  a  corporation  by  its  signing  offi- 
cers alone  it  is  the  note  of  the  corporation 
alone  and  cannot  be  shown  to  be  the  notes  of 
the  officers,  but  where  the  names  of  the  di- 
rectors are  added  this  leaves  the  matter  am- 
biguous and  it  may  be  shown  by  parol  that 
the  parties  intended  to  obligate  themselves  in- 
dividually.    Denman    v.    Brenneman    (Okla.) 
(1915),    149    Pac.    1105,    L.    R.    A.    1915    E 
1047.     An    indemnity    agreement    signed    by 
various  individuals  who  are  the  officers  of  a 
drainage  district  where  the  district  was  the 
real  principal  in  the  bond  is  the  personal  ob- 
ligation of  the  signers  and  parol  evidence  is 
not  admissible  to  show  that  they  intended  to 
sign  as  representing  the  district.     Costello  v. 
Bridges,  81  Wash.  192,  142  Pac.  687,  L.  R.  A. 
1915    A    853     (1914). 

93.  Application  of  rule  stated  in  the  text  to 
Assignments :     Reeve  v.  Dennett,  147  Mass. 


877 


SUBJECT  MATTER. 


§   1118 


Subject  Matter  Not  Clear;  Evidence  for  Purpose  of  Identification. —  Where 
there  is  an  uncertainty  in  the  terms  of  an  instrument  as  to  the  subject  matter 
to  which  the  writing  relates,  and  which  it  is  necessary  to,  in  some  way,  iden- 
tify, in  order  to  give  effect  to  the  document  with  a  proper  degree  of  certainty, 
parol  evidence  will  be  received  94  to  enable  the  court  to  apply  the  writing  to 
its  subject  matter  and  its  admission  is,  in  no  way,  a  violation  of  the  parol 
evidence  rule.  Where  the  description  in  instruments  relating  to  real  property 
is  not  sufficiently  definite  to  clearly  identify  it,  the  court  will  endeavor  to  give 
effect  to  the  writing  in  accordance  with  the  understanding  of  the  parties  and, 
for  this  purpose,  will  receive  extrinsic  evidence,  consistent  with  the  terms  of 
the  instrument,  to  enable  it  to  apply  the  description  in  accordance  with  their 
intention.1'5  The  rule  has  been  applied  by  the  courts  to  contracts  of  sale,96 
deeds.  °7  leases,08  and  mortgages."  The  object  of  the  court  is,  in  all  cases,  to 


315  (1S84);  Matthews  v.  Sheehan,  69  N.  Y. 
585  (1877)  ;  Taylor  v.  Paul,  6  Pa  Super.  Ct. 
406  (1808)  ;  5  Chamb..  Ev  .,  §  3564,  n.  1. 

Assignments:  Reeve  v.  Dennett,  137  Mass 
315  (1884):  Matthews  v.  Sheehan,  69  "NT.  Y. 
585  (1877)  ;  Taylor  v  Paul,  6  Pa.  Super  Ct. 
496  (1S98)  ;  5  Chamh.,  Ev.,  §  3564.  n  1. 

Bills  of  sale:  Florida  Cent  &  P.  R.  Co. 
v.  L'snia,  111  Ga  697,  36  S.  E.  928  (1900); 
Raphael  v  Mullen,  171  Mass  111,  50  X.  E 
515  ( 1898)  :  Martin  v.  Martin,  43  Or.  119,  72 
Pac  639  (1903)  ;  5  Chamb.,  Ev  ,  §  3564,  n.  1. 
But  see,  Thomas  v.  Scutt.  127  N.  Y.  133,  27 
X  E.  961,  alFg  52  Hun  343,  5  X.  Y.  Supp.  365 
(1891). 

Deeds  may  he  shown  to  have  been  given  as 
a  mortgage,  trust  and  the  like.  Black  v. 
Sharkey,  104  Cal.  279,  37  Pac.  939  (1894); 
Myers  v.  Myers,  167  111.  52,  47  X  E.  309 
(1897)  :  Colib  v.  Day,  106  Mo.  278,  17  S  W. 
323  (1891);  Medical  College  Laboratory  v. 
New  York  University,  76  App.  Div.  48,  78  X. 
Y.  Supp.  673  (1902);  Senff  v.  Pyle,  46  Ohio 
St  102,  24  X  E.  595  (1888);  Beringer  v. 
Lutx,  179  Pa.  1,  37  Atl.  640  (1897):  Schierl 
v.  Xewburg,  102  Wis.  552,  78  X.  W.  761 
(1899)  ;  5  Chamb.,  Ev.,  §  3564,  n  1. 

Mortgages:  Kirby  v.  Raynes,  138  Ala. 
194,  35  So  118  (1902)  :  Sparks  v.  Brown,  33 
Mo.  App  505  (1888);  Lippincott  v.  Lawrie, 
119  Wis.  573,  97  X.  W.  179  (1903)  ;  5  Chamb., 
Ev.,  §  3564,  n.  1. 

94.  Messenger  v.  German-American  Ins  Co., 
47  Colo.  448,  107  Pac  643  (1910):  Hartwell 
Grocery  Co.  v.  Mountain  City  Mill  Co..  8 
App  727.  70  S  E.  48  (1911);  Stockwell  v. 
Whitehead,  47  Ind.  App.  423,  94  X.  E  736 
(1911);  Pulaski  Hall  Ass'n  v.  American 


Surety  Co.,  123  Minn.  222,  143  X.  W.  715 
(1913)  ;  McManus  v.  Donohoe,  175  Mass.  308, 
56  X.  E.  391  ( 1899)  ;  Miller  v.  Tuck,  95  App 
Div.  134,  88  X.  Y.  Supp.  495  (1904)  ;  Allison 
v.  Keinon,  163  X  C.  582,  79  S.  E.  1110 
(1913);  Hurd  v.  Robinson.  11  Ohio  St.  232 
(1860)  :  King  v.  Xew  York  &  Cleveland  Gas 
Coal  Co.,  204  Pa.  628.  54  Atl.  477  (1903); 
Adams  v.  Janes,  83  Vt.  334,  75  Atl.  799 
(1910)  ;  5  Chamb.,  Ev.,  §  3565,  n.  1. 

95.  Grubbs  v.   Boon,  201   111.  98,  66  X.  E. 
390  1 1903)  ;  Weeks  v.  Brooks,  205  Mass.  458, 
92  X.   E.  45    (1910);   Pettit  v.   Sheppard,  32 
X.  Y.  97    (1865)  :   Trustees,  etc..  of  Kingston 
v.   Lehigh   Valley  Coal   Co..  241    Pa.   469,   88 
Atl.    763    (1913);    Fore   v.    Berry,    94    S.    C. 
71,     78     S.     E.     706      (1912):      Roberts     v. 
Hart     (Tex.    Civ.    App.     1914),    165    S.    W. 
473;  5  Chamb.,  Ev.,  §  3565,  n.  2.     The  descrip- 
tion of  property  in  a  will  may  be  corrected 
by    showing    that    unless    the    description    is 
corrected  the  land  the  testator  owned  will  go 
as  intestate  property,  where  the  testator  did 
not  own   the  property  described  in  the  will. 
Re  Boeck,  160  Wis.  577,  152  X.  W.  155,  L.  R. 
A.  1915  E  1008    (1915) 

96.  Towle  v.  Carmelo  Land  &  Coal  Co.,  99 
Cal     397,    33    Pac.    1126     (1893);    Clark    v. 
Crawfordsville   Coffin    Co.,    125    Ind.   277.   25 
X.  E.  288   (1890)  :  Helper  v.  MacKinnon  Mfg. 
Co..   138  Midi.   593.    101    X.   W.   804    (1904); 
Miller   v    Tuck,   supra ;   Crown    State   Co.   v. 
Allen,    199   Pa.    239,   48   Atl.   968    (1901);    5 
Chamb.,  Ev.,  §  3565,  n.  2. 

97.  Georgia  &  A.  R.  Co    v    Shiver,  121  Ga. 
708,    49    S.    E.    700     (1904):    Richardson    v 
Sketchley.    150    Iowa    393.    130    X.    W7.    407 
(1911)  ;  Kinlinger  v.  Joslyn.  93  Xeb.  40,  139 


1119 


PAEOL  EVIDENCE  RULE. 


878 


ascertain  the  meaning  of  the  parties  in  executing  the  writing,  and  parol  evi- 
dence is  received  only  to  the  extent  that  it  tends  to  aid  in  the  interpretation 
and  construction  of  the  writing.  The  court  will  not  permit  the  introduction 
of  evidence,  in  respect  to  the  subject  matter,  if  there  is  no  uncertainty  in  the 
description  thereof,  for,  wheA  that  situation  is  presented,  the  parol  evidence 
rule  of  exclusion  intervenes.1  Thus  in  the  case  of  a  mortgage,2  lease,3  or  con- 
tract of  sale,4  the  court  will  not  permit  the  introduction  of  evidence  inconsist- 
ent with  the  writing  and  which  tends  to  contradict  or  vary  its  terms.  A 
similar  situation  also  exists  where  the  language  used  is  of  such  a  vague  char- 
acter that,  even  with  the  aid  of  parol  evidence,  there  would  be  no  certainty 
that  the  real  subject  had  been  identified.  The  rule  of  exclusion  is,  likewise- 
here  applicable.5 

§  1119.  Unauthorized  Signing.6 —  It  is  always  permissible  for  one  whose  name 
appears  as  a  party  to  a  writing  to  show  that  the  signature  is  not  his  but  was 
affixed  to  the  document  by  one  who  was  not  authorized  to  act  for  him  in  the 
matter,7  and  who  either  exceeded  powers  conferred  upon  him  or  forged  his 
name  thereto,  since  he  is  not  bound  by  such  an  instrument.  Evidence  to  this 
effect  is  not  within  the  meaning  of  the  parol  evidence  rule. 


N.  W.  1019  (1913)  ;  Petrie  v.  Hamilton  Col- 
lege, 158  N.  Y.  458,  53  N.  E.  216  (1899); 
Johnson  v.  Branning  Mfg.  Co..  165  N.  C.  105, 
80  S.  E.  980  (1914)  ;  5  Chamb.,  Ev.,  §  3565, 
n.  2. 

98.  Durr  v.  Chase,  161  Mass.  40,  36  N.  E. 
741    (1894)  ;  Myers  v.  Sea  Beach  R.  Co.,  167 
N.   Y.  581,  60  N.   E.    1117    (1901);    Boice  v. 
Zimmerman,   3   Pa.    Super.    Ct.    181    (1896); 
Goodsell  v.  Rutland  Canadian  R.  Co.,  75  Vt. 
375,  56  Atl.  7   (1902)  ;  5  Chamb.,  Ev.,  §  3565, 
n.  2. 

99.  California  Title  Ins.  &  T.  Co.  v.  Pauly. 
Ill  Cal.  122,  43  Pac.  586    (1896);   Clapp  v. 
Trowbridge,    74  <owa    550,    38    X.    W.    411 

(1888);  Taft  v.  Stoddard,  141  Mass.  150,  6 
N.  E.  836  (1886);  Farr  v.  Nichols,  132  N. 
Y.  327,  30  N.  E.  834  (1892)  ;  5  Chamb.,  Ev., 
§  3565,  n.  2. 

1.  Daniel  v.  Williams,  177  Ala.  140,  58  So. 
419   (1912);   Mead  v.  Peabody,  183  111.   126, 
55  N.  E.  719  (1899)  ;  Miller  v.  Washburn,  117 
Mass.  371    (1875);   Duffield  v.  Hue,   129  Pa. 
94,  18  Atl.  566  (1889)  ;  5  Chamb.,  Ev.,  §  3565, 
n.  3. 

2.  Lawrence   v.    Comstock,    124   Mich.    120, 
82  N.  W.  808    (1900)  ;  Drexel  v    Murphy,  59 
Neb.  210,  80  N.  W.  813    (1899);    Coombs  v. 
Patterson,   19  R.  I.  25,  31  Atl.  428    (1897); 
5  Chamb.,  Ev.,  §  3565,  n.  4. 

3.  Haycock   v.    Johnson,    81    Minn.    49,    83 


N.  W.  494,  1118  (1900)  ;  Kraus  v.  Smolen,  46 
Misc.  463,  92  N.  Y.  Supp.  329  (1905)  ;  Duf- 
field v.  Hue,  sura ;  5  Chamb..  Ev.,  §  3565,  n  5. 

4.  Fitzgerald  v.  Clark,  6  Gray   (Mass.)   393 
(1856);    Dady   v.   O'Rourke,    172   N.   Y.   447, 
65  N.  E.  273    (1902)  ;  Ormsbee  v.  Machir.  20 
Ohio  St.   295    (1870);    Baugh   v.   White,    16.1 
Pa.  632,  29  Atl.  267    (1894);  5  Chamb.,  Ev., 
§  3565,  n.   6. 

5.  First   Nat.   Bank   v.   Sonnelitner,   6   Ida. 
21,   51    Pac.    993    (189S);    Augustine   v.    Mc- 
Dowell, 120  Iowa  401,  94  N.  W.  918   (1903)  ; 
Ham  v.  Johnson,  51  Minn.  105,  52  N.  W.  1080 
(1892)  ;   Farthing  v.  Rochelle,  131  N.  C.  563, 
43  S.  E.  1    (1002)  ;  5  Chamb.,  Ev.,  §  3565,  n. 
7.     A  contract  for  sale  of  land  described  as 
"lots  11,  12,  and  13  in  Block  13,  Lemp's  ad- 
dition "  which  fails  to  state  the  state  county 
or  city  or  town  where  the  land  lies  is  insuf- 
ficient and  cannot  be  aided  by  parol  evidence 
Allen    v.    Kitchen,    16    Idaho    133,    100    Pac. 
1052,  L.  R.  A.  1917  A  563   (1909). 

6.  5  Chamberlayne,  Evidence,  §  3568. 

7.  Harper   v.   Lockhart,   9   Colo.   App.   430, 
48  Pac.  901   (1897)  :  Remick  v.  Sandford,  118 
Mass.  102  (1875)  ;  Pierce  v  Georger,  103  Mo 
540.  15  S.  W.  848    (1890)  ;   Porter  v.  Hardy, 
10  N.  D    551,  88  N.  W.  458    (1901)  ;  Hunter 
v.  Reilly,  36  Pa.  509    (I860);    Ellis  v.  Wat- 
kins,    73    Vt.    371,    50    Atl.    1105     (1900);    5 
Chamb.,  Ev.,  §  3568,  n.  1. 


879 


PUBLIC  RECORDS. 


§  1120 


§  1120.  Public  Records.8 —  The  parol  evidence  rule  applies  to  public  rec- 
ords 9  forbidding  the  introduction  of  any  extrinsic  evidence  which  in  any  re- 
spect tends  to  contradict,  alter  or  vary  them.  The  same  principle  controls  in 
the  case  of  judicial  records,10  in  which  are  recorded  the  various  steps  in  judicial 
proceedings  from  their  inception  to  their  termination.  An  occasion  may, 
however,  arise  when  parol  evidence  may  be  admitted  for  the  purpose  of  ex- 
plaining some  matter  of  record  which  is  not  clear  or  for  supplying  some  omis- 
sion therein. 


8.  5  Chamberlayne,   Evidence,   §   3569. 

9.  Wilson  v.  Jarron,  23  Ida.  563,   131   Pac. 
12    (1913);   City  of   Belleville  v    Miller,  257 
111    244,   100  X.  E.   946    (1913);    In  re  Bur- 
master's      Estate,       161       Iowa       116,      141 
X    \V.   55    (1913);    Cohb   v.  Alberti,   38  Okl. 
296,   132  Pac    1075    (1913);  Olson  Land  Co. 
v.  Seattle,  76  Wash    142,  136  Pac.  118  (1913)  ; 
Cote   v.    Xew   England    Xav.    Co.,   213   Mass. 
177,  99  X    E.  972    (1912);   5  Chamb.,  Ev.,  § 
3569,  n.  1.    Parol  evidence  is  not  admissible  to 
show  that  before  the  governor  vetoed  a  bill 
he   signed   it    intending  to   approve   it,   aa   a 
legislative  record  cannot  be  varied  by  parol. 
.Arkansas   State  Fair   Association   v.   Hodges, 
120  Ark.  131,  178  S.  W.  936.     It  is  not  proper 
to  attack  a  requisition  of  a  governor  of  an- 
other   state   for    extradition   by   affidavits   of 
outside  persons  as  this  is  an  official  document 
which     cannot     be     impeached.     Massee,     ex 
parte,  95  S.  C.  315.  79  S.  E.  97,  46  L.  R    A. 
(X.  S.)    781    (1913).     A  record  made  by  the 

clerk  of  a  school  district  of  its  annual  meeting 
may  be  supplemented  by  evidence  of  a  vote 
which  does  not  appear  on  the  records  where 
the  record  does  not  purport  to  be  complete 
but  is  a  mere  abstract  of  the  action  taken. 
Gilmer  v  School  District  Xo  26,  41  Okla.  12, 
136  Pac  10S6,  50  L.  R  A.  (X.  S.)  99  (1913) 
Parol  evidence  is  not  admissible  to  show  that 


a  municipal  ordinance  was  passed  by  a  yea 
and  nay  vote  where  its  journal  does  not 
show  it.  It  is  the  general  rule  that  the 
official  records  of  a  city  may  be  shown  only 
by  its  official  records  as  if  these  records  could 
be  varied  by  parol  they  would  be  uncertain 
and  unreliable.  Spalding  v.  Lebanon,  156  Ky. 
37,  160  S.  W.  751,  49  L.  R.  A.  (X.  S.)  387 
(1913). 

10.  Montgomery  Co.  v.  Taylor,  142  Ky.  547, 
134  S.  \V.  894  (1911)  ;  Cote  v.  New  England 
Xav.  Co.,  supra;  Rust  v.  State  (Tex.  Civ. 
App.  1913),  158  S.  W.  519;  Doyle-Kidd  Dry 
Goods  Co.  v.  Sadler-Lusk  Trading  Co.,  206 
Fed.  813  (1913);  5  Chamb.,  Ev..  §  3569,  n. 
2.  But  see  Brand  v.  Swindle,  68  W.  Va.  571, 
70  S.  E.  362  (1911)  (justice's  docket). 

Alteration. —  Parole  evidence  may  be  admit- 
ted to  show  that  a  record  of  a  judgment  has 
been  changed  by  altering  its  date.  Sackett 
v.  Rose  i Okla.  1916),  154  Pac.  1177,  L.  R.  A. 
1916  D  820. 

Acknowledgment  of  deed. —  A  certificate  of 
acknowledgment  on  a  deed  may  be  impeached 
by  evidence  of  the  interested  parties  that 
they  did  not  sign  it  in  those  states  where 
the  acknowledgment  is  regarded  as  a  minis- 
terial and  not  a  judicial  act.  People's  Gas 
Co.  v.  Fletcher,  81  Kan.  76,  105  Pac.  34,  41  L. 
R.  A.  (N.  S.)  1161  (1909). 


CHAPTER  LIX. 

BEST  EVIDENCE  RULE. 

Best  evidence  rule;  application  to  documents,  1121. 
writing  executed  in  duplicate,  1122.      r 

when  proof  other  than  by  original  allowed;  administrative  requirements, 
1123. 

loss  or  destruction  of  original,  1124. 

diligence  required  in  search,  1125. 
public  records;  official  and  judicial,  1126. 
voluminous  facts  in  different  writings,  1127. 
writing  collateral  to  issues,  1128. 
writing  in  control  of  adverse  party,  1129. 

writing  in  possession  or  control  of  third  papty  ;  out  of  jurisdiction, 
1130. 

§  1121.  Best  Evidence  Rule;  Application  to  Documents.1 — The  principles  of 
justice  demand  that  nothing  short  of  the  most  probative  evidence, —  the  "  best  " 
evidence  so  called, —  shall  be  used.  In  any  case,  where  a  party  has  it  in  his 
power  to  furnish  either  a  primary  or  secondary  grade  of  proof,  the  primary 
must  be  produced.2  This  principle,  as  applied  in  the  case  of  constituent  docu- 
ments, requires  the  production  of  the  original,  in  preference  to  proof  by  copy 
or  any  verbal  testimony  of  their  contents,  and  the  present  scope  of  the  <l  best 
evidence  rule,"  viewed  as  one  of  procedure,  is  practically  limited  to  proof  of 
the  contents  and  execution  of  such  documents.3  In  any  such  case,  where  a 
party  has  it  within  his  power  to  produce  the  original,  he  will  be  required  to  do 
so.4  This  is  the  general  rule  which  applies  alike,  subject  to  some  exceptions 
which  will  be  considered  in  the  following  sections  of  this  chapter,  to  all  classes 

1.  5  Chamberlayne,   Evidence,   §   3570.  Hunt  v.  Lavender,  140  Ga.  790,  79  S.  E.  1127 

2.  Mordecai    v.    Deal,    8    Port.     (Ala.)    529       (1913);  Bernstein  v.  Berlinger,  170  111.  App. 
(1839) .  519  ( 1912)  ;  Post  v.  Leland,  184  Mass.  601,  69 

A   marriage   ceremony  may  be   proved   by  N.    E.    361    (1903);    Washoe   Copper    Co.   v. 

parol    notwithstanding   there   is    a   marriage  Junila,  43  Mont.   178,   115  Pac.  917    (1911); 

certificate    in    existence    at    the    time.     The  Ruemer  v.  Clark,  121   App.  Div.  231,   105  N. 

testimony   of   eye  witnesses   is   primary   evi-  Y.  Supp.  659    (1907);   State  v.  Lent,  Tapp. 

dence   and   the   certificate   is   not  to  be   pre-  (Ohio)      105      (1816);      Commercial     Union 

ferred   to   it.     Watson   v.   Lawrence,    134   La.  Assur.  Co.  v.  Wolfe,  41  Okl.  342,  137  Pac.  704 

194,  63  So.  873,  L.  R.  A.  1915  E  121    (1913).  (1914)  :   Grauley  v.  Jermyn,  163  Pa.  501,  30 

3.  Supra,  §  228;   1  Chamb.,  Ev.,  §  466.  Atl.   203    (1894);    Trainer   v.    Lee,    34   R.    I. 

4.  Spangenberg    v.    Nesbitt,    22    Cal.    App.  345,   83   Atl.   847    (1912):   Aetna  Ins.   Co.  v. 
274,  134  Pac.  343  (1913)  ;  Peoples'  Nat.  Bank  Bank  of  Brunson,  194  Fed.  385,  114  C.  C.  A. 
v.  Rhoads    (Del.  Super.   1914),  90  Atl.  409;  303    (1912);  5  Chamb.,  Ev.,  §  3570,  n.  4. 

880 


881 


DUPLICATES. 


1122 


of  constituent  documents.  For  example,  the  courts  have  applied  the  rule  to 
particular  writings,  such  as  agency,  etc.,5  assignments,6  awards,7  ballots,8 
bills  of  sale,9  bonds,10  contracts,11  deeds,  conveyances,  etc.,12  leases,13  letters,14 
notes,15  notices  of  loss,16  and  wills.17  The  original  is,  in  all  cases,  regarded  as 
the  primary  or  "  best  evidence  "  so  called  if  it  is  in  existence  and  its  produc- 
tion is  possible.  The  rule  is  rigidly  enforced,  and  resort  must  be  had  thereto 
unless  the  presiding  judge  is  satisn'ed  of  the  proponent's  inability  to  offer  the 
original  in  evidence. 

§  1122.  Writings  Executed  in  Duplicate.18 — Where  the  writing  embodying 
the  terms  of  a  transaction  agreed  upon  between  the  parties  is  executed  in  du- 
plicate, triplicate  or  more  counterparts,  each  being  the  exact  counterpart  of 
the  other,  except  that  the  writing  held  by  each  party  may  in  some  instances 
only  have  the  signature  of  the  other  party  or  parties  thereto,  both  are  originals 


5.  Lee  v.  Agricultural  Ins.  Co.,  79  Iowa  379, 
44  N.  W.  683   (1890)  ;  Kennebeck  Purchase  v. 
Call,  1  Mass.  483  (1805)  ;  Emery  v.  King.  64 
N.  J.  L.  529,  45  Atl.  915    (1900);   Langbein 
v.  Tongue,  25  Misc.  757,  54  N.  Y.  Supp.  145 
(1898);  Beale  v.  Com.,  11  Serg   &  R.    (Pa.) 
299    (1824);   5  Chamb.,  Ev.,  §  3570.  n.  5. 

6.  Landt  v.   McCullough,   206    111.   214.   69 
N.   E.    107    (1903);    Van  Doren  v.   Jelliffe,   1 
Misc.  354,  20  X.  Y.  Supp.  636   (1892)  ;  John- 
ston v.  Southern  Well  Works  Co.,  208   Fed. 
145,   125  C.  C.  A.  361    (1913);   5  C.   §  3570, 
n.  5. 

7.  Sirrine  v.  Briggs,  31  Mich.  443   (1875)  ; 
Osen   v.    Sherman,    27    Wis.    501    (1871);    5 
Chamb.,  Ev.,  §  3570,  n.  5. 

8.  Moon  v.  Harris,  122  Minn.  138,  142  N. 
W.    12    (1913);    Caldwell    v.    McElvain,    184 
111.    552,    06    X.    E.    1012    (1900):    Albert    v. 
Twohig,  35  Xeb.  563,  53  X.  W.  582    (1892)  ; 
5  Chamb.,  Ev.,  §  3570,  n.  5. 

9.  Epping  v.  Mockler,  55  Ga.  376    (1875); 
Hood  v.   Olin,   80   Mich.   296.   45   X.   W.   341 
(1890)  ;  Dunn  v.  Hewitt,  2  Den.   I  X.  Y.)   637 
(1846)  ;   Price  v.  Wolfer,  33  Or.   15,  52  Pac. 
759   (1898)  ;   Bratt  v.  Lee.  7  U.  C.  C.  P.  280 
(1908)  ;  5  Chamb.,  Ev.,  §  3570,  n.  5. 

10.  Traylor  v.  Epps,  11  Ga.  App.  497,  75  S. 
E.  828  (1912)  ;  Montana  Min.  Co.  v.  St.  Louis 
Min.,   etc.,    Co.,   20   Mont.    394,    51    Pac.    824 
(1898)  ;  Rank  v.  Shewey.  4  Watts   (Pa.)   218 
(1835)  ;  5  Chamb.,  Ev.,  §  3570,  n.  5. 

11.  Burton   v.   Meinert   &   Miller,    136   Ga. 
420,  71   S.  E.  870    (1911);    Kitza  v.  Oregon 
Short  Line  R.  Co.,  169  111.  App.  609   (1912)  ; 
Kingman  v.  Hett,  9  Kan.  App.  533,  58  Pac. 
1022  (1899)  ;  Holmes  v.  Hunt,  122  Mass.  505, 


23  Am.  Rep.  381  (1877);  Mahaney  v.  Carr, 
175  X.  Y.  454,  67  N.  E.  903  (1903)  ;  McDevitt 
v.  Pewel,  Tapp.  (Ohio)  54  (1816);  Irwin  v. 
Irwin,  34  Pa.  525  (1859);  5  Chamb.,  Ev.,  § 
3570,  n.  5. 

12.  Harbison    Walker    Refractories    Co.    v. 
Scott,    185    Ala.    641,    64    So.    547     (1914); 
Lewis  v.   Burns,    122   Cal.   358,   55   Pac.    132 
(1898);   Wright  v.  Roberts,  116  Ga.  194,  42 
S.  E.  369   (1902)  ;  Brock  v.  Satchell,  130  La. 
853,  58  So.  686  (1912)  ;  Brackett  v.  Evans,  1 
Cush.    (Mass.)    79    (1848);  Jackson  v.  Park- 
hurst,  4  Wend.   (N.  Y.)   369   (1830);  Deppen 
v.   Bogar,   7    Pa.   Super.   Ct.   434    ( 1898 )  ;    5 
Chamb.,  Ev.,  §  3570,  n.  5. 

13.  Wallace  v.   Wallace,   62   Iowa  651,    17 
N.   W.   905    (1883);    Gilbert  v.   Kennedy,  22 
Mich.  5  (1870)  :  Putnam  v.  Goodall,  31  N.  H. 
419    (1855)  ;   5  Chamb.,  Ev.,  §  3570,  n.  5. 

14.  Slaughter   v.   Heath,    127    Ga.   747,   57 
S.   E.   69    ( 1907 )  ;    Prussing  v.   Jackson,   208 
111.  85,  69  X.  E.  771   (1904)  ;  Connecticut  Fire 
Ins.   Co.   v.   Moore.    154   Ky.    18,   156   S.   W. 
867  (1913)  ;  Post  v.  Leland,  184  Mass.  601,  69 
X.  E.  361    (1904)  :   Stern  v.  Stanton,  184  Pa. 
468,   39   Atl.   404    (1898);    5   Chamb.,   Ev.,   § 
3570,  n.  5. 

15.  Dale  v.  Christian,  140  Ga.  790,  79  S.  E. 
1127   (1913). 

16.  Aetna  Ins.  Co.  v.  Bank  of  Branson,  194 
Fed.  385,  114  C.  C.  A.  303  (1912). 

17.  McXear  v.  Roberson,  12  Ind.  App.  87, 
39  X.  E.  896    (1894)  :   Morrill  v.  Otis,  12  XT. 
H.  466  (1841)  :  Matter  of  Smith.  61  Hun  101, 
15  X.  Y.  Supp.  425   (1891)  ;  5  Chamb.,  Ev.,  § 
3570,  n.  5. 

18.  5  Chamberlayne,  Evident,  §  3571. 


§  1123  BEST  EVIDENCE  KITLE.  882 

and  primary  evidence  of  the  terms  of  the  transaction  and  either  may  be  ad- 
mitted as  such  in  evidence,19  without  proof  being  required  of  any  reason  for 
the  non-production  of  the  other,  if,  however,  where  there  are  duplicate  orig- 
inals, a  party  seeks  to  introduce  secondary  evidence  he  will  not  be  permitted 
to  do  so  until  the  court  has  been  satisiied  of  his  inability  to  produce  either 
original.20  Carbon  copies  being  made  by  the  same  imprint  as  that  which  is 
designated  the  original,  are  regarded  as  originals,-1  and  the  same  rules  as  apply 
in  the  case  of  duplicates,  triplicates  and  the  like  are  applicable. 

§  1123.  When  Proof  Other  Than  by  Original  Allowed;  Administrative  Require- 
ments.22—  As  appears  in  the  subsequent  sections  of  this  chapter,  the  proponent, 
upon  satisfactorily  establishing  the  fact  of  his  inability  to  produce  the  original 
document,  will  be  permitted  to  prove  its  contents  by  other  evidence.  The  court, 
however,  must  be  satisfied  that,  whatever  the  reason  assigned  by  him  for  the 
non-production  of  the  document,  may  be,  the  condition  which  he  asserts  as  ex- 
cusing him  for  not  complying  with  the  requirements  of  the  rule,  does  in  fact 
actually  exist.23  He  must  show  that  he  has  exercised  due  diligence  in  en- 
deavoring to  obtain  the  writing  itself. 

Must  Be  Authenticated  as  Genuine. —  In  all  cases  where  a  party,  who  relies 
upon  the  loss,  destruction  or  unavailability  of  the  instrument,  seeks  to  prove  its 
contents,  other  than  by  the  production  of  the  original,  it  will  be  required,  as 
in  the  case  of  the  production  of  the  original  private  writing  or  document,  that 
the  genuineness  of  the  writing,  or  in  other  words  its  due  and  proper  execution 
by  the  party  whose  act  it  is  asserted  to  be,  shall  be  established  to  the  satisfac- 
tion of  the  presiding  judge.24  So  a  failure  to  produce  documents  so  called  for 

19.  .Westbrook     v.     Fulton,     79     Ala.     510  23.  Larsen    v.   All    Persons,    165   Cal.   407, 
(1885);   Weaver  v.  Shipley,  127  Ind.  526,  27  132   Pac.   751    (1913);    Empire  State   Surety 
N.   E.    146    (1890);    Catron   v.   German    Ins.  Co.   v.    Lindenmeier,   54   Colo.   407,    131    Pac. 
Co.,  67  Mo.  App.  544    (18!)6);   Manchester  &  437    (1013)  ;   Cerny  v.  Glos,  261    111.  331.  103 
Lawrence    Railroad    v.    Fisk,    33    N.    H.    297  N.  E.  973    (1914);  McConnell  v.  Wildes,   153 
(1856)  ;  Hubbard  v.  Russell,  24  Barb.  (X.  Y.)  Mass.  487,   26   X.   E.    1114    (1854):    Sullivan 
404   (1857);  First  Nat.  Bank  v.  Jamison,  63  v.    Godkin,    172    Mich.    257,    137    X.    W.    521 
Or.   594,    128   Pac.   433    (1913);    Eastman    v.  (1912)j-  Kearney    v.    Xew    York,    92    X.    Y. 
Dunn,  34  R.  I.  416,  83  Atl.   1057    (1912);   5  617    (1883);   Greene  &   Kahl  v.  Mesick  Gro- 
Chamb.,  Ev.,  §  3571,  n.  1.  eery  Co.,  159  X.  C.  119,  74  S.  E.  813   (1912)  ; 

20.  Cincinnati,  etc.,  R.  Co.  v.  Disbrow,  76  Choteau  v.  Haitt,  20  Ohio  132   (1851);  Glad- 
Ga.  253    (1886);   Holden's  Steam  Mill  Co.  v.  stone  Lumber  Co.   v.   Kelly.  64  Or.    163,   129 
Westervelt,    67    Me.    446     (1877):    Peaks    v.  Pac.  763    (1913);    Heller  v.   Peters.   140  Pa. 
Cobb,   192  Mass.   196,  77   X.   E.  881    (1906);  648,   21    Atl.   416    (1891);    5   Chamb.,   Ev.,   § 
5  Chamb.,  Ev.,  §  3571,  n.  2.  3572,  n.  2. 

21.  Hay    v.    American    Fire   Clay    Co.,    179  24.  Rucker    v.    Jackson,    180    Ala.    109,    60 
Mo.  App.   567,   162   S.  W.   666    (1913):    Cole  So.  139   (1912);  Kelsey  v.  Hanmer,  18  Conn, 
v.  Ellwood  Power  Co.,  216   Pa.   283.  65   Atl.  311     (1847);    Garbutt    Lumber   Co.    v.    Gress 
678    (1907)  ;  Eastman  v.  Dunn,  34  R.  I.  416,  Lumber  Co.,  Ill  Ga.  821,  35  S.  E.  686  (1900)  ; 
83   Atl.    1057    (1912);    Chesapeake  &   0.   Ry.  Helton  v.   Asher,   103  Ky.  730,  46   S.   W.   20 
Co.  v.  Stock  &  Sons,  104  Va.  97,  51  S.  E.  161  (1898)  ;    Zollman   v.   Tarr,   93   Mo.   App.   234 
(1905)  ;  5  Chamb.,  Ev.,  §  3571,  n.  3.  (1902);    Edwards   v.    Noyes,    65    X.    Y.    125 

22.  5  Chamberlayne,    Evidence,     §§     3572-  (1875);    Burr  v.  Kase.   168  Pa.   81,  31   Atl. 
3574.  954   (1895)  ;  5  Chamb.,  Ev.,  §  3573,  n.  1. 


883  Loss  OF  OEIGINAL.  §  1124 

from  an  adverse  party,  is  not  of  itself  proof  of  the  fact  of  their  existence; 
they  must  be  proved.25 

Admissions  Relating  to  Contents. —  There  has  been  much  diversity  of  opin- 
ion whether,  in  case  of  an  admission  by  an  opponent  of  the  contents  of  a  writ- 
ing, there  should  be  a  relaxation  of  the  rule  requiring  the  production  of  the 
original,  and  the  proponent  should  be  allowed  to  introduce  such  admission  in 
evidence,  as  proof  of  contents.  In  England  the  rule  seems  to  be  established 
that  he  may,  and  in  many  jurisdictions  in  the  United  States,  and  also  in  the 
Canadian  courts,  the  same  conclusion  has  been  reached,20  upon  the  principle 
that  the  situation  here  presented  differs  from  that  in  which  it  is  proposed  to 
introduce  parol  proof  of  the  contents  from  other  sources,  in  that  that  which  has 
been  admitted  may  reasonably  be  presumed  to  be  true.  In  other  jurisdictions, 
however,  this  doctrine  has  been  repudiated,27  generally,  upon  the  ground  of 
the  opportunity  for  fraud  which  would  exist  if  a  party  could  establish  the  con- 
tents of  a  writing  in  this  manner. 

§  1124.  loss  or  Destruction  of  Original.28 —  Upon  its  being  established  to  the 
satisfaction  of  the  presiding  judge  that  a  writing,  which  is  relevant  to  the 
issue,  has  been  lost  or  destroyed,  proof  of  its  contents  may  then  be  made  by 
parol.  This  applies  alike  to  all  classes  of  constituent  documents.29  It  being 
thus  satisfactorily  shown  that  a  party  is  unable  to  produce  the  original  in  evi- 
dence, the  so-called '"  best  evidence  rule  "  permits  proof  of  the  contents  of  a 
writing  to  be  made  by  the  best  evidence  of  which  the  nature  of  the  case  will 
admit. 

25    Jones  v.  Reilly,  174  X.  Y.  97,  66  X.  E.  App.  285,  134  Pac.  156  (1913)  ;  Hicks  &  Son 

649   (1903).  v.  Mozley  &  Co.,  12  Ga.  App.  661,  78  S.  E. 

26.  Morey  v.   Hoyt,  62  Conn.   542,  26  Atl.  133    (1913);   People  v.  Henkle,  256   111.  585, 
127    (1893);   Combs  v.  Union  Trust  Co.,   146  100   X.    E.    175    (1912);    Wolf   v.   Wolf,    152 
Ind     688,    46    X.    E.    16    (1896);    Loomis   v.  Iowa  121,  131  N.  W.  882    (1911);   Hersey  v. 
Wadhams.  8  Gray    (Mass)    557    (1857);   Ed-  Jones,    128    Mass.    473    (1880);    Huntoon   v. 
gar  v    Richardson,  33  Ohio  St.  381,  31   Am.  Brendemuehl,   124  Minn.   54,   144   X.  W.  426 
Rep.  571   (1878)  ;  Krise  v.  Xeason,  66  Pa.  253  (1914)  :   Risher  v.  Madsden,  94  Xeb.  72,  142 
(1870)  ;  Reg  v.  Basingstoke,  14  Q.  B.  611,  68  X.  W.  700   (1913)  ;  Corona  Kid  Co.  v.  Licht- 
E.  C.  L.  611    (1851)  :  Rogers  v.  Card.  7  U.  C.  man,  84  X.  J.   L.  363,   86  Atl.   371    (1913)  ; 
C.  P.  89   (1857)  :  5  Chamb.,  Ev.,  §  3574,  n.  1.  Sundelevitz  v.  Fourteenth  St.  Bank,  127  N.  Y. 

27.  Flournoy  v.  Xewton,  8  Ga.  306  (1850);  Supp.    315     (1911);    John    v.    John,    Wright 
Prussing  v.  Jackson,  208  111.  85,  69  X.  E.  771  (Ohio)  584  (1834)  ;  Reus  v.  Mattison,  30  Okl. 
(1904)  :  Bank  of  Xorth  America  v.  Crandall,  720,   121   Pac.  253    (1912)  ;   In  re  Daly's  Es- 
87  Mo.  208   (1885)  :  Cumberland  Mut.  F.  Ins.  tate.  55  Pa.  Super.  Ct.  488   (1914)  ;  Austin  v. 
Co.  v.  Giltinan,  48  X.  J.  L    495,  7   Atl    424  Calloway,  73  W.  Va.  231,  80  S.  E.  361  (1914)  ; 
(1886)  ;  Sherman  v.  People,  13  Hun   (X.  Y.)  5  Chamb.,  Ev.,  §  3575,  n.  1. 

575  (1878)  ;  Com.  v.  County  Prison,  11  Wkly.  The  mere  fact  that  a  writing  is  out  of  the 

Xotes  Cas.   (Pa.)   341    (1882)  ;  5  Chamb,  Ev.,  jurisdiction  of  the  court  in  another  State  in 

§  3574,  n.  2.  the  possession  of  a  party  does  not  permit  him 

28.  5    Chamberlayne,    Evidence,    §§    3575-  to   give    secondary   evidence   of   its   contents. 
3578.  Federal  Chemical  Co.  v.  Jennings,  112  Miss. 

29.  People  v.  Murphy,  20  Cal.  App.  398,  129  513,  73  So.  567,  L.  R.  A.  1917  D  529   (1917). 
Pac.  603  (1913)  ;  Eagan  v.  Mahoney,  24  Colo. 


§   1124  BEST  EVIDENCE  RULE.  884 

Evidence  to  Establish. —  Although  a  frequent,  if  not  the  usual  mode,  of 
proving  the  loss  of  a  document  is  by  an  affidavit  to  that  effect,30  yet  loss  may 
also  be  established  by  other  evidence,  such  as  by  the  testimony  of  the  person  last 
in  possession  of  the  instrument.31  It  should  appear  either  from  the  testimony 
of  such  person,  if  he  can  be  produced,  or  by  some  other  satisfactory  evidence, 
that  the  writing  is  not  in  the  former's  possession.32  In  case  the  writing  can- 
not be  traced  to  the  possession  of  one  particular  person,  but  the  evidence  tends 
to  show  that  it  was  equally  likely  to  have  been  in  the  possession  of  any  one  of 
several,  then  evidence  should  be  introduced  tending  to  show  that  it  was  not  in 
the  possession  of  any  of  such  persons.33 

Amount  of  Proof  Required. —  What  shall  constitute  sufficient  proof  of  the 
loss  or  destruction  of  the  original,  to  authorize  the  admission  of  secondary  evi- 
dence of  the  contents,  is  dependent,  to  a  great  extent,  upon  the  circumstances 
of  the  case  and  the  nature  of  the  instrument.34  Where  the  writing  was  not  of 
such  a  character  that  a  person  would,  naturally,  exercise  any  considerable 
degree  of  care  to  preserve  it,  the  court  would  not  be  as  insistent  upon  the  same 
amount  of  proof  being  furnished,  to  establish  its  loss  or  destruction,  as  would 
be  required  in  the  case  of  instruments,  such  as  deeds,  which  ordinary  persons 
usually  guard  with  much  caution,  preserving  them,  under  conditions  and  in 
places,  where  they  can  readily  obtain  them  and  where  the  chances  of  their 
loss  or  destruction  are  minimized.35  In  the  former  case,  a  slight  amount  of 
proof  might  be  considered  sufficient,  while,  in  the  latter  instance,  the  court 
would  insist  upon  evidence  of  much  more  convincing  effect.36  Should  some 

30.  Fallen     v.     Dougherty,     12     Cal.     104       search  of  the  store  about  a  year  after  it  had 
(1859)  ;   Blake  v.   Fash,  44  111.  302    (1867)  :       been  left  there  was  not  regarded  as  sufficient, 
Joannes    v.    Bennett,    5    Allen     (Mass.)     169       it  being  held  that  the  person  who  was  the  oc- 

(1862)  ;    Blade  v    Nolan,   12   Wend.    (X.  Y.)  cupant  of  the  store  during  that   period   and 

173   (1834)  ;  Wells  v.  Martin,  1  Ohio  St.  386  who  was  within  reach  of  the  process  of  the 

(1853)  ;  5  Chamb.,  Ev.,  §  3576,  n.  1.  court,   should   have   been   produced.     King  v. 

31.  Kearney  v.  Mayor,  92  N.  Y.  617  ( 1883)  :  Randlett,  33  Cal.  318   ( 1867).     Evidence  may 
Hale    v.     Darter,     10     Humph.     (Tenn.)     92  also   be   introduced    of   the   admission   of   an 
(1849)  ;  Trimble  v.  Edwards,  84  Tex.  497,  19  opponent    to    the    same    effect.     Pentecoct    v. 
S.  W.  772   (182).  State,  107  Ala.  81,  18  So.  146   (1894). 

32.  Trussing    v.    Jackson,    208    111.    85,    69  34.  Jernegan    v.    State,   81    Ala     58,    1    So. 
N.  E.   771    (1904)  :   Murray  v.  Buchanan.   7  72  (1886)  :  Wiseman  v.  Northern  Pac.  R.  Co., 
Blackf.    (Ind.)   549    (1845)  :  Myers  v.  Bealer,  20  Or.  425,  26  Pac.  272.  23  Am.  St.  Rep.  135 
30  Neb.  280,  46  N.  W.  479    (1890)  :   Koehler  (1891). 

v.    Schilling,    70   N.    J.   L.    585,   57    Atl.    154  35.  Waller    v.    Eleventh    School    Dist.,    22 

(1904)  ;  Kearney  v.  New  York,  92  N.  Y.  617  Conn.  326  ( 1853)  ;  Houghtalling  v.  Houghtal- 

(1883);  Richardson  v.  Fellner,  9  Okl.  513.  60  ling    (Iowa  1907),  112  N.   W.  197:    Bartlett 

Pac.  270  (1900)  ;  5  Chamb.,  Ev..  §  3576,  n.  3.  v.   Robbins,  53   Md.   485    (1879)  ;    5   Chamb., 

33.  Thus,  where  it  is  doubtful   whether   a  Ev.,  §  3577,  n.  2. 

letter   is   in  the   possession   of  the   addressee  36.  Wiseman     v.     Northern     Pac.     R.     Co., 

or  of  the  party  who  wishes  to  use  its  contents  supra  :   5   Chamb.,   Ev.,   §   3577,   n.   3.     Thus, 

as  evidence,  it  must  be  shown  that,  after  the  in   the  case  of  letters  which   a  party  might 

use  of  due  diligence,  it  cannot  be  found   in  reasonably   suppose   would    never   be    of   any 

the   possession   of   either.     Bogan   v.    McCut-  particular  value  and  that  no  occasion  might 

chen,  48  Ala.  493    (1872).     Similarly,  in  the  ever  arise  for  their  use  in  the  future,   such 

case  of  a  deed  which  was  left  in  a  store,  a  fact   would    be   considered    by   the   presiding 


885  Loss  OF  ORIGINAL.  §  1124 

suspicion  exist  that  a  party  is  withholding  a  writing,  a  rigid  inquiry  would 
be  made  as  to  the  alleged  reasons  for  its  non-production.37  If  it  should  appear 
that  the  writ;ng  was  destroyed  by  the  proponent,  the  court  will  require  a  full 
explanation  of  the  circumstances,  so  that  any  suspicion  of  fraud  or  improper 
intent  on  the  part  of  the  one  destroying  it  may  be  overcome.38  Proof  that  an 
instrument  whose  contents  a  party  desires  to  prove  by  parol  was  not  intention- 
ally destroyed,  may  also  be  necessary  under  some  statutes.39  In  any  event  the 
presiding  judge  must  be  satisfied  that  the  instrument,  the  contents. of  which  a 
party  seeks  to  prove  by  secondary  evidence,  has,  in  fact,  been  lost  or  destroyed, 
before  he  will  permit  proof  by  the  latter  mode.40  If  he  is  satisfied  that  the 
claim  of  the  proponent  is  established,  he  will  admit  the  writing  in  evidence; 
proof  of  an  absolute  character,  beyond  the  possibility  of  a  mistake,  will  not  be 
required.41  If  it  appears  to  a  reasonable  certainty  that  the  instrument  in 
question  has  been  lost  or  destroyed,  it  is  ordinarily  sufficient  to  permit  of  the 
introduction  of  proof  of  contents  by  other  evidence  than  that  afforded  by  the 
original.42  The  weight  and  effect  of  the  evidence  thus  afforded  is  for  the 
jury.43 

A  Question  for  the  Presiding  Judge. —  The  question  as  to  the  amount  of 
proof-  which  will  be  sufficient  to  establish  the  loss  or  destruction  of  the  original, 
so  as  to  admit  other  evidence  of  its  contents,  is  one  for  the  determination  of 
the  presiding  judge,  taking  into  consideration  the  character  of  the  writing  and 
the  circumstances  of  the  case.44  The  ruling  must  depend  upon  the  circum- 
stances of  each  particular  case.45 

judge,  in  connection  with  a  slighter  degree  of  41.  Taunton   Bank   v.   Richardson,   5   Pick, 

proof  of  inability  to  produce  them  than  would  (Mass.)  436  (1827)  ;  Burt  v.  Long,  106  Mich, 

be  required  in  the  case  of  some  other  writing  210,    64    X.    W.    60     (1895);    Kleinmann    v. 

of  importance,  which  a  person  would  be  more  Geiselmanu,     114    Mo.    437,    21     S.   W.    796 

likely  to  preserve  with  greater  care.     Hoblit  (1893)  ;   Kane  v.  Metropolitan  El.  R.  Co.,  15 

v.   Houser,   171   111.   App.   19    (1913).  Daly  294,  6  N.  Y.  Supp.  526  (1889)  ;  Wells  v. 

37.  Mordecai   v.   Beal,   8   Port.    (Ala.)    529  Martin,    1    Ohio    St.    386    (1853);    Bright   v. 
(1839)  ;    Minor  v.   Tillotson,  7   Pet.    (U.   S.)  Allan,  20.3  Pa.  386,  53  Atl.  248   (1902)  ;  U.  S. 
99,  32  L.  ed.  621   (1833).  v.   Sutter,   21   How.    (U.   S.)    170    (1858);    5 

38.  Bagley   v.    McMickle,    9    Cal.   430,   447  Chamb.,  Ev.,  §  3577,  n.  9. 

(1858);    United    States    v.    Reyburn,    6    Pet.  42.  Empire    State    Surety    Co.    v.    Linden- 

(U.    S.)    352,   367,   8   L.   ed.   424    (1832);    5  meier,   54   Colo.   497,    131    Pac.   437    (1913); 

Chamb.,  Ev.,  §  3577,  n.  6.  Harper  v.  Scott,  12  Ga.  125  (1852). 

39.  Vawmazos  v.   Gloss,   263   111.   314,    104  43.  Graham  v.  Campbell,  56  Ga.  258  (1876). 
N.  E.  1053   (1914).  44.  Hayden    v.    Mitchell,    103    Ga.    431,    30 

40.  Larsen  v.  All  Persons,  165  Cal.  407,  132  S.    E.   287    (1897)  ;    Bain   v.    Walsh,    85   Me. 
Pac.   751    (1913);   Winler  v.  Dibble,  251   111.  108,  26  Atl.   1001    (1892);   Stevens  v.  Miles, 
200,  95  N.  E.   1093    (1911)  ;   Smith.  Carey  &  142  Mass.  571,  8  N".  E.  426   (1886)  ;  Wells  v. 
Co.   v.   Atchison   Live   Stock   Co.,   92   Kan.   5,  Pressy,   105  Mo.   164,   16  S.  W.  670    (1891); 
140   Pac.    108    (1914);    Post   v.   Leland,    184  Isaacs  v.  Cohn,   10  App.  Div.  216,  41  N.  Y. 
Mass.  601,  69  N.  E.  361    (1904)  ;   Mathes  v.  Supp.  779   (1896)  ;  Blackburn  v.  Blackburn,  8 
Switzer  Lumber  Co.,   173  Mo.  App.  239,   158  Ohio  81    (1837);  Graff  v.  Pittsburgh  &  S.  R. 
S.  W.  729    (1913)  ;    Abel  v.  Brewster,   12  N.  Co.,  31  Pa.  489   (1858)  ;  Moore  v.  Beattie,  33 
Y.  Supp.  331    (1890)  :  Emig  v.  Diehl,  76  Pa.  Vt,  219   (1860)  ;  5  Chamb..  Ev.,  §  3578,  n.  1. 
359   (1874)  ;  5  Chamb.,  Ev.,  §  3577,  n.  8.  45.  Wells  v.  Martin,  1  Ohio  St.  386  (1853). 


§   1125  BEST  EVIDENCE  RULE.  886 

Province  of  the  Jury. —  The  jury  is  in  no  way  concerned  with  the  determi- 
nation of  this  question.  It  is  for  them  to  decide  on  the  sufficiency  of  the  evi- 
dence afforded  by  the  writing  thus  proven.46 

§  1125.  Diligence  Required  in  Search.47 —  Evidence  to  prove  the  loss  or  de- 
struction of  a  writing  must,  in  order  to  authorize  the  relaxation  of  the  rule  re- 
specting the  production  of  the  original,  show  that  reasonable  diligence  has  been 
used  in  searching  for  the  missing  document.48  A  mere  casual,  indifferent  or 
careless  search  will  not  be  sufficient.  Something  more  will  be  required ;  some- 
thing tending  to  show  that  the  proponent  was  actuated  by  a  desire  to  find  the 
alleged  lost  or  destroyed  instrument  and  that  his  efforts  were  exerted,  lone  fide, 
to  accomplish  -that  result.49  The  court  must  be  satisfied  that  the  party  has 
acted  in  good  faith  in  his  endeavor  to  find  it;  that  he  has  exercised  the  same 
degree  of  diligence,  in  his  search  for  it,  that  an  ordinary  person,  actually  de- 
sirous of  finding  and  producing  it,  would  have  employed,  which  would  re- 
quire his  looking  for  it  in  those  places  where  one  might  fairly  have  expected  to 
find  it  and  the  exercise  by  him,  generally,  of  all  reasonable  endeavors  to  dis- 
cover it.50 

A  Question  for  the  Presiding  Judge. —  The  questions  whether  good  faith 
has  been  exercised  by  a  person,  in  his  search  for  an  alleged  missing  document, 
and  whether  he  has  exercised  the  required  degree  of  diligence,  are  ones  which 
the  presiding  judge  must  determine,  in  the  exercise  of  sound  reason.  If  he  is 
satisfied  that  the  proponent  has  exercised  reasonable  diligence  and  good  faith, 
in  his  search  for  the  writing,  he  will  permit  the  introduction  in  evidence  of 
secondary  evidence  of  its  contents;  otherwise  it  will  be  rejected.51  His  deter- 
mination in  the  matter  will  ordinarily  not  be  disturbed  on  appeal.52 

46.  ClasseH  v.  Mason,  32  Ala.  719   (1858)  ;       140  Pa.  648,  21  Atl.  416    (1891)  ;  5  Chamb., 
Witter    v.    Latham,    12    Conn.    392     (1837);       Ev.,  §  3579,  n.  2. 

Page  v.  Page,  15  Pick.   (Mass.)   368   (1834);  49.  Post  v.  Leland,   184  Mass.   601,  69  N. 

Jackson    v.    Firer,    16    Johns.     (N.    Y.)     193  E.  361    (1904);   Kidder  v.  Blaisdell,  45  Me. 

(1819)  ;  5  Chamb.,  Ev.,  §  3578,  n.  3.  461    (1858)  ;  Slocum  v.  Bracy,  65  Minn.  100, 

Review  on  appeal. — The  determination  of  67   N.    W.   843;    5    Chamb.,   Ev.,   §   3579,   n. 

the  presiding  judge  in  the  matter  will  not,  as  3. 

a  general  rule,  be  reviewed  on  appeal.     Smith          50.  Pilcher  v.  Dothan  Mule  Co.,  6  Ala.  App. 

v.  Brown,  151  Mass.  338,  24  N.  E.  31  (1890)  ;  552,  60  So.  547    (1913)  ;  McDonald  v.  Stark, 

Kearney  v.  Mayor,  etc.,  of  New  York,  92  N.  176  111.  456,  52  N.  E.  37   (1898)  ;  Bascom  v. 

Y.  617    (1883).  Toner,  5  Ind.  App.  229,  31  N.  E.  856   (1892)  ; 

47.  5  Chamberlayne,     Evidence,     §§     3579,  Atherton  v.  Phoenix  Ins.  Co.,   109  Mass.  32 
3580.  (1871);    Thomson  v.   Flint  &  P.  M.  R.  Co., 

48.  Empire    Surety    Co.    v.     Lindenmeier,  131  Mich.  95,  90  N.  W.  1037   (1902);  Klein- 
supra;  Prussing  v.  Jackson,  supra;  Howe  v.  mann  v.  Geiselmann,  supra:  Blair  v.  Flack, 
Fleming,  123  Ind.  262,  24  N.  E.  238   (1889)  ;  141  N.  Y.  53,  35  N.  E.  941    (1894)  ;   Empire 
McConnell  v.  Wildes,  153  Mass.  487,  26  N.  E.  Transp.  Co.  v.  Steele,  70  Pa.  188    (1871)  ;   5 
1114    (1891);    Windom   v.   Brown,   65   Minn.  Chamb.,  Ev.,  §  3579,  n.  4. 

394,  67  N.  W.  1028   (1896)  ;  Dishaw  v.  Wad-  51.  Hobson  v.   Porter,  2  Colo.  28    (1873)  ; 

leigh,  15  App.  Div.  205,  44  N.  Y.  Supp.  207  Patterson   v.   Drake,    126   Ga.   478,   55   S.   E. 

(1897);    Gladstone  Lumber  Co.  v.  Kelly,  64  175  ( 1906)  ;  Kleinmann  v.  Geiselmann,  supra; 

Or.  163,  129  Pac.  763  (1913)  ;  Heller  v.  Peters,  Kearney  v.  City  of  New  York  supra;  Gorgas 


887 


PUBLIC  RECORDS. 


§§  1126,1127 


§  1126.  Public  Records;  Official  and  Judicial.53 — Public  records,  consisting  of 
official  registers,  papers  and  writings  and  judicial  records,  constitute  an  ex- 
ception to  the  rule  requiring  the  production  of  the  original,  unless  the  failure 
to  produce  it  is  explained  to  the  satisfaction  of  the  presiding  judge.  In  the 
inconvenience  attending  the  removal  of  such  records  and  the  danger  of  loss  or 
destruction  are  found  the  reasons  for  permitting  proof  of  public  records  other 
than  by  production  of  the  original.54  In  the  case,  however,  of  public  official  55 
and  judicial  56  records,  which  are  shown  to  have  been  lost  or  destroyed,  the 
same  principle  controls,  as  to  proof  other  than  by  the  original,  as  in  the  case  of 
other  documents  and  writings.  When  the  fact  of  their  loss  or  destruction  is 
established,  to  the  satisfaction  of  the  presiding  judge,  he  will  permit  the  in- 
troduction of  parol  evidence  of  their  contents.57 

§  1127.  Voluminous  Facts  in  Different  Writings.58 — Another  instance  of 
where  the  court  will  not  insist  upon  the  production  of  the  original  occurs 
where  the  evidence  consists  of  the  result  of  voluminous  facts,  contained  in 
books,  writings  and  the  like,  and  an  examination  or  inspection  of  them  could 
not,  conveniently,  be  made  in  the  presence  of  the  tribunal.59  In  such  a  case 
one  who  is  sufficiently  competent  and  who  has  examined  the  particular  writ- 
ings may  be  permitted  to  state  the  result  ascertained  by  him.60  The  same 


v.   Hertz,   150  Pa.   538.  24   Atl.   756    (1892); 
5  Chamb.,  Ev.,  §  3580,  n.  1. 

52.  Morison    v.    Weik,    19    Cal.    App.    139, 
124   Pac.  86!)    (1912);    Stevens  v.  Miles,   142 
Mass.  571,  8  X.  E.  426    (1886). 

53.  5  Chamberlayne,  Evidence,  §  3581. 

54.  Tobin   v.    Seay,    2    Brev.     (S.    C.)    470 
(1811);   Ballard  v.  Thomas,  19  Gratt.    (Va.) 
14    (1868)  ;  Doe  v.  Roberts.  13  M.  &  W.  520 
(1844)  ;   5  Chamb.,  Ev.,  §  3581,  nn.  1,  2. 

55.  People  v.  Pike,   197  111.  449,  64  X.  E. 
393     (1902);     Bowland    v.     McDonald    Ind. 
Teleph.  Co.,  82  Kan.  84,  107  Pac.  797   (1910)  : 
Winn  Parish  Bank  v.  White  Sulphur  Lumber 
Co.,  133  La.  282,  62   So.  907    (1913);   U.   S. 
Peg  Wood,  etc..  Co.  v.  Bangor  &  A.  R.  Co.. 
104  Me.  472,  72  Atl.  190   (1909)  :  Wallace  v. 
First    Parish    in    Townsend,    109    Mass.    263 
(1872);    Van    Pelt    v.    Parry,    218   Mo.    680, 
118  S.  W.  425    (1909);   Leland  v.  Cameron, 
31  X.  Y.  115   (1865)  ;  Young  v.  Buckingham, 
5   Ohio   485    (1832);    Richard's   Appeal,    122 
Pa.  547,  15  Alt.  903   (1888);  5  Chamb.,  Ev., 
§  3581.  n.  3. 

56.  Hibernia  Sav.  &  Loan  Soc.  v.  Boyd,  155 
Cal.    193,    100    Pac.    239    (1909):    Brown    v. 
Madden,   141  Ga.  419,  81   S.  E.   196    (1914); 
Kennedy  v.  Borah.  226  111.  243,  80  X.  E.  767 
(1907);    Dailey    v.    Coleman.    122    Mass.    64 
(1877)  ;  Crane  v.  Waldron,  133  Mich.  73,  94 


N.  W.  593  (1903);  McKellar  v.  McKay,  156 
X.  C.  283,  72  S.  E.  375  (1911);  Heeney  v. 
Kilbane,  59  Ohio  St.  499,  53  N.  E.  262 
(1898);  Coombs  v.  Cook,  35  Okl.  326,  129 
Pac.  698  (1913);  Richard's  Appeal,  supra; 
5  Chamb.,  Ev.,  §  3581,  n.  4. 

57.  Davies  v.  Pettit,  11  Ark.  349    (1850); 
Morrison   v.   Price.   130  Ky.    139,    112   S.  W. 
1090   (1908);  Davis  v.  Montgomery,  205  Mo. 
271,  103  S.  W.  979    (1907);  5  Chamb.,  Ev., 
§  3581,  n.  5. 

58.  5  Chamberlayne,  Evidence,  §  3582. 

59.  Xew  La  Junta  &  Lamar  Canal  Co.  v. 
Kyerhill,    17    Colo.    App.    26,    67    Pac.    1026 
(1902);    Elmira    Roofing    Co.    v.    Gould,    71 
Conn.   629,  42   Atl.    1002    (1899);    Culver   v. 
Marks,  122  Ind.  554,  23  N.  E.  1086   (1889)  ; 
State  v.  Brady,  100  Iowa  191,  69  X.  W.  290 
(1896)  ;  Greenfield  v.  Massachusetts  Mut.  L. 
Ins.  Co.,  47  X.  Y.  430   (1872)  ;  Boston  7  W. 
R.  Co.  v.  Dana,  1  Gray    (Mass.)    83    (1854); 
Scott  v.  Astoria  R.  Co..  43  Or.  26,  72  Pac. 
594   (1903)  ;  5  Chamb.,  Ev.,  §  3582,  n.  1. 

60.  Elmira    Roofing    Co.    v.    Gould,    supra. 
Thus,   where   a   witness   has  been   permitted, 
as   bearing  upon   the  question   of   a   person's 
solvency,  to  state  the  result  of  an  inspection 
by  him  of  books  of  account,  securities  and  the 
like    belonging    to    such    person.     Meyer    V. 
Sefton,  2  Stark.  274  (1817).     In  like  manner 


§  1128      '  BEST  EVIDENCE  KULE. 

principle  controls  where  the  results  sought  to  be  established  are  negative,  in- 
stead of  affirmative,  as  where  the  object  is  to  show  that  the  books  examined 
did  not  contain  certain  facts.61  In  such  cases,  however,  it  has  been  held  that 
if  required  by  the  opposing  party  the  books  should,  unless  some  legal  excuse 
exists,  be  produced  for  examination  or  to  enable  him  to  cross-examine  the 
witness."2  It  frequently  happens  that  the  result  of  an  examination  of  volu- 
minous books  is  embodied  in  the  form  of  an  abstract  or  schedule,  containing 
in  itself  numerous  ligures,  tabulations  or  statements  which  if  orally  stated 
to  the  jury  might  nevertheless  tend  to  confuse  them  in  their  deliberations. 
Therefore  an  abstract  made  as  a  result  of  an  examination,  by  an  expert,  may 
be  received  in  evidence  where  such  person  has  testified  as  a  witness  and  an 
opportunity  has  been  afforded  for  cross-examination.63 

§  1128.  Writing  Collateral  to  Issues.64 —  The  "  best  evidence  rule  "  is  not 
operative  in  all  cases,  as  exclusive  of  proof  by  parol  of  some  fact  or  facts  evi- 
denced by  the  instrument.  In  so  far  as  the  contents  of  the  writing  are  con- 
cerned and  the  legal  effect  thereby  created  it  may  be  collateral  to  the  issue,  in 
which  case  some  fact  asserted  therein  may  be  established  by  extrinsic  evidence.65 
Thus,  where  it  is  desired  to  prove  the  existence  of  a  partnership,  and  not  the 
mutual  obligations  and  rights,  as  expressed  in  the  partnership  agreement,  parol 
evidence  has  been  received  to  establish  that  fact.66  So,  where  the  fact  that  a 
person  occupies  the  relation  of  a  tenant  to  another  is  sought  to  be  proved,  proof 
of  the  relation  may  be  made  by  extrinsic  evidence.07  In  like  manner  where 

a  witness  may  be  permitted  to  testify  as  to  he  had  no  account  at  that  time.     People  v. 

a  balance  due   between   parties.     Walford   v.  Dole,  122  Cal.  486,  55  Pac.  581    (1898). 

Farnham,  47  Minn.  05,  4l»  X.  W.  528  (1891)  ;  62.  Elmira    Roofing   Co.    v.    Gould,    supra; 

Roberts  v.  Duxon,  Pea  83,  3  R.  R.  660  (1791).  Culver  v.  Marks,  supra. 

Thus  witnesses  who,  in  an  official  capacity,  63.  Culver  v.  Marks,  supra.  The  question 
have  examined  the  accounts  of  a  state  treas-  of  the  admission  of  an  abstract  or  schedule 
urer  in  his  dealings  with  the  state  and  who  is  a  matter  for  the  presiding  judge  to  de- 
have  made  a  written  report  in  regard  thereto,  termine  as  a  matter  of  sound  administration, 
have  been  permitted  to  testify  as  to  the  gen-  Lynn  v.  Cumberland,  77  Md.  449,  26  Atl.  1001 
eral  balance  of  his  accounts  with  the  state.  (1893). 

Burton  v.  Driggs,  20  Wall.    (U.  S.)    125,  22  64.  5  Chamberlayne,  Evidence,  §  3583. 

L.  ed.  269    (1873).  65.  Knight  v.  Landis,  11  Ga.  App.  536,  75 

A  report  of  a  city  treasurer  is  not  rendered  S.    E.   834    (1912);    Johnson   v.    Carlin,    121 

secondary    evidence    by    the    fact   that    it    is  Minn.    176,    141    N.   W.   4    (1913);    Hoisting 

copied  from  other  records  in  his  office.     The  Mach.  Co.  v.  Goeller  Iron  Works,  84  N.  J.  L. 

reports  were  made  pursuant  to  official  duty  504,   87   Atl.   331    (1913);    Peter's  &  Roberts 

and    were    originals    and    not    mere    copies.  Furniture  Co.  v.  Queen  City  F.  Ins.  Co.,  63 

Dickinson  v.  White,  25  X.  D.  523,  143  N.  W.  Or.   382,   126   Pac.    1005    (1912)  ;    5   Chamb., 

754,  49  L.  R.  A.   (X.  S.)   302    (1013).  Ev.,  §  3583,  n.   1. 

61.  Woodruff  v.  State,  61  Ark.  157,  170,  32  66.  Griffin  v.  Stoddard,  12  Ala.  783  (1848)  ; 

S.  W    102    (IS!).')).     Such  a  situation  is  pre-  Trowbridge    v.    Cushman,    24    Pick.     (Mass.) 

sented  where  a  witness  is  permitted  to  testify  310     (1834)  ;    Price    v.    Hunt,    59    Mo.    258 

that  he  had  examined   the  books  of  a  bank  (1875);     Edwards    v.    Tracy,     62     Pa.     374 

to  ascertain  whether  the  defendant,  when  he  (1869)  ;  Cutler  v.  Thomas,  25  Vt.  73  (1852)  ; 

passed  a  check  and   received   an   advance  on  5  Chamb.,  Ev.,  §  3583,  n.  2. 

it,  had  any  account  with  the  bank,  and  that  67.  Doe    v.  'dray,    2    Houst.     (Del.)     135 


889 


POSSESSION  OF  ADVERSE  PARTY. 


§  1129 


the  question  of  the  ownership  of  personal  6S  or  real  property  69  is  collateral  to 
the  issue,  proof  of  such  fact  by  parol  evidence  has  been  allowed.  That  a  par- 
ticular writing  has  been  executed  may  also  be  shown  in  this  manner.70  In 
much  the  same  way,  evidence  apart  from  the  writing  itself  has  been  received 
to  show  the  fact  of  a  sale,71  an  indebtedness,72  the  delivery  of  a  contract.73 
that  one  is  president  of  a  corporation,74  the  payment  of  a  license  fee,75  taxes  78 
or  money  upon  an  order,77  or  in  settlement  of  an  account  78  and  the  like. 

§  1129.  Writing  in  Control  of  Adverse  Party.79 — Another  instance  of  where 
the  production  of  an  original  instrument  is  excused  exists  where  it  is  in  the 
possession  or  under  the  control  of  the  opponent,  who  fails  or  refuses  to  produce 
it  after  reasonable  notice  to  him  to  do  so.80  In  such  case  the  same  principle 
controls  as  where  the  document  is  lost  or  destroyed.  It  is  the  fact  that  the 
instrument  is  not  within  the  power  of  the  party  to  produce  which  permits  of 
the  introduction  of  secondary  evidence.81 

Notice  to  Produce;  Necessity  of. —  The  proponent  will  be  required,  as  a 


(1858)  ;  Straw  v.  Jones,  9  N.  H.  400  (1838)  ; 
Rayner  v.  Lee,  -20  i -h.  384  (1870)  ;  Bogar- 
•dus  v.  Trinity  Church,  4  Sandf.  Ch.  (X.  Y.) 
€33  (1847)  ;  Wolf  v.  Unlhelm  (Tex.  Civ.  App. 

1912),  146  S.  W.  216;  Taylor  v.  Peck.  21 
Gratt.  (Va.)  11  (1871);  5  Chamb.,  Ev.,  § 
3583,  n.  3. 

68.  Patterson     v.     Kicker,     72     Ala.     406 
(1882)  :  Oaks  v.  West  (Tex.  Civ.  App.  1901), 

€4  S.  W.  1033;  Sleep  v.  Heymann,  57  Wis. 
495,  16  N.  W.  17  (1883);  5  Chamb.,  Ev.,  § 
3583,  n.  4. 

69.  Wright  v.  Roberts,   116  Ga.   194,  42  S. 
E.   369    (1902);    Tucker   v.   Welsh,    17   Mass. 
160,    9    Am.    Dec.    137     (1821);    Babcock    v. 
Beaver   Creek   Tp.,   65   Mich.   479,   32   X.   W. 
653    I  1887  i  -.   5  Chamb.,  Ev..  §  3583.  n.  5. 

70.  McLendon  v.  Rubenstine,  180  Ala.  615, 
61  So.  902   (1913)  ;  Massey  v.  Farmers'  Xat. 
Bank,  113  111.  334  (1885)  :  Gilbert  v.  Duncan, 
29  X.  J.  L.   133    (1861):   Reynolds  v.  Kelly, 
1   Daly    (X.  Y.)    283    (1S63);   Shoenberger  v. 
Haokman,  37  Pa.  87    (1860);   5  Chamb..  Ev., 
§  3583,  n.  6. 

Proofs  of  loss. —  Hagan  v.  Merchants'  & 
Bankers'  Ins.  Co.,  81  Iowa  321,  46  X.  W. 
1114,  25  Am.  St.  Rep.  492  (1890);  Pelzer 
Mfg.  Co.  v.  Sun  Fire  Office,  36  S.  C.  213,  15 
S.  E.  562  (1891). 

71.  Johnson  v.  Carlin,  supra. 

72.  Stein    v.    Local    Board   of   Review,    135 
Iowa  539.  113  X.  W.  339    (1907):   Cooper  v. 
Breckenridge,  11  Minn.  341   (1866). 

73.  Pecos  &  X.  T.  Ry.  Co.  v.  Cox  (Tex.  Civ. 
App.  1912),  150  S.  W.  265. 


74.  Knight  v.  Landis,  supra. 

75.  Eastman   &    Co.   v.   Watson,   72   Wash. 
522,   130   Pac.   1144    (1913). 

76.  Shepherd  v.  Sartain,   185   Ala.  439,  64 
So.  57    (1914). 

77.  Phillips  v.  Pippin,  4  Ala.  App.  426,  58 
So.   Ill    (1912). 

78.  Raymond     v.     Sellick,     10     Conn.     480 
(1835)  ;  5  Chamb.,  Ev.,  §  3583,  n.  14. 

79.  5    Chamberlayne,    Evidence,    §§    3584- 
3586. 

80.  Atlantic  Coast  Line  R.  Co.  v.  Hill,' 12 
Ga.  App.  392,  77  S.  E.  316    (1913);  Young 
v.  People,  221  111.  51,  77  N.  E.  536    (1906); 
Chicago,  etc.,  R.  Co.  v.  Benedict's  Adm'r.,  154 
Ky.    675,    159   S.   W.   526    (1913);    Morse   v. 
Woodworth,  155  Mass.  233,  29  X.  E.  525,  27 
X.  E.  1010  ( 1891)  ;  Hoffman  Heading  &  Stave 
Co.  v.  St.  Louis,  etc.,  Ry.  Co.,  119  Mo.  App. 
495,  94  S.  W.  597    (1906)  ;  Bissell  v.  Myton, 
160    App.    Div.    268,    145    X'.    Y.    Supp.    591 
(1914):    John   v.   John,   Wright    (Ohio)    584 
(1834)  ;  McFadden  v.  McFadden,  32  Pa.  Su- 
per.  Ct.  534    (1907);   Missouri,  K.  &  T.  Ry. 
Co.  v.   Elliott,   102  Fed.  96,  42  C.  C.  A.   188 
(1900)  ;  5  Chamb.,  Ev.,  §  3584.  n.  1. 

81.  Attorney-General  v.  Le  Merchant,  2  T. 
R.   201    (1772).     The  fact   that   the   adverse 
party  is  not  in  the  actual  possession  of  the 
writing  called  for  is  not  material:   if  he  has 
the  legal  right  to,  and  may  demand,  posses- 
sion of  the  instrument,  his  failure  to  produce 
it  will  authorize  the  admission  of  secondary 
evidence.     Wilson  v.  Wright,  8  Utah,  215,  30 
Pac.  754  (1892)  ;  5  Chamb.,  Ev.,  §  3584,  n.  3. 


§  1120  BEST  EVIDENCE  RULE.  890 

general  rule,  to  show  to  the  satisfaction  of  the  presiding  judge  that  the  adverse 
party,  being  in  possession  of  the  writing,  has  failed  or  refused  to  produce  the 
same,  after  notice  given  to  him  or  to  his  attorney,**2  sufficiently  reasonable  in 
point  of  time  to  allow  of  its  production  at  the  trial.83  The  object  of  the  notice 
is  to  give  sufficient  opportunity  to  an  opponent  to  enable  him,  if  he  desires,  to 
produce  the  writing  so  that  the  tribunal  may  be  in  the  possession  of  the  best 
evidence  of  its  contents,  and  where  he  fails  to  produce  it,  to  satisfy  the  court 
that  the  propou  ;i;  is  entitled  to  introduce  secondary  evidence,  owing  to  his 
inability  to  procure  the  original.84  It  is  the  general  rule  that,  if  the  adverse 
party  is  in  possession  of  the  document  and  it  is  in  court,  a  demand  for  its  pro- 
duction at  the  trial,  without  any  prior  notice,  is  sufficient.85  A  formal  written 
notice  to  an  opponent  to  produce  a  writing  may  also  be  excused  where,  from 
the  nature  of  the  proceeding,  the  pleadings  and  the  like,  knowledge  by  him  of 
the  fact  that  the  instrument  will  be  required  may  be  presumed.86  Under  such 
circumstances  a  failure  by  him  to  produce  it  will,  without  any  formal  notice 
calling  for  its  production,  enable  the  proponent  to  introduce  other  evidence  of 
its  contents.87  Much  the  same  principle,  as  is  mentioned  in  the  last  instance, 
controls  where  the  writing  in  question  is  a  notice;  such  as  a  notice  to  quit, 
notice  of  protest  and  the  like.88  A  denial  by  the  adverse  party  of  his  ever 
having  been  in  possession  of  the  writing  desired,  as  where,  in  the  case  of  a 
letter  89  or  telegram  90  he  denies  ever  having  received  it,  has  been  considered  as 
excusing  the  proponent  from  giving  notice  to  him  to  produce  it. 

82.  Rockwell  Stock  &  Land  Co.  v.  Castroni,  Gorton,    15   Misc.   625,   37   N.   Y.   Supp.    334 
6  Colo.  App.  521,  42  Pac.  180  (1895)  ;  Janatt  (1896)  ;   Scioto  Valley   R.  Co.  v.  Cromin,  38 
v.  Corbett,  99  Ga.  72,  24  S.  E.  408    (1896);  Ohio  St.  122  ( 1882)  :  5  Chamb.,Ev.,§  3585,  n.  4. 
International  Text-Book  Co.  v.  Mackhorn,  158  86.  Brown  v.  Booth,  66  111.  419  (1872)  ;  Mc- 
111.  App.  543   (1911);  Anderson  Bridge  Co.  v.  Ginnis   v.    State,   24   Ind.   500    (1865);    Rose 
Applegate,  13  Ind.  339   (1859);  Com.  v.  Em-  v.   Lewis,    10   Mich.   483    (1862);    Nealley   v. 
ery,  2  Gray    (Mass.)    80    (1854);   Weeks  v.  Greenough,  25  N.  H.  325    (1852);   Eisenhart 
Lyon,  18  Barb.   (X.  Y.)  530  (1854)  ;  Choteau  v.    Slaymaker,    14    Serg.    &    R.     (Pa.)     153 
v.    Raitt,    20    Ohio    132     (1851);    Eibert    v.  (1826);   U.  S.  v.  Doehler,  1  Baldw.    (U.  S.) 
Finkheiner,    68    Pa.    234,    8    Am.    Rep.    176  519    (1832);   5  Chamb.,  Ev.,  §  3f>85,  n.  5. 
(1871)  ;  5  Chamb.,  Ev.,  §  3585,  n.  1.                          87.  Continental  L.  Ins.  Co.   v.   Rogers,   119 

83.  Burke  v.  Table  Mountain  Water  Co.,  12  111.   474,    10   X.    E.    242    (1887):    Hooker    v. 
Cal.   403    (1859);   Jack   v.   Rowland,   98    111.  Eagle   Bank   of   Rochester,   30    X.    Y.   83,   86 
App.  352   (1901)  ;  Lowell  v.  Flint,  20  Me.  401  Am.  Dec.  351   (1864)  ;  Peter  &  Roberts  Furni- 
(1841);    Pitt   v.   Emmons.  92   Mich.  542,   52  ture  Co.  v.  Queen  City  Fire  Ins.  Co.,  supra: 
X.  \V.  1004  (1892)  ;  Utica  Ins.  Co.  v.  Cadwell,  McClean  v.  Hertx.og,  6  Serg.  &  R.   (Pa.)    154 
3  Wend.  (X.  Y.)  296  (1829)  ;  Beard  v.  South-  (1820)  ;  5  Chamb.,  Ev.,  §  3585,  n.  6. 

ern   Ry.    Co.,    143   X.    C.    137,   55    S.    E.   505  88.  Brown    v.    Booth,    supra ;    Brentner    v. 

(1906)  :  Barton  v.  Kane,  17  Wis.  37,  84  Am.  Chicago,  etc.,  R.  Co.,  58  Iowa  625,  12  X.  W. 

Dec.  728  (1863)  ;  5  Chamb.,  Ev.,  §  3585,  n.  2.  615    (1882)  ;    Edwards  v.   Bonneau,   1   Sandf. 

84.  Sayer  v.  Glossop,  2  Exch.  400  (1848)  ;  5  (X.  Y.)  610  (1848)  ;  Morrow  v.  Com.,  48  Pa. 
Chamb.,  Ev.,  §  3585,  n.  3.  305    (1864)  ;   5  Chamb.,  Ev.,  §  3585,  n.  7. 

85.  Stadlerx  Brewing  Co.  v.  Weadley,  99  111.  89.  Boyd  v.  Warden,  163  Cal.  155.  124  Pac. 
App.    161     (1900);    Dana   v.    Boyd,    2    J.    J.  841    (1012). 

Marsh.    (Ky.)   587    (1828)  ;  Overlook  v.  Hall,          90.  Kobl  v.  Bradley,  Clark  &  Co     130  Wis 
81  Me.  348,  17  Atl.   169    (1889);   Whelan  v.      301,  110  X.  W.  265   (1907). 


891  POSSESSION  OF  THIKD  PAETY.  §  1130 

Requirements  as  to  Notice. —  The  notice  to  produce,  in  order  to  accomplish 
the  purpose  for  which  it  is  intended,  should  so  designate  the  writing,  or  writ- 
ings called  for  as  to  inform  the  adverse  party  of  the  particular  instrument 
required.  As  a  general  rule,  if  the  writing  desired  is  described  in  such  a 
manner  that  the  adverse  party  must  have  been  aware  of  what  particular  instru- 
ment was  called  for,  it  will  be  sufficient01  to  the  extent  that  a  failure  or  re- 
fusal to  comply  therewith  being  shown,  secondary  proof  concerning  the  con- 
tents will  be  admitted.92 

§  1130.  Writing  in  Possession  or  Control  of  Third  Party;  Out  of  Jurisdiction.93 

—  If  a  writing  is  in  the  possession  or  control  of  a  third  party,  the  proponent 
will  not  be  permitted  to  produce  extrinsic  proof  of  its  contents,  until  the  pre- 
siding judge  has  been  satisfied  of  his  inability,  after  having  used  all  proper 
efforts,  to  obtain  the  original.94  There  is,  apparently,  an  entire  lack  of  har- 
mony as  to  the  admissibility  of  secondary  evidence  of  the  contents  of  a  writ- 
ing, which  is  in  the  possession  of  a  third  party,  who  is  beyond  the  jurisdiction 
of  the  court.  Many  courts  require  that  some  effort  or  the  use  of  due  dili- 
gence by  the  proponent,  in  seeking  to  obtain  the  writing  in  question,  must  be 
shown  before  the  presiding  judge  will  admit  secondary  evidence  of  its  con- 
tents.a5  According  to  other  decisions  it  is  sufficient  if  it  appears  that  efforts  to 
procure  it  would  be  fruitless.96  The  United  States  Supreme  Court  has,  how- 
ever, declared  that  secondary  evidence  of  the  contents  of  a  writing  may  be  given 
upon  proof,  merely,  that  it  is  beyond  the  jurisdiction  of  the  court.97  This 
doctrine  also  has  the  sanctions  of  numerous  other  jurisdictions  98  and  seems 
to  be  that  which  is  most  consistent  with  the  principles  of  sound  administration. 

91.  Rogers  v.  distance,  2  Moo.  &  Rob.  170  348,  65  N.  W.  203   (1895)  ;  5  Chamb.,  Ev.,  § 
(1839).  3587,  n.  3. 

92.  Burke   v.   Table   Mountain   Water   Co.,          97.  Burton  v.  Driggs,  20  Wall.  (U.S.)  125, 
supra;  McDowell  v.  Aetna  Ins.  Co.,  164  Mass.  22  L.  ed.  299  (1873) .     "  It  is  well  settled  that 
444,  41  X.  E.  665  (1895)  ;  Walden  v.  Davison,  if  books  and  papers  necessary  as  evidence  in 
11    Wend.     (X.    Y.)    65,    25    Am.    Rep.    602  one  State  be  in  the  possession  of  a  person 
(1833);  5  Chamb.,  Ev.,  §  3586,  n.  2.  living  in  another  State,  secondary  evidence, 

93.  5  Chamberlayne,  Evidence,  §  3587.  without   further   showing,   may   be   given   to 

94.  Scott  v.  Bassett,   186  111.  98,  57  X.  E.  prove  the  contents  of  such  papers,  and  notice 
875    (1900);   Butler  v.  Mail  &  Express  Pub.  to    produce   them    is   unnecessary."     Id.,    per 
Co.,   171   X.  Y.  208,  63  X.  E.  951    (1902);   5  Mr.  Justice  Swayne. 

Chamb.,  Ev.,  §  3587.  n.  1.  98.  Webb  v.  Gray,  181  Ala.  408,  62  So.  194 

95.  McDonald  v.  Erhes,  231  111    295,  83  X.  (1913);   Zellerbach  v    Allenberg,  99  Cal.  57, 
E.  162   (1907)  ;   Waite  v.  High,  96  Iowa  742,  33  Pac.  786    (1893)  ;  Owers  v.  Olather  Silver 
65   X.   W.   397    (1895)  ;   Knowlton  v.  Knowl-  Min.  Co..  6  Colo.  App.  1,  39  Pac.  980   (1895)  ; 
ton,  84  Me.  283.  24  Atl.  847   (1892)  ;  Pringey  Stewart  Bros.  v.  Randall  Bros.,  138  Ga.  796, 
v.  Guss.  16  Okl.  82,  86  Pac.  292  (1905)  :  Wise-  76  S.  E.  352  (1912)  ;  Wright  v.  Chicago,  etc., 
man  v.  Xorthern  Pac.  R.  Co.,  20  Or.  425,  26  R.    Co.,    118    Mo     App     392.    94    S.    W.    555 
Pac.  272    (1891)  :   Bruger  v.  Princeton  &  St.  (1906)  ;   Butler  v.  Mail  &  Express  Pub.  Co., 
M   Mut.  F.  Ins.  Co.,  129  Wis.  281,  109  X.  W.  supra;    Wiseman    v.    Xorthern    Pac.    R.    Co., 
95    (1906)  ;   5  Chamb.,  Ev..  §  3587,  n.  2.  supra;  Ralph  v.  Brown.  3  Watts  &  S.    (Pa.) 

96.  Bishop  v.  American  Preservers  Co..  157  395    (1842)  ;    Texas,   etc.,   Ry.   Co.   v.   Berlin 
111.  284,  41  X.  E.  765   (1895):  L'Herbette  v.  (Tex.    Civ.    App.    1914),    165    S.    W.    62;    5 
Pittsfield  Xat.  Bank,  162  Mass.  137,  38  N.  E.  Chamb.,  Ev.,  §  3587,  n.  6. 

368    (1894);    People   v.    Seaman,    107    Mich 


CHAPTER  LX. 

EVIDENCE  BY  PERCEPTION. 

Evidence  by  perception;  meaning  of  term,  1131. 
Administrative  power  of  court,  1132. 
Subjects  of;  animals,  1133. 

persons;  facts  to  be  proved;  age,  1134. 

resemblance,  paternity,  etc.,  1135. 

things;  in  civil  actions,  1136. 
In  criminal  cases,  1137. 
Experiments,  1138. 
View,  1139. 

§  1131.  Evidence  by  perception;  meaning  of  term.1 — Eeal  evidence  is  a  term 
which  covers  those  facts  which  are  presented  to  the  perceptive  faculties  of  the 
court  and  jury  by  things ;  personal  evidence  is  a  term  which  denotes  such  facts 
as  have  their  origin  or  source  in  persons,  whether  viewed  in  a  physical  or 
mental  capacity,  or  regarded  as  acting  in  an  involuntary  or  voluntary  manner ; 
and  such  portion  of  personal  evidence  as  falls  within  the  direct  observation  of 
the  judge  or  jury  constitutes,  together  with  real  evidence  as  above  defined, 
evidence  by  perception.2  This  term  will  be  used  in  the  following  sections, 
evidence  by  perception  having  reference  to  those  facts  of  which  the  court 
acquires  knowledge  by  the  exercise  of  its  own  perceptive  faculties.3  In  a 
great  measure  proof  by  this  means  may  be  more  potent  than  by  any  other 
evidence.  It  is  not  founded  upon  the  opinion  or  testimony  of  others  but  upon 
the  knowledge  acquired  by  the  exercise  of  one's  own  senses,4  which  is  ordi- 
narily the  most  convincing.  What  one  sees  or  hears  is  a  matter  of  personal 
knowledge  and  furnishes  to  him  a  much  better  test  of  truth,  a  stronger  prob- 
ability of  the  existence  of  the  fact  observed,  than  would  result  from  the  testi- 
mony of  others.5  Therefore,  such  evidence  will  ordinarily  be  received. 

§  1132.  Administrative  Power  of  Court.6— The  question  whether  such  evi- 
dence shall  be  admitted  is  largely  one  for  the  presiding  judge  to  determine,  as 
a  matter  of  sound  administration,7  or,  as  it  is  frequently  expressed,  it  is  a 

1.  5  Chamberlayne,   Evidence,   §   3588.  4.  Warlick  v.  White,  76  N.  C.  175   (1877). 

2.  Supra,  §  21:    1   Chamb.,  Ev.,  §  31.     See  5.  Gentry  v.  McMinnis,  3  Dana    (Ky.)   382 
also,  1  Chamh.,  Ev.,  §§  27-31  for  discussion       (1835);   5  Chamb.,  Ev.,  §  3588. 

of  real  evidence  and  evidence  by  perception.  6.  5  Chamberlayne,      Evidence,      §§      3589, 

3.  People  v.  Kinney,  124  Mich.  486,  83  N.       3590. 

W.  147    (1900)  :  House  v.  State,  42  Tex.  Cr.  7.  Marshall  v.  Gantt,  15  Ala.  682    (1849)  ; 

125,  57  S.  W.  825  (1900).  Leonard  v.  Southern  Pac.  Co.,  21  Or.  555,  28 

892 


893  ANIMALS.  §§   1133,  113-1 

matter  in  the  discretion  of  the  court,8  having  in  view  the  proper  application  of 
the  general  rules  of  evidence.  If  the  evidence  offered  is  too  remotely  related 
to  the  issues  involved  to  be  of  any  evidentiary  value  it  will  be  rejected,9  as  in 
other  cases.  It  will,  however,  ordinarily  be  received  if  it  is  relevant  to  the 
issue  involved,10  even  though  it  may  be  offensive  to  the  senses,  unless  the 
fact  to  be  proved  may  be  established  equally  as  well  by  some  other  evidence,11 
and  providing  it  is  not  indecent.  An  exception  may,  however,  well  be,  and 
should  be,  made,  and  the  evidence  rejected,  where  it  would  be  contrary  to 
public  policy,  morals  or  decency  to  admit  it.12  Thus  the  presiding  judge  might 
properly  reject  an  offer  to  prove  a  fact  by  an  exposure  of  the  person  which 
would  be  indecent  and  shock  one's  sensibilities.13  He  may  also  in  the  exercise 
of  his  administrative  powers  refuse  to  admit  the  evidence  where  it  would  tend 
to  prejudice,14  confuse,  or  mislead  the  jury.15 

Review  by  Appellate  Court. —  Owing  to  the  fact  that  this  evidence  is  of 
such  a  character  that  it  cannot  be  reported  on  appeal,  it  has  been  held  that  the 
discretion  exercised  by  the  presiding  judge,  in  respect  to  the  admission  or 
rejection  of  such  evidence,  is  not  subject  to  review.16  It  would  seem,  however, 
that  in  a  case  of  clear  abuse  of  discretion  by  the  trial  court,  the  appellate  court 
may  act,  as  in  other  cases  of  a  want  of  sound  administration  of  the  rules  of 
evidence  in  the  court  below.17 

§  1133.  Subjects  Of;  Animals.18 — The  presiding  judge  may,  in  the  exercise 
of  his  administrative  powers,  permit  the  production  of  animals  in  court,  or  an 
inspection  of  them  outside  of  the  court,  whenever  the  evidence  afforded  thereby 
is  relevant  to  the  issue.19 

§  1134.  Persons ;  Facts  to  be  Proved;  Age,20  etc —  Where  the  age  of  a  person  is 
a  relevant  fact,  the  tribunal  may,  in  many  cases,  be  guided  by  an  observation 
of  his  or  her  appearance.21  In  the  great  majority  of  cases,  better  evidence, 

Pac.  887   (1892)  ;  5  Chamb.,  Ev..  §  3589,  n.  1.  15.  Mann   v.   Sioux   City  &   P.    R.   Co.,   46 

S.Tudor    Iron    Works    v.    Weber,    129    111.  Iowa  637   (1877):  Stewart  v.  Everts,  76  Wis. 

535.  21  X.  E.  1078    (1889).  35,  44   N.   W.    1092    (1890);    5   Chamb.,  Ev., 

9.  Murrah  v.  State    (Tex.  Civ.  App.  1901),  §  3589,  n.  9. 

63  S.  W    318:  State  v    Burnham,  56  Vt.  445,  16.  Harris   v.    Ansonia,    73    Conn.    359,   47 

48  Am.  Rep.  801    (1884).  Atl.  672   (1900). 

10.  People  v.   Fernandez,   35   N.   Y.   49,   62  17.  Meier  v.  Weikel,  22  Ky.  L.  Rep.  953,  59 
(1866)  S.  W.  496   (1900)  ;  Hunter  v.  Allen,  35  Barb. 

11.  Knowles    v.    Crampton,    55    Conn.    336  (N.  Y.)   42   (1860);  Philadelphia  v.  Rule,  93 
(1887).  Pa.  15  (1880)  :  5,  Chamb.,  Ev.,  §  3590,  n.  2. 

12.  Aspy  v.  Botkins,  160  Ind.  170,  66  X.  E.  18.  5  Chamberlayne,  Evidence,  §  3591. 
462  (1902)  ;  Vierling  v.  Binder,  113  Iowa  337,  19.  Dillard  v.  State,  58  Miss.  368   (1880)  ; 
85  X.  W.  621    (1901).  Beaver  v.  Whitney.  3  Pa.  Co.  Ct.  613  (1885)  ; 

13.  Warlick  v.   White,  supra.  5  Chamb.,  Ev.,  §  3591,  n.  1. 

14.  Louisville  &  X.  R.  Co.  v.  Pearson,  97  20.  5  Chamberlayne,    Evidence,    §§    3592- 
Ala.  211,  12  So   176  (1893)  :  Rost  v.  Brooklyn  3599. 

Heights  R    Co  .   10   App.   Div.   477,  41   X.  Y.  21.  First  Xat.  Bank  v.  Casey,  158  Iowa  349, 

Supp.  1069   (1896)  ;  Selleck  v.  Janesville,  104       138  X.   W.  897    (1913):    Com.  v.  Hollis,   170 
Wis.  570,  80  X.  VV.  944   (1899).  Mass.   433,  49   X.  E.   632    (1898);    People  v. 


£   1134  EVIDENCE  BY  PERCEPTION.  894 

tending  to  more  satisfactorily  establish  such  fact,  is  obtainable  and  should  be 
produced.22  Each  case,  however,  must  depend  upon  its  own  facts.23 

Color,  Race,  Etc. —  The  question  of  the  color  of  a  person  id  a  matter  re- 
specting which  the  court  may  often  obtain  knowledge  from  observation.24 
This  method  of  perception,  as  an  aid  in  establishing  such  fact,  is  more  fre- 
quently employed  in  cases  of  alleged  mixed  ancestry. -0 

Identity. —  The  question  of  identity  is  one  concerning  which  the  tribunal 
may  well  exercise  its  sense  of  perception.20  Thus  the  identity  of  a  person 
may  be  proved  by  inspection  and  when  so  established  it  will  require  strong- 
proof  to  the  contrary  to  overcome  it.27  • 

Mental  Condition,  Insanity,  Intelligence,  Etc. —  The  question  of  the  mental 
condition  of  a  person  such  as  whether  he  is  insane  or  an  idiot,  while  one 
upon  which  expert  testimony  is  of  much  weight,28  is,  nevertheless,  a  matter 
for  observation  by  the  tribunal  before  which  the  issue  is  being  tried.  Thus  a 
person's  appearance,  actions  and  conduct  are  matters  concerning  which  the 
tribunal  may  exercise  its  perceptive  faculties  as  an  aid  to  a  determination  re- 
specting his  mental  condition.29  •  Similarly  where  a  person  of  tender  years  is 
called  as  a  witness,  the  question  of  his  intelligence  may  be  determined  by  the 
court  on  an  examination  on  voir  dire.™ 

Physical  Injuries. —  Unless  the  exhibition  be  such  as  may  be  characterized 
as  indecent,31  it  is,  as  a  general  rule,  permissible  in  actions  to  recover  dam- 
ages for  physical  injuries,  sustained  as  the  result  of  some  wilful  or  negligent 
act,  to  exhibit  the  part  of  the  body  injured  to  the  tribunal.32  The  rule  of 

Meade,  10  X.  Y.  Supp.  943  (1890)  ;  Hermann  §  3594,  n.  1.  The  exhibition  to  the  jury  in  a 
v.  State,  73  Wis.  248,  41  X.  W.  171  (1888)  ;  bastardy  case  of  a  child  three  years  old  to 
5  Chamb.,  Ev.,  §  3592,  n.  1.  And  where  a  show  a  resemblance  between  the  child  and  the 
person  has  voluntarily  presented  himself  as  a  alleged  father  is  error  as  the  child  is  too 
witness  in  his  own  behalf  and  has  testified  young  to  have  distinctive  features.  Johnston 
as  to  his  age,  a  direction  by  the  court  that  v.  Great  Xorthern  R.  Co.,  128  Minn.  365,  151 
he  stand  up  before  the  jury  that  they  may  X.  W.  125,  L.  R.  A.  1917  B  1140  (1915). 
judge  of  his  age  from  his  appearance  is  in  27.  William's  Case,  supra. 
no  way  a  violation  of  the  constitutional  pro-  28.  Supra,  §§  722,  812;  3  Chamb.,  Ev.,  88 
vision  that  an  accused  person  shall  not  be  2007  et  seq ;  §8  2415  et  sea 
compelled  to  give  evidence  against  himself.  29.  Com.  Braley,  1  Mass.  103  (1804)  ;  Beau- 
Williams  v.  State,  98  Ala.  52,  13  So.  333  bien  v.  Cicotte,  12  Mich.  459  (1864)  ;  Matter 
<18!<2>-  of  Russell,  1  Barb.  Ch.  (X.  Y.)  38  (1845); 

22.  Stephenson     v.     State,     28     Ind.     272  5  Chamb.,  Ev.,  §  3595,  n.  2. 

(1867);     Robinius    v.    State,    63    Ind.    235  30.  Com.   v.    Robinson,    165   Mass.   426,   43 

<18"8)-  x     I'--   121    ( 185)6-)  :    State  v.  Juneau,  88  Wis. 

23.  Hermann   v.   State,   supra.  180,  59  X.  W.  580   (1894)  ;  Wheeler  v.  U.  S., 

24.  CJarvin  v.  State,  52  Miss.  207    (1876)  ;  159    I'.   S.   523,   16   S.   Ct.   93,  40  L.   ed.   244 
Almshouse  C'om'rs  v.  Whistelo,  3  Wheel.  Cr.  (1895)  :  5  Chamb.,  Ev.,  §  3595,  n.  3. 

(N.  Y.)    1!)4   (1808).  31.  Brown   v.   Swineford,   44   Wis.   282,   28 

25.  Chancellor     v.    Milly,    9    Dana     (Ky.)        Am.  Rep.  582    (1878). 

23    (1839);   Warlick  v.  White,  76  X.  C.   175  32.  Stewart  v.  Driscoll,  56   Colo    316     139 

(  1877  )  ;  3  Chamh.,  Kv..  §  3593,  n.  2.  Pa,,  is   ,  ,,,14)  .  Johnson  v   Wasson  Coaj  Co 

26.  William's  Case,  29  Fed.  Cas.  Xo.  17,709,  173  111.  App.  414   (1913)  •   Cleveland    etc     R 
Crabbe    (U.  S.)    243    (1839);  5  Chamb,  Ev.  Co.  v.  Colson,  51    Ind.   App    225    99   x'  E 


895  PHYSICAL  EXAMINATION.  t  §  1134 

relevancy,  also,  controls,  as  in  all  other  cases,  and,  if  the  evidence  is  irrelevant, 
it  will  be  rejected.33  Such  an  exhibition  is  not  subject  to  the  influence  of 
bias,  to  which  the  testimony  of  witnesses  may  be ;  on  the  other  hand,  the  tribunal 
is  in  the  possession  of  the  best  evidence  obtainable  which,  in  other  instances, 
the  proponent  is  required  to  produce  and,  for  the  exclusion  of  which,  in  this 
particular  class  of  cases  there  is  no  satisfactory  reason  to  be  found.34  If, 
however,  the  presiding  judge  is  satisfied  that  no  good  object  will  be  attained  by 
the  proposed  exhibition  and  that  the  main  controlling  reason  is  to  make  an 
appeal  to  the  jury  and  arouse  their  sympathies,  he  will  refuse  to  permit  it.35 
It  should  appear  that  the  condition,  at  the  time  of  the  exhibition,  was  a  result 
of  the  injury  sustained  and  for  which  the  action  is  brought  and  not  due  to  some 
other  cause  which  has  intervened.36 

Compulsory  Submission  to  Examination. —  Among  the  several  decisions 
which  are  opposed  to  the  exercise  by  the  court  of  a  power,  independent  of 
statute,  compelling  a  plaintiff,  in  a  civil  action  for  physical  injuries,  to  submit 
his  person  to  an  examination,  for  the  purpose  of  discovering  the  extent  of  his 
injury,  that  of  the  United  States  Supreme  Court,  as  enunciated  by  Mr.  Jus- 
tice Gray,37  is  perhaps  the  most  frequently  referred  to.  The  conclusion 
reached  by  the  court,  in  this  case,  is  based  upon  the  ground  of  the  sacred  right 
of  the  individual  to  the  possession  and  control  of  his  own  person,  free  from 
inviolability,  and  that  there  is  no  power,  at  common  law,  to  compel  a  person  to 
forego  this  right  by  submission  to  an  examination  by  order  of  court.  This 
view,  which  is  also  endorsed  in  other  jurisdictions,38  was  dissented  from  by 
two  justices  of  the  United  States  Supreme  Court,  in  the  case  just  referred 
to,39  in  an  opinion  written  by  Mr.  Justice  Brewer,  and  the  conclusion,  as  ex- 
pressed in  the  prevailing  opinion,  has  not  met  with  approval,  in  the  majority 

433    (1913):   Jameson  v.   Weld,  93  Me.  345,  36.  French  v.  Wilkinson,  93  Mich.  322,  53 

45  Atl.  299   (1899):  Willis  v.  Browning,  161  N.  W.  530   (1892). 

Mo.  App.  461,  143  S.  W.  516    (1912)  :   Perry  37.  Union  Pac.  R.  R.  Co.  v.  Botsford,  141 

v.  Metropolitan  St.  R.  Co.,  68  App.  Div.  351,  U.    S.    250,    35    L.    ed.    734,    11    S.    Ct.    1000 

74  X.  Y.  Supp.   1    (1902):   Continental  Cas-  (1890).     Right  to  compel  party  to  action  to 

ualty   Co.   v.   Wynne,   36   Okl.   325,    129   Pac.  submit  to  a  physical  examination  either  be- 

16    (1913):    5    Chamb.,    Ev..    §    3596.    n.    2.  fore  trial  or  in  the  presence  of  the  jury.     See 

Photographs  showing  a  person's  crippled  con-  note,  Bender,  ed.,  129  N.  Y.  51. 

dition  have  been  received.     Faivre  v.  Mander-  38.  Mills    v.    Wilmington    City    R.    Co.,    1 

echeid,  117  Iowa  724.  90  N.  W.  76   (1902).  Marv.    (Del.)    269,  40  Atl.   1114    (1894):   Pe- 

33.  Grand  Lodge  B.  of  R.  T.  v.  Randolph.  oria,  etc..  Ry.  Co.  v.  Rice,  144  111.  227,  33  N. 
186   111.   89,   57    X.   E.    882    (1900).  E.  951    (1S93)  ;  Stack  v.  Xew  Haven  &  H.  R. 

34.  Faivre  v.  Manderscheid,  supra;  Carrico  Co.,  177  Mass.  155,  58  X.  E.  686  (1900)  :  Mc- 
v.  West  Va.  Cent.  &  P.  Ry.  Co.,  39  W.  Va.  Quigan  v.  Delaware,  L.  &  W.  H.  Co.,  129  X. 
86,  19  S.  E.  571,  24  L.  R.  A.  50   (1894).  Y.  50,  29  X.  E.  235   (1891)  :  Easier  v.  South- 

35.  Louisville  &  X.  R.  Co.  v.  Pearson,  97  ern    Ry.    Co..    60    S.    C.    117,    38    S.    E.    238 
Ala.   211,    12   So.    176    (1893);    Svetkovic  v.  (1900)';    Gulf,   etc.,   R.   Co.   v.   Brown    (Tex. 
Union   Pac.  R.  Co.,  95   Xeb.   369.   145  X.   W.  Civ.   App.    1903),   75   S.   W.   807;    5   Chamb., 
990  (1914)  ;  Rost  v.  Brooklyn  Heights  R.  Co.,  Ev..  §  3597,  n.  2. 

10  App.  Div.  477,  41  X.  Y.  Supp.  1069  (1896)  ;  39.  Union  Pac.  R.  Co.  v.  Botsford,  supra. 

5  Chamb.,  Ev.,  §  3596,  n.  6. 


§  1134  EVIDENCE  BY  PERCEPTION. 

of  the  cases  in  which  the  question  has  arisen,  the  weight  of  authority  being 
that  the  court  may,  in  the  absence  of  any  statutory  power,  require  a  submis- 
sion to  such  an  examination.40  In  these  cases,  while  the  theory  of  the  in- 
violability and  sacredness  of  the  person  from  interference  by  others  is  recog- 
nized, the  extent  to  which  it  is  carried  is  said  to  be  based  upon,  as  it  is  ex- 
pressed in  one  opinion,  "  a  fallacious  and  somewhat  sentimental  line  of  argu- 
ment," which  would,  in  many  cases,  operate  as  a  "  denial  of  justice."4  An 
examination  of  the  opinions,  which  decide  against  the  existence  of  the  power, 
certainly  fails  to  disclose  the  reasons  of  any  great  weight  in  support  of  their 
conclusion.  Much  of  the  same  situation  exists  where  the  presiding  judge  is 
requested  to  direct  a  person  to  perform  some  physical  act,  in  the  presence  of 
the  jury,  to  show  the  nature  and  extent  of  the  injuries.  Thus  it  seems  that, 
in  such  a  case,  the  court  may,  in  its  discretion,  grant  or  refuse  a  request  to 
direct  a  person  to  walk  in  the  presence  of  the  jury,  where  it  is  claimed  that 
the  injury  has  resulted  in  lameness.42  Where  a  party  has  voluntarily  ex- 
hibited a  physical  injury  to  the  jury,  the  right  of  the  opponent  to  have  an 
examination  made  by  experts,  for  the  purpose  of  introducing  their  testimony 
respecting  the  injury,  is  recognized  and  a  denial  of  a  request  to  that  effect 
has  been  held  to  be  error.43 

Exercise  of  Power  by  Presiding  Judge. —  Those  jurisdictions  which  recog- 
nize the  existence  of  the  power  to  compel  a  person  to  submit  his  body,  or  some 
part  thereof,  to  an  examination  in  actions  for  physical  injuries,  do  not  gener- 
ally regard  the  order  as  one  which  may  be  insisted  upon  as  a  matter  of  right.44 

40.  Bagwell  v.  Atlanta  Consol.  St.  Ry.  Co.,  subject  it  is  said  that  the  following  propoai- 
109  Ga.  611,  34  S.  E.  1018    (1899)  ;   Aspy  v.  tions  may  be  regarded  as  established  by  the 
Botkins,  160  Ind.  170,  66  X.  E.  462    (1902)  ;  cases  which  sustain  what  may  be  said  to  be 
Strudgeon  v.  Sand  Beach,  107  Mich.  496,  65  the  prevailing  opinion  of  the  courts.     "  ( 1 ) 
N.   W.  616    (1895)  ;   Aske  v.  Duluth   &   Iron  That  trial  courts  have  the  power  to  order  the 
Range  R.  Co.,  83  Minn.   197,  85  N.  W.   1101  medical  examination  by  experts  of  the  injured 
(1901)  :  Fullerton  v.  Fordyce,  144  Mo.  519,  44  parts  of  a  plaintiff  who  is  seeking  to  recover 
S.   \V.    1053    (1898);   McGovern  v.  Hope,   63  damages  therefor;    (2)    that  a  defendant  has 
N.  J.  L.  76,  42  Atl.  830  ( 1899)  ;  Miami  Turn-  no  absolute  right  to  demand  the  enforcement 
pike  Co.   v.   Baily,  37  Ohio  St.    104    (1881);  of  such  an  order,  but  the  motion  therefor  is 
Hess  v.  Lake  Shore  &  M.  S.  R.  Co.,  7  Pa.  Co.  addressed  to  the  sound  discretion  of  the  trial 
(  t.  .105   I'lHDO)  ;  5  Chamb.,  Ev.,  §  3597,  n.  5.  court;   (3)  that  the  exercise  of  such  discretion 

41.  Wanek  v.  Winona,  78  Minn.  98,  80  X.  ia    revieuable   on    appeal,   and   correctible   in 

case    of    al.use;     (4)     that    the    examination 

42.  Hattield  v.   St.   Paul  &  Duluth  R.  Co.,  should  be  applied  for  and  made  before  enter- 
33  Minn.  130,  22  X.  W.  176   (1885).  ing  upon  the  trial,  and  should  be  ordered  and 

43.  Haynes  v.  Trenton,  123  Mo.  326,  27  S.  conducted   under   the  direction   of  the  court, 
\V.   622    (1S!U).  whenever   it    fairly   appears   that   the  end   of 

44.  City  of  South  Bend  v.  Turner,  150  Ind.  justice  require  a  more  certain  ascertainment 
418.  60  X.  E.  271,  54  L.  R.  A.  300,  83  Am.  St.  of  important  facts  which  can  onlv  be  disclosed, 
Rep.  200    (lyooi  or  fully  elucidated,  by  such  an  examination, 

Facts  established  by  majority  doctrine.-  and  such  an  examination  may  be  made  with- 
in one  of  the  leading  cases  in  which  this  out  damage  to  the  plaintiff's  life  or  health 
question  is  considered  and  which  contains  an  or  the  infliction  of  serious  pain-  (.=H  that 
exhaustive  review  of  the  authorities  upon  the  the  refusal  of  the  motion,  when  the  circum- 


897  PATERNITY.  §  1135 

It  is  rather  a  question  for  the  presiding  judge  to  determine,  as  a  matter  of  ad- 
ministration, guided  by  sound  reasoning  having  in  view  the  attainment  of  jus- 
tice.45 His  conclusion  in  the  matter  will  not  ordinarily  be  disturbed  on  ap- 
peal, where  it  appears  that  sound  reason  has  been  employed  or,  as  it  is  some- 
times expressed,  unless  there  has  been  an  abuse  of  discretion.46 

§  1135.  Resemblance,  Paternity,  Etc.47 — In  some  jurisdictions,  in  bastardy 
and  seduction  cases  where  it  is  sought  to  establish  parentage  by  a  resemblance 
between  the  child  and  the  putative  father,  the  exhibition  of  a  child  for  this 
purpose  has  been  refused,  without  regard  to  the  age.48  Ordinarily,  however, 
the  decisions  have  generally  been  founded  upon  the  circumstance  that  the  child 
was  of  very  immature  age  and  had  not  outgrown  certain  characteristics  which 
tend  to  create  a  resemblance  between  very  young  infants  and  the  uncertainty 
in  a  resemblance  between  any  such  infant  and  its  reputed  father.49  Under 
such  circumstances  the  evidence  afforded  by  the  comparison  may  be  somewhat 
fanciful  5"  and  should  be  sparingly  resorted  to.51  Ordinarily,  however,  the 
general  rule  seems  to  be  that  for  the  purpose  of  establishing  a  resemblance, 
such  resemblance  being  relevant,  a  child  of  the  proper  age  may  be  produced  in 
court  and  submitted  to  the  inspection  of  the  jury.52  As  bearing  upon  the  ques- 
tion of  a  want  of  resemblance  a  child  may  also  be  exhibited  to  the  jury.53  In 
Iowa  the  rule  seems  to  be  that  a  child  under  two  years  of  age  should  not  be 
thus  exhibited  as,  in  any  way,  an  aid  in  determining  its  parentage,  owing  to 
the  immaturity  of  the  features  of  a  child  under  that  age.54  In  other  jurisdic- 
tions, and  this  seems  to  be  the  general  rule,  the  youth  of  the  child  is  not  a 
ground  for  exclusion,  but  rather  goes  to  the  weight  of  the  evidence.55 

stances    appearing    in    the   record    present    a  v.  Danforth,  48  Iowa  43    (1878);   5  Chamb., 

reasonably  clear  case  for  the  examination  un-  Ev..  §  3600,  n.  2. 

der  the  rules  stated  is  such  an  abuse  of  dis-  50  Clark  v.  Bradstreet,  80  Me.  454,  15  Atl. 

cretion  in  the  trial  court  as  will  operate  to  56   (1888)  ;  Hanawalt  v.  State,  supra. 

reverse    a    judgment    for    the    plaintiff:     (6)  51.  Udy    v.    Stewart,     10    Ont.    Rep.    591 

that   such  an  order  may  be  enforced  not  by  (1886).     Similarly,  in  such  a  case,  a  want  of 

punishment  as  for  a  contempt,  but  by  delay-  resemblance  is  not  to  be  regarded  as  a  strong 

ing  or   dismissing  the  proceeding.''     City   of  circumstance   against    the   alleged    paternity. 

South  Bejid  v.  Turner,  supra.  Id. 

45.  Southern  Bell  Teleph.  Co.  v.  Lynch.  95  52.  Re  Jessup,    81    Cal.   408,   21    Pac.   976 
Ga.  529.  20  S.  E.  500   (1S94)  :  City  of  South  (1889)  :  State  v.  Smith,  54  Iowa  104,  6  X.  W. 
Bend  v.  Turner,  supra:  Hatfield  v.   St.  Paul  153  (1880)  :  Scott  v.  Donovan,  153  Mass.  378, 
&  D.  R.  Co.,  supra:  White  v.  Milwaukee  City  26  X.  E.  871    (1891)  ;  Gaunt  v.  State,  50  X. 
Ry.  Co.,  61  \Yis.  536,  21  X.  \V.  524    (1884);  J.   L.   490,   14  Atl.   600    11888);    Finnegan  v. 
5  Chamb.,  Ev..  §  3598,  n.  2.  Dugan,  14  Allen    (Mass.)    197    (1867);   Crow 

46.  Hatfield  v.  St.  Paul  &  D.  R.  Co..  supra •:  v.    Jordan,    49   Ohio   St.   655,    32   X.   E.    750 
Owens  v.  Kansas  City,  etc.,  R.  Co.,  95  Mo.  169,  (1892)  ;  5  Chamb.,  Ev.,  §  3600,  n.  6. 

8    S.    W.    350     (1888).  53.  Paulk  v.  State,  52  Ala.  427   (1875). 

47.  5  Chamberlayne,  Evidence.  §  3600.  54.  State  v.  Harvey,  112  Iowa  416,  84  N.  W. 

48.  Reitx.  v.  State.  33  Ind.  187  (1870)  :  Peo-  535   (1900).  though  it  is  said  that  an  excep- 
ple  v.   Carney,  29   Hun    (X.   Y.)    47    (1883)  :  tion  may  exist  where  the  parents  are  of  dif- 
Hanawalt  v.  State,  64  \Yis.  84,  24  X.  W.  489  ferent   races. 

(1885).  55.  Scott  v.  Donovan,  supra.     As  in  other 

49.  Risk  v.  State,  19  Ind.  152  (1862)  ;  State      cases  if  the  evidence  is  not  relevant  it  will  be 


;:§   1136,1137  EVIDENCE  BY  PERCEPTION.  898 

§  1136.  Things;  In  Civil  Actions.5'5 —  The  jury,  in  order  to  better  understand 
the  matters  at  issue,  may  be  permitted  an  inspection  of  some  article  or  articles, 
where  the  evidence  afforded  thereby  is  relevant."  Thus  the  jury  may  be  per- 
mitted an  inspection  of  an  article  used  by  one  in  a  profession,58  trade,59  or 
other  calling,60  to  demonstrate  some  point  at  issue  between  the  parties.  Sim- 
ilarlv  evidence  bv  perception  may  be  employed  in  the  case  of  machinery  or 
under  some  circumstances  a  model,  shown  to  be  a  correct  reproduction  of  a 
machine,  may  be  produced,01  or  some  other  object62  may  be  exhibited  to  the 
jury.  In  actions  for  personal  injuries' torn  clothing  or  other  articles,  worn  by 
the  plaintiff,  may,  also,  frequently  be. received  in  evidence  where  they  tend  to 
better  explain  the  manner  in  which  the  injury  was  received,  or  its  nature  and 
character.63  Similarly  the  cause  of  the  injury  may  in  many  cases  be  of  such 
a  character  that  it,  or  some  part  thereof,  may  be  submitted  to  the  inspection 
of  the  jury.64 

§  1137.  Criminal  Cases.65 —  In  prosecutions  for  criminal  offenses  evidence  by 
perception,  or  "  real  evidence,"  is  employed,  as  media  of  proof,  in  the  vast 
majority  of  cases,  some  article,  used  either  in  the  commission  of  the  offense, 
or  connected  with  its  commission,  or  with  the  person  upon  whom  it  was  com- 
mitted, becoming  an  important  factor  in  the  proof  of  the  crime.  A  very  ordi- 
nary mode  of  proof,  in  criminal  cases,  is  by  exhibiting  to  the  jury  the  instru- 
ment with  which  the  offense  was  committed,66  or  some  article  or  implement 
found  in  the  accused's  possession,  which  tends  circumstantially  to  connect  him 
with  the  particular  offense  charged,  although  perhaps  not  actually  used  in  its 

rejected.     State  v.  Danforth,  supra;  Clark  v.  882,  38  C.  C.  A.  528   (1899)  ;  5  Chamb.,  Ev., 

Bradstreet,  supra;  Jones  v.  Jones,  45  Md.  144  §  3601,  n.  5. 

(1876).  62.  People  v.  Searcey,   121  Cal.   1,  53  Pac. 

56.  5  Chamberlayne,  Evidence,  §  3601.  359,  41  L.  R.  A.  157    (1898);  Earl  v.  Sefler, 

57.  Thomas  Fruit  Co.  v.  Start,  107  €al.  206,  46  Hun   (X.  Y.)   9    (1887)  ;  5  Chamb.,  Ev.,  § 
40  Pac   336  (1895)  ;  Boucher  v.  Robeson  Mills,  3601,  n.  6. 

182  Mass.  500,  65  X.  E.  819   (1902)  ;  Roberts  63.  (.hiincy  Gas  &  Electric  Co.  v.  Batiman, 

v.    Port   Blakely   Mill    Co.,   30   Wash.   25,   70  40  111.  App.  600  I  1902)  ;  State  v.  Baltimore  & 

Pac.    Ill     (1902);    Viellesse    v.    Green    Bay,  0.  R.  Co.,  117  Md.  280,  83  Atl.  166   (1912)  f 

110  Wis   160,  85  X.  W.  665  (1901 )  ;  5  Chamb.,  Boggs  v.  Martin,  108  Fed.  33,  47  C.-C.  A.  175 

Ev  ,  §  3W1.  n.  1.  ( 1901)  ;  5  Chamb.,  Ev.,  §  3601,  n.  7. 

58.  McXaier  v    Manhattan  R.  Co.,  4  N.  Y.          64.  Sykes  v.  Portland,   177  Mich.  290,   143 
Supp.  310   (  iss'.n.  X.  W.  326   (1913). 

59.  Pennr-ylvatiia    Coal    Co.    v.    Kelly,    156  65.  5  Chamberlayne,     Evidence,     §§     3602- 
111.    9,   40   X.    E.   938    (1895);    King   v.   New  3605. 

York    Cent.    &    H.    R.    Co.,    72    X.    Y.    607  66.  People  v.  Sullivan,  129  Cal.  557,  62  Pac. 

(1S7H);     Philadelphia    v.    Rule,    93    Pa.    15  101    (1900);    Dill   v.   State.    106  Ga.   683,   32 

(1880);  5  Chamb..   Ev.,  §  3601,  n.  3.  S.    F..  660    (1899);   Seltzer  v.  Saxton,  71  111. 

60.  Stevenson  v.  Michigan  Log  Towing  Co.,  App.  229  (1896)  :  Com.  v.  Best,  180  Mass.  492, 
103  Mich.  412,  01   V.  W.  536   (  1894).  62  X.  E.  748  (1902)  :  State  v.  Minot,  79  Minn. 

61.  McMahon  v.  Dubuque,  107  Iowa  62,  77  118,  81   X.  W.  753    (1900);   People  v.  Flani- 
N.    W.    517,    70    Am.    St.    Rep.    143    (1898);  gan,   174   X.   Y.   356,   66   N.  E.   988    (1903); 
Western  Gas  Constr.  Co.  v.  Banner,  97  Fed.  State  v.  Ward,  61  Vt.  153,  17  Atl.  483  (1899)  ; 

4  5  Chamb.,  Ev.,  §  3602,  n.  1. 


899  CRIMINAL  CASES.  §   1137 

commission,67  or  the  result  of  the  alleged  offense,  as  where  it  is  claimed  that  an 
instrument  has  been  forged.08  Other  articles  may  also,  frequently,  be  ad- 
mitted in  evidence  for  the  purpose  of  illustrating  or  explaining  the  crime,  or 
some  detail  thereof,  or  otherwise  establishing  some  relevant  fact.69 

Body  of  Deceased  or  Parts  Thereof. —  It  may  be,  and  is  proper,  under  some 
circumstances  to  permit  an  inspection  by  the  jury  of  some  of  the  bones  or  a 
part  of  the  body  of  the  deceased,'0  as  where  it  is  important  to  show  the  position 
of  the  parties  at  the  time  the  fatal  wound  was  inflicted,'1  or  the  nature  and 
location  of  the  wounds,72  their  character  and  effect 73  and  the  like.  Such  ex- 
hibits may  also  be  properly  admitted  as  evidence  in  connection  with  the  testi- 
mony of  physicians  as  to  the  cause  of  death,  being  used  by  them  for  the  pur- 
pose of  better  explaining  their  evidence  to  the  jury.74  Exhibitions  of  this 
character  are  not  objectionable  as  tending  to  unfairly  influence  the  minds  of 
the  jurors  or  prejudice  them  against  the  accused.75  Care,  however,  should  be 
exercised  that  the  submission  is  not  made  under  such  circumstances  as  to  have 
this  effect.70 

Clothes  and  Oilier  Personal  Articles. —  The  clothes  worn  by  the  accused  at 
the  time  of  the  commission  of  the  crime  may  also  be  produced  for  inspection 
by  the  jury.7'  In  like  manner  clothes  or  articles  worn  by  the  injured78  or 
deceased  79  person  have  been  submitted  to  the  inspection  of  the  jury,  for  the 
purpose  of  showing  the  nature  of  the  offense  committed  or,  in  case  of  a  homi- 

67.  Mitchell   v.    State,   94   Ala.   68,    10   So.  75.  State    v.    Weiners,    supra;    Turner    v. 
518  (185)1)  ;  People  v.  Westlake,  134  Cal.  505,       State,  89  Tenn.  547.  15  S.  W.  838   (1890). 

66    Pac.    731     (1901);    Com.    v.    Brown,    121  76.   Patton  v.  State,  117  Ga.  230,  43  S.  E. 

Mass.  69    (1876);  Puiloff  v.  People,  45  X.  Y.  533    (1902). 

213,  224  ( 1871)  ;  5  Chamb.,  Ev.,  §  3602.  n.  2.  77.  People  v.  McCurdy,  68  Cal.  576,  10  Pac. 

68.  Kimbro    v.    First    Nat.    Bank,    1    Mac-  207    (1886);    Johnson  v.   State,  59   X.   J.   L. 
Arthur  ( D.  C.)  415  (1874)  ;  Apthrope  v.  Com-  535,  39  Atl.  646   <  1896)  ;  People  v.  Gonzales, 
stock,  1  Hopk.  Ch.   (X.  Y.)    163   (1824).  35  X.  Y.  49   (1866)  ;  5  Chamb.,  Ev.,  §  3604,  n. 

69.  State  v.  Goddard,    146   Mo.    177,  48   S.  1.     Xor    is    such    evidence    objectionable    on 
W.    82    (1898)  ;    Udderzook   v.   Com..   76   Pa.  the  ground  that  the  accused  is  compelled  to 
340   (1874)  ;  5  Chamb.,  Ev.,  §  3602,  n.  3.  furnish   evidence   against   himself.     Drake   v. 

70.  State   v.   Xovak,    109   Iowa   717,   79   X.  State,  75  Ga.  413   (1885). 

W.  465  (1899);  Sa vary  v.  State,  62  Xeb.  166,  78.  State    v.    Peterson,    110    Iowa    647.    82 

87  X.  \V.  34    (1001)  :  5  Chamb..  Ev.,  §  3603,  X.  W.  329   (1900)  ;  State  v.  Duffy.  124  Mo.  1, 

n.   1.  27    S.   W.   358    (1894);    State   v.   Shields,    13 

71.  Thrawley    v.    State,    153    Ind.    375,    55  S.  D.  464,  83  X.  W.  559    (1900). 

X.   E.  95    (1899)  ;    State  v.  Weiners,   66   Mo.  79.  People  v.  Durrant.  116  Cal.  179,  48  Pac. 

13  (1877).     The  skull  of  the  murdered  person  75    (1897):    Henry   v.    People,    198    111     162, 

may    be    put    in    evidence    to    show    mortal  65  X.  E.  120   (1902);  Davidson  v.  State.  135 

wounds  in  it.     Territory  v.  Lobato.  17  X.  M.  Ind.    254,    34    X.    E.    972    (1803);    People   v. 

666,    134    Pac.    222,    L.    R.    A.    1917    A    1226  Wright,  89  Mich.  70,  50  X.  W.  792    (1891); 

(1913).  Gardiner  v.  People,  6  Park.  Cr.    (X.  Y.)    155 

72.  Maclin  v.  State,  44   Ark.   115    (1884)  ;  <1866)  :  5  Chamb.,  Ev.,  §  3604,  n.  4.     Admis- 
Com.  v.  Brown,  14  Gray   (Mass.)  410   (I860).  sibility  of  blood  stains  in  murder.     See  note, 

73.  State  v.  Moxley,  102  Mo.  374,  14  S.  W.  Bender,  ed.,  140  X.  Y.  321.     The  bloody  cloth- 
969    (1890).  ing    of    a    murdered    person    should    not    b« 

74.  Savary  v.  State,  supra.  offered  in  evidence  in  a  trial  for  homicide  un- 


1138 


EVIDENCE  BY  PERCEPTION. 


900 


cide,  the  relative  position  of  the  parties  at  the  time  of  the  slaying.  Articles 
found  upon  the  body  of  the  deceased,  or  shown  to  have  belonged  to  him,80  may, 
also,  under  the  proper  conditions  of  relevancy,  frequently  be  produced  for  the 
inspection  of  the  jury.  Similarly  clothes  worn  by  a  witness  of  the  crime  have 
also  been  thus  exhibited.81  Xor  is  it  any  objection  to  the  admission  of  evidence 
of  this  character  that  it  cannot  be  made  a  part  of  the  record.82 

Identification  of  Articles. —  It  will  be  required  where  a  weapon  or  the 
article  used  in  committing  the  offense,  or  connected  with  its  commission,  is 
offered  as  belonging  to  the  accused,83  clothes  or  other  personal  property  as  being 
his,84  or  some  article  as  the  property  of  the  injured  or  deceased  person,  or 
some  part  of  a  body  as  that  of  the  deceased,85  that  it  should  be  identified  as 
such  to  the  satisfaction  of  the  presiding  judge. 

§  1138.  Experiments.86 — Where  it  is  convenient  and  practical  and  the  rele- 
vancy of  the  evidence  has  been  established,  the  court  may  permit  an  experiment 
to  be  made  in  order  to  demonstrate  to  the  jury  the  working  of  machinery,87 
the  use  of  tools  or  the  like,88  or  firearms,89  whether  under  specified  conditions 
a  certain  result  will  ensue  90  and  the  like.91  Similarly  in  the  case  of  a  physi- 
cal injury  it  may  be  proper,  in  an  action  to  recover  damages  therefor,  to  con- 
duct an  experiment  in  the  presence  of  the  jury,  for  the  purpose  of  demonstrat- 
ing the  extent  of  the  injury.92  The  question  whether  an  experiment  shall  be 
made  is  one  for  the  court  to  determine;  93  much  caution  should  be  exercised,94 


less  to  show  the  nature  of  the  injury  or  to 
identify  the  person  killed  or  the  slayer  as  they 
tend  to  prejudice  the  jury.  Flege  v.  State,  93 
Neb.  610,  142  X.  W.  276,  47  I,.  R.  A.  (N.  S.) 
1106  (1913). 

80.  Mitchell   v.   State,   supra;   Gardiner   v. 
People,  supra. 

81.  Thomas  v.  State,  45  Tex.  Cr.  Ill,  74  S. 
W.  36    (1903). 

82.  Hart  v.  State.  15  Tex.  App.  202'  (1883). 

83.  People  v.  Sullivan,  supra;  Com.  v.  Bent- 
ley,  97  Mass.  551    (1867);   State  v.  Cadotte, 
17   Mont.  315,  42   Pac    S57    (1805);   State  v. 
Hill,   65   X.  J.  L.   626,  47   Atl.   814    (1900); 
People    v.    Gon/alez,   supra;    5    Chamb.,    Ev., 
§  3605,  n.  1. 

84.  State  v.  Porter,  32  Or.  135,  45  Pac.  964 
(1897). 

85.  State  v.  Moxley,  102  Mo.  374,  14  S.  W. 
969   (1890). 

86.  5  Chamberlayne,  Evidence,  §  3606. 

87.  Taylor  v    ('.  S.,  89  Fed.  954,  32  C.  C.  A. 
449    (1898). 

88.  1'eople  v.  Flope,  62  Cal.  291    (1882). 

89.  Taylor  v.  Com.,  90  Va.  10!J,  17  S.  E.  812 
(1893). 

90.  Jumpertz  v.  People,  21  111.  375  (1859)  ; 


Eidt  v.  Cutter,  127  Mass.  522  (1879)  ;  Hat- 
field  v.  St.  Paul  &  D.  R.  Co.,  33  Minn.  130,  22 
N.  W.  176  (1885);  5  Chamb.,  Ev.,  §  3606, 
n.  4. 

91.  Tudor  Iron  Works  v.  Weber,  31  111.  App. 
306    (1888);   Horan  v.  Chicago,  etc.,  R  Co., 
89  Iowa  328,  56  X.  W.  507   (1893)  ;  Adams  v. 
Thief    River   Falls,   84   Minn.    30,    86    X.    W. 
767    (1901);    Clark   v.   Brooklyn   Heights  R. 
Co.,   78   App.   Div.   478,   79   X.   Y.   Supp.   811 
(1903);   Schweinfurth  v.  Cleveland,  etc.,  Ry. 
Co.,  60  Ohio  St.  215,  54  X.  E.  89    (1899)  ;  5 
Chamb  ,  Ev.,  §  3606,  n.  5. 

92.  Adams    v.    Thief    River    Falls,    supra. 
Thus  it  was  held  proper  to  permit  a  doctor 
to  insert  a  pin  in  the  plaintiff's  side,  where 
it  was  alleged  she  had  become  paralyzed  as  a 
result   of   the   injury,   the   object   of   the   ex- 
periment being  to   show  her   insensibility  to 
pain.     Osborne  v.  Detroit,  32  Fed.  36   (1886), 
rev'd  upon  other  grounds  in  1 35  U.  S.  500,  34 
L.   ed.   200,   10  S.   Ct.    1012    HS90). 

93.  Campbell  v.  State,  55  Ala.  80    (1876)  ; 
Jumpertz  v.  People,  supra. 

94.  Hatfield  v.  St.  Paul  &  D.  R.  Co.,  supra; 
People  v.   Woon  Tuck  Wo,   120  Cal.  294,  52 
Pac.  833  (1898). 


901  VIEW.  §  1139 

and  where  it  may  reasonably  be  anticipated  that  an  opportunity  will  be  thereby 
afforded  to  fabricate  evidence,  or  that,  otherwise,  the  jury  may  be  confused  or 
misled,  the  court  may  well  refuse  permission  to  make  the  experiment.95  The 
court  will  require  that  the  experiment  be  made  under  similar  conditions  and 
like  circumstances  to  those  which  existed  in  the  case  in  issue.90  In  a  criminal 
proceeding  where  the  state  has  been  allowed  to  examine  witnesses  in  respect 
to  experiments  made  by  them,  it  is  proper  to  allow  the  defense  to  prove  similar 
experiments,  with  different  results  under  like  circumstances.97 

§  1139.  View.98 —  It  will  frequently  be  of  value  as  an  aid  to  the  jury,  in  the 
determination  of  the  issues,  that  they  be  permitted  to  visit  a  locality  for  the 
purpose  of  inspecting  premises.99  The  right  of  the  presiding  judge,  when,  in 
the  exercise  of  his  administrative  powers  he  deems  it  advisable  to  permit  the 
jury  to  inspect  real  property  involved  in  the  controversy  under  proper  con- 
ditions and  with  a  due  regard  for  the  rights  of  the  litigants,  is  recognized  as 
better  tending  to  the  discovery  of  the  truth.1  Sometimes  personal  property 
which  is  of  such  a  character  that  it  cannot  be  produced  before  the  tribunal,  may 
be  viewed  by  the  jury  under  similar  conditions.2  Whether  the  power  of  the 
trial  court  in  respect  to  permitting  such  action  is  conferred  by  statute,  or  exists 
independent  thereof  as  one  of  its  inherent  powers,  early  recognized  at  common 
law  and  sustained  by  numerous  decisions,  it  is  regarded  as  one  which  the  pre- 
siding judge  is  to  exercise  guided  by  sound  reason,3  and  whose  action  will  not 
generally  be  disturbed  on  appeal.  He  may  ordinarily  refuse  to  permit  a  view 
where  he  is  satisfied  that  there  has  been  a  substantial,  change  or  alteration  in 
the  subject  of  the  inspection,4  that  by  the  production  of  photographs,5  maps  or 
drawings,  the  premises  are  sufficiently  and  clearly  portrayed,6  or  that  the  loss 

95.  Campbell  v.  State,  supra;  Com.  v.  Scott,  99.  Mayor  v.  Brown,  87  Ga.  596,  13  S.  E. 
123  Mass.  222   (1877).  638  (1891)  ;  Springer  v.  Chicago,  135  111.  552, 

96.  Leonard  v.  Southern  Pac.  R.  Co.,  21  Or.  26  X.  E.  514   (1891)  ;  Schweinfurth  v.  Cleve- 
555,  28   Pac.   887,    15   L.   R.   A.  221    (1892);  land,  etc.,  Ry.  Co.,  supra;  5   Chamb.,  Ev.,  § 
Hardwick  Sav.  Bank  &  Trust  Co.  v.  Drenan,  3607,  n.  1. 

72  Vt.  438,  48  Atl.   645    (1900);    Daniels   v.  1.  Springer    v.    Chicago,    supra;    Tulley    v. 

Stock,    23    Colo.    App.    529,    130    Pac.    1031  Fitchburg  R.  Co.,  134  Mass.  499   (1883). 

(1913).  2.  Xutter  v.  Ricketts,  6  Iowa  92   (1858). 

97.  Smith  v.  State,  2  Ohio  St.  512    (1853).  3.  Johnson  v.  Winship  Mach.  Co.,   108  Ga. 
Practical  tests  and  experiments  in  evidence.  554,  33  S.  E.   1013    (1899);   Com.  v.  Chance, 
See  note,  Bender,  ed.,  30  X.  Y.  370.     Practical  174  Mass.  245,  54  X.  E.  551   (189*9)  ;  Springer 
tests  in.     See  note,  Bender's  ed.,  35  X.  Y.  49.  v.  City  of  Chicago,  supra ;  People  v.  Budden- 

Pantomine.— A  witness  may  be  allowed  to  sieck,  103  X.  Y.  487,  9-X.  E.  44  (1886)  ;  Com. 

go  through  a  pantomime  before  the  jury  show-  v.   Miller,   139:  Pa.   77,   21    Atl.   138    (1891); 

ing  his   conclusions   as   to   how  a   crime  was  5  Chamb.,  Ev.,  §  360",  n.  4. 

committed  where  he  has  already  testified  to  4.  Broyles  v.  Prisock,  97  Ga.  643,  25  S.  E. 

the  physical  marks  at  the  scene  of  the  crime  389  (1895)  ;  Tully  v.  Fitchburg  R.  Go.,  supra; 

on   which   he  bases   his   opinion.     Flowers   v.  5  Chamb..  Ev..  §  3607,  n.  5. 

State,  —  Fla.  — ,  68  So.  754,  L.  R.  A.  1915  E  5.  People  v.  Buddensieck,  supra. 

848    (1915).  6.  Jenkins  v.  \Yilmington.  etc.,  R.  Co.,  110 

98.  5  Chamberlayne,  Evidence.  §  3607,  see  X.  C.  438,  15  S.  E.  193    (1892). 
supra,  §   116,  Chamb.,  Ev.,  §  -26. 


1139 


EVIDENCE  BY  PERCEPTION. 


902 


of  time,  in  taking  the  view,  will  not  compensate  for  the  advantages  to  be 
gained.  He  should  be  careful,  however,  in  not  permitting  the  jury  to  be 
guided  too  strongly  by  the  results  of  their  view  so  that  they  entirely  disregard 
other  evidence  in  the  case.7  It  is  also  essential  that  the  view  should  be  taken 
in  accordance  with  such  provisions  as  may  be  prescribed  by  statute,  or,  in  the 
absence  thereof,  in  compliance  with  directions  by  the  trial  court,8  having  in 
view,  in  a  criminal  case,  the  protection  of  the  rights  of  the  accused.9  Where, 
by  statute,  a  provision  is  made  that  the  jury  may  view  the  premises,  the  action 
not  only  of  the  court,  but  of  the  jury  and  sheriff,  or  other  officer  in  whose 
charge  they  are,  should  be  in  accordance  with  the  law  and,  in  no  way,  exceed 
the  power  conferred.10 


7.  Thus   where   the   question   involves   one 
of  damage  to  land,  the  jury  may,  under  some 
circumstances,  be  permitted  to  view  the  prop- 
erty to  enable  them  to  better  understand  the 
evidence  or  to  harmonixe  or  weigh  conflicting 
testimony,    to   instruct   them,   however,   that 
they  may  disregard  or  are  not  to  be  guided  by 
the  opinions  of  witnesses  as  to  value,  would 
be   error.     Hoffman    v.    Bloomsburg   &   S.   R. 
Co.,    143   Pa.   St.   503,   22   Atl.   823    (1891); 
Flower   v.    Baltimore   &    P.   R.   Co.,    132   Pa. 
524,  19  Atl.  274   (1890)  ;  Boardman  v.  West- 
chester  Fire  Ins.  Co.,  54  Wis.  364   (1882). 

8.  Eastwood  v.  Parker,  3  Park.  Cr.  R.    (N. 
Y.)  25   (1855). 

9.  State  v.  Bertin,  24  La.  Ann.  46  (1872). 

10.  Thus,  while  they  may  view  a  manufac- 
turing plant  or  factory,  it  is  held  to  be  im- 
proper to  direct  the  person  in  charge  of  such 
place  to  put  the  machinery  in  operation  for 
the   benefit  of   the  jury,   owing  to  the   fact 


that  it  may  be  operated  under  conditions  dif- 
fering from  those  at  the  time  in  question. 
Hughes  v.  General  Elec.  L.  &  P.  Co.,  107  Ky. 
485,  54  S.  W.  723,  21  Ky.  L.  Rep.  1202 
(1900). 

A  judge  sitting  as  a  trier  of  facts  without 
a  jury  may  at  common  law  take  a  view  with- 
out statutory  authority  as  may  also  a  master 
or  referee.  Carpenter  v.  Carpenter  ( N.  H. 
1917),  101  Atl.  628,  L.  R.  A.  1917  F  974. 

View  outside  jurisdiction. —  A  view  is  a 
method  of  procedure  conducted  in  the  absence 
of  the  court  as  an  aid  in  the  ascertainment 
of  the  truth  from  the  physical  act  of  in- 
spection which  does  not  require  the  exercise 
of  the  judicial  powers  of  a  court  at  the  time 
for  its  proper  performance.  Hence  a  view 
taken  outside  the  state  if  it  is  a  jurisdictional 
irregularity  may  he  waived.  Carpenter  v. 
Carpenter'  (X.  H.  1917),  101  Atl.  628,  L. 
R.  A.  1917  F  974. 


CHAPTER  LXI. 

WITNESSES;  ATTENDANCE  OF. 

Attendance  of  witnesses;  power  of  court  as  to,  1140. 
mode  of  procuring;  subpoena,  1141. 
subpoena  duces  tecum,  1142. 
habeas  corpus  ad  testificandum,  1143. 
recognizance,  1144. 

compulsory  process;  not  a  talcing  of  property;  duty  to  testify,  1145. 
payment  for  attendance,  1146. 
punishment  for  contempt,  1147. 

§  1140.  Attendance  of  Witnesses;  Power  of  Court  as  to.1 — Although  prior  to 
the  statute  of  Elizabeth,2  the  existence  of  the  power  of  procuring  the  attend- 
ance and  testimony  of  witnesses  had  been  recognized,  and  is,  in  fact,  to  be  re- 
garded as  inherent,3  yet  by  that  act  authorizing  the  issuance  of  process,  calling 
upon  a  person  to  testify  and  imposing  a  penalty  upon  him  for  a  failure  to  ap- 
pear in  accordance  therewith,  an  attempt  was  first  made  to  relieve  the  situation 
which  existed  during  the  early  development  of  the  common  law,  owing  to  the 
doctrine  of  maintenance,4  by  defining  a  positive  means  for  procuring  the  at- 
tendance and  testimony  of  witnesses.  The  source  of  the  power  is  now  gener- 
ally found  in  the  constitutions  and  statutes  of  the  various  jurisdictions. 

Persons  Exempt  or  Excused  from  Attendance. —  The  provisions  of  the 
United  States  Constitution,  securing  to  an  accused  in  criminal  prosecutions  the 
right  to  have  compulsory  process  for  obtaining  witnesses  in  his  behalf,  is  not 
regarded  as  authorizing  the  issuance  for  this  purpose  of  process  to  ambas- 
sadors, whose  personal  inviolability  is  recognized  by  the  law  of  nations,  or  to 
consuls  who  are  exempted  by  express  treaty.5  At  common  law,  while  few 
exemptions  were  allowed,  yet,  where  it  was  apparent  that  it  would  inflict  a 
hardship  upon  a  person  to  require  him  to  appear,  the  court  would  not,  in  all 
cases,  exercise  its  power  in  this  respect.  Thus,  should  it  be  shown  that  the 
witness  was  sick  or  that  a  member  of  his  family  was  seriously  ill,6  or  that  he 
was  so  enfeebled  by  reason  of  age  or  other  cause  that  it  would  imperil  his  life 

1.  5     Chamberlayne,     Evidence,     §§     3609,  X.    Y.    Supp.    806    (1899);    Jn   re   Dillon,    7 
3610.  Sawy.    (U.    S.   D.    C.)    561,   7    Fed.   Cas.   No. 

2.  Stat.  5,  Eliz.  c.  9.  3,914    (1854). 

3.  Crosby  v.  Potts,  8  Ga.  App.  463,  69  S.  E.  6.  Cutler    v.    State,    42    Ind.    244     (1873)  ; 
582   (1910).  State  v.  Hatfield,  72  Mo.  518   (1880);   Foster 

4.  Thayer,    Pre.    Treat.    Ev.,    pp.    122,    et  v.  McDonald,  12  Heisk.   (Tenn.)   619   (1874); 
seq.;  5  Chamb.,  Ev.,  §  3609.  5  Chamb.,  Ev.,  §  3610,  n.  2. 

5.  Baiz  v.  Malo,  27  Misc.    (X.  Y.  685,  58 

903 


WITNESSES;  ATTENDANCE  OF.  904 

to  make  the  trip,7  or  that  it  would  inflict  a  hardship  upon  him  in  his  business 
relations  or  affairs^  the  presiding  judge  would,  where  he  was  satisfied  that 
the  purposes  of  justice  would  be  served  equally  as  well,  permit  of  the  taking 
of  his  testimony  by  deposition.  The  mere  fact,  however,  that  a  person  is  ill 
or  has  received  some  slight  injury  or  wound, <J  or  the  slight  indisposition  of 
the  wife  or  other  member  of  the  family  of  the  witness,10  will  not  be  regarded 
as  sufficient  to  relieve  him  from  his  duty  to  attend.  In  some  states  an  excep- 
tion has  been  made  by  statute  in  the  case  of  females,  to  the  extent  that  the  court 
may  allow  of  the  taking  of  their  testimony  by  deposition,11  but  not  generally 
exempting  them  from  attendance  where  it  is  necessary  that  they  should  ap- 
pear.12 Other  exceptions  have  also  from  time  to  time  been  made  and  in  some 
instances  abolished  by  statute,  resort  to  which  must  be  had,  in  each  jurisdiction, 
to  determine  in  what  cases  they  exist. 

§  1141.  Mode  of  Procuring;  Subpoena.13 — The  power  of  the  court  to  require 
a  person  to  appear  as  a  witness  is  ordinarily  exercised  in  one  of  four  ways, 
namely,  by  (1)  subpoena,  (2)  subpoena  duces  tecum,  (3)  habeas  corpus  ad  testi- 
ficandum,  and  (4)  recognizance.14  The  usual  mode  is  by  means  of  a  subpoena, 
which  is  a  judicial  writ  served  upon  him  and  commanding  him  to  be  present  in 
court  at  a  time  and  place  specified,  and  to  testify  to  what  he  knows  in  the  cause 
which  the  writ  refers  to.15  The  fact  that  the  day  specified  is  a  legal  holiday  is 
not  material,  provided  it  is  a  day  upon  which  the  court  may  transact  judicial 
business.16 

Attachment. —  The  court  may  enforce  the  attendance  of  a  witness  by  attach- 
ment,17 upon  its  being  shown  that  he  has  failed  to  appear,  after  due  and  proper 
service  of  a  subpoena  upon  him  and  the  performance  of  all  acts  such  as  pav- 
ment  or  tender  of  fees  and  the  like  which  are  essential  to  render  the  summons 
effective.18  A  party  is  entitled  to  it  as  a  matter  of  right  under  certain  stat- 
utes.19 Ordinarily,  however,  the  granting  of  it  is  a  matter  in  the  discretion 
of  the  court.  It  may  be  refused  where  it  is  shown  that  the  witness  is  dying,20 

7.  Jackson  v.  Perkins,  2  Wend.  (N.  Y.)  308  16.  Chambers  v.  Oehler,   107   Iowa   155.  77 

( 1829  > '  *    VV.  853   ( 1899) .     It  is  essential  that  there 

People  v.  Davis,  15  Wend.    (X.  Y.)    602       should    be   some    proceeding   pending    in   the 

court  where  the  presence  of  the  witness  ia 

9.  Eller  v.   Roberts,  3  Ired.  L.    (N.  C.)    11       desired.     Id. 

17.  Com.  v.  Carter,   11   Pick.    (Mass.)    277 

10.  Foster  v.  McDonald,  supra.  (1853);  State  v.  Huff.  161  Mo   459    61  S    W 

11.  Ex  parte  Branch,  105  Ala.  231,  16  So.  900,    1104     (1901);    People    v.    Vermilyea.    7 
926  (  1H94)  :  Western  &  A.  R   Co.  v.  Denmead,  Cow.    (X.  Y.)    108    (1827)  ;   Bowen  v    Thorn- 
83  C,a.  3f>l,  9  S    E.  083    (1S89):   5   Chamb.,  ton,  9  Wkly.  Xotes  Cas.    (Pa  )    575    (1881)- 
Ev,  §  3610.  n.  7  5  (-jiamh     pv    §  Sf)13    n    L 

12.  Augusta  &  S.  H.  Co.  v.  Randall,  85  C,a  18.  State  v.   Stewart    117   La    476    41   So 
297.  11   S.  E.  700    (isnn,  798  (1906)  ;  State  v.  Trumbull,  4  X   J   L   139 

13.5    Chamhorlavne,    Evidence,    §§    3611-       ( 1818)  :  Anonymous.  2  Ohio  Dec.  407  <  1860)  ; 

5  Chamb..  Ev.,  §  3613.  n   •' 
14.  5  Chamb,  Ev,   §   3611  19.  Oreen  v. 'state>  17  p,ft   6g9   (1880) 

Cairns  v.   Sampsell,   158   111.  App.  415          20.  State  v.  McCarthy,  43  La.  Ann.  541,  9 
(191°)-  So.  493   (1891). 


905  SUBPCENA  DTJCES  TECUM.  §  1142 

or  is  prevented  from  attending  by  reason  of  sickness,21  or  that  his  testimony 
would  not  have  been  relevant  or  material. 

Service  of  Subpoena. —  In  the  absence  of  statutory  provision,  it  is  usually 
required  that  the  service  shall  be  a  personal  one,  and  that  it  should  be  made  a 
reasonable  time  before  the  date  the  witness  is  directed  to  appear,22 

§  1142.  Subpoena  Duces  Tecum.23 —  In  case  there  are  books,  documents,  or 
other  writings  in  the  possession  of  an  adverse  or  third  party,  or  under  his  con- 
trol, which  it  is  desired  to  have  him  produce,  a  clause  describing  them  with 
such  reasonable  certainty  as  to  inform  him  of  what  is  required  and  directing 
him  to  produce  them  is  inserted  in  the  writ,  which  is  then  known  as  a  subpoena 
duces  tecum.  This  prerogative  of  the  courts  is  an  ancient  one  24  and  is  essen- 
tial to  the  existence  of  legal  tribunals,  as  an  aid  to  them  in  the  discovery  of 
truth  and  the  attainment  of  justice.25  The  ad  testificandum  clause  is  not 
essential  in  a  subpoena  duces  tecum,  and,  where  it  contains  such  a  clause,  it  is 
not  necessary  that  such  person  be  sworn  as  a  witness.26  Whether  the  process 
of  the  court  has  been  obeyed,  in  respect  to  a  subpoena  duces  tecum,  is  a  matter 
concerning  which  the  court  may  require  to  be  informed  as  a  preliminary  to  the 
trial.27 

Requirement  as  to  Certainty  of  Description  of  Writings. —  It  is  essential 
that  a  subpoena  duces  tecum  should  describe  the  writings,  which  it  is  desired 
to  have  produced,  with  reasonable  certainty  and  that  it  should  not  be  in  the 
nature  of  an  omnibus  subpoena.28  A  party  will  not  be  allowed  the  use  of  such' 
a  process  for  the  purpose,  as  it  is  frequently  expressed,  of  conducting  a  mere 
"  fishing  expedition."  29 

Duty  of  Witness. —  In  case  of  such  a  subpoena  it  is,  as  a  general  rule,  the 
duty  of  the  witness  to  comply  with  the  mandate  of  the  court  and  submit  the 
writings  for  the  inspection  of  the  presiding  judge,  who  will  then  decide  the 
question  of  privilege  and  relevancy,  although  it  may  happen  that  a  failure  to 
produce  them  may,  in  some  cases,  be  excused.30  His  failure  to  appear  for  the 

21.  Cutler   v.    State,   supra;   State  v.   Me-          26.  Wilson  v.  U.  S.,  221  U.  S.  361,  31  S.  Ct. 
Carthy,    supra;    State    v.    Hatfield,    72    Mo.      538,  55  L.  ed.  771   (1911). 

518   (1880)  ;  5  Chamb.,  Ev.,  §  3613,  n.  5.  27.  Shull  v.  Boyd,  supra. 

22.  Hammond    v.    Stewart,    1    Strange   510  28.  Ex  parte  Jaynes,  70  Cal.  638,   12  Pac. 
(1722):   5  Chamb.,  Ev.,  §  3614.  117    (1886);   Ex  parte  Calhoun,  87   Ga.   359, 

23.  5  Chamberlayne,     Evidence,     §§     3615-  13  S.  E.  694   (1891);  State  v.  Davis,  117  Mo. 
3620.  614,  23  S.  W.  750    (1893)  :   Hoppe  v.  Ostran- 

24.  Shull   v.   Boyd,  251   Mo.   452.   47-3,   158  der  &  Co.,   183   Fed.   786    (1910);   5  Chamb., 
S.   W.   313    (1913):    Summers   v.   Moseley,   2  Ev.,  §  3616,  n.   1. 

Cr  &  M.  477  (1834).  The  United  States  29.  American  Car  &  Foundry  Co.  v.  Alex- 
Courts  have  power,  under  Judiciary  Act  1789,  andria  Water  Co..  221  Pa.  529,  70  Atl.  867, 
§  14  and  U.  S.  Rev.  St.  §  716,  to  issue  sub-  128  Am.  St.  Rep.  749  (1908). 
poena  duces  tecum.  American  Lithographic  30.  Chaplain  v.  Briscoe,  5  Sm.  &  M.  (Miss.) 
Co.  v.  Werckmeister,  221  U.  S.  603,  31  S.  Ct.  198  (1845):  In  re  Hirsch.  74  Fed.  928 
676,  55  L.  ed.  873  (1911).  (1890)  ;  5  Chamb.,  Ev.,  §  3617,  n.  1. 

25.  Amey  v.  Long,  9  East  473   (1808). 


§  1143  WITNESSES;  ATTENDANCE  OF.  906 

purpose  of  testifying  as  required  by  such  a  subpoena  will  not  be  justified  by 
the  fact  that  it  may  contain  directions  to  produce  books  and  papers  in  viola- 
tion of  his  rights.31  In  case  such  a  subprena  is  directed  to  a  corporation,  an 
officer  thereof  in  whose  c'rjtody  the  books  or  other  documents  called  for  may 
be,  should  obey  the  suraLuons.32 

As  an  Unreasonable  Search  and  Seizure. —  A  subpoena  duces  tecum,  which 
is  suitably  specific  and  properly  limited  in  its  scope  and  calls  for  the  produc- 
tion of  documents,  which,  as  against  their  lawful  owner  to  whom  the  writ  is 
directed,  the  party  procuring  its  issuance  is  entitled  to  have  produced,  is  not 
violative  of  the  Fourth  Amendment  to  the  Constitution  of  the  United  States, 
as  to  unreasonable  search  and  seizure.33  On  the  other  hand,  however,  this 
provisions  and  others  of  a  like  nature  in  state  constitutions  have,  for  their 
object,  the  protection  of  the  individual  in  his  rights  to  his  chattels,  personal 
papers,  documents  and  writings,  and  where  a  subpoena  duces  tecum  is  of  such 
a  broad  and  sweeping  character  as  to  come  within  the  meaning  of  the  phrase, 
"'  unreasonable  search  and  seizure,"  the  aid  of  the  court  by  such  process  will 
be  refused.34 

Application  For.—  On  application  to  the  court  for  a  subpoena  duces  tecum, 
it  is  generally  regarded  as  essential  that  the  petition  should  set  forth  facts 
sufficient  to  inform  the  court  as  to  what  writings  are  desired  and  to  show  in 
what  respect  they  are  relevant  or  material.35  It  must  appear  that  the  writings 
.desired  are  relevant  and  material ;  36  a  prima  facie  case,  however,  sufficient 
to  create  a  reasonable  belief  that  the  evidence  furnished  by  the  documents  is 
relevant  or  material  is  all  that  will  ordinarily  be  required.37 

Statutes. —  Statutory  or  code  provisions,  in  respect  to  the  issuance  of  a  sub- 
poena duces  tecum,  are  frequently  controlling  and  should  be  followed.38 

§  1143.  Habeas  Corpus  Ad  Testificandum.^— Where  the  person  desired  as  a 
witness  is  detained,  under  process  of  law,  in  a  prison  or  other  institution  of 
a  similar  nature,  in  consequence  of  which  he  would  be  unable  to  appear  in 

31.  Leber  v.  U.  S.,  170  Fed.  881,  96  C.  C.  A.       relevant   to   the   issue   in    that   cause,"    such 

an  allegation  being  a  mere  conclusion  of  law; 

32.  Wilson  v.  United  States,  supra.  the  facts  should  be  set  out  leaving  it  for  the 

33.  Wilson  v.  United  States,  supra.  court  to  determine  whether  the  relief  sought 

34.  Kullman,  Salz  &  Co.  v.  Superior  Court,      should  be  granted.     United  States  v.  Terminal 
15  Cal.   App.  276,   114  Pac.  589    (Iflll);   Ex      R.  Ass'n,   154  Fed.  <>68    (1007) 

parte  Brown,   72   Mo.   83,   37    Am.    Rep.   42f,  36.  U.    S.    v.    Terminal    R.    Ass'n,    supra; 

30)  :    Hale   i  .    Henkel.   201    U.    S.   43,   26       Dancel  v.  Goodyear  Shoe  Mfg.  Co.,   128  Fed. 

.  370,  50  L.  ed    652;   5  Chamb.,  Ev.,  §       753    (1904);   Bentley  v.   State,  107  111.  App. 

245    (1903);   5  Chamb.,  Ev.,  §  3619    n    3 

35.  State  ex  rel.  Oxark  Cooperage  &  Lum-  37.  U.  S.  v.  Terminal  R.  Ass'n    supra. 

ber  Co.  v    Wurdcman,  176  Mo.  App.  540,  158  38.  Gaynor  v.  New  York  Breweries  Co.,  154 

United  States  v.  ITunter,  App.  Div.  881, .138  N.  Y    Supp    899   (1912)- 

15  Fed.  712   (18S2),  in  the  case  of  telegrams.  Beebe  &  Co.  v.  Equitable  Mut    L   &  E    Assn ' 

is  not  regarded  as  sufficient  for  the  mover  76  Iowa  129,  40  N.  W.  122;   5  Chamb.,  Ev., 

to  allege,  in  his  petition  for  such  a  subpoena,  §  3620 

"  that  the  documents  desired  are  material  and  '    39.  5  Chamberlayne,  Evidence,  §  3621. 


907  EECOGNIZANCE.  §§  1144, 1145 

court,  his  presence  may  be  obtained  by  a  writ  of  habeas  corpus  ad  testificandum, 
the  granting  of  which  was  a  matter  of  discretion  at  common  law,40  the  power 
in  this  respect,  being  inherent.41  The  granting  of  an  order  for  the  attendance 
of  such  a  person  in  court  rests  in  the  sound  discretion'of  the  presiding  judge.42 
If  he  should  be  satisfied  that  the  purposes  of  justice  will  be  equally  as  well 
accomplished,  and  the  statute  permits  of  it,  he  may  refuse  the  order  and  direct 
the  taking  of  the  deposition  of  the  imprisoned  person.43 

§  1144.  Recognizance.44 —  Another  mode  by  which  the  attendance  of  a  wit- 
ness, in  behalf  of  the  state  in  a  criminal  proceeding  may  be  provided  for  is  by 
a  recognizance  for  his  appearance  and,  in  case  of  his  refusal  or  inability  to 
comply  with  the  order  of  the  court  in  this  respect,  his  commitment  in  some 
place  of  detention  until  the  trial.'45  A  bond  so  given  should  be  definite  as  to 
the  time  the  witness  is  to  appear  and  if  not  sufficient  in  this  respect  is  a  nul- 
lity, as  where  the  witness  is  required  to  appear  at  an  impossible  date.46  The 
power  to  bind  witnesses  by  recognizance  to  appear  and  give  evidence  in  crim- 
inal cases  is  said  to  be  an  extraordinary  one,  which  cannot  be  exercised  in  the 
absence  of  statutory  authority.47 

§  1145.  Compulsory  Process;  Not  a  Taking  of  Property;  Duty  to  Testify.48 — 
The  exercise  by  the  court  of  its  power  to  compel  a  witness  to  attend  trial  and 
to  testify  is  not  a  taking  of  property  in  violation  of  the  constitutional  provi- 
sion.49 Such  attendance,  accompanied  by  the  giving  of  testimony,  is  rather 
regarded  as  a  duty  which  the  individual  owes  to  society  as  a  member  thereof.50 

In  Criminal  Cases. —  The  same  rule  as  prevails  in  civil  cases,  is  also  held 
to  control  in  the  case  of  misdemeanors.51  In  criminal  cases,  involving  the  com- 
mission of  felonies,  witnesses  in  behalf  of  the  government  may  be  summoned 

40.  Van  Vlissingen  v.  Van  Vlissingen,  173  121    (1895);   In  re  Petrie,   1  Kan.  App.   184, 
111.  App.    124    (ini2):    Hayden   v.   Com.,   140  40  Pao.  118    (1895);   Lutshaw's  Case,  1  Ohio 
Ky.   634.    131    S.   W.   521     (1910);    Ex  parte  Dec.  96   (1848);  Crosby  v.  Potts,  8  Ga.  App. 
Marmaduke.  91  Mo.  228,  4  S.  W.  91    (1886)  ;  463,  69  S.  E.  582    (1910);   5  Chamb.,  Ev.,  § 
People  v.   Sebring,   14  Misc.    (X.   Y.)    31,   35  3622,  n.  1. 

N.   Y.   Supp.   237    (1895);    5   Chamb.,   Ev.,   §  46.  Mac-key  v.  State,  38  Tex.  Cr.  24,  40  S. 

3621,  n.  1.  W.  982   (1897)    (a  date  prior  to  giving  of  the 

41.  Jackson  v.  Mobley.  157  Ala.  408,  47  So.      bond). 

590  (1908)  ;  People  v.  Sebring.  supra.  47.  Little  v.  Territory,  28  Okl.  467,  114  Pac. 

42.  Roberts  v.   State,  94  Ga.   66,  21   S.   E.       699    (1911). 

132   (1894);  Ex  parte  Marmaduke,  supra;  In  48.  5  Chamberlayne,     Evidence,    §§     3623- 

re  Thaw,  166  Fed.  71,  91  C.  C.  A.  657   (1908)  ;  3625. 

5  Chamb.,  Ev..  §  3621.  n.  3.  49.  West  v.  State,  1  Wis.  209,  233   (1853)  ; 

43.  People  v.  Putnam,  129  Cal.  258,  61  Pac.  1  Starkie's  Ev.,  85 ;  5  Chamb.,  Ev.,  §  3623,  n. 
961     (1900);    Buckley    v.    Von    Claussen,    53  1. 

X.  Y.  Law  J.   (June  9,  1915),  Xo.  59.     Com-  50.  Bennett    v.    Waller,    23    111.    97,     179 

pare  Hancock  v.  Parker,   100  Ky.   143,  37  S.  (1859);   Israel  v.  State,  8  Ind.  467    (1857); 

W.  594,   18  Ky.  L.  Rep.  622    (1896).  Baird   v.    Cochran,   4   Serg.   &   R.    (Pa.)    397 

44.  5  Chamberlayne,  Evidence,  §  3622.  (1818)  ;  5  Chamb.,  Ev.,  §  3623,  n.  2. 

45.  Ex   parte   Shaw,    61    Cal.    58    (1882);  51.  Ex  parte  Chamberlain,  4  Cow.   (N.  Y.) 
Clayborn  v.  Tompkins,  141  Ind.  19,  49  N.  E.  49   (1825). 


§   1145  WITNESSES;  ATTENDANCE  OF.  90S 

without  a  tender  of  fees,  upon  the  principle  that  it  is  the  duty  which  even- 
citizen  owes  to  the  public  to  appear  in  such  cases  and  give  his  testimony  even 
without  any  compensation.52  The  accused,  however,  could  not  under  the 
early  English  common  law  demand,  as  a  matter  of  right,  compulsory  process 
for  his  witnesses.03  This  situation,  however,  is  generally  provided  for  and 
remedied  at  the  present  time  by  constitutional  provision  and  legislative  enact- 
ments regulatory  of  the  exercise  of  the  right.54  Good  faith  on  the  part  of  a 
defendant  is  essential  and  it  is  said  that  the  materiality  and  importance  of  the 
evidence  should  be  established  to  the  satisfaction  of  the  presiding  judge  before 
this  process  will  be  issued.55  The  mere  service  of  a  subpoena  is  not  regarded 
as  satisfying  the  provision  of  the  constitution,  the  actual  production  of  the 
witness  in  court  being  required,56  unless  this  is  impossible,  as  where  the  wit- 
nesses desired  are  beyond  the  reach  of  process.57  In  fact  it  is  said  that  such 
a  provision  does  not  guarantee  any  more  than  ordinary  diligence,  on  the  part 
of  the  officers  who  may  be  seeking  to  serve  a  desired  witness.58  The  provision 
of  the  United  States  Constitution  together  with  the  amendments  thereto,59  are 
not  regarded  as  affecting  or  applying  to  prosecutions  or  proceedings  in  the 
courts  of  the  states  or  to  laws  enacted  by  the  legislatures  of  the  states,  but  only 
to  prosecutions  and  proceedings  in  the  courts  of  the  United  States  and  laws 
enacted  by  Congress.'30 

Granting  of  Matter  of  Discretion. —  Ordinarily,  under  such  provisions,  the 
accused  is  required  to  show  his  inability  to  pay  the  expense  of  procuring  wit- 
nesses ;  to  state  the  names  of  those  he  desires  and  what  he  intends  to  prove  by 
each.  The  purpose  of  this  is  to  place  it  within  the  power  of  the  court  to  de- 
termine, in  the  exercise  of  sound  reason,  the  good  faith  of  the  accused  in  the 
matter  and  the  nature  of  the  proposed  testimony  so  that,  if  the  presiding  judge 
deems  it  proper,  he  may  grant  the  application.61  If  he  is  not  so  satisfied,  he 
may  refuse  to  grant  the  order,  as  where  it  appears  from  the  application  that 

81    Tenn.    326    (1884);    State   v.    Grimes,    4 

ittman    v.    State,   51    Fla.   94,   41    So.       Wash.  445,  35  Pac.  361    (1893) 
385   I  1906)  ;  Crosby  v.  Potts,  8  Ga.  App.  463,  57.  State  v.  Yetzer,  97  Iowa  423    66  N   W 

582   (1!)1(»-  737  (1896)  ;  State  v.  Richard.  127  La.  413,  '3 

54.  Bush  v.  State,  168  Ala.  77,  53  So.  266      So.  669    (1910). 

(1910);  People  v.  Bossert,  14  Cal.  App.  Ill,  58.  Smith  v/State,   118  Ga    61    44  S    E 

Pac.  15   (1910);  Moore  v.  State,  59  Fla.  817    (1903) 

23,  52  So.  971    (1910)  ;   State  v.   Robertson,  59.  U.  S.'  Const.,  §  2,  Art    3  and  amend- 

133  La.  806,  6.3  So.  863  ( 1913)  :  State  v.  Berk-  ments   five   and   six 

1.  W.  24   (1887)  ;  State  v.  60.  Spurgeon  v.  Rhodes,  167  Ind.  1,  78  N 

Archer.    o4    N.    H.    465    (1874);    Romine    v.  E.   228    (1906);    Anderson   v    State    8   Okla 

State,  10  Okl.  Cr.  350.  136  Pac.  775  (1913):  Cr.    90,    126    Pac.    840  Tl912)       Presser    v' 

State   v.   Sheehan,   28   R.    I.    160,  66   Atl.   66  Il,inoi8)  116  U.  S.  252,6  S   Ct    580  " 9  I    el 

(1907,  ;  5  Chamb.,  Ev.,  §  3624,  n.  4.  61,   (1885)  ;  5  Ctamb  .  Ev^M   n    10 

55.  Peop.e  v.  VYnlard,  92  Cal.  482,  28  Pac.'  61.  Jenkins  v.   State.   31'  «£  *£  £^ 

680  (1893)  ;  State  v.  Nix,  111  La.  812,  35  So. 

56.  State  v.  Berkley,  supra;  State  v.  Baker,      917     (1904);     State    v.    Grimes,    supra;    5 

Chamb.,  Ev.,  §  3625,  n.  1. 


900  FEES.  §  1146 

the  testimony,  which  the  witness  would  be  expected  to  give,  would  be  inadmis- 
sible.152 Generally,  however,  if  the  attendance  of  the  witness  can  be  procured 
and  his  testimony  is  material,  the  court  should  grant  a  motion  for  compulsory 
process ;  a  substitution  therefor,  as  by  permitting  his  testimony  upon  a  former 
trial  to  be  read,  will  not  satisfy  the  requirement;63  nor  will  the  fact  that  an 
admission  is  made  by  the  prosecution  be  allowed,64  a  statute  permitting  the 
latter  substitute  being  held  unconstitutional.65  If  it  should  appear,  however, 
that  the  attendance  of  the  witness  can  not  be  procured,  owing  to  compulsory 
process  being  ineffectual  and  exhausted,  an  admission  may  be  received.66 
Where  by  statute  the  right  to  summon  witnesses  at  the  expense  of  the  state  is 
left  to  the  discretion  of  the  trial  court,  its  action  is  not  reviewable  on  appeal.67 

§  1146.  Payment  for  Attendance.08— By  the  Statute  of  Elizabeth,69  it  was 
made  necessary,  in  order  to  secure  the  attendance  of  a  witness  in  a  civil  cause, 
to  pay  or  tender  to  him  "  his  reasonable  charges,"  at  the  time  of  the  service  of 
the  subpoana,  which  charges  included  a. reasonable  sum  for  travel  to  and  from 
the  trial  and  for  his  necessary  stay  at  the  place  of  trial  and,  if  the  party  desir- 
ing his  testimony  did  not  at  least  tender  him  some  reasonable  amount  therefor, 
he  could  not  be  compelled  to  testify,  nor  would  the  court  proceed  against  him 
in  any  way  for  his  refusal  to  appear.70  Much  the  same  situation  now  exists 
under  modern  statutes,71  a  witness  not  being  obliged  to  obey  such  a  summons, 
unless  he  has  been  paid  or  tendered  his  traveling  expenses  to  and  from  the  trial, 
with  some  allowances  for  the  expenses  of  his  necessary  stay.  The  amount 
which  he  is  paid,  both  for  his  traveling  and  his  attendance  at  the  trial,  is 
now,  as  a  general  rule,  fixed  by  legislative  enactment.72 

Experts;  Services  Performed  By. —  In  those  cases  where  an  expert  is  not 
merely  called  upon  to  testify,  to  render  the  same  duty  to  society  which  any 
other  member  thereof  is  required  to  do,  but  is  asked  to  perform  some  special 
act,  aside  and  apart  from  that  obligation,73  as  for  instance  a  physician  to  make 
a  post-mortem  examination,74  a  chemical  analysis,75  or  to  examine  the  facts 

62.  State  v.  Berger  (Iowa  1902),  90  N.  W.  (1908)  ;   Atwood  v.   Scott,  99   Mass.    177.  96 
621  Am.  Dec.  728   (1868)  ;  Larimore  v.  Bobb,  114 

63.  People  v.  Bossert,  supra.  Mo.  446,  21  S.  \V.  922    (1893)  :  In  re  Depue, 

64.  People  v.  Fong  Chung,  5  Cal.  App   591,  185   N.  Y.   60,   77  N.   E    798    (1906)  ;    Wohl- 
91    Pac. '106    (1910);   State  v.   Salge,  2  Nev.  forth    v.    Kuppler.    77    Wash.    339.    137    Pac. 
321    (1866)  :   State  v.  Richard,  supra.  477   (1914)  ;  5  Chamb.,  Ev..  §  3626.  n.  3.     See 

65.  State  v.   Berkley,  supra.  also,  the  statutes  of  the  various  states. 

66.  Kelly  v.  State.  160  Ala.  48,  49  So.  535  72.  Engel  v.   Ehret.  21   Cal    App.   112,   130 
(1909):    State  v    Wilcox.  21   S.  D.  532,   114  Pac.    1197     (1913);    Anderson    v.    Board    of 
N.  W.  687    (1907/-  County   Com'rs,   91    Kan.    362,    137    Pac.   799 

67.  Goldsby  v.  U.   S.,    160  U.   S.  70,   16  S.  (1914*). 

Ct.  216,  40  L.  ed.  343   (1895K  73.  See  Barrus  v.  Phaneuf.  166  Mass.   123, 

68.  5  Chamberlayne,     Evidence,     §§     3626-  44  X.  E.  141,  32  L.  R.  A.  619   (1896);  Lyon 
3630.  v.  Wilkes.  1  Cow.   (X.  Y.)   591   (1823). 

69.  Stat.  5  Eliz.  c.  9.  74.  Board  of  County  Com'rs  v.  Lee.  3  Colo. 

70.  Xewton  v.  Harland,  9  Dowl.  16   (1840).  App.    177,    32    Pac.    841     (1893):    County  of 

71.  People    v.    Healey,    139    111.    App.    363  Northampton  v.   Innes,  26  Pa.   156    (1846); 


§  1146  WITNESSES;  ATTENDANCE  OF.  910 

of  the  case  or  attend  court  during  an  entire  trial  for  the  purpose  of  hearing  all 
of  the  testimony  so  as  to  qualify  him  to  pass  an  opinion,70  or  an  expert  account- 
ant to  make  an  examination  of  books,77  no  good  reason  can  be  suggested  why 
he  should  either  be  compelled  to  do  so  or  be  asked  to  without  compensation  for 
the  services  rendered.78 

Opinions  of;  Extra  Compensation. —  In  another  class  of  cases  where  one 
who  is  an  expert  is  called  upon  to  testify,  not  merely  to  facts  within  his  knowl- 
edge, but  also  to  express  an  opinion  based  upon  facts  presented  to  him,  there 
is  some  authority  in  favor  of  the  view  that  he  should  not  be  compelled  to  do  so 
without  extra  compensation,79  founded  upon  the  theory  that  when  a  witness 
testifies  as  an  expert,  he  is  then  rendering  a  special  service,  one  peculiarly  pro- 
fessional, which  places  him  in  a  position  entirely  different  and  distinct  from 
that  occupied  by  him  or  any  other  witness  when  testifying  to  facts.80  The 
weight  of  authority,  however,  favors  the  view  that  courts  possess  the  power  to 
summon  experts  to  testify  without  any  increase  over  the  fees  paid  to  other  wit- 
nesses.81 The  decisions  are  founded  upon  the  theory  of  the  duty  which  each 
individual  owes  to  society,  even  though  the  performance  of  that  duty  may,  in 
some  cases,  result  in  a  pecuniary  loss  to  him.  It  is  true  that,  financially,  his 
loss  may  be  greater  in  amount  than  that  of  an  ordinary  witness.  On  the  other 
hand,  however,  it  may  not  be  proportionately  greater.  The  law  does  not  at- 
tempt to  discriminate  in  the  case  of  other  witnesses  for  the  purpose  of  re- 
munerating them  for  the  value  of  their  time  when  serving  the  state  as  wit- 
nesses, nor  when  citizens  are  called  to  serve  as  jurors.  Why  should  an  excep- 
tion be  made  in  the  case  of  an  expert  and  others  whose  loss  may  be  more  serious, 
though  smaller  in  amount,  be  ignored  ?  The  majority  doctrine  has  wisely 
refused  to  make  any  exception  but  requires  all  to  testify,  upon  the  same  basis 
of  compensation.82 

Statutes. —  In  some  jurisdictions  statutes  have  been  enacted  having  in  view 

Summers  v.  State,  5  Tex.  App.  365,  32  Am.  learning  are  in  the  nature  of  property  which 

Rep.  573   ( 187!»)  ;  5  Chamb.,  Ev.,  §  3627,  n    1.  ought  not  be  extorted  from  him  in  the'form  of 

75.  People  v.  Conte,  17  Cal.  App.  771,  122  an  opinion  without  just  compensation  there- 
Pac.  450    (1912).  for.     Buckman  v.  State,  supra. 

76.  Flinn  v.   Prairie  County,  60  Ark.   204,  81.  Flinn   v.   Prairie   County,   supra;    Peo- 
29  S.   W.  459    (1S95);   Schofield  v.  Little, '2  pie  v.  Conte,  supra;  Board  of'County  Com'rs 
Ga.  App.  286,  58  S.  E.  666   (1907)  ;  People  v.  v.  Lee,  supra;  Dixon  v   State,  12  Ga   App.  17, 
Montgomery,  13  Abb.  Pr.  N.  S.   (N.  Y.)   207,  76  S.   E    794    (1912)  ;   North   Chicago  St.   R! 
240  ( 1895>  Co.  v.  Zeiger,  182  111.  9,  54  N.  E.  1006  ( 1899)  ; 

77.  Harrison  v  City  of  New  Orleans,  40  La.  Barrus  v    Phaneuf.  supra;  Burnett  v.   Free- 
Ann   509,  4  So.  133  ( 1888).  man,  134  Mo.  App.  709.  115  S.  W.  488  (1909)  ; 

78.  Philler  v.  Waukesha  County,  139  Wis.  Lyon   v.    Wilkes,    supra;    State   v.    Darby,    9 
211,  120  N.  W.  829    (1909).  Ohio   Dec.    (Reprint)    725    (1886):    Com.'  v. 

79.  Buckman  v    State.  59   Ind.   1    (1877);  Higgins,  5  Kulp.    (Pa.)    269    (1889);   Philler 
Re  Roelker,  1  Sprague   (U.  S.)   276   (1855);  v.  Waukesha  County,  supra;  5  Chamb.,  Ev., 
6  Chamb.,  Ev.,  §  3628,  n    1.  §  3629,  n.   1. 

80.  Thus  in  the  case  of  a  physician  it  is  82.  Main  v.  Sherman  County,  74  Neb.  155, 
said    that    his    professional    knowledge    and  103  N.  W.  1038   (1904). 


911  CONTEMPT.  §  1147 

the  payment  of  an  extra  compensation  to  an  expert,  testifying  as  such.     Such 
a  statute  has  to  be  construed  with  reference  to  the  witness  actually  testifying 

| 

as  an  expert  and  not  to  include  the  case  of  one  who  though  he  is  an  expert  is 
testifying  to  physical  facts  falling  within  his  observation.83  Under  a  statute 
providing  that  "  witnesses  called  to  testify  in  court  only  to  an  opinion  founded 
on  special  study  or  experience  in  any  branch  of  science,  or  to  make  scientific 
or  professional  examinations  and  to  state  the  result  thereof,  shall  receive  addi- 
tional compensation  to  be  fixed  by  the  court  with  reference  to  the  value  of  time 
employed  and  the  degree  of  learning  required,"  it  is  sufficient  to  entitle  them 
to  such  compensation  that  they  have  been  called  to  testify  only  to  an  opinion, 
or  to  the  result  of  scientific  or  professional  examination;  it  is  not  necessary 
that  they  should  be  appointed  by  the  courts  as  experts  or  summoned  as  such.84 
§  1147.  Punishment  for  Contempt.85 — A  judicial  tribunal  has  power,  in  case 
a  person,  who  has  been  lawfully  subpoenaed  as  a  witness,  fails  to  appear,86  or, 
in  case  he  appears  in  response  to  the  summons,  refuses  to  answer  questions  as 
to  matters  concerning  which  he  may  be  lawfully  interrogated,87  or  refuses  to 
obey  a  subpoena  duces  tecitm,88  to  punish  him  as  for  a  contempt  of  court.  The 
subpoena  is  a  direct  order  of  court  commanding  the  person  to  do  as  directed 
therein  and,  for  his  refusal  to  comply  therewith,  the  court  has  the  power,89 
which  at  common  law  was  inherent  is  courts  of  record,90  to  punish  him  for  con- 
tempt ;  otherwise,  it  would  be  powerless  to  enforce  any  obedience  to  its  process. 

83.  Le  Mere  v.  McHale,   30  Minn.  410,   15  Y.)   150  (1861)  ;  State  v.  Keyes.  75  Wis.  288, 
N.  W.  682   (1883)  ;  5  Chamb.,  Ev.,  §  3630,  n.  44  N.  W.  13    (1889)  ;  5  Chamb.,  Ev.,  §  3631, 
1.  n.  2. 

84.  Suthon  v.  Laws,  132  La.  207,  61  So.  204  88.  Foster    v.    Wait,    151    App.    Div.    933. 
(1913).  136  N.  Y.  Supp.  209   (1912). 

85.  5  Chamberlayne,  Evidence,  §  3631.  89.  Baldwin  v.  State,  126  Ind.  24,  25  N.  E. 

86.  Brockman  v.  Aulger,  12  111.  277  (1850);  820    (1890);    Tredway   v.   Van    Wagenen,   91 
Wilson  v.  State,  57  Ind.  71    (1877)  ;  State  v.  Iowa  556,  60  X.  W.    130    (.1894):    Woods  v. 
Seaton,  61   Iowa  563,   16  N.  W.  736    (1883);  De  Figaniere,   1    Rob.    (N    Y.)    607.   16   Abb. 
People  v.  Brown,  46  Hun  (N.  Y.)  320  (1887);  Pr.    1    (1863);   5   Chamb..  Ev.,  §  3631,  n.  4 
State  v.  Nixon,  Wright   (Ohio)    763    (1834);  90.  Matter   of   Kerrigan,    32    X.   J    L.    344 
5  Chamb.,  Ev.,  §  3631,  n.   1.  (1869)  ;  Williamson's  Case,  26  Pa.  9,  67  Am 

87.  Rogers  v.  Superior  Court,  145  Cal    88,  Dec.  374    (1855).     There  must  have  been  au- 
78   Pac.   344    (1904)  ;    Goodman   v.   State.   90  thority  to  issue  the  summons  and  one  of  the 
111.   App.  533    (1900)  :   Ex  parte  Creasy,  243  requisites  to  that  authority  is  the  pendency 
Mo.  679,  148  S.  W.  914.  41  L.  R.  A.    i  X.  S.)  of  an  action  in  court.     Chambers  v.  Oehler, 
478  (1912);  People  v.  Kelly,  12  Abb.  Pr.  (N.  K~   Iowa  155,  77  N.  W.  853    (1899). 


CHAPTER  LXII. 

INCOMPETENCY  OF  WITNESSES;  MENTAL  INCOMPETENCE 

Incompetence  of  witnesses;  nature  of  an  oath,  1148. 
immaturity  of  children 'n  minds,  1149. 
insanity,  idiocy,  etc.,  1150. 
intoxication,  1151. 
victims  of  drug  habits,  1152. 

§  1148.  Incompetency  of  Witnesses;  Nature  of  an  Oath.1 — It  is  the  general 
rule  that  a  person  of  intelligence  may,  provided  he  has  knowledge  respecting 
some  relevant  fact,2  testify  in  regard  thereto.  Personal  knowledge  is  essen- 
tial.3 From  the  earliest  times  the  solemnity  and  binding  force  of  an  oath 
have  been  recognized.  "  The  forms  of  an  oath  have  been  always  different  in 
all  countries  according  to  the  different  laws,  religion  and  constitution  of  those 
countries.  But  still  the  substance  is  the  same,  which  is  that  God  in  all  of 
them  is  called  upon  as  a  witness  to  the  truth  of  what  we  say."  4  "  No  case 
can  be  found  which  has  allowed  a  witness  to  be  sworn  upon  a  belief  falling 
short  of  a  belief  in  the  existence  of  God."  5 

Mental  Incapacity;  Deaf  and  Dumb  Persons. —  It  is  a  general  rule' that  a 
person  must,  in  order  to  be  qualified  as  a  witness,  possess  the  necessary  under- 
standing to  retain  in  his  memory  a  clear  recollection  of  the  events  or  occur- 
rences witnessed  by  him  so  as  to  be  able  to  narrate  them  intelligently,  and 
that  he  must  be  able  to  discern  between  right  and  wrong  and  to  appreciate  the 
obligation  imposed  upon  him  to  tell  the  truth  respecting  the  matters  concern- 
ing which  he  has  knowledge  and  is  called  upon  to  testify.6  These  are  require- 
ments which  will  be  insisted  upon  in  all  cases.  If  it  appears  that  a  person, 
offered  as  a  witness,  is  so  wanting  in  either  essential  as  to  render  his  testimony 
of  no  evidentiary  value  it  will  be  rejected.7  Deaf  and  dumb  persons  were,  at 

1.  5  Chamberlayne,     Evidence,     §§     3632-  46,   18   All.   1059    (1890):   5  Chamb.,  Ev.,  § 
3636  3632,  n.  1. 

2.  Hodges  v.  Kyle,  9  Ala.  App.  449,  63  So  3.  Gillespie  v.  Ashford,  125  Iowa  729,  101 
761     (1914);    Davitte   v.    Southern    Ry     Co.,  N.  W.  649  (1899)  :  Tanner  v.  Pape,  106  Mich 
108  Ga    665,  34  S.  E.  327    (1899)  ;  Purcell  v.  155,  63  N.  W.  993   (1805). 

Henry,    67    111.    App.    256    (1896):    Missouri  4.  Omichund  v.  Barker,  Willes  538   (1744); 

Pac   Ry.  Co.  v   Stevens.  35  Kan.  662,  12  Pac.  5  Chamb.,  Ev.,  §  3633. 

25    (1886);   In  re  Kuhman's  Estate,  94  Neb.  5.  Arnold  v.  Estate  of  Arnold,  13  Vt    362 

783,  144  N.  W.  778    (1914);   People  v    Gill-  (1841). 

man,  161  App.  Div.  920,  145  N.  Y   Supp.  775  6.  Hartford  v.  Palmer,  16  Johns.    (N.  Y.) 

(1914);   Cleveland,  etc.,  R.  Co.  v.  Marsh,  63  143    (1819). 

Ohio  St.  236,  58  N.  E.  821,  52  L.  R.  A.  142  7.  Infra,  other  sections  in  this  chapter;  5 

(1900);    Schubkagel    v.    Dierstein,    131    Pa.  Chamb.,  Ev.,  §  3634. 

912 


913  CnrLDEEN.  §  1149 

one  time,  excluded  as  a  class,  because  of  the  fact  that  persons  so  afflicted  were  re- 
garded, in  the  law.  as  idiots  and,  therefore,  incompetent  to  testify.  The  fallacy 
of  this  idea  has,  gradually,  become  a  relic  of  the  past,  especially  in  view  of  the 
means  and  facilities,  which  have  been  afforded  by  modern  learning,s  of  edu- 
cating them,  until,  at  the  present  time,  they  are  received  as  witnesses.  If 
such  a  person  possesses  sufficient  intelligence  to  understand  the  obligation  of  an 
oath  and  to  convey,  correctly,  such  knowledge  as  he  may  possess  to  the  court  he 
will  be  received.9  The  same  presumption  in  favor  of  sanity  applies  to  deaf 
and  dumb  persons,  as  applies  in  the  case  of  others.10 

Means  of  Conveying  Information  io  Court. —  If  such  a  witness  can  write, 
that  mode  of  answering  questions  is  to  be  preferred  to  that  of  signs.11  If  a 
witness  is  able  to  communicate  his  ideas  better  by  means  of  signs  than  by  writ- 
ing, the  use  of  the  former  mode  in  answering  questions  may  be  permitted.12 
So  the  use  of  an  interpreter  has  been  permitted,  the  same  as  where  a  witness  is 
unable  to  speak  the  English  language.13  Though  a  dumb  person  may  not  be 
educated  in  the  use  of  signs  and  can  only  express  assent  and  dissent  by  a  nod 
or  shake  of  the  head,  thus  rendering  cross-examination  difficult, 'he  may  never- 
theless be  permitted  to  testify,  but  it  is  said  that  his  disability  may  be  con- 
sidered by  the  jury,  as  bearing  upon  the  weight  of  his  testimony.14  That  dif- 
ficulty attends  the  examination  of  a  deaf-mute  is  no  reason  why  his  testimony 
should  be  excluded.15 

§  1149.  Immaturity  of  Children's  Minds.16 —  Children  are,  in  many  cases, 
excluded  as  witnesses,  owing  to  the  immaturity  of  their  mental  faculties. 
Formerly  the  rule  was,  to  a  great  extent,  an  arbitrary  one,  children  under  the 
age  of  nine  being  regarded  as  incompetent  and,  between  that  age  and  four- 
teen, their  admission  being  a  matter  for  the  court  to  determine.17  With  the 
progress  of  time,  however,  and  the  improved  educational  facilities,  resulting 
in  the  cultivation  and  development  of  the  intellect  of  children  at  an  early  age,  a 
more  reasonable  rule  has  been  adopted,18  and  age  is  not  the  test,  but  the  de- 
gree of  intelligence  and  understanding  of  the  obligation  of  an  oath.19 

General  Rule. —  Xo  precise  age  can  be  stated  as  controlling  the  question  of 
the  admission  of  the  testimony  of  children.  It  must,  in  each  instance  be  de- 

8.  State  v  Edwards.  79  X.  C   048  (1S78).  14.  Quinn  v  Halhert,  55  Vt.  224  (1882). 

9.  State  v.  Butler,  157  Iowa  103,  138  N    \V  15.  Ritchey  v.  People,  23  Colo.  314,  47  Pac. 
383    (1912):   Kirk  v.  State.  35  Tex.  Cr.  224.       272    ilS96). 

37  S.  \A'.  440  (1  *<).->>  :  5  Chamb  .  Ev..  §  3635.  16.  5  Chamberlayne,    Evidnece,    §§    3637- 

10.  Harrod  v.  Harrod.  1  K.  &  J    4   ilS54).  3641. 

11.  Morrison   v.    Lennard,    3   C.   &   P     127  17.  State  v.  Whittier,  21  Me.  (8  Shep  )  341, 
(1827).  38  Am.  Dec.  272   (1842). 

12.  State  v.  De  Wolf,  8  Conn    93    (1830)  -.  18.  McGuff  v.  State,  88  Ala.  147,  7  So.  35 
Snyder    v     Nations,    5    Blackf.     (Ind.)     295  (1889):    State    v.    Edwards,    79    N.    C     648 
(1840)  :  5  Chamb.,  Ev..  §  3636.  n    2.  (1878)-. 

13.  State  v   Howard,  118  Mo    127,  24  S   W.  19.  McGuire  v.  People.  44  Mich.  286,  6  N. 
41   (1893)  ;  State  v.  Weldon,  39  S.  C.  318,  17  W.  669.  38  Am.  Rep.  265   (1880)  ;  5  Chamb., 
S.  E.  388,  24  L.  R.  A.  126  (1892).  Ev.,  §  3637. 


§  1149  INCOMPETEXCY  OF  WITNESSES. 

termined  according  to  the  circumstances  of  the  case,20  taking  into  considera- 
tion the  intelligence  of  the  child  and  his  ability  to  discern  between  right  and 
wrong,  to  appreciate  the  difference  between  truth  and  falsehood.21  If  a  child's 
mind  does  not  appear  to  be  so  sufficiently  matured  that  he  can  distinguish  right 
from  wrong,  or  he  does  not  understand  the  obligation  of  an  oath,  he  should  not 
be  permitted  to  testify.-2  On  the  other  hand,  though  he  may  be  of  tender 
years,  yet  his  education  and  moral  and  religious  training  may  be  such  that  he 
will  entirely  satisfy  the  requirements,  in  the  foregoing  respects.  In  such  a 
case  the  court  will  receive  his  testimony.23  In  practice,  children  are  often 
allowed  to  testify  whose  legal  capacity  to  do  so  is  very  liberally  construed.24 

A  Question  for  the  Presiding  Judge. —  The  presiding  judge  must  be  satis- 
fied that  a  child,  offered  as  a  witness,  feels  some  obligation  imposed  upon  him 
to  tell  the  truth,  concerning  the  matter  in  respect  to  which  the  inquiries  relate 
and,  for  this  purpose,  he  may  examine  the  child.2"  This  is  a  matter  which 
he  must  determine  in  each  case,  under  the  particular  facts  there  existing,  and 
his  conclusion  will  not  ordinarily  be  disturbed  on  appeal.26  His  action  must 
be  guided  by  the  exercise  of  sound  reason,  and,  thus  guided,  some  test  should  be 
made  of  the  qualifications  of  such  a  witness  before  refusing  to  permit  him  to 
testify.27  On  the  other  hand,  if  the  child  does  not  possess  sufficient  intelli- 
gence to  understand  the  nature  of  an  oath,  the  admission  of  his  testimony, 
especially  in  a  capital  case,  would  be  a  grave  error.  Under  such  circumstances, 
the  action  of  the  court  would  be  in  violation  of  the  constitutional  provision 
permitting  the  accused  to  demand  the  nature  and  cause  of  the  accusation  and 
to  meet  the  witnesses  against  him  face  to  face.28 

20.  Draper  v.  Draper,  68  111.  17  (1873).  v.   Furman,  supra;  Gahler   v.   State,  49   Tex. 

21.  State  v.  Severson,  78  Iowa  653,  43  X.       Cr.   623,   95   S.    VY.   521    (1906);    5    Charab., 
W.   533    (1889);    Com.   v.   Furman,   211    Pa.      Ev.,  §  3638,  n.  4. 

549,    60    Atl.    1089,    107    Am.    St.    Rep.    594          24.  Hughes    v.    Detroit,    etc.,    Ry.    Co.,    65 

(1905)  ;    Wheeler  v.  U.  S.,   159  U.  S.  523,  40  Mich.   10,  31  X.  VV.  605    (1887). 

L.  ed.  244,  10  S.  Ct.  93   (1895).  25.  Carter   v.    State,    63    Ala.    52    (1879)  ; 

22.  Miller  v.  State,   109  Ga.  512,  35  S.  E.  Hughes  v.  Detroit,  etc.,  Ry.  Co.,  supra. 

152    (1900);    Olson   v.  Olson,   130   Iowa   353,          26.  City   of   Victor  v.   Smilanich,   54   Colo. 

106  N.    VV.   758    (1906);    People   v.    Frindel,  479,    131    Pac.   392    (1913);    Epstein   v.   Ber- 

.18  Hun  482,  12  X.  Y.  Supp.  498  (1890):  State  kowsky,   64   III.   App.   498    (1896);    State   v. 

v.    Belton,   24    S.   C.    185,   58   Am.    Rep.   241  Williams,    130  La.   280,  57   So.   927    (1912); 

(1886);    State   v.   Michael,   37    VV.   Va.    565,  Com.   v.   Marshall,  supra;   State  v.   Connors', 

16    S.    E.   803,    19   L.    R.    A.   605    (1893);    5  233  Mo.  348,  135  S.  W.  444   (1910)  ;  State  v! 

Chamb.,  Ev.,  §   3638,  n.  3.  Talla,  72  X.  J.  L.  515,  62  Atl.  675    (1905)  ; 

23.  Bone  v.  State,  8  Ala.  App.  59,  62  So.  People    v.    Smith,    86    Hun    485,    33    X.    Y. 
445   (1913);   Berry  v.  State,  9  Ga.  App.  868,  Supp.    989      (1895);     Kelberg    v.     The     Bon 
72   S.   E.  433    (lltll):    People  v.   Lewis.   252  Marche,  64  Wash.  452.  117  Pac    227    (1911)- 
111.    281,    96    X.    E.    1005    (1911);    State    v.  State  v.  Juneau,  88  Wis.   180,  59  X.  W    580 
Young,   153  Iowa  4,   132   N.  VV.  813    (1911)  ;  (1894)  ;  5  Chamb.,  Ev.,  §  3639,  n.  2;  Wheeler 
Com.  v.  Marshall,  211  Mass.  86,  97  X.  E.  632  v.  U.  S.   supra 

(1912);   State  v.  Anderson,  252  Mo.  83.  158          27.  Piepke  v.   Philadelphia   &   R    Rv    Co 

S.  W.  817   (1913)  :  State  v.  Cracker,  65  X.  J.  242  Pa.  321    80  Atl    124   (1913) 
L.  410,  47  Atl.  643  (1900):  People  v.  Linzey,          28.  Territory    v.    Duran,    3    N     M     189     3 

79  Hun  23,  29  X.  Y.  Supp.  560  (1894)  ;  Com.  Pac.  53  (1884') 


915  INSANE  PERSONS.  §  1150 

Time  to  Which  Inquiry  Relates. —  The  inquiry,  as  to  the  competency  of  a 
child  to  testify,  relates  to  the  time  of  his  giving  his  testimony  and  not  to  the 
time  of  the  occurrance  of  the  event  or  other  matters  concerning  which  his  testi- 
mony relates.29 

Instruction  of  Child. —  Instruction  of  a  child,  in  respect  to  the  nature  of  an 
oath  and  the  obligation  imposed  thereby  to  speak  the  truth,  may,  in  some  cases, 
be  permitted  so  that  he  may  be  competent  to  testify.30  Thus,  the  judge  may,  in 
some  cases,  explain  these  essentials  to  a  child,31  and  the  postponement  of  a 
trial,  in  a  criminal  case,  has  been  allowed,  to  permit  of  such  instruction,  in 
the  case  of  an  important  witness.32 

§  1150.  Insanity,  Idiocy,  Etc.33 —  The  general  statement  has  been  made  that 
insane  persons,  or  persons  non  compos  mentis,  are  not  competent  witnesses.34 
The  statement,  however,  is  entirely  too  broad  and  sweeping,  as  taken  in  the 
ordinary  acceptation  of  the  word  insanity,  which  manifests  itself  in  various 
forms.35  The  views  of  the  judges  in  one  of  the  leading  English  cases,36  are 
expressive  of  the  general  view,  as  taken  by  the  various  tribunals  in  which  this 
question  has  arisen,  the  accepted  rule  being  that  a  person  who  possesses,  at  the 
time  of  the  inquiry,  sufficient  mental  capacity  to  correctly  narrate  facts  ob- 
served by  him  and  to  understand  the  obligation  of  an  oath,  may  be  permitted  to 
testify,  though  he  may  be  affected  by  some  delusion,  concerning  which  he  is 
irrational  on  occasions,  or  by  some  form  of  temporary  insanity.37 

Incapacity  of  Time  of  Occurrence  of  Transaction. —  Where  it  appears  that 
the  mental  condition  of  the  witness,  at  the  time  of  the  occurrence  of  the  events 
which  he  is  called  upon  to  relate,  was  such  that  he  was  unable  to  receive  and 
retain  a  correct  mental  impression  of  the  event  or  transaction,  the  court  will 
reject  his  testimony,  having  in  view  the  fact  that  the  evidentiary  value  of  the 
testimony  consists,  as  much  in  the  ability  of  the  witness  to  correctly  observe 
and  receive  the  right  impression  of  the  transaction,  as  to  correctly  narrate 
those  impressions  received/58  There  is  authority,  however,  for  the  admission 

29.  Kelly    v.    State,    75    Ala.    21     (1883);          36.  Reg.  v.  Hill,  5  Cox  Cr.  Cas.  259  (1851)  ; 
5  Chamb.,  Ev  ,  §  3640.  5  Chamb.,  Ev.,  §  3643,  containing  a  summary 

30.  Com.    v.    Carey,   2    Brewst.    (Pa.)    404      of  the  same. 

(1S6S).  37.  McKinstry   v    City   of   Tuscaloosa,   172 

31.  McAmore    v.    Wiley,    49    111.    App     615  Ala.  344,  54  So.  629   (1911);  People  v.  Tyree, 
( 1893 ):  Day  v   Day,  56  X.  H.  316  ( 1876)  21    Cal.    App.    701,    132    Pac.    784     (1913); 

32.  Carter  v.  State,  supra;  Com.  v.  Lynes,  People  v.  Enright,  256  111.  221,  99  N.  E.  936 
142  Mass.  577,  8  X.  E.  408   (  1886)  ;  Hol'st  v.  (1912)  ;  Kendall  v.  May,  92  Mass.  59  (1863)  ; 
State,  23  Tex.  App.  1,  3  S.  W.  757    (1887);  People  v,  Xew  York  Hospital,  3  Abb.  N.  C. 
5  Chamb.,  Ev.,  §  3641,  n.  3.  229    (X.  Y.)    H876)  ;  Brown  v.  Armstrong  & 

33.  5  Chamberlayne,    Evidence,    §§     3642-  Latta  Co.,  239  Pa.  549,  87  Atl.   11    (1913); 
3647.  Coleman    v.    Com.,   25   Gratt.    (Va.)    865,   23 

34.  Armstrong's    Lessees    v.    Timmons,    3  Am.  Rep.  711   (1874)  ;  5  Chamb.,  Ev.,  §  3644, 
Harr.     (Del)     342      (1841);     Livingston     v.  n.  2 

Kiersted,  10  Johns.   fX.  Y.)   362   (1813)  38.  Holcomb    v.    Holcomb,    28    Conn.     177 

35.  District  of  ' "olumbia  v.  Arms.  107  U.  S.        (1859)  ;   5  Chamb.,  Ev.,  §  3645. 
510.  2  Sup.  Ct.  840.  27  L,  ed.  618    (1882)  ;  5 

Chamb  ,  Ev.,  §  3642,  n.  2. 


§   1151  INCOMPETENCY  OF  WITNESSES.  910 

of  the  testimony  of  such  a  witness,  it  being  declared  that  the  fact  of  his  being 
under  a  delusion  or  his  mind  otherwise  affected  at  the  time  goes  to  the  question 
of  credibility  and  not  competency.39  In  any  event,  mental  impairment,  at  the 
time  of  the  occurrence  will  not  necessarily  render  a  witness  incompetent;  the 
question  of  the  extent  of  his  infirmity,  as  affecting  his  competency  as  a  witness, 
is  for  the  trial  court.40 

Effect  of  Allegations  in  Pleadings. —  An  allegation  by  a  person,  in  a  plead- 
ing, of  his  mental  unsoundness  will  not  necessarily  operate  to  exclude  him  as  a 
witness.41  So  the  fact  that  one  sues  by  his  next  friend,  as  a  person  of  un- 
sound mind,  his  mental  unsounduess  being  admitted  in  the  complaint,  does  not 
necessarily  prevent  him  from  being  a  witness,  the  question  of  his  competency 
being,  nevertheless,  one  for  the  court  to  determine.42  Similarly,  though  a  per- 
son, in  an  action  for  damages  for  an  assault  committed  upon  him,  alleges  that 
he  has  been  injured  in  body  and  mind,  he  is  not  necessarily  precluded  thereby 
from  becoming  a  witness;  the  question  of  his  competency  is  for  the  presiding 
judge  to  determine.43 

.4  Question  for  the  Presiding  Judge. —  The  question  whether  a  person  pos- 
sesses the  necessary  mental  qualification,  to  justify  the  court  in  permitting 
him  to  testify  as  a  witness,  is  a  matter  peculiarly  within  the  province  of  the 
presiding  judge.  If  he  is  satisfied  that  the  witness  .is  possessed  of  the  neces- 
sary qualifications,  he  will  permit  him  to  testify;  otherwise  not.44  His  con- 
clusion upon  the  competency  of  the  witness  will  not  be  disturbed  except  upon 
clear  proof  of  an  error  in  his  determination.45  It  is,  however,  held  to  be  the 
duty  of  the  court,  where  a  party  offers  to  introduce  evidence  tending  to  show 
that  a  person  is  non  compos,  to  permit  of  its  introduction,  since,  if  a  proposed 
witness  is  incompetent  on  this  ground,  the  fact  should  be  ascertained  and  his 
testimony  excluded.46  The  presiding  judge  may  examine  the  proposed  wit- 
ness and  others  who  may  be  acquainted  with  him,  or  the  examination  may  be 
conducted  by  counsel  under  the  direction  of  the  court.47  A  finding  in  lunacy 
several  years  previous  to  the  trial,  by  which  a  person  was  adjudged  an  idiot 
and  incapable  of  managing  his  affairs,  does  not  necessarily  exclude  him  as  a 
witness.48 

§  1151.  Intoxication.49 — A  person  may  be  excluded,  as  non  compos  mentis, 

39.  Sarbaoh  v.  Jones,  20  Kan.  497   (1878).  comb  v.  Holcomb,  supra;  Cannady  v.  Lynch, 

40.  Burns  v.   State.   145   Wis.  373,   128  N.  supra;    Coleman    v.    Com.,    supra;    Burns   v. 
W.  087    .mil).  State,  supra;  District  of  Columbia  v.  Arms, 

41.  Cannady  v.  Lynch,  27  Minn.  435,  8  X.  supra;  5  Chamb.,  Ev.,  §  3647,  n.   1. 
W.   104    (1S81).  45.  Coleman  v.  Com.,  supra. 

42.  Worthington  v.  Mencer,  96  Ala.  310,  11  46.  Livingston  v.  Kiersted,  supra. 

So.  72,  17  L.  R.  A.  407   (1891).  47.  Holcon  b   v.    Holcomb,    supra;    District 

43.  Dickson   v.   Waldron.   135   Ind.   507,   34      of  Columbia  v.  Arms,  supra. 

X.  E.  506,  35  X.  E.   1,  24  L.  R.   A.  483,  41  48.  Barker  v.  Washburn,  200  X.  Y.  280,  93 

Am.  St.  Rep.  440    (1893);   5  Chamb.,  Ev.,  §  X.   E.   f)5S    (1911),  aff's   128   App.   Div.   931, 

3646,  n.  3.  113   X.  Y.   Supp.    1124    (1908). 

44.  Worthington    v.    Mencer,    supra;    Hoi-  49.  5  Chamberlayne,  Evidence,  §  3648. 


017  DRUG  USERS.  §  1. 

on  account  of  intoxication,  that  is,  if  it  is  of  such  a  degree  as  to  render  him 
incompetent  to  understand  the  nature  and  obligation  of  an  oath.50  The  mere 
fact  that  a  person  may  be  intoxicated,  when  he  is  called  upon  to  testify,  is  not 
sufficient  to  operate  as  a  disqualification.51  Nor  will  the  fact  that  a  man  may 
be  a  habitual  drunkard  render  him  incompetent.  His  intoxication,  at  the  time, 
must  be  of  the  character  stated.  The  question  as  to  competency  is,  in  all 
cases,  one  for  the  presiding  judge  to  determine,  in  the  exercise  of  sound  reason, 
and  his  determination  will  seldom  be  interfered  with  on  appeal.52  Intoxica- 
tion, at  the  time  of  the  occurrence  to  which  the  inquiry  relates,  has  been  held 
not  to  affect  a  person's  competency,  though  it  may  bear  upon  the  question  of 
his  credibility  and  the  weight  of  his  testimony.53  Intoxication,  at  the  time  of 
testifying,  may,  also,  be  of  such  a  character  as  not  to  exclude  a  person  as  a 
witness  but  it  mdy  bear  upon  the  question  of  his  credibility.54  The  fact  that 
a  person  is  deprived  of  the  control  of  his  property,  in  consequence  of  his 
drinking  habits,  does  not  operate  to  exclude  him  as  a  witness.55 

§  1152.  Victims  of  Drug  Habits.56 —  Where  persons  are  addicted  to  a  drug 
habit  it  is  a  fact  of  general  knowledge  that  to  a  great  extent  statements  made 
by  them  are  unreliable.  It  is  therefore  properly  said  in  a  case,  where  one 
admitted  himself  to  be  an  opium  consumer  and  that  he  was  under  the  influ- 
ence of  the  drug  both  at  the  time  of  the  occurrences  he  testified  to  and  at  the 
time  of  the  trial,  that  the  jury  should  be  carefully  cautioned  as  to  their  cre- 
dence to  the  testimony.57  The  question  of  the  competency  of  such  persons  is 
one  for  the  presiding  judge,  as  in  other  cases  of  mental  unsoundness. 

50.  State  v.  Underwood,  6  Ired.  L    (X.  C.)  54.  Meyers  v.  State,  37  Tex.  Cr.  208,  39  S. 
96    (1845);    Hartford   v     Palmer,    16   Johns.       W.   Ill    (1897). 

(N.  Y.)  143  (1819)  ;  5  Chamb.,  Ev.,  §  3648,  n.  55.  Gebhart  v.  Shindle,  15  Serg.  &  R.  (Pa.) 

1.  235  (1824). 

51.  Eskridge  v.  State,  25  Ala.  30    (1854)  ;  56.  5  Chamberlayne,  Evidence,  §  3649. 
Gould  v.  Crawford,  2  Pa.  89   (1846).  57.  State  v.  White,  10  Wash    611,  39  Pac. 

52.  Id.;  State  v.  Underwood,  supra.  160,  41  Pac.  442    (1895);   5  Chamb.,  Ev.,  ,§ 

53.  State  v.   Sejoins,   113  La.  676,  37  So.  3649. 
509    (1904). 


CHAPTER  LXIII. 

IXCOMPETENCY  OF  WITNESSES;  POLICY  OF  THE  LAW. 

Incompetency  of  witnesses;  policy  of  the  law;  atheism  and  other  disbelief  in 
God,  1153. 

attorneys,  1154. 

husband  and  wife;  general  rule,  1155. 

infamous  crimes;  common  law  rule,  1156. 

interest,  etc.,  1157. 

judge  and  jurors,  1158. 

§  1153.  Incompetency  of  Witnesses;  Policy  of  the  Law;  Atheism  and  Other  Dis- 
belief in  God.1 —  The  rule,  as  generally  stated,  is  that  a  person,  who  does  not 
believe  in  a  supreme  being  and  in  future  rewards  and  punishment  for  acts  com- 
mitted in  this  world,  is  not  competent  as  a  witness.2  The  latter  part  of  this 
statement  is,  it  would  seem,  somewhat  too  broad,  for  a  person  may  believe  in 
a  supreme  ruler  of  the  universe  who  punishes  and  rewards  during  one's  earthly 
existence.  In  such  a  case  there  is  no  good  reason  why  his  testimony  should  be 
rejected.3  The  fact,  however,  that  a  person  expressed  a  disbelief  in  a  supreme 
being,  at  some  time  prior  to  the  trial,  will  not,  necessarily  exclude  him.4  The 
inquiry  does  not  relate  to  the  particular  creed  or  denomination  of  the  witness. 
Belief  in  the  existence  of  a  supreme  being  and  the  sanction  of  an  oath  seem  to 
be  the  requisites.5  A  frequent  mode  of  establishing  the  fact  of  disbelief  is 
by  declarations,  made  out  of  court,  in  the  presence  of  others.6  After  it  has 
been  established  that  a  person,  offered  as  a  witness,  is  an  infidel  it  is  said  that 
he  will  not  then  be  permitted  to  establish,  by  his  statements  in  court,  that  he 
is  not.7 

1.  5  Chamberlayne,     Evidence,     §§     3650-          4.  Smith    v.    Coffin,    18    Me.    157     (1840); 
3652.  Jackson   v.   Gridley,    18   Johns.    (X.   Y.)    98 

2.  Central  Military  Tract.  R.  Co.  v.  Rock-       (1820)  ;  Scott  v.  Hooper,  supra. 

afellow,  17  111.  541  (1856)  -.  Thurston  v.  Whit-  5.  Donkle   v.    Kohn,   44    Ga.   206    (1871); 

ney  56  Mass.  104  (1848)  ;  People  v.  McGarren,  Arnold    v.    Estate    of    Arnold,    13    Vt.    362 

17  Wend.   (X.  Y.)  460  (1837);  Com.  v.  Win-  (1841);    State   v.    Browning,    153    Iowa    37, 

nemore,  2  Brewst.    (Pa.)    378    (1867);   Scott  133   X.   W.    330    (1911);    5    Chamb.,   Ev.,   § 

v.    Hooper.    14   Vt.   535     (1842);    5    Chamb.,  3650,  n.  4. 

Ev.,  §  3650,  n.  1.  6.  Smith  v.  Coffin,  supra;  Thurston  v.  Whit- 

3.  Beeson   v.   Moore,   132   Ala.   391,   31    So.  ney,   supra;   Xorton   v.    Ladd,   4   X.   H.   444 
456    (1902);    Ewinp  v.   Bailey,   36   111.   App.  (1828);  Jackson  v.  Gridley,  supra;  Blair  v. 
191    (1889);   Hunscom  v.  Hunscom.  15  Mass.  Seaver,  supra;  5  Chamb., 'EV.,  §  3650,  n.  5. 
184   (1818)  ;  People  v.  Matteson,  2  Cow.   (X.  Expressions  to  this  efiect,  however,  are  by  no 
Y.)   433   (1823);   Brock  v.  Milligan,  10  Ohio  means     conclusive.     Thurston     v.     Whitney, 
121     (1840);    Blair    v.    Seaver,    26    Pa.    274  supra. 

(1856) ;  5  Chamb.,  Ev.,  §  3650,  n.  2.  7.  Smith  v.  Coffin,  supra;  Jackson  v.  Grid- 

918 


919 


ATTORNEYS. 


§  1154: 


§  1154.  Attorneys.8 —  The  right  of  au  attorney  in  a  cause  to  take  the  stand 
as  a  witness  in  that  cause  is  generally  acknowledged,1'  unless  by  statute  some 
modificatign  or  change  in  the  general  rule  is  made.lu  Such  a  right  has  been 
recognized,  even  though  the  fee  of  the  attorney,  either  in  whole  or  in  part,  may 
depend  upon  the  success  or  failure  of  his  client,11  although,  under  such  circum- 
stances, his  testimony  has,  in  some  cases,  been  rejected  on  the  ground  of  in- 
terest.12 On  account  of  bias  and  partiality  arising  from  the  relation  between 
the  attorney  and  his  client  the  jury  may  in  some  cases  regard  his  testimony  as 
thus  affected,  giving  weight  to  this  situation.13  The  propriety  of  such  pro- 
cedure, undoubtedly,  cannot  in  some  cases,  be  questioned ;  in  fact  there  may  be 
circumstances  when  it  might  be  regarded  as  in  the  nature  of  a  duty,  which  the 
attorney  owes,  to  so  act.14  Ordinarily,  however,  courts  have  regarded  such  a 
course  with  much  disfavor,15  having  variously  characterized  it,  both  mildly, 
as  a  question  of  professional  propriety  which  the  attorney  must  decide,10  as  a 
practice  not  to  be  encouraged,17  and,  severely,  as  an  indecent  practice  which 
should  be  discountenanced.18  If  an  attorney  desires  to  avail  himself  of  such 
a  right  it  seems  that,  as  has  been  suggested  in  some  decisions,19  the  proper 


ley,  supra.  Compare  Thurston  v.  Whitney, 
supra 

Theory  of  Rule. —  The  theory  upon  which 
this  rule  is  founded  is,  that  one,  who  does 
not  possess  such  belief,  feels  in  no  way  obli- 
gated or  bound  by  an  oath,  which  is  the  na- 
ture of  an  appeal  to  God  to  be  a  witness  of 
what  one  may  testify  to  and  is  a  recognition 
of  the  power  to  punish  for  speaking  that 
which  is  untrue.  Thurston  v.  Whitney. 
supra;  Arnold  v.  Estate  of  Arnold,  supra; 
5  Chamb.,  Ev.,  §  3651. 

Should  testimony  of  disbelievers  be  re- 
ceived?—  Viewed  in  all  its  aspects  it  would 
seem  that  the  testimony  of  all  such  persons 
should  be  received  and  the  fact  of  their  dis- 
belief be  considered  upon  the  question  of 
their  credibility  Easterday  v.  Kilborn, 
Wright  (Ohio)  345  (1833);  5  Chamb.,  Ev., 
§  3652. 

8.  5  Chamberlayne,     Evidence,     §§     3653, 
3654. 

9.  Morgan   v.   Roberts,   38   111.   65    (1865): 
Lloyd  v.  Davis,  2  Ind.  App.  170,  28  X.  E.  232 
(1891);    Potter    v.    Inhabitants    of    Ware,    1 
Cush.    (Mass.)    519    (1848);    State  v.  Hedge- 
peth,  125  Mo.  14,  28  S   W.  160   (1894)  :  Thon 
v    Rochester  Ry.  Co..  83  Hun  443,  30  X.  Y. 
Supp.   620    (1894);    Cox's   Adm'rs   v.  Hill,   3 
Ohio  411     (1828):    Follansbe   v.   Walker,   72 
Pa.  228,  13  Am.  Rep.  671    (1872)  :  5  Chamb.. 
Ev.,  §  3653,  n    1. 

10.  Hines    v.    State,    26    Ga.    614    (1859); 


Cox  v.    Williams,  5   Mart.    (N.   S.)    La.   T39 
(1826). 

11.  Central  Branch  Union  Pac.   R.   Co.  v. 
Andrews,  41  Kan.  370,  21  Pac.  276    (1889); 
Flower  v.  O'Conner,  7  La.   198    (1834);   Slo- 
cum  v.  Newly,  5  X.  C.  423  (1810)  ;  5  Chamb., 
Ev.,  §  3653,  n.  3.     The  fact  of  the  fee  being 
contingent  has  been  regarded  as  affecting  only 
his   credibility.     Central   Branch  Union   Pac. 
C'o.  v.  Andrews,  supra 

12.  Hall  v.  Acklen,  9  La.  Ann.  219  (1854)  ; 
Dailey  v.  Monday,  32  Tex.  141    (1869).     The 
right  of  an  attorney  to  testify  being  admit- 
ted, the  fact  of  his  fee  being  dependent  upon 
the    success   of   the   client,   even   though   the 
former's  testimony  might  be  rejected  at  com- 
mon law,  on  the  ground  of  interest,  yet,  in- 
competency,  due  to  the  witness  being  a  party 
to  or  interested  in  the  suit,  being  removed  by 
statute,  there  could  exist  no  reason  for  re- 
jecting his  testimony.     Central  Branch  Union 
Pac    R.  Co.  v.  Andrews,  supra. 

13.  Little  v.  McKeon,  3  X.  Y.   Super.  Ct. 
(1  Sandf.)   607. 

14.  Potter  v.  Inhabitants  of  Ware,  supra. 

15.  Little  v.  McKeon,  supra 

16.  Morgan  v.  Roberts,  supra ;  Hall  &  Co. 
v.  Renfro,  3  Mete.   (Ky  )   51    (1860). 

17.  State  v.   Woodside,  9  Ired.  L.    (31   N. 
C.)    496    (1849). 

18.  Frear  v.  Drinker,  8  Pa.  520   (1848). 

19.  State  v.  Woodside,  supra;  Bell  v.  Bell, 
12  Pa.  235   (1849). 


§  1155 


IN  COMPETENCY    OF    WITNESSES. 


920 


course  for  him  to  pursue,  consistent  with  the  dignity  of  the  profession  and  the 
maintenance  of  the  standards  which  should  be  adhered  to  by  it,  would  be  to 
retire  from  the  conduct  of  the  case. 

§  1155.  Husband  and  Wife;  General  Rule.520 — According  to  the  common  law 
rule  a  husband  or  wife  was  regarded  as  incompetent  to  testify  either  for  or 
against  the  other.21  Such  persons  were  excluded  upon  what  were  deemed  to 
be  reasons  of  public  policy.22  In  criminal  prosecutions  for  an  offense  committed 
either  by  a  husband  or  wife,  the  other  party  to  the  marriage  relation  was  ordi- 
narily excluded  under  the  general  rule.-3  And  the  wife  of  one  of  several  de- 
fendants on  trial  at  the  same  time  cannot,  under  this  rule,  be  called  as  a  wit- 
ness for  or  against  any  of  them.24  The  marriage  relation  also  operates  to  ex- 
clude the  wife  as  a  witness  in  an  action  by  the  husband  for  criminal  conversa- 
tion.25 Likewise,  the  fact  of  non-access  of  the  husband  to  the  wife,  frequently 
sought  to  be  prov'ed  in  cases  involving  the  legitimacy  of  a  child,  was  not  al- 
lowed to  be  established  by  either  the  husband  or  wife.26.  ]S:or  can  the  husband 
testify  in  a  suit  involving  the  separate  estate  of  his  wife  under  the  common 


20.  5  Chamberlayne,    Evidence,    §§    3655- 
3662. 

21.  Stanford     v.     Murphy,     63     Ga.     410 
(1879)  ;  People  v.  Bladek,  259  111.  69,  102  N. 
E.  243   (1913)  ;  Burlen  v.  Shannon,  80  Mass. 
433     (I860);     Whelpley    v.    Stoughton,    119 
Mich.  314,  78  N    VV.   137    (1899):    State  v 
Vaughan,  136  Mo.  App.  645,  118  S.  W.  1186 
(1909)  ;  Weckerly  v.  Taylor,  74  Neb.  772,  105 
N.  W.  254  (1905)  ;  People  v.  Moore,  65  How. 
Pr.   (X.  Y.)    177   (1882)  ;  Collendar  v.  Kelly, 
190    Pa.   455,   42   Atl.   957    (1899):    Wilkes' 
Adm'r  v.  Wilkes,   115  Va.  886,  80  S.  E.  745 
(1914);   Talbott  v.  U.  S.,  208  Fed.   144,  125 
C.  C.  A.  360   (1913)  ;  5  Chamb.,  Ev.,  §  3655, 
n.  1. 

22.  It  was  thought  that  by  not  permitting 
their  testimony  to  be  received  dissensions  and 
distrust    between    them    would    be    avoided 
which   result   it  was   believed   would   not  en- 
sue  in   many   cases   if   they   testified   to   the 
truth.     Furthermore  their  desire  frequently  to 
avoid  such  a  result  or  to  protect  each  other 
was   regarded    as   a   strong   incentive   to   the 
commission  of  perjury.     In  view  of  such  con- 
siderations  as  these,  variously   expressed  by 
the  courts,  it  was  considered  that  the  policy  of 
the  law  would  be  better  served  by   refusing 
to  permit  them  to  testify  under  such  circum- 
stances.    Wilson    v.    Shepard,    28    Ala.    623 
(1856);     Dwelly     v.     Dwelly,     46     Me.     377 
(1859);    Kelley    v.    Proctor,    41    N.    H     139 
(1860);    Prongle    v.    Pringle,    59    Pa.    281 


(1868);  W7illiam  &  Mary  College  v.  Powell, 
12  Gratt.  (Va.)  372  (1855);  5  -Chamb.,  Ev., 
§  3655,  n.  2. 

23.  Rivers  v.   State,    118  Ga.  42,  44  S.  E 
859   (1903)  ;  Gillespie  v.  People,  176  111.  238, 
52  N.  E.  250  (1898)  ;  Wilke  v.  People,  53  N. 
Y.  525   (1873)  ;  Thurman  v.  State.  2  0   C.  D. 
466  (1889)  ;  Com.  v.  Woodcroft,  17  Pa.  Co.  Ct. 
R.    554    (1896);    Baker    v.    State,    120    Wis. 
135,  97  N.  W.  566   (1903)  ;  5  Chamb.,  Ev.,  § 
3656,  n.   1. 

24.  Talbott  v.  U.  S.,  supra.     Though  if  the 
case  against  the  husband  of  the  proposed  wit- 
ness has  been  disposed  of,  as  by  a  plea  of 
guilty  or  by  a  verdict  for  or  against  him, 
the  fact  that  he  was  accused  in  conjunction 
with  others,  will  not  exclude  her  testimony 
for  or  against  the  latter.     R.  v.  Thompson, 
3  F.  &  F.  824  (1863)  ;  5  Chamb.,  Ev.,  §  3656, 
n.  3. 

25.  Groom    v.    Parables,    28    111.    App     152 
(1888):    Carpenter   v.    White.   46   Barb.    (N. 
Y.)    291    (1866);    Speck  v.   Gray,   14   Wash. 
589,  45   Pac.   143    (1890);    5   Chamb.,   Ev.,   § 
3656,   n.    4.     Compare   Smith    v.   Meyers,   52 
Neb.  70,  71  N.  W.  1006    (1897). 

26.  Palmer  v.  Palmer,  79  N.  J.  Eq.  496,  82 
Atl.  358    (1912):  Timmann  v    Timmann.  142 
N    Y.  Supp.  298    (1913);   Com.  v.  Shepherd, 
6  Binn.    (Pa.)   283,  6  Am.  Dec.  449    (1814): 
Mink  v.   State,   60  Wis.  583.   19   N.   W.  445 
(1884)  ;  5  Chamb..  Ev.  §  3656,  n.  5. 


921  HUSBAND  AND  WIFE.  §   1155 

law  rule.27  Similarly  the  incompeteney  of  the  wife  extended  to  a  suit  against 
a  partnership  of  which  her  husband  was  a  member.28  Husband  and  wife  were 
not  permitted  to  violate  the  rule  even  by  agreement.29 

Unlawful  Cohabitation. —  The  rule  at  common  law  only  applied  to  those 
persons  who  lawfully  occupied  the  relation  towards  each  other  of  man  and 
wife,  and  did  not  include  those  who  were  living  together  in  violation  of  the 
law,  such  as  a  man  and  his  mistress,30  or  as  the  result  of  a  bigamous  marriage.31 
If  they  are  not  lawfully  married  or  are  living  together  in  immoral  relations  it 
seems  that  the  testimony  of  either  may  be  received,3-  the  fact  that  they  are  living 
in  such  a  relation  being  said  to  only  affect  the  credit  and  not  the  competency 
of  the  witness.33  In  a  prosecution  for  statutory  rape,  it  may  be  shown  that  no 
lawful  marriage  ever  took  place  between  the  prosecutrix  and  the  defendant, 
for  the  purpose  of  enabling  her  to  testify.34  The  policy  of  the  law,  for  reasons 
of  which  the  testimony  of  such  persons  was  excluded,  had  in  view  only  those 
who  occupied  the  relation  of  man  and  wife,  de  jure.  It  was  never  intended 
thereby  to  give  recognition  to  illicit  intercourse  and  cohabitation  and  place 
those  occupying  such  a  relation  on  the  same  plane,  by  exclusion  of  their  testi- 
mony, as  was  occupied  by  those  bound  together  by  the  lawful  and  holy  ties  of 
matrimony.35 

Exceptions. —  The  testimony  of  a  wife  has  been  received,  in  an  action 
brought  for  necessaries  furnished  to  her  to  show  the  facts  of  her  expulsion 
from  her  husband's  home  and  his  failure  to  provide  for  her,36  upon  the  theory 
of  necessity,  in  that,  in  the  great  majority  of  cases,  there  would  be  no  other 
proof  of  such  facts,  thus  preventing  the  courts  from  enforcing  the  liability  of 
the  husband  to  provide  for  his  wife.37  So  an  exception  is  recognized  where  the 

27.  George  Tucker  Commission  Co.  v.  Bell,  Johnson,  9  La.  Ann    308   (1854);  5  Chamb., 

62   Ark.   26,   34   S    W.   80    (1896);    Jones   v  Ev.,  §  3657,  n.  3 

Bassett,  27  Ind.  58    (1866):  Wood  v.  Broad-  33.  Metiiner    v.    Conet,    2   Mart.    (La.)    56 

ley,   76   Mo.   23,   43    Am.    Rep.    754    (1882);  (1811).     Thus  in  the  case  of  a  man  whom 

\Varne  v    Dyett,   2    Edw.    Ch.    (X.   Y)    497  his   first   wife  had  divorced   and   obtained  a 

( 1835)  ;  5  Chamb.,  Ev.,  §  3656,  n.  6  decree    forbidding    him    to    marry    again,    a 

28    McEwen  v.  Shannon  &  Co.,  64  Vt.  583.  woman  with  whom  he  had  subsequently  co- 

25  All.  661    ( 1892) .  habited,  though  referred  to  by  him  as  his  wife 

29.  Dwelly  v.  Dwelly.  46  Me.  377    (1859);  would    not    be    excluded    by    the    rule    under 
Colbern's  Case,   1   Wheel    C.   C.    (X    Y  )    479  consideration.     Dennis   v.    Crittenden,   supra. 
( 1823) .  The  same  situation  would  exist  if  he  had  mar- 

30.  Wrye   v.   State,   95   Ga.   466.   22   S    E  ried  again  within  the  jurisdiction,  as  the  mar- 
273    (1894)  ;   Dennis  v.   Crittenden,  42  X    Y.  riage  would  not  be  one  recognized  as  lawful. 
542     (1870);    Morrill    v.    Palmer,    68    Vt     1.  34.  People  v.  Schoonmaker,  119  Mich.  242, 
33  Atl.  829    (1895)  ;    5  Chamb.  Ev.,  §  3657,  77  X.  W.  934   (1899). 

n    1  35.  Rickerstricker    v.    State,    31    Ark.    207 

31.  Jeims  v.  State,  141  Ga    493.  81   S.  E.       (1876)  :  State  v  Samuel.  2  Dev.  &  B.  (N.  C.) 
202   (1914);  Hoch  v   People,  219  111.  265.  76       177    (1836). 

X.  E.  356    (1905):   Kelly  v    Drew.   12   Allen  36.  Wilcoxson    v.    Read,    95    111.    App.    33 

(Mass)     107,    90    Am.    Dec.    138     (1866);    5  ( 1900)  :  Morgenroth  v.  Spencer,  124  Wis.  564, 

Chamb.,  Ev..  §  3657,  n.  2.  102  X.  W.  1086   (1905). 

32.  Elanagin  v.  State,  25  Ark.  92   (1867)  ;  37.  Bach.  v.  Parmely,  35  Wis.  238   (1874). 
Hill  v.   State,  41   Ga.  484    (1871);    State  v. 


§  1155  INCOMPETENCY  OF  WITNESSES. 

husband  commits  an  offense  against  the  person  of  the  wife,38  or  her  testimony 
is  needed  to  prove  the  fact  of  some  injury  sustained  by  her  by  the  act  of  a 
third  party.39  Similarly  a  married  woman  may  testify  as  to  the  question  of 
unlawful  intercourse  with  her  where  the  proceeding  is  one  to  charge  a  man 
with  the  support  of  a  bastard  borne  by  her,40  the  exception  in  such  a  case  being 
also  regarded  as  founded  upon  necessity.41  In  the  case  of  agency  also,  where 
either  the  husband  or  wife  acts  as  agent  for  the  other,  testimony  has  been  al- 
lowed, in  some  cases  under  statute  and  in  some  cases  independent  thereof,  of 
the  parties  in  respect  thereto.42 

Injuries  to  Husband  or  Wife. —  The  rule  of  the  common  law,  rendering  the 
husband  or  wife  incompetent  to  testify  for  or  against  the  other,  was  subject  to 
an  exception  in  the  case  of  injuries  inflicted  by  one  upon  the  other,43  particu- 
larly founded  upon  the  theory  of  the  necessity  of  the  case,  having  in  view  the 
fact  that  such  acts  were  so  frequently  done  under  such  conditions  and  circum- 
stances as  to  render  proof  of  them,  by  the  testimony  of  third  persons,  impos- 
sible. The  rule  seems  to  have  had  reference  more  particularly  to  violent  in- 
juries than  to  those  affecting  the  feelings  or  pride  merely  of  the  other.  Thus 
the  exception  was  held  not  to  apply  to  adultery  by  the  husband  or  wife.44  Xor 
was  an  indecent  assault  committed  upon  a  minor  daughter  within  the  meaning 
of  the  exception.45  A  like  rule  prevailed  in  a  prosecution  for  bigamy.46  Sim- 
liarly  the  offense  of  polygamy  is  not  a  crime  against  the  wife,  within  the  mean- 
ing of  a  code  provision  excepting  a  husband  or  wife  from  the  operation  of 
the  rule  in  "  a  criminal  action  or  proceeding  for  a  crime  committed  by  one 
against  the  other,"  47  a  statute  to  this  effect  being  considered,  like  the  com- 
mon law  exception,  as  having  reference  to  acts  of  personal  violence.48  In  an 

38.  Stein  v.  Bowman,  13  Pet.    (U.  S.)   209,  v.  Northnip,  50  Barb.    (X.   Y.)    147    (1867); 
10  L.  ed.  12$)  t  1830).  Whipp  v.  State,  34  Ohio  St.  87,  32  Am.  Rep. 

39.  King  v.  Luffe,  8  East  193    (1907).  359    (1877);    Com.   v.    Reid,   8    Phila.    (Pa.) 

40.  People  v.  Overseers  of  Poor,   15   Barb.  385    (1871)  ;   5  Chamb.,  Ev.,  §  3659,  n.   1. 
(N.   Y.)    286    (1853)  ;    Com.   v.    Shepherd,   6  44.  Bishop  v.  Bishop,  124  Ga.  293,  52  S.  E. 
Binn.    (Pa.)   283,  6  Am.  Dec.  449    (1814);  5  743    (1905);    Com.   v.   Sparks,   89   Mass.   534 
Chamb.,  Ev.,  §  3658,  n.   5.  (1863);   People  v.  Fowler,  104  Mich.  449.  62 

41.  Com.  v.  Shepherd,  supra.  X.  W.  672    (1895);   Com.  v.  Jailer,   1   Grant 

42.  Dannewitz  v.  Miller,  179  111.  App.  185  Cas.    (Pa.)    218    (1855);    5    Chamb.,    Ev.,    § 
(1913)  ;  Green  v.  McCracken,  64  Kan.  330,  67  3659,  n.  2. 

Pac.  857    (1902);    Packard  v.   Reynolds,   100  45.  People  v.  Westbrook,  94  Mich.  629,  54 

Mass.    153    (1868);    Orchard   v.   Collier,    171  X.  W.  486    (1893). 

Mo.  390,  71  S.  W.  677    (1903);   Hathorn  v.  46.  Hiller  v.  State,  156  111.  611,  41  N.  E. 

Louis,  170  N.  Y.  576,  62  N.  E.  1096   (1902);  181    (1895);    State   v.    Ulrich,    110   Mo.   350, 

Lawman  v.  Elaine  County  Bank,  40  Okl.  519,  19   S.   W.   656    (1892)  ;   People  v.   Houghton, 

139    Pac.    952    (1914);    Madison    v.    City   of  24  Hun    (X.  Y.)    501    (1881). 

Antigo,  153  Wis.  448,  141  X.  W.  287   (1913)  ;  47.  Bassett  v.  U.  S.,  137  U.  S  496,  34  L.  ed. 

5  Chamb.,  Ev.,  §  3658,  n.  7.  762,  11  S.  Ct.  165   (1890)  ;  5  Chamb.,  Ev.,  § 

43.  State  v.  Chambers,  87  Iowa  1,  53  X.  W.  3659,  n.  5. 

1090  (1893);  Com.  v.  Murphy,  4  Allen  48.  Baxter  v.  State,  34  Tex.  Cr.  516,  31  S. 
(Mass.)  491  (1862);  State  v.  Pennington,  W.  394  ( 1895)  :  State  v.  Woodrow,  58  W.  Va. 
124  Mo  388,  27  S.  W.  1106  (1894)  ;  People  527,  52  S.  E.  545  (1905). 


923 


HUSBAND  AND  WIFE. 


§  1155 


action  by  both  husband  and  wife  for  an  injury  to  the  wife,  the  rule  of  exclusion 
was  also  relaxed.49 

Tendency  to  Remove  Restrictions. —  The  arbitrary  exclusion  of  witnesses, 
possessed  of  the  requisite  mental  capacity  to  testify,  under  the  early  restric- 
tions of  the  common  law,  as  applied,  subject  to  such  exceptions  as  we  have  re- 
ferred to,  has  been  the  subject  of  some  adverse  comment  by  the  courts  as  being 
hardly  consistent  with  the  objects  of  judicial  tribunals,  viz.,  the  discovery  of 
truth  and  the  attainment  of  justice.5^ 

Statutes. —  As  an  outgrowth  of  these  ideas  and  views,  many  exceptions  and 
qualifications  of  the  common  law  rule  regarding  husband  and  wife  have  been 
made  by  legislative  enactment.51  A  statute,  however,  removing  disqualifica- 
tion arising  from  interest  has  not  generally  been  regarded  as  removing  the  in- 
competency  of  husband  or  wife 52  upon  the  theory  that  the  disqualification, 
exists  not  by  reason  of  interest  but  on  grounds  of  public  policy. 

Does  Death  or  Divorce  Remove  Incompetency? — The  rule  is  frequently 
stated  that  divorce  does  not  remove  the  disability  of  incompetency  53  and  that 
death  does.54  In  other  decisions  the  rule  is  stated  that  death  does  not  remove 
the  incompetency  as  to  confidential  matters,  knowledge  of  which  was  acquired 
as  a  result  of  the  marriage  relation  and  during  its  existence.55  A  similar  con- 
clusion has  also  been  reached  in  the  case  of  divorce.56  In  vet  other  cases  testi- 


49.  City   of    Rock    Island    v.    Deis,    38    III. 
App.    409     (1890);    Hooper    v.    Hooper,    43 
Barb.  (X.  Y.)  292  (1865)  ;  Hoverson  v.  Xoker, 
60  Wis.  511,  19  X.  W.  382  (1884)  ;  5  Chamb., 
Ev.,  §  3659,  n.  8. 

50.  Stapleton    v.    Crofts,     18    Q.     B.    367 
(1852)  :  5  Chamb.,  Ev.,  §  3660,  n.  1. 

51.  Johnson  v.  McGregor,   157   111.  350,  41 
N.  E.  558   (1895)  ;  Anderson  v.  Edwards,  123 
Mass.  273    (1877)  ;  O'Bryan  v.  Allen,  95  Mo. 
68,  8  S.  W.  225   (1888)  ;  Westerman  v.  West- 
erman,   25   Ohio   St.    500    (1874):    Sahms    v. 
Brown,  4  Pa.  Co.  Ct.  488    (1887)  ;  5  Chamb., 
Ev.,   §   3661,  n.   1. 

52.  Kelly   v.   Drew,   94   Mass.    107,  90   Am. 
Dec.    138    (1866 1:    Mitchinson    v.    Cross,    58 
111.   366    (1871);    Com.   v.   Brink,  5  Lane.   L. 
Rev.  23    (1887);   Carpenter's  Ex'r  v.  Moore. 
43  Vt.  392   (187D  ;  5  Chamb.,  Ev.,  §  3661,  n. 
2.     But    see    Moore    v.    Moore,    51    Mo.    118 
(1872):    Birdsall   v.  Patterson,  51   X    Y.   43 
( 1872)  ;  Yeager  v.  Weaver,  64  Pa.  425  ( 1870) . 

53.  In  re  Evans'  Estate,   114  Iowa  240,  86 
N.    W.    283     (1901);    Barnes    v     Camack,    1 
Barb     (X.  Y.)    392    (1847);   Cook  v    Grange. 
18  Ohio  26    (1849)  ;   French  v.  Ware,  65  Vt. 
338,   26    Atl.    1096    (1892):    5    Chamb..    Ev.. 
§  3662,  n.  1.     Where  a  charge  of  perjury  was 


brought  on  the  ground  that  the  defendant 
had  previously  obtained  a  divorce  by  falsely 
testifying  that  he  was  a  resident  of  the 
state  the  defendant  objected  to  the  testimony 
of  the  wife  on  the  ground  that  a  wife  could 
not  testify  against  the  husband  and  the 
court  after  looking  at  the  decree  of  divorce 
allowed  the  wife  to  testify.  The  defendant 
should  not  be  allowed  to  take  two  such  in- 
consistent positions.  Preliminary  questions 
of  fact  are  for  the  court  even  when  the  pre- 
liminary question  is  also  the  main  issue  in  the 
case.  Laird  v.  State  (Texas  1916),  184  S.  W. 
810. 

54.  Robnett   v.    Robnett,   43    111.   App.    191 
(1892)  ;  Coffin  v.  Jones.  13  Pick.  (Mass.)  441 
(1833);    Sells  v.  Tootle,   160  Mo.   593,  61   S. 
W.  579    (1901,);   Stober  v.  McCarter,  4  Ohio 
St.    513    (1855);    Poundstone    v.    Jones,    187 
Pa.   289,   4   Atl.   21    (1898);    5   Chamb.,   Ev., 
§  3662,  n.  2. 

55.  Yokem    v.    Hicks,    93    111.    App.    667 
(1901);   Lyons  v.   Lyons,   101  Mo.  App.  494, 
74   S.   W.   467    (1903);    Stowe  v.   Bishop,   58 
Vt.  498,  3  Atl.  494   (1886)  ;  5  Chamb.,  Ev.,  § 
3662,  n.  3. 

56.  Toohey    v.    Baxter,    59    Mo.    App.    470 
(1894)  ;  French  v.  Ware,  supra. 


§  1156  INCOMPETENCY  OF  AViTNESSES. 

mony  has  been  received  as  to  matters  occurring  after  divorce,57  as  to  state- 
ments made  fo  third  persons  during  the  existence  of  the  relation,58  and  as  to 
facts,  knowledge  of  which  was  acquired  independent  of  the  relation.59 

§  1156.  Infamous  Crimes;  Common  Law  Rule.*50 —  Under  the  rule  which  pre- 
vailed at  common  law,  a  conviction  of  a  person  of  an  infamous  crime,  which 
included  treason,  felony  and  every  species  of  crimen  falsi,61  followed  by  a 
judgment  of  the  court,  rendered  the  convicted  person  .incompetent  as  a  wit- 
ness,62 as  a  result,  it  is  said,  of  the  infamy  of  character  arid  loss  of  moral 
principle  which  are  manifested  by  the  commission  of  the  crime.03  Under  this 
rule  upon  proof  of  a  'conviction  and  sentence  for  an  infamous  crime  a  presump- 
tion of  the  person's  incompetency  arises  which  must  be  overcome  before  he  will 
be  permitted  to  testify.04 

Disqualification  Ensues  on  the  Judgment  Upon  the  Conviction. —  It  is  not 
the  conviction  alone  which  renders  a  person  incompetent  as  a  witness ;  it  is  the 
judgment  pronounced  by  the  court  upon  the  conviction.65  A  verdict  of  guilty, 
not  followed  by  a  judgment  by  the  court,  will  not  render  him  incompetent  as  a 
witness.66  Xor  will  the  testimony  of  a  witness,  taken  under  a  commission* 
that  he  has  committed  a  crime,67  nor  a  plea  of  guilty,08  nor  the  finding  of  a 
true  bill,69  disqualify  a  witness.  And  pending  an  appeal  it  has  been  held  that 
such  a  person  may  .testify;  70  similarly  in  the  case  of  a  suspended  sentence.71 

Conviction  in  Foreign  Jurisdiction. —  Conviction  of  a  person  in  one  state  is 
not  generally  regarded  as  operating  to  affect  the  competency  of  a  witness  be- 
yond the  jurisdiction  of  such  state,  in  the  absence  of  some  statute  to  the  con- 

!  * 

57.  Long  v.   State,   86   Ala.   36,   5   So.  443  (1901);     Thornton    v.     State,    25     Ga.     301 
(1888).  (1858)  ;  Dawley  v.  State,  4  Ind.  128   (1853)  ; 

58.  Mercer  v.  Patterson,  41  Ind.  440  (1872).  Blaufus  v.  People,  69  X.  Y.  107,  25  Am.  Rep. 

59.  Elswiek   v.   Com.,    13   Bush    (Ky.)    155  148   (1877)  ;  Com.  v.  Miller,  6  Pa.  Super.  Ct. 
(1877);  5  Chamb.,  Ev.,  §  3662.                        '  35    (1897);   5  Chamb.,  Ev.,  §  3664,  n.  1. 

60.  5  Chamberlayne,     Evidence,     §§     3663-          66.  Faunce  v.  People,  51  111.  311    (1869). 
3668.  67.  Laborde  v.  Consol.  Ass'n  of  Planters,  4 

61.  County  of  Schuylkill  v.  Copley,  67  Pa.  Rob.  (La.)   190,  39  Am.  Dec.  517   (1843). 
386    (1871);    Maxey  v.   U.  S.,  207   Fed.   327,          68.  U.   S.   v.   Wilson,   60   Fed.   890    (1894). 
125  C.  C.  A.  77   (1913).  69.  Powell  v.  State,  72  Ala.   194    (1882). 

Manslaughter. —  The    fact   that   a    witness  70.  Foster   v.    State,    39    Tex.    Cr.    399,   46 
has  been  convicted  of  manslaughter  does  not  S.  W.  231   (1898).     Compare  Hitter  v.  Demo- 
render  him  incompetent  as  a  witness.     State  cratic  Press  Co.,  68  Mo.  458    (1878);    State 
v.  Laboon,  107  S.  C.  275,  92  S.  E.  622,  L.  R.  v.  Harras,  22  Wash.  57,  60  Pac.  58  (1900). 
A.   1917  F  896   (1917).  71.  Espinoza  v.  State  (Tex.  Cr.  App.  1914), 

62.  Myers   v.   People,   26   111.    173    (1861);  165    S.   W.   208.     The   fact,   however,   that   a 
State   v.   Clark,    60    Kan.    450,    56    Pac.    767  judgment   might    have    been    arrested   or    re- 

L899);   Le  Baron  v.  Crombie.  14  Mass.  234  versed   on  error   will   not  operate  to  remove 

(1817):   People  v.  Whipple,  9  Cow.    (N.  Y.)  the  incompetency,  ensuing  as  a  result  of  the 

7d7   (1827)  ;  Quillan  v.  Com.,  105  Va.  874,  54  action   of  the  tribunal,  where  the  defendant 

3  (1906);  r,  Chamb.,  Ev.,  §3663.  n.  2.  submitted    to    the     judgment    of    the    court. 

63.  Com.  v.  Green,  17  Mass.  514   (1822).  Com.  v.  Keith,  49  Mass.  531;   5  Chamb.,  Ev., 

64.  State  v.  Clark,  supra.  §  3664,  n.  8. 

65.  Yates  v.  State,  43  Fla.  177,  29  So.  965 


925  CRIMINALS.  §  1156 

trary  in  the  foreign  jurisdiction  in  which  it  is  desired  to  introduce  the  testi- 
mony of  such  witness.72  The  clause  in  the  second  section  of  the  fourth  article 
of  the  United  States  Constitution,  as  to  giving  faith  and  credit  to  the  judicial 
proceedings  of  another  state,  is  not  regarded  as  atfecting  judgments  in  crim- 
inal suits,  so  as  to  attach  incompetency  resulting  from  conviction  beyond  the 
jurisdiction  of  the  state  in  which  the  judgment  was  rendered.'3 

When  Competency  Restored. —  Where  disqualification  ensues,  as  a  result  of 
the  judgment,  the  generally  accepted  rule  is  that  a  pardon  restores  the  com- 
petency of  the  convicted  person.74  Where,  however,  the  disability  is  annexed 
by  statute  the  prevailing  opinion  seems  to  be  that  it  does  not  so  operate,75 
although  there  is  much  authority  in  favor  of  the  contrary  view.76  A  limited 
pardon,77  an  executive  act,  which  restores  a  convicted  person  to  citizenship,78 
or  a  paper  which  only  releases  and  discharges  a  prisoner  from  the  penitentiary 
or  other  place  of  confinement,79  does  not  remove  the  disability  of  incom- 
petency which  attached,  as  a  result  of  <the  conviction.  A  pardon  after  serving 
the  term  will  have  the  same  effect  as  one  granted  during  the  term.80  Service 
of  the  sentence  has  been  held  not  to,  of  itself,  operate  to  restore  competency.81 

Growth  of  Belief  That  Rule  too  Strict. —  The  rule  at  common  law,  which 
excluded  a  person  as  a  witness  under  such  circumstances,  has  been,  to  a  great 
extent,  modified  both  as  a  result  of  the  tendency  of  the  judicial  mind  82  and 
the  action  of  legislative  bodies,83  upon  the  theory  that  the  court  should  receive 

72.  Com.  v.  Green,   17   Mass.  515    (1822):'         77.  State  v.  Timmons,  2  Harr.    (Del.)   529 
National  Trust  Co.  v.  Gleason,  77  X.  Y.  400,       (1833). 

33  Am.  Rep.  632   (1879)  :  Logan  v.  U.  S.,  144  78.  People  v.   Bowen,  43   Cal.  439    (1872). 

U.  S.  263,  12  S.  Ct.  617,  36  L.  ed.  429  1 1892)  ;  79.  State  v.   Kirschner,  23   Mo.   App.   349 

5  Chamb.,  Ev.,  §  3665,  n.   1.     But  see  State  (1886). 

v  Foley,  15  Xev.  64,  37  Am.  Rep.  458  (1880)  ;  80.  People  v.  Bowen,  supra;  State  v.  Foley, 

Pitner  v.  State,  23  Tex.  App.  366,  5  S.  W.  210  15  Xev.  64,  37  Am.  Eep.  458    (1880)  ;   State 

(1887).  v.  Blaisdell,  33  X.  H.  388   (1856). 

73.  Com.  v.  Green,  supra;  5  Chamb.,  Ev.,  §  81.  State    v.     Benoit,     16    La.    Ann.    273 
3665,   n    2.  (1861);    5   Chamb.,   Ev.,   §   3666,   n.    8.     Ef- 

74.  State    v.    Baptiste,    26    La.    Ann.    134  feet   of   statute,   see    United   States   v.    Hall, 
(18-74);   Diehl   v.   Rodgers,    169   Pa.   316,   32  53  Fed.  352    (1892). 

Atl.  424,  47  Am.  St.  Rep.  908  (1895)  ;  Worm-  82.  Vance  v.  State,  70  Ark.  272.  68  S    W. 

ley  v.  State  (Tex.  Cr.  App.  1912),  143  S.  W.  37    (1902)  ;    Bickel's  Ex'rs  v.  Fasig's  Adm'r, 

615;   Thompson  v.   U.   S.,  202   Fed.   401,    120  33    Pa.    463    (1859);    Benson   v.    U.    S.,    146 

C.  C.  A.  575   (1913)  ;  5  Chamb.  Ev.,  §  3666,  U.  S.  325,  36  L.  ed.  991,  13  S.  Ct.  60  (1892). 

n.  1.     For  an  interesting  article  on  the  ques-  83.  People  v.  Willard,  92  Cal.  482.  28  Pac. 

tion  of  the  effect  of  a  pardon  in  removing  the  585    (1891);    Stone    v.    State,    118    Ga.    705, 

disqualification  of  a  witness  see  28  H.  L.  R.  45  S.  E.  630   (1903):   Dotterer  v.  State,  172 

647.  Ind.   357,  88   X.  E.   689    (1900):    Xewhall  v. 

75.  Foreman  v.  Baldwin,  24  111.  298  (1860).  Jenkins,    2    Gray     (Mass.)    562    (1854):    Ex 
See    Klein    v.    Dinkgrave,    4    La.    Ann.    540  parte  Marmaduke.   91    Mo.   228.  4   S.   W,   91 
(1849)  -.  Houghtaling  v.  Kelderhouse,  1  Park.  (1RS6)  :  People  v.  McGloin.  91  X.  Y.  241.  12 
Cr.  R.    (X.  Y.)   241    (1851).  Abb.  X.  C.   172    (1882):   Hopt  v.  People.   110 

76.  Sin-ileton  v.  State.  38  Fla.  297,  21  So.  U   S.  574,  4  S.  Ct.  202,  28  L.  ed.  262   (1883)  ; 
21,   34    L.    R.    A.   251,   56   Am.    St.    Rep.    177  5  Chamb.,  Ev.,  §  3667,  n.  2. 

(1896):     Wood    v.     Fitzgerald.     3    Or.     568 
(1870);   Diehl  v.   Rodgers,  supra. 


£  11^7  INCOMPETENCY  OF  WITNESSES.  926 

the  testimony  of  any  person,  who  is  mentally  competent,  weight  being  given  to 
it  according  to  the  circumstances  of  each  particular  case,  the  fact  of  a  convic- 
tion going  to  the  credibility  of  the  witness  and  not  to  the  question  of  com- 
petency. 

Legislative  Provisions. —  A  frequent  legislative  provision  is  that  though  a 
person  may  have  been  convicted  of  a  criminal  offense  he  may,  nevertheless,  be 
a  competent  witness,  but  that  such  conviction  may  be  proved  and  considered 
as  bearing  upon  his  credibility.84  Such  an  enactment  is  not  to  be  regarded 
as  violative  of  a  constitutional  provision  which  secures  to  a  party  in  a  civil 
action  a  jury  trial,  or  of  one  vesting  in  certain  courts  the  judicial  power  of 
the  state.85  Xor  is  such  a  statute  ex  post  facto  in  its  operation  as  to  offenses 
committed  prior  to  its  passage.86 

§  1157.  Interest,  Etc.87 —  Under  the  practice  at  common  law  it  was  deemed 
that  persons  who  were  interested  in  or  were  parties  to  the  proceedings,  were,  by 
reason  of  such  fact,  so  under  the  temptation  to  testify  falsely  that  they  should 
be  rejected.88  The  belief  gradually  grew  that  such  rejection  was  contrary  to 
experience  and  that  so  broad  a  rule  of  exclusion  should  be  swept  aside  and  the 
testimony  of  such  persons  received  as  better  tending  to  an  ascertainment  of 
truth  and  the  administration  of  justice  by  the  courts,  until  finally,  by  reason 
of  legislative  enactments,  the  exclusion  of  such  persons  as  incompetent,  because 
of  interest,  has  become  of  importance  only  from  a  historical  standpoint. 

Survivors. —  In  removing  the  disqualification  on  account  of  interest  legisla- 
tive bodies  have,  as  a  general  rule,  deemed  it  advisable  to  make  an  exception 
in  the  case  of  the  survivor  of  a  transaction,89  upon  the  theory  that,  as  the 
mouth  of  one  of  the  parties  had  been  closed  by  death  or  incapacity,  it  would 
tend  to  jeopardize  the  estates  of  such  persons  to  permit  the  survivor  to  give 
his  version  of  an  affair  in  which  both  had  been  interested.  The  wisdom  of 
permitting  such  acts  to  remain  in  force  may  well  be  questioned;  in  fact  much 
the  same  objection  exists  why  they  should  be  relegated  to  the  past  as  existed  in 
the  case  of  incompetency  by  reason  of  interest.90 

84.  See  cases  cited  in  last  preceding  section.  89.  See  the  various  statutes  of  the  different 

85.  Sutton  v.  Vox,  55  Wis.  531,   13  X    W.       States 

477,  42  Am.  Rep.  944   (1882).  90.  St.    John   v.   Lofland,   5   X.   D.   140,   64 

86.  Hopt   v.    People,    supra.  X    W.   830    (1895);    5   Chamb.,   Ev..   §   3670. 

87.  5  Chamberlayne,     Evidence.     §§     3669,      Under  a  statute  prohibiting  a  party  from  tes- 

tifying as  to  a  transaction   with   a  deceased 

88.  Soule    v.    Dawes.    6    Cal.    473     (1856):  person  one  cannot  testify  that  he  saw  a  cer- 
Rome  v   Dickerson,  13  Ga.  302   (1853)  ;  Lucas  tain  note  in  possession   of  a   joint  defendant 
v.    Spencer,    27    111.    15     (1861)  :     Binney    v.  where  this  tended  to  show  that  the  note  for- 
Merchant,    6    Mass.    190     (1810);     Todd    v.  merly  held  by  the  deceased  had  been  paid  as 
Boone  County,  8  Mo    431    (1841)  ;  City  Bank  this  is  doing  indirectly  what  cannot  be  done 
of    Brooklyn    v.    McChesney,    20    X.    Y.    240  directlv.     Wall  v.  Wall.  130  Oa.  270.  77  S.  E 

(18591;  Halo  v.  Wetmore.  4  Ohio  St  600  19,  45  L.  R.  A  (X.  S.)  583  (1913).  Under 
(1855)  .  Camp  v.  Stark,  81  Pa.  235  (1875)  ;  a  statute  rendering  a  witness  incompetent  to 
5  Chamb.,  Ev.,  §  3669,  n.  1.  testify  as  to  transactions  with  a  deceased  per- 


927 


JUDGES  AND  JURORS. 


§  1158.  Judges  and  Jnrors.91 — An  instance  where  a  person  offered  as  a  wit- 
ness has  been  excluded,  on  the  ground  of  public  policy,  occurs  in  the  case  of  a 
judge  whose  testimony  is  desired  in  the  court  of  which  he  is  sole  judge.92 
Much  the  same  situation  has  been  considered  as  existing  where  the  judge,  whose 
testimony  is  desired,  is  a  member  of  a  court  which  is  composed  of  more  than 
one  judge.  In  such  a  case  it  seems  that,  if  his  action  is  not  required,  he  may 
be  permitted  to  testify,  though,  in  such  a  case,  the  proper  course  for  him  to 
pursue  would  be  to  decline  to  return  to  the  bench.93  If,  however,  his  services 
are  needed  as  a  member  of  the  court  many  of  the  American  decisions  seem  to 
regard  it  as  decidedly  improper  for  him  to  testify,  and  he  is  accordingly  de- 
clared to  be,  on  grounds  of  public  policy,  incompetent  as  a  witness.94  This, 
however,  does  not  seem  to  be  in  accord  with  the  early  English  practice  95  and 
the  objections  to  such  testimony  seem  rather  chimerical  than  sound.96 

A  very  similar  objection  to  the  testimony  of  a  juror  has  been  made.97  If 
the  evidence  is  material,  any  mischief  can  be  prevented  by  challenging  the 
juror,  as  has  been  repeatedly  held  or  provided  by  statute.98  Grand  jurors  are 
frequently  allowed  to  testify  in  regard  to  what  took  place  before  them  as  mem- 
bers of  the  grand  jury,99  having  reference  more  particularly  to  a  contradiction 


son  one  cannot  testify  if  an  interested  witness 
to  a  transaction  or  conversation  between  a 
deceased  person  and  a  party  to  the  suit  al- 
though he  did  not  participate  in  the  conver- 
sation or  transaction.  So  one  who  claims 
property  as  the  successor  of  his  wife  who  is 
dead  cannot  testify  as  to  a  gift  made  to  her 
by  another  deceased  person  in  which  transac- 
tion he  took  no  part.  Griswold  v.  Hart,  20o 
N.  Y.  384,  98  X.  E.  918,  42  L.  R.  A.  (X.  S.) 
320  (1912).  But  a  wife  may  testify  in  an 
action  by  her  husband  for  services  to  a  per- 
son since  deceased.  Helsabeck  v.  Doub,  167 
N.  C.  205,  83  S.  E.  241,  L.  R.  A.  1917  A  1.  On 
an  issue  of  undue  influence  one  charged  with 
the  undue  influence  may  be  asked  whether 
he  had  asked  the  grantor  to  make  a  deed  to 
him.  This  is  not  calling  for  a  transaction 
with  a  deceased  person  but  is  the  opposite  as 
trying  to  show  that  there  had  been  no  trans- 
action. Coblentz  v.  Putifer,  87  Kan.  719.  125 
Pac.  30,  42  L.  R.  A.  (X.  S.)  298  (1912).  A 
creditor  of  a  party  is  not  interested  in  the  liti- 
gation in  the  sense  that  he  is  barred  by  inter- 
est from  testifying  to  services  rendered  to  the 
deceased  in  a  suit  by  his  assignee  of  the  claim 
where  he  has  taken  a  note  of  the  assismee  in 
payment  for  the  assignment  of  the  claim.  He 
has  here  only  an  indirect  interest  as  a  cred- 
itor and  has  not  that  direct  property  interest 
which  is  necessary  to  disqualify  him.  Clen- 
dennin  v.  Clancy,  82  N.  J.  L  418,  81  Atl.  750, 


42  L.  R.  A.  (X.  S.)  315  (1911).  Conversa- 
tions with  deceased  persons  —  exceptions,  see 
note,  Bender  ed.,  26  X.  Y.  281.  When  decla- 
rations are  admissible  and  when  not  admissi- 
ble as  res  gestae,  see  note.  Bender,  ed.,  95  X. 
Y.  298.  Conversations  with  deceased  persons 
—  bona  fide  purchasers,  see  note.  Bender,  ed., 
124  X.  Y.  511.  Declarations  by  one  since 
deceased,  see  note,  Bender,  ed.,  12S  X.  Y.  421. 
Transactions  with  one  since  deceased,  see 
note,  Bender,  ed.,  loi  X.  Y.  434.  118  X.  Y. 
56,  141  X  Y.  87,  153  X.  Y.  358,  187  X.  Y  495. 

91.  5     Chamberlayne,    Evidence.    §§    3671, 
3672. 

92.  Rogers  v.  State.  60  Ark.  76,  29  S.  W. 
894,   31   L.   R    A    465,   46  Am.   St.   Rep.   154 
(1894)  :    Baker  v.  Thompson.  89  Ga.  486,  15 
S.  E.  644    (1892):   Morss  v.  Morss.  11   Barb. 
(X.  Y.)   510   (1851)  ;   5  Chamb.,  Ev.,  §  3671, 

n.  1. 

93.  People  v.  Dohring,  59  X  Y.  374  (1874). 

94.  Id. ;   Morss  v.  Morss,  supra  :  People  v. 
Miller.  2  Park  Cr.  (X.  Y.)  197  (1854). 

95.  Pupra,  §  319:  1  Chamb.,  Ev..  §  575. 

96.  5  Chamberlayne,  Evidence.  §  3671. 

97.  Stipra,  §  320:  1  Chamb..  Ev..  §  582. 

98.  Supra,   §   320;    1   Chamb.,  Ev.,   §§   581, 
582. 

99.  State  v.  Campbell,  73  Kan.  688.  85  Pac. 
784.  9  L.  R.  A.   (X.  S.)   533   (1906)  :  Com.  v. 
Oreen,   126  Pa.  531.   17  Atl    878,  12  Am.  St. 
Rep.  894  (1888)  ;  5  Chamb.,  Ev.,  §  3672,  n.  3. 


§  1158  INCOMPETENCY  OF  WITNESSES.  928 

of  the  testimony  of  a  witness  on  the  trial.1     Such  a  person  has  also  been  per- 
mitted to  testify  where  he  possesses  knowledge  in  respect  to  the  offense  charged.2 

1.  Com.  v.  ilead,  12  Gray    (Mass.)    167,  71  Gordon  v.  Com.,  9^  Pa.  21b',  37  Am.  Rep.  672 

Am.  Dec.   741    (1858;;    State  v.   Thomas,   99  ( 1879)  ;  5  C'hamb.,  Ev.,  §  3672,  n.  4. 

Mo.    235,    12    S.    W.    643    (1889);    State    v.  2.  State  v.  McDonald,  73  N.  C.  346   (1875). 
Brown,   28   Or.    147,   41    Pac.    1042    (1895); 


CHAPTER  LXIV. 

INCOMPETENCY  OF  WITNESSES;  RACE. 

Incompetency  of  witnesses;  race,  1159. 

§  1159.  [Incompetency  of  Witnesses] ;  Race.1 —  There  were  formerly  in  some 
states  due  to  local  prejudice  laws  excluding  the  testimony  of  certain  races  as 
Chinese,2  Indians 3  and  negroes 4  before  slavery  was  abolished  but  happily 
such  distinctions  are  now  abolished  everywhere. 

1.  5     Chamberlayne,    Evidence,    §§     3673-  See  Pumphrey  v.  State,  84  Neb.  636.  122  N. 
3676.  W.  19   (1909).     Japanese  are  not  "  Indiana." 

2.  People  v.  Jones,  31  Cal.  565,  573  (1867).  4.  Grady  v.  State,  11  Ga.  253  (1852). 

3.  People  v.   Howard,   17  Cal.   63    (1860). 


929 


CHAPTER  LXV. 

PRIVILEGED  COMMUNICATIONS. 

Privileged  communications,  1160. 

attorney  and  client;  general  rule,  1161. 

when  applied,  1162. 

exceptions,  1163. 

waiver  by  client  of  privilege,  1164. 
clergymen,  1165. 

husband  and  wife;  general  rule,  1166. 

physician  and  patient;  privilege  is  of  statutory  origin,  1167. 
public  justice;  grand  jurors,  1168. 

petty  or  traverse  jurors,  1169. 
secrets  of  state,  1170. 

§  1160.  Privileged  Communications.1 —  The  law  has  deemed  it  advisable,  on 
grounds  of  public  policy,  that  a  certain  class  of  evidence,  known  generally  as 
privileged  or  confidential  communications  would  be  more  detrimental  to  the 
interests  of  society  than  would  the  rejection  of  the  evidence.  While  the  pur- 
pose of  judicial  tribunals  is  the  discovery  of  truth,  in  all  cases,  yet,  in  respect 
to  communications  of  such  a  character,  having  particular  reference  to  those 
between  husband  and  wife  and.  attorney  and  client,  it  has  been  considered  that 
such  a  desire  should  be  subordinated  to  the  maintenance  and  preservation  of 
social  relations  and  confidences,  the  disturbance  and  destruction  of  which  would 
cause  greater  mischief  than  the  possible  exclusion  of  the  truth  in  some  cases. 

§  1161.  Attorney  and  Client;  General  Rule.2—  One  of  the  two  great  classes 
involved  in  the  application  of  this  rule  is  that  of  attorney  and  client.  In  all 
cases  where  this  relation  exists,  all  communications  between  a  client  and  his 
legal  adviser,  made  for  the  purpose  and  in  the  course  of  the  employment  are 
regarded  as  privileged  and  the  rule  of  exclusion  is  strictly  enforced.3  The 
theory  upon  which  this  rule  is  founded  seems  to  be  concerned  more  with  the 
interests  and  administration  of  justice  and  the  security  and  protection  of  the 
individual  than  with  the  furtherance  of  the  interests  of  the  legal  profession.4 
No  man  would  be  secure  in  respect  to  disclosures  which  must  necessarily  be 

1.  5  Chamberlayne,  Evidence,  §  3676a.  3.  Phillips  v.  Chase,  201  Mass.  444,  87  N.  E. 

2.  5     Chamberlayne,     Evidence,     §§     3677,      755  (1909). 

3678.  4.  Greenough  v.  Gaskell,   1  My.  &  K.  100 

(1833). 
930 


931 


ATTORNEY  AND  CLIENT. 


1102 


made  under  such  circumstances;  fear,  distrust  and  suspicion  would  exist  on  the 
part  of  the  client,5  and  in  many  cases,  on  this  account,  concealment  respecting 
the  true  situation  might  result.  The  attorney  laboring  under  such  a  disad- 
vantage and  handicap  would  frequently  be  unable  to  correctly  advise  his  client 
as  to  the  proper  coursfe  to  pursue.  The  consequence  would  be  that  much  un- 
necessary litigation,  litigation  which  an  attorney  correctly  advised  as  to  the  facts 
would  discourage,  would  be  thrust  upon  the  courts.*5  The  discovery  of  truth 
would  not  be  aided,  but  the  contrary  result  would  ensue,  thus  hindering  and 
impeding  the  administration  of  justice.  ' 

§  1162.  [Attorney  and  Client];  General  Rule;  When  Applied.7 — The  rule 
may  apply  to  letters  8  and  protects  both  the  attorney  and  client  against  dis- 
closure.9 It  applies  only  to  attorneys  regularly  entitled  to  practice  10  and  it 
must  further  appear  that  the  relation  of  attorney  and  client  existed  n  although 
the  payment  of  a  retainer  is  not  essential 12  or  present  or  expected  litiga- 
tion.18 The  communication  must  have  been  made  while  the  relationship  ex- 
isted 14  and  may  extend  to  the  attorney's  clerk  or  assistant  15  but  the  fact  that 
the  relationship  has  terminated  since  the  communication  was  made  is  irnma- 
tcrial.10  The  rule  extends  to  writings  entrusted  to  the  attorney  by  the  client.17 


5.  Wade  v.  Ridley,  87  Me.  368,  373,  32  Atl. 
975  (1895). 

6.  AIcLaughlin  v.  Gilmore,  1  111.  App.  563, 
564     (1878),    per     Pillsbury,    J.^    Attorney's 
privilege,  see  note,  Bender,  ed.,  SO  X    V    402. 
Attorney's  privilege,  see  note,  13ender,  ed.,  Ill 
X.  Y.  251.     Communications  to  counsel  privi- 
leged,  see   note,    Bender,   ed.,    18   X.    Y.    546. 
Privileged   communications   between   attorney 
and  client,   see   note,   Bender,  ed.,   128   X.  Y. 
420.     When   attorneys  may  testify,   see  note, 
Bender  ed ,  131  N    Y.  196.     Testimony  of  ad- 
missions   concerning    one    learned    in    profes- 
sional capacity,  see  note.  Bender,  ed..  150  N. 
Y.  176.     Privilege  of  attorney  not  to  testify, 
see  note.  Bender,  ed.,  30  X.  Y.  330.  343      What 
conversations    with    attorney    are    not    privi- 
leged, see  note.  Bender,  ed..  $4  X*.  Y    78. 

7.  5     Chamberlayne,     Evidence,     §§     3679- 
3687. 

8.  State  v.  Loponio.  85  X.  J.  L   357.  88  Atl 
1045,  49  L    R.  A.    (X.  S.)    1017    (1913). 

9.  The  true  view  seems  to  be.  that  commu- 
nications which  the  lawyer  is  precluded  from 
disclosing,  the  client  cannot  be  compelled  to 
disclose.     State     v.     White,      19     Kan.     445 
(  1S77),  per  TTorton,  C.  J. 

10.  That  one  held  himself  out  as  an  attor- 
ney is  not  enough  to  make  communications  to 
him  privileged.     Md.aughlin  v  Cilmore.  1  111. 
App.  563    (1*78)  :   Sample  v.  Frost,  10  Iowa 


266  (1859)  ;  State  v.  Burkhardt,  7  Ohio  Dec. 
537  (1878):  Schubkagel  v.  Dierstein,  131  Pa. 
St.  46,  18  Atl.  1059  (1889)  ;  Holman  v.  Kim- 
ball,  22  Vt.  555  (1850). 

11.  Hoar  v.   Tilden,   178  Mass.   157,   59   X. 
E.  641    (1901). 

Letter  seeking  to  Employ  Attorney. —  The 
client's  privilege  extends  to  written  communi- 
cations made  by  him  to  his  attorney  and  to  a 
letter  seeking  to  employ  an  attorney,  even 
though  the  letter  never  reaches  the  attorney 
and  he  never  is  employed.  An  illiterate  per- 
son may  even  employ  a  scrivener  for  this  pur- 
pose and  the  scrivener  is  barred  from  testify- 
ing as  a  man  has  the  right  to  use  all  proper 
methods  of  communication.  State  v.  Loponio, 
85  X.  J.  L  357,  88  Atl.  1045,  49  L.  R.  A. 
(X.  S.)  1017  (1913). 

12.  Pfeffer  v   Kling,  171  X.  Y.  668,  64  N.  E. 
1125    (1902),  afirminfi  58   App.  Div.    179,  68 
X.  Y    Suppl.  641    (1901). 

13.  Illinois. —  Rogers    v.    Daniels,    116    111. 
App.  515    (1904). 

14.  Leitch  v.  Diamond  Nat    Bank,  234  Pa. 
557,  83  Atl.  41(5  (1912V 

15.  State   v    Loponio,  85  X.   J.   L    357.   88 
Atl.  1045.  49  L.  R.  A.   (X.  S  )   1017   (1913). 

16.  Harless    v.    Harless.    144    Ind.    196,    41 
X    E.  592    (1895). 

17.  Selden  v.  State.  74  Wis    271,  42  N.  W. 
218,  17  Am.  St.  Rep.  144   (1889). 


1103,  1104 


PRIVILEGED  COMMUNICATIONS. 


932 


§  1163.  [Attorney  and  Client];  General  Rule;  Exceptions.18 — The  privilege 
does  not  extend  to  information  which  an  attorney  did  not  learn  as  a  result  of 
his  professional  employment 1<J  or  to  statements  made  in  the  presence  of  a 
third  person  20  or  overheard  by  a  third  person  21  or  to  statements  made  by  the 
attorney  with  the  intention  that  they  be  repeated  to  a  third  person.2-  Neither 
does  the  privilege  cover  communications  made  in  connection  with  the  accom- 
plishment of  a  criminal  purpose  23  or  where  the  attorney  is  employed  by  both 
parties  to  the  transaction.24  The  attorney  may  be  forced  to  testify  to  certain 
matters  which  are  not  regarded  as  confideuial  as  the  fact  of  his  employment,25 
the  nature  and  reasonable  value  of  his  services,20  the  payment  of  money  con- 
nected with  his  client's  business,27  the  signature  of  his  client  2S  and  other 
collateral  facts  29  like  charges  made  by  the  client  against  the  attorney.30 

§  1164.  [Attorney  and  Client] ;  Waiver  by  Client  of  Privilege.31 —  The  priv- 
ilege is  regarded  as  that  of  the  clients.32  He  alone  is  the  one  for  whose  pro- 
tection the  rule  is  enforced,  and  as  the  client  is  the  sole  one  for  whose  benefit 
the  rule  is  invoked  so  he  is  the  only  one  who  may  remove  the  restriction.  He 
may,  if  he  desires,  waive  the  benefit  of  the  rule,33  in  which  case  testimony,  other- 
wise excluded,  may  be  received. 


Papers  Accessible  to  Others.— The  privi- 
lege of  an  attorney  does  not  apply  to  papers 
delivered  to  him  where  the  knowledge  of  their 
existence  or  contents  is  accessible  to  others  or 
the  public  as  in  case  of  a  recorded  mortgage. 
Pearson  v.  Yoder,  39  Okla.  105.  134  Pac.  421, 
48  L.  R.  A.  (X.  S.)  334  (1013)'. 

18.  5    Chambei  layne.    Evidence,    §§    3688- 
3694. 

19.  Skellie  v.  James,  81  Ga.  419,  8  S.  E. 
607   (1889). 

20.  People  v.  Farmer,  194  N.  Y.  251,  87  N. 
E.  457    (1909). 

21.  State  v.  Loponio,  8.1  X.  J.  L.  357,  360, 
88  Atl    104;!,  49  L.  K.  A.  (X.  S.)   1017  (1913). 

22.  Bruce  v.  Osgood,  113  Ind.  360.  14  X.  E. 
563   (1887). 

23.  State  v    Faulkner.   175  Mo    546,  75  S. 
W.  116   (1903). 

24.  Thompson    v.   Cashman,    181    Mass.    36, 
62  X.  E.  976  (1902). 

25.  Security  Loan  &  T.  Co.  v.  Estudillo,  134 
Cal.   166.  66   Pac.  257    (1901).     Although  an 
attorney  can  ordinarily  be  required  to  divulge 
the  name  of  his  client  still  where  the  informa- 
tion is  asked  only  for  the  purpose  of  incrimi- 
nating him  the  attorney  m«y  not  "be  forced  to 
answer      So    where    the    attorney    acted    for 
certain  persons  accused  of  election  frauds,  he 
may  not  be  forced  to  tell  who  employed  him 
to  defend  them  where  the  only  purpose  of  the 


inquiry  is  to  obtain  evidence  to  convict  those 
who  ejnployed  him.  Ex  parte  McDonough, 
170  Cal.  230,  149  Pac.  566,  L.  R.  A.  1916  C 
593  (1915). 

26.  Chamberlain  v.  Rodgers,  79  Mich.  219, 
44  X.  W.  508  (1890). 

27.  Ex  parte  Gfeller,  178  Mo.  248,  77  S.  W. 
552   (1903). 

28.  "  If  he  knew  nothing  but  what  his  client 
had   communicated  to   him,   he   could  not  be 
compelled  to  disclose  that;   but  if  he  became 
acquainted  with  his  client's  signature,  in  any 
other  manner,  though  it  was  subsequent  to  his 
retainer,    he    was    bound    to    answer,    for    an 
attorney  and  counsel   may  be  questioned,  as 
to  a  collateral  fact  within  his  knowledge,  or 
as   to   a    fact   which   he   may    know,   without 
being  entrusted  with  it  as  an  attorney  in  the 
cause"     Johnson   v.   Daverne.    19  Johns.    (X. 
Y.)    1374,   136.   10  Am.  Dec.   198    (1821),  per 
Spencer,  C.  J. 

29.  Funk  v.   Mohr,   185   111.   395.  57   N.   E. 
2   ( 1 900 ) . 

30.  Laflin  v.  Herrington,   ]    Black    (U.   S.) 
3-26,   17   L.   ed.   45    (18(51):    Smith   v.   Guerre 
(Te\.  Civ.  App.  1913).  159  S.  \V.  417. 

31.  5  Chamberlayne.  Evidence,  §  3695. 

32.  Passmore  v.  Passmore.  50  Mich.  626,  16 
X.  W.  170.  45  Am.  Rep.  62  t  1883). 

33.  Phillips  v.  Chase,  201  Mass.  444,  87  N. 
E.  755  (1909). 


933  GLEBGYMEN.  §§  1165,1166 

In  case  two  or  more  persons  are  concerned  in  the  communications  made  to 
an  attorney  it  seems  that  one  alone  cannot  waive  so  far  as  their  mutual  inter- 
ests are  involved.34 

§  1165.  Clergymen.35 —  At  the  common  law  although  there  was  much  endeavor 
to  force  a  recognition  of  confessions  to  priests  or  spiritual  advisers  as  being- 
privileged  and  therefore,  like  communications  between  attorney  and  client  and 
husband  aud  wife,  not  subject  to  disclosure,  the  courts  did  not  give  recognition 
to  this  view.36  In  many  jurisdictions,  however,  this  situation  has  been  changed 
by  statute,  an  ordinary  provision  being  that  no  clergyman  or  priest  shall  re- 
veal any  "'  confession  made  to  him  in  his  professional  character,  in  the  course 
of  discipline  enjoined  by  the  church  to  which  he  belongs."  Under  such  a  stat- 
ute it  is  not  enough  to  render  the  communication  privileged  that  it  is  made  to 
a  clergyman  or  priest.  If  it  is  not  made  to  such  a  person  in  his  professional 
character  and  because  enjoined  by  the  rules  of  discipline  or  practice  of  such 
religious  denomination  the  privilege  does  not  attach.37 

§  1166.  Husband  and  Wife;  General  Rule.38 — Communications  between  hus- 
band and  wife  were  early  recognized  as  privileged  and  neither  could  be  com- 
pelled to  disclose  what  took  place  between  them.39  The  theory  upon  which 
the  rule  was  founded  was  that  the  confidence,  peace  and  harmony  which  should 
exist  between  spouses  would  be  seriously  disturbed  if  testimony  as  to  such 
matters  should  be  received  and  that  the  exclusion  of  such  evidence  would  tend 

34.  Herman   v.    Schlesinger.   114   Wis.   382,  39.  Wetzel   v.    Firebaugh,   251    111.    190,   95 
90  X.  W.  460,  91   Am.  St.  Rep.   922    .1902).       X.  E.  1085    (1911). 

Waiver  of  privilege,  see  note,  Bender,  ed.,  148  To   Show  Unsound   Mind. —  In  a  will  con- 

N.  Y.  97.  test  a  wife  cannot  testify  to  words  and  acts  of 

35.  5  Chamberlayne.  Evidence,  §  3696.  the  husband  in  her  presence  when  they  were 

36.  "'The  cases  of  privilege  are  confined  to  alone  to  show  that  he  was  not  of  sound  mind 
solicitors    and    their    clients:    and    stewards,  as     these     are     privileged     communications, 
parents,    medical    attendants,    clergymen   and  Whitehead  v.  Kirk,  104  Miss.  776,  61  So.  737, 
persons  in  the  most  closely  confidential  rela-  62  So.  432,  51  L.  R.  A.  (X.  S  )   187   (1913). 
tion   are    bound    to   disclose    communications  Effect     of     Statute     allowing1     Testimony 
made  to  them."     Greenlaw  v.  King,   1   Beav.  against  each  other. —  Even  a  statute  making 
137,  145   (1838),  per  Langdale,  M.  R.  a    husband     or    wife    competent    to    testify 

37.  Alford  v.   Johnson,   103   Ark.   236.   238,  against   each   other   in   a   criminal   case  does 
146  S    W.  516  ( 1912),  per  Frauenthal.  J.  not    render    confidential    communications    be- 

Statements  to  Church  Session. —  A  statute  tween  them  competent.     So  a  letter  written 

excluding    confidential    communications   to    a  by  a  husband  to  his  wife  disclosing  his  crim- 

Minister   of   the    Gospel    covers    a    statement  inal   relations  with  her  sister   is  not  admis- 

made  by  a  member  of  a  Presbyterian  Church  sible  against  him  in  a  bastardy  process.     Mc- 

before  the  Church   session   consisting  of   the  Cormick  v.  State.   135  Tenn.  218,   186  S.  W. 

pastor   and   the   ruling  elders.     As   the   com-  95.  L.  R.  A.  1916  F.  382    (1916)   and  note, 
munication  is  privileged  it  is  not  available  for          Waiver. —  Where   a   husband   or   wife   is   a 

impeachment    of    the    party    who    made    it.  defendant  in  a  criminal  case  the  privilege  as 

Reutkemeier  v    Xolte,   179  Iowa  342,  161  N.  to  confidential  communications  between  them 

W   290.  L.  R.  A.  1917  D  273   (1917).  is  and   may  be  waived   by   calling  the   other 

38.  5    Chamberlayne,    Evidence,    §§    3697-  spouse  as  a   witness.     Hampton   v.   State,   7 
3700.  Okla.  Crim.  Rep.  291,  123  Pac.  571,  40  L.  R. 

A.  (N.  S.)  43  (1912). 


1167 


PRIVILEGED  COMMUNICATIONS. 


934 


to  better  preserve  and  protect  these  most  necessary  essentials  to  the  permanency 
of  the  family  circle,  and  therefore  to  the  betterment  of  society.40  It  was  the 
belief  that  greater  mischief  would  result  from  the  admission  of  such  evidence 
than  would  ensue  from  its  exclusion.41  In  other  words  the  rule  of  exclusion 
was  one  of  public  policy. 4- 

\\'here  the  information  is  not  a  result  of  marital  confidence  but  is  obtained 
from  some  outside  source,  it  is  held  that  the  rule  does  not  apply.43 

Communications  made  after  the  termination  of  the  relationship  may  be 
used  44  although  the  termination  of  the  marital  relation  through  death  45  or 
divorce  4ti  after  the  communication  is  made  does  not  affect  the  application  of 
the  rule.  If  the  communication  was  made  in  the  presence  of  a  third  person,47 
even  a  child  of  age  to  understand  48  or  an  eavesdropper,49  it  is  not  regarded  as 
a  private  communication  and  hence  is  not  privileged.  The  rule  covers  letters 
between  husband  and  wife  50  as  well  as  oral  communications.  This  privilege 
is  commonly  covered  by  statutes.51 

§  1167.  Physician  and  Patient;  Privilege  is  of  Statutory  Origin.52 — At  com- 
mon law  communications  between  physician  and  patient,  were  not  regarded  in 
the  same  light  as  those  between  attorney  and  client,53  although  the  advisibility 

47.  People  v.  Lewis,  62  Hun  622,  16  X.  Y. 
Suppl.  881   (1891),  affirmed  136  X.  Y.  633,  32 
X.  E.  1014  (1892). 

48.  Lyon  v.  Prouty,   154  Mass.  488,  28  X. 
E.  908   (1891). 

49.  Com.  v.  (Jriffin,  110  Mass.  181    (1872); 
State  v.  Center,  35  Vt.  378   (1862). 

50.  Wilkerson    v.    State,    91    Ga.    729,    737, 
17  S.  E.  990   (1893),  though  husband's  letter 
was  delivered  by  wife  to  another. 

51.  Com.  v.  Cronin,  185  Mass.  96,  69  X.  E. 
1065   (1904). 

Practical  Suggestions.— This  harsh  rule 
can  sometimes  be  avoided  by  clever  counsel  by 
the  use  of  the  negative  form  of  questions. 
For  example  the  editor  has  in  mind  a  case 
where  the  husband  claimed  that  title  to  cer- 
tain property  was  taken  in  his  name  as  a  gift 
to  him  and  the  wife  claimed  he  had  taken  it 
in  bis  name  fraudulently  using  her  money  to 
buy  it  and  the  counsel  for  the  wife  put  in 
her  story  by  asking  her  whether  she  had  ever 
told  her  husband  that  she  was  making  this  gift 
to  him,  etc.  Here  the  wife  could  not  of  course 
be  asked  what  she  had  said  to  her  husband 
about  the  matter  no  other  person  being  pres- 
ent but  the  effect  of  the  conversation  was 
still  put  in  the  record  in  this  way. 

52.  .1    Chamberlayne,    Evidence,    §§    3701- 
3705a. 

53.  Banigan  v.  Banigan,  26  R.  I.  454,  59 


40.  State  v.  Brittain.  117   X.  C.  783,  23  S. 
E.  433   (1895). 

41.  Sexton   v.   Sexton,    129   Iowa   487,   489, 
105  X.  VV.  314,  2  L.  R.  A.  (X.  S. )  708  (1905). 

42.  Fearn  v.  Postlethwaite,  240  111.  626,  88 
N.  E.  10o7   (1909). 

43.  Gray   v.   Cole,  5   Har.    (Del  )    448,   419 
(1853),  per  the  Court. 

44.  The  privilege  does  not  apply  where  the 
husband  and  wife  have  separated  as  where  the 
husband  writes  the  wife  a  threatening  letter. 
McXamara    v.    McXamara,    99    Xeb.    9,    154 
X.    \V.    8.18,   L.    R.    A.    1916    B    1272    (1915). 
Communications    between    husband    and    wife 
after  they  are  divorced  are  not  privileged,  al- 
though the  divorce  is  afterwards  set  aside  as 
being  fraudulent.     Spearman   v.   State    (Tex. 
Crim.    Rep    1012),    152   S.   W.   915.   44    L.    R. 
A.    (X.  S.)    243.     Communications  by  a  hus- 
band to  his  wife  testamentary  in  nature  are 
admissible    in    evidence    when    found    by   the 
wife  only  after  his  suicide  as  then  they  are 
not  communications  by  one  to  the  other  dur- 
ing marriage  as  they  were  received  after  the 
death    of    one    of    the    parties.     \Yhitford    v. 
Xorth  State  Life  Ins.  Co.,  163  X.  C.  223,  79 
S.  E.  501. 

45.  Stephens   v.   Collison,   256   111.   238,   99 
X.  E.  914   (1913). 

46.  Derham  v.  Derham,  125  Mich.  109,  83 
N.  W.  1005   (1900). 


935 


PHYSICIAN  AXD  PATIENT. 


116' 


of  extending  the  privilege  to  this  class  of  eases  seems  not  to  have  been  entirely 
in  disfavor.54  In  fact  the  view,  that  such  communications  should  be  excluded, 
began  to  spread  among  the  judiciary  and  members  of  the  legal  profession,  re- 
sulting finally  in  enactments  by  legislative  bodies,  making  communications  be- 
tween a  physician  and  his  patient  privileged/'5 

The  privilege  created  under  such  statutes  covers  any  information  received  by 
the  physician  as  a  result  of  the  relation  which  he  has  acquired  either  from  oral 
statements  of  the  patient  or  as  a  result  of  examinations  or  observations  made  by 
him.56  The  privilege  is  confined  to  one  who  has  the  right  to  act  as  a  physi- 
cian 5T  though  he  be  in  the  employ  of  another  58  and  covers  statements  made  to 
a  physician  by  a  patient  for  the  purpose  of  enabling  him  to  prescribe  59  and 
the  privilege  also  attaches  to  statements  made  by  a  physician  to  a  patient  as 
to  the  nature  of  his  disease60  and  its  treatment,61  and  includes  the  mental 
condition  of  the  patient.02  Statements  made  when  the  relation  did  not  exist 
are  not  privileged.03  A  physician  may  be  forced  to  testify  to  the  fact  of  his 
employment  64  and  his  attendance,65  to  affidavits  of  the  cause  of  death  tiled 
with  the  proper  authorities,66  to  examinations  pursuant  to  the  order  of  the 
court  °7  or  at  the  request  of  both  parties.68  The  statute  cannot  be  invoked  to 


Atl.  313  (1904).  A  physician  who  discloses 
on  the  stand  when  ordered  by  the  court  con- 
fidential communications  of  his  patient  is  not 
liable  to  civil  suit  by  his  patient.  Smith  v. 
Driscoll,  94  Wash.  441,  162  Pac.  572,  L.  R. 
A.  1917  C  1128  (1917).  Physician's  privi- 
lege, see  note,  Bender,  ed.,  103  X.  Y.  587. 
Admissibility  of  evidence  of  examining  physi- 
cian, see  note.  Bender,  ed.,  137  X.  Y.  582. 

54.  Wilson    v.  .  Rastall,    4    T.    R.    753,    760 
(1792). 

55.  Ansdenmoore  v.   Holzback.  88  Ohio  St. 
625,  106  X.  E.  41   (1914). 

56.  Rose  v.  Supreme  Court.  126  Mich.  577, 
85  N.  W.   1073    (1901). 

Autopsy  by  Attending  Physician. —  Under 
a  statute  making  communications  to  a  phy- 
sician privileged  an  attending  physician  who 
performs  an  autopsy  immediately  after  death 
may  not  tell  of  the  results  of  the  autopsy  and 
his  conclusions  therefrom  as  this  would  take 
away  from  the  privilege  as  the  conclusions 
must  have  been  based  in  part  on  what  he  had 
learned  as  the  attending  physician.  Thomas 
v.  Byron.  16S  Mich.  593.  134  X.  W.  1021,  38 
L.  R.  A.  (X.  S.)  1186  (1912). 

57.  Wiel   v.   Cowles,   45  Hun    (X.   Y.)    307 
(1887)  ;  Head  Camp  v.  Loehrer,  17  Colo.  App. 
247,  68  Pac.  136   (1902). 

58.  Battis  v.   Chicago   R.   T.  &   P.  Ry.   Co.. 
124  Iowa  623,  100  X.  W.  543   (1904). 


59.  Briggs  v.   Briggs,  20  Mich.  34    (1874). 

60.  Hammerstein  v.  Hammerstein,  74  Misc. 
R.  567,  134  X.  Y.  Suppl.  473   (1912). 

61.  Hammerstein  v.  Hammerstein,  74  Misc. 
R.  567,  134  N.  Y.  Suppl.  473   (1912). 

62.  Shuman   v.    Supreme   Lodge.    110   Iowa 
480,  81  X.  W.  717   (1900). 

63.  Herries  v.  Waterloo,  114  Iowa  374,  86 
X.  W.  306   (1901). 

64.  Haughton   v.   .Etna   Life   Ins.   Co.,   165 
Ind.  32,  73  X.  E.  592  (1905). 

65.  Cooler  v.  Foltz,  85  Mich.  47,  48  X.  W. 
176    (1896). 

66.  Robinson  v.  Supreme  Commandery,  77 
App.  Div.   215,   79   X.   Y.   Suppl.    13    (1902), 
affirmed  177  X.  Y.  564.  69  X.  E.  1130   (1904). 

67.  People  v.  Glover,   71   Mich.   303,  3S   X. 
W.    874    (1888)     (examination    to   determine 
physical  condition  of  one  charged  with  rape)  ; 
People  v.  Sliney.  137  X.  Y.  570,  33  X.  E.  150 
(1893)     (examination  of  prisoner  as  to  san- 
ity).    Where  the  plaintiff  is  ordered  by  the 
court   to   submit   to   a   physical    examination 
any   statements   he   makes   in   answer  to   the 
defendant's   physician   are   deemed   privileged 
according  to  the  weight  of  aiithoritv.     It   is 
argued  that  this  is  an  abuse  of  authority  to 
force  the  plaintiff  to  submit  to  examination 
and  thus  elicitate  from  him  statements  which 
may    be    filtered    as    admissions    through    an 
irresponsible    witness    instead    of    using    the 


1168 


PRIVILEGED  COMMUXICAT i  o  N  : 


936 


protect  crime 69  as  in  abortion  cases  70  and  the  privilege  may  be  waived  by 
the  patient,71  as  where  he  testifies  in  regard  to  the  matter  72  or  calls  on  the 
physician  to  do  so.73 

§  1168.  Public  Justice;  Grand  Jurors.74 — In  the  interest  of  public  justice 
there  are  certain  things  which  are  considered  as  necessary  to  protect  from  dis- 
closure. Thus  in  the  case  of  proceedings  before  the  grand  jury  it  is  deemed 
that  the  administration  of  public  justice  may  be  better  secured  by  preventing 

ample  legal  process  available  to  secure  the 
testimony  in  open  court.  In  a  recent  case  the 
court  does  not  decide  this  question  but  holds 
that  a  statement  made  voluntarily  by  the  wit- 
ness to  the  doctor  may  be  put  in  evidence. 
McGuire  v.  Chicago  &  A.  R.  Co.  (Mo.  1915), 
178  S.  W.  79,  L.  R.  A.  1915  F  888  and  note 

68.  Clark    v.    State,   8   Kan.   App.    782,   61 
Pac.  814   (1899). 

69.  People  v.   West,    106   Cal.   89,   39   Pac. 
207   (1895). 

70.  Seifert  v.  State,  160  Ind.  464,  67  N.  E. 
100,  98  Am.   St.  Rep.   340    (1903);    State  v. 
Smith,  99  Iowa  26,  68  N.  W.  428,  61  Am.  St. 
Rep.    219     (1896);    McKenzie   v.    Banks,    94 
Minn.  496,  103  X.  W.  497   (1905) 

71.  Epstein  v.  Pennsylvania  R.  Co.,  250  Mo. 
1,  156  S.  W.  699    (1913).     Waiver  of  physi- 
cian's privilege,  see  note,  Bender,  ed.,  118  N. 
Y.  94,  188  X.  Y.  407,  193  N.  Y.  11. 

Provision  in  Insurance  Policy. —  Where  an 
insurance  policy  provides  that  the  attending 
physician  may  testify  this  is  a  waiver  of  the 
privilege  which  binds  the  beneficiary.  Xa- 
tional  Unity  Ass'n.  v.  McCall,  103  Ark.  201, 
146  S.  W.  125,  48  L.  R.  A.  (N.  S.)  418  (1912). 

Waiver  at  former  Trial. —  The  mere  fact 
that  testimony  has  been  given  without  objec- 
tion at  a  former  trial  does  not  necessarily 
constitute  a  waiver  of  the  claim  that  it  is 
privileged  at  a  later  trial  of  the  same  case 
especially  where  the  party  has  not  been  mis- 
led by  it.  Maryland  Casualty  Co.  v.  Maloney, 
119  Ark.  434,  178  S.  W.  387,  L.  R.  A.  1916  A 
519  (1915). 

72.  City  of  Tulsa  v.  Wicker,  42  Okla.  539, 
141  Pac.  963    (1914);   Fulson-Morris  Coal  & 
M.   Co.   v.   Mitchell,   37   Okla.   575,    132   Pac. 
1103  (1913).     Under  a  statute  declaring  that 
a  physician   cannot  be  examined  as  to  com- 
munications made  to  him  by  his  patient  the 
latter  does  not  waive  the  privilege  by  testify- 
ing to  his  own  condition  at  the  time.     Ari- 
zona &  New  Mexico  R.  Co.  v.  Clark,  235  U.  S. 
669,  35  Sup.  Ct.  Rep.  210,  L.  R.  A.  1915  C 
834   (1915). 


Where  Physician  is  Claimed  to  have  De- 
frauded Plaintiff. —  Where  the  insured 
claims  that  she  was  induced  to  settle  a  claim 
on  an  insurance  policy  by  false  and  fraudu- 
lent statements  of  the  attending  physician 
she  has  put  in  issue  the  cause  of  death  and 
has  waived  her  statutory  privilege  of  object- 
ing to  the  testimony  of  the  physician.  Na- 
tional Unity  Assn.  v.  McCall,  103  Ark.  201, 
146  S.  W.  125,  48  L.  R.  A.  (N.  S.)  418 
(1912). 

73.  Speck  v.  International  Ry.  Co.,  133  App. 
Div.  802,  118  N.  Y.  Suppl.  71  (1909). 

Testimony  by  another  Doctor. —  According 
to  the  decided  weight  of  authority  the  waiv- 
ing of  the  privilege  by  the  plaintiff  calling 
one  of  his  physicians  does  not  waive  his  right 
to  object  to  the  testimony  of  any  other  physi- 
cians. Jones  v.  Caldwell,  20  Idaho  5,  116 
Pac.  110,  48  L.  R.  A.  (N.  S.)  119  (1911). 
The  fact  that  the  plaintiff  puts  on  a  physi- 
cian who  testifies  as  to  an  examination  h« 
made  just  after  the  injury  does  not  waive  the 
privilege  as  to  examination  by  another  phy- 
sician before  the  injury.  The  court  lays 
down  the  rule  that  waiver  only  takes  place 
as  to  another  doctor  who  examined  in  com- 
pany with  the  doctor  who  testifies.  Mays  v. 
New  Amsterdam  Casualty  Co.,  40  App.  D.  C. 
249,  46  L.  R.  A.  (N.  S.)  1108  (1913).  A  pa- 
tient waives  his  privilege  by  going  on  the 
stand  and  telling  his  ailments  and  putting  one 
physician  on  the  stand  also  and  he  cannot 
then  object  to  other  doctors  who  attended  him 
telling  what  they  know,  although  the  privi- 
lege arises  under  a  statute  as  the  waiver 
may  be  engrafted  on  the  statute.  The  point 
is  that  the  privilege  if  secrecy  applies  to  his 
physical  condition  and  when  he  voluntarily 
tells  this  he  should  then  not  object  to  the 
whole  truth  being  known.  Epstein  v.  Penn- 
sylvania R.  Co.,  250  Mo.  1,  lf>6  S.  W.  699, 
48  L.  R.  A.  (N.  S.)  394  (1913). 

74.  5  Chamberlayne,  Evidence,  §  3706. 


937  PUBLIC  JUSTICE.  §§   1169,  1170 

any  inquiry  in  regard  thereto,75  except  that  it  may  be  shown  by  statute  in  some 
states  that  a  witness  testified  differently  before  the  grand  jury  than  at  the 
later  trial.76 

§  1169.  [Public  Justice];  Petty  or  Traverse  Jurors.77 — Much  the  same  situa- 
tion exists,  where  it  is  de-sired  to  introduce  testimony  of  petty  or  traverse 
jurors,  as  to  some  mistake,  irregularity  or  misbehavior  on  the  part  of  the  jury, 
for  the  purpose  of  impeaching  their  verdict,  it  being  generally  decided  that 
such  testimony  will  be  excluded. li! 

§  1170.  Secrets  of  State.79 —  In  the  case  of  matters  relating  to  affairs  of  state, 
it  is  clearly  apparent  that  there  are  many  communications  which  it  is  essential 
should  be  protected  from  disclosure.  While  the  discovery  of  truth,  as  an  aid 
in  the  administration  of  justice,  is  particularly  to  be  desired  and  sought  for,  yet 
the  proper  administration  of  public  affairs,  both  state  and  national,  particu- 
larly the  latter,  require  that  often  times  the  executive  and  heads  of  depart- 
ments should  not  be  hampered  by  any  interference  from  the  courts.80  It  is, 
therefore,  deemed  advisable  that,  whenever,  the  executive  departments  consider 
that  certain  matters  or  communications  should  not  be  divulged,  their  opinion 
or  decision  shall  be  regarded  as  binding  upon  the  courts  and  testimony  concern- 
ing them  will  not  be  compelled.81 

75.  State  v.  Wood,  53  X.  H.  484   (1873).  parol  evidence  may  be  given  to  show  that  a 

76.  Jenkins  v.   State,  35    Fla.   737,   18   So.  former  recovery  was  had,  not  upon  the  merits, 
182,  48  Am.   St.  Rep.  267    ( 1805)  :   Pritchett  but  upon  some  technical  objection  to  the  form 
v.  Frisby,  112  Ky.  629,  23  Ky.  L.  Rep.  2035,  of      action      or      otherwise."     Follansbee     v. 
66  S.  W.  503    (1002):    State  v.  Thomas,  99  Walker,  74  Pa.  St.  306,  310  (1873),  per  Shars- 
Mo.  235,  12  S.  W.  643   (1S89).  wood,  J.     See  Heffron  v.  Gallupe,  55  Me.  563 

77.  5  Chamberlayne,  Evidence,  §  3707.  (1867). 

78.  Smith  v.  Smith,  50  X.  H.  212    (1870).  79.  5  Chamberlayne,  Evidence,  §  3708. 
Affidavits  of  jurymen  as  to  facts  as  that  a          80.  Totten  v.  United  States,  92  U.  S.  105, 

verdict  was  reached  by  lot  [Wright  v.  Illinois  107,  23  L.  ed.  605   (1875). 

&  Miss.  Teleg.  Co.,  20  Iowa  105.  210  (1866)],  81.  Hartranft's    Appeal,    85    Pa.    St.    433 

or  as  to  what  was  considered  by  the  jury  in  (1S77);    Gray    v.    Pentland,    2    S.    &    P.    23 

reaching     a     verdict     have     been      received.  (1815). 

"  Whenever  it  does  not  contradict  the  record, 


CHAPTER  LXVI. 

EXAMINATION  OF  WITNESSES. 

Examination  of  witnesses,  1171. 

direct  examination;  leading  questions,  1172. 

use  of  memoranda  to  refresh  memory,  11V3. 
cross-examination,  1 1 74. 

scope  of,  1175. 
redirect  examination,  1176. 
examination  subsequent  to  redirect ,.117 '7. 
recalling  of  witnesses,  1178. 
privilege  as  to  self-incrimination,  1179. 

§  1171.  Examination  of  Witnesses.1 —  In  the  use  of  witnesses,  as  a  media  of 
proof,  the  administrative  power  of  the  presiding  judge,  stands  out  most  clearly. 
It  is  here  that  his  ability  to  work  out  by  the  use  of  reason  the  results  of  sub- 
stantial justice,  in  connection  with  the  rules  of  law  substantive  or  procedural, 
is  greatly  increased.  Having  in  view  the  object  of  judicial  administration,  the 
discovery  of  truth  as  an  aid  to  the  attainment  of  justice,  much  rests  in  the 
exercise  of  sound  reason  by  the  presiding  judge  or  as  it  is  frequently  termed 
the  exercise  of  sound  discretion  by  him.  So  many  and  varied  are  the  circum- 
stances developed  in  the  case  of  different  witnesses,  having  regard  to  their 
characters,  intelligence,  and  memory,  the  effect  of  bias  upon  their  minds  and 
other  similar  factors  that  the  court  is  continually  confronted  with  different 
situations  in  administering  the  rules  of  evidence.  In  each  and  every  instance 
the  judicial  mind  must  be  imbued  with  the  thoughts  of  discovering  the  truth 
and  of  thus  securing  substantial  justice  to  the  parties  and  for  this  purpose  the 
presiding  judge  must  in  all  cases  endeavor,  by  the  exercise  of  sound  reason  in 
the  proper  administration  of  the  rules  of  evidence,  to  attain  these  objects. 

§  1172.  Direct  Examination;  Leading  Questions.2 —  An  elementarv  rule  of  evi- 
dence, in  the  examination  of  witnesses,  is  that  leading  questions  will  not  be 
allowed.3  As  to  what  is  a  leading  question  is  often  a  matter  of  much  nicety. 
It  may  be  stated,  generally,  however,  that  any  question  which  contains  in  it  a 
suggestion  to  the  witness  of  the  answer  desired  falls  within  the  prohibition.4 

1.  5     Chamberlayne,     Evidence,     §§     3700,       the  witness  how  to  answer  on  material  points, 

or  puts  into  his  mouth   words  to  be  echoed 

2.  o     Chamberlayne,     Evidence.     §§     3711-       back   as   was  done   here,   or   plainly  suggests 

the  answer  which  the  party  wishes  to  get  from 

3.  Kankakee   v.   Illinois   Cent    R.   Co.,   258       him."     Page    v.    Parker,    40    N     H     47,    63 
111.  368,   101   N.  E.  502    (1013).  ( I860),  per  Fowler,  J. 

4.  "A  question  is  leading  which  instructs 

938 


939  REFRESH  MEMORY.  §§  1173,  1174 

The  presiding  judge  will,  in  all  cases,  take  care  to  prevent  any  question  being 
asked  of  a  witness  which  is  so  framed  or  put  to  him  as  to  indicate  the  particular 
answer  which  is  wanted. 

The  fact  that  a  question  may  be  answered  by  "  yes  "  or  "  no  "  does  not  stamp 
it  as  necessarily  leading,5  while  a  question  put  in  the  alternative  form  as 
"  whether  or  not "  is  usually  not  regarded  as  leading.6  Whether  a  question 
is  leading  is  peculiarly  a  question  for  the  presiding  judge.7  A  question  which 
assumes  the  existence  of  facts  which  have  not  been  established  is  ordinarily 
regarded  as  leading  s  but  not  where  such  facts  are  admitted  to  exist.9  Leading 
questions  may  be  put  when  they  are  preliminary  to  the  matters  in  controversy 
to  expedite  the  trial.10 

The  court  may  allow  the  use  of  leading  questions  where  a  person's  memory 
is  exhausted  concerning  a  matter  u  or  where  the  witness  is  clearly  hostile  to 
the  party  producing  him  12  or  in  the  case  of  children,13  or  feeble-minded  per- 
sons,14 illiterates  ir>  or  foreigners  with  a  limited  knowledge  of  the  English 
language.16 

§  1173.  Use  of  Memoranda  to  Refresh  Memory.17 —  The  mind  of  a  witness 
will  frequently  not  contain  a  present  recollection  of  some  past  event  or  transac- 
tion. Where  such  a  situation  arises  the  presiding  judge  may  permit  the  use 
of  memoranda  by  a  witness  for  the  purpose  of  refreshing  his  mind  and  reviving 
his  recollection. 

§  1174.  Cross  Examination;  Right  of.18 — The  right  to  cross  examine  a  wit- 
ness, after  he  has  been  examined  in  chief,  is  one  which  is  undisputed,19  and  if, 

5.  Southern  Cotton  Oil  Co.  v.  Campbell.  106  13.  State  v.  Drake,   128   Iowa  539,   105   X. 

Ark.  379,   153  S.  W.  256    (1913)  ;   Coogler  v.  W.  54   (1906^ 

Rhodes,  38  Fla.  240,  21   So.   109,  56  Am.  St.  14.  Strnad  v.  William  Messer  Co.,   142  X. 

Rep.  170  (1897).  Y.  Suppl.  314   (1913)  ;  Armstead  v.  State,  22 

6, 'Wilson   v    McCullough.   23   Pa.   St.   440,  Tex.  App.  51,  2  S.  W.  627    (1886). 

62  Am.  Deo.  347   (1854).  15.  People  v.  Bernor,  115  Mich.  692,  74  X. 

7.  Com    v.  Dorr,  216  Mass.  314,  103  X.  E.  W.  184   (1898). 

902   (1914).  16.  Christensen  v.  Thompson,  123  Iowa  717, 

8.  Ohio  Oil  Co.  v.  Detamore,  165  Ind.  243,      99  X.  W.  591   (1904). 

73  X.  E.  906   (1905).  Practical     Suggestion. —  Witnesses    should 

9.  Erie  &  P.  Despatch  v.  Cecil,  112  111.  180  be  cautioned  to  tell  not  what  they  thought  or 
(1884)  ;   Willey  v.  Portsmouth.  35  X.  H.  303  inferred  but  what  they  saw  or  heard,  and  for 
(1857);  Hays  v.  State   (Tex.  Cr.  App.  1892),  this   reason   it   is   usually   best   to   ask   them 
20  S.  W.  361.  shortly,  "Tell  the  court  what  talk  you  heard, 

10.  "  If  the  questions  relate  to  introductory  telling  the  conversation  as  near  as  you  can. 
matter  and   be  designed   to  lead   the  witness  stating  just  what  each  party  said,"  or.  "  Tell 
with  the  more  expedition  to  what  is  material  the  court  what  you  actually  saw  with  your 
to  the  issue,  it  is  captious  to  object  to  it.  even  own  eyes." 

if  it  be  leading."     People  v   Mather.  4  Wend.  17.  5  Chamberlayne,  Evidence,  §  3720.     See 

(X.  Y.)    229,  247,  21   Am.  Dec.    122    (1830),  supra,  §  1098.     5  Chamb.,  Ev.,  §  3506. 

per  Marcy,  Sen.  18.  5  Chamberlayne,  Evidence.  §  3721. 

11.  Warren  v.  WTarren,  33  R.  I    71,  80  Atl.  19.  Graham  v.  Larimer,  83  Cal.  173,  23  Pac. 
593  (1911).  286  (1890). 

12.  Wiener  v.  Mayer,   162  App.  Div.   142, 
147  X.  Y.  Suppl.  289  (1914). 


§  1175  EXAMINATION  OF  WITNESSES.  940 

after  he  has  testified  on  direct  examination,  no  opportunity  therefor  is  afforded 
as  in  case  of  his  death  2"  or  illness,21  or  where  a  party  to  the  proceeding  refuses 
to  answer,22  or  from  some  other  cause  23  his  testimony  will  be  rejected.  Tin- 
mere  appearance  and  swearing  of  a  witness,  however,  when  110  testimony  is 
gm-n  by  him,  is  frequently  not  regarded  as  conferring  any  such  right,24  and 
this  result  of  course  follows  in  those  jurisdictions  where  the  cross-examination 
of  a  witness  is  limited  by  the  direct  examination. 

§  1175.  [Cross  Examination] ;  Scope  of.25 —  The  question  whether  the  cross- 
examination  of  a  witness  must  be  limited  to  those  matters  concerning  which  he 
has  been  examined  in  chief  or  may  extend  to  any  facts  in  the  case  which  are 
relevant  and  may  be  a  part  of  the  opponent's  case  is  one  upon  which  the  de- 
cisions are  not  uniform.  The  great  weight  of  authority,  however,  although 
there  are  several  decisions  to  the  contrary,26  supports  the  doctrine  that  it  is  so 
limited  and  that  if  a  party  desires  to  examine  a  witness  as  to  any  other  matter 
he  can  only  do  so  by  calling  him  as  his  own  witness  at  the  proper  time.27  This 
rule  is  not  generally  construed  as  meaning  that  a  witness  can  be  cross-exam- 
ined as  to  a  particular  subject  only  to  the  extent  that  it  has  been  gone  into  on 
the  direct  examination,  for  if  a  matter  is  touched  upon  there,  as  for  instance 
part  of  a  conversation  or  transaction,  a  legitimate  subject  for  cross-examination 
is  thus  presented  in  so  far  as  the  matter  may  constitute  a  unity.28  It  is  often 
difficult  to  determine  just  how  far  the  cross-examination  of  a  witness  may  pro- 
ceed before  the  limit  has  been  reached  or  passed.  In  each  case  the  question 
must  be  determined  by  the  presiding  judge  in  the  exercise  of  sound  discre- 
tion.29 

The  use  of  leading  questions  is  always  allowed  in  cross-examination  30  unless 
it  appears  that  the  witness  is  friendly  to  the  cross-examining  counsel.31  The 
cross-examination  may  always  bring  out  matters  not  fully  disclosed  by  the 

20.  Sperry  v.  Moore's  Estate,  42  Mich.  353,      Compare. —  Scott  v.  McCann,  76  Md.   47,   24 
4  N.  W.  13   (1880)  ;  People  v.  Cole,  43  N.  Y.      Atl.  536   (1892). 

508   (1871).  24.  Harris  v.  Quincy,  O.  &  K.  C.  R.  Co.,  115 

21.  Cole   v.   People,   2   Lans.    (N.   Y.)    370      Mo.  App.  527,  91  S.  W.  1010   (1906). 
(I860).  25.  5    Chamberlayne,    Evidence,    §§    3722- 

Effect  of  Redirect  Examination. —  The  tea-  3727. 

timony  of  a  witness  may  be  received  although  26.  People   v.   Pindar,   210  N.   Y.    191,   104 

after  thorough  cross-examination  she  is  fur-  N.  E.  133   (1914). 

ther  examined  redirectly  and  then  is  too  ill  27.  People  v.  Darr,  262  111.  202,  104  N.  E. 

for    further    cross-examination    as   the    party  389   (1914). 

has  already  fully  availed  himself  of  his  right  28.  De   Haven   v.   De   Haven,   77    Ind.   236, 

of   cross-examination.     State   v.    Duvall,    135  239   (1881). 

La.  710,  65  S.  W.  904,  L.  R.  A.  1916  E  1264  29.  Thornton    v.    Hook,    36    Cal.    223,    227 

^ni4).  (1868). 

22.  Howard    v.    Chamberlain,    64    Ga.    684  30.  People  v.  Coneidine,  105  Mich.  149,  63 
(1880);     Heath    v.    Waters,    40    Mich.    457  N.  W.  196   (1895). 

31.  Moody  v.  Rowell,  17  Pick.   (Mass.)  490 

23.  People  v.  Cole,  43  N.  Y.  508-  (1871).       (1835). 


941  REDIRECT.  §§  1176, 1177 

direct  examination 32  but  the  extent  of  cross-examination  as  to  collateral  or 
irrelevant  facts  is  for  the  determination  of  the  presiding  judge.33  Questions 
which  assume  the  existence  of  facts  which  have  not  been  proved  will  be  ex- 
cluded.34 

§  1176.  Redirect  Examination.35 — After  the  cross-examination  of  a  witness 
has  been  completed  the  right  of  the  party  by  whom  he  was  called  to  re-examine 
him  within  proper  limits,  is  recognized.  It  is  stated  generally  that  no  right 
exists  to  introduce  new  matter  at  this  stage,30  as  it  is  considered  that  the  party 
has  had  full  opportunity,  on  the  direct  examination,  to  bring  out  all  facts  which 
are  material  and  relevant  to  his  contention.  The  real  purpose  of  the  redirect 
examination  is  to  obtain  an  explanation  3T  of  statements  made  on  the  cross- 
examination  which  tend  to  create  doubts  and  to  contradict  matters  drawn  forth 
on  the  direct  examination.  Thus  it  is  permissible  to  show  the  motive, 
provocation,  or  reason  which  influenced  the  witness  in  respect  to  certain  state- 
ments made  by  him,38  or  to  further  interrogate  him  as  to  new  matter  thus 
disclosed,39  as  in  case  of  a  conversation  or  transaction  to  bring  it  out  in  full.40 

Leading  questions  will  ordinarily  be  excluded  on  redirect  examination.41 
This,  however,  is  left  largely  to  the  presiding  judge  to  determine  as  a  matter 
of  sound  administration.42 

§  1177.  Examinations  Subsequent  to  Re-direct.43 —  After  the  re-direct  exami- 
nation of  a  witness,  a  recross-examinatiou  is,  in  some  cases,  permitted,44  as 
where  new  matter  has  been  gone  into  on  the  former.45  Whether  such  a  priv- 

32.  Com.    v.    St.   Pierre,    175   Mass.   48,   55  35.  5  Chamberlayne,  Evidence.  §  3728. 

N.  E.  482   (1899).  36.  Finley  v.  West  Chicago  St.   R.  Co.,  90 

33.  Drexler  v.    Borough  of   Braddock,  238      111.  App.  368   (1900);   Struth  v.  Decker,  100 
Pa.  376,  86  Atl.  272   (1913).  Md.  368,  59  Atl.  727   (1905). 

34.  Balswic  v.   Balswic,   179   111.  App.  118          37.  Musselman   Grocer   Co.    v.   Casler,    138 
(1913).  Mich.  24,  100  X.  W.  997   (1904). 

Practical    Suggestions. —  It    is    commonly  38.  Grabowski  v.  State,  126  Wis.  447,  105 

remarked   by  those  familiar  with  the  courts  X.  W.  805   ( 1905 ) . 

that   most   cross-examinations   hurt   the   side  39.  People  v.  Robinson,   135  Mich.  511,  98 

that  does  the  cross-examining  and  strengthen  X.  W    12   (1904). 

the  witness.     One  reason  is  that  most  lawyers  40.  Chicago  City  Ry.  Co.  v.  Lowitz,  119  111. 

never    learn   the   danger   of   haphazard    ques-  App.    300.    affd.    218    111.    24,    75    X.    E.    755 

tions.     Mr.  Wellman's  wonderful  book  on  the  ( 1905  I . 

art  of  Cross-examination  might  be  compressed  41.  Sager   v.   Samson   Min.   Co.    (Mo.   App. 

in  the  single  injunction,  "  Never  attack  a  wit-  1914),   162  S.  W.  762:   Anderson  v.  Berrum. 

ness   unless   you   know   the   facts   which   will  36  Xev.  463,  136  Pac.  973   (1914):  Harvey  v. 

injure  him  and  when  you  have  brought  out  State,  35  Tex.  Cr.  545,  34  S.  W.  623    (1896). 

these  facts   then   stop."     Attorneys   must  re-  42.  Mann  v.  State,   134  Ala.   1,  32  So.  704 

member  that  witnesses   are  often   intelligent  (1902):    Hess  v.  Com.    (Ky.   1887),  5  S.  W. 

and  that  by  the  time  the  attorney  has  gone  751.     See    Gilbert    v.    Sage,    57    X.    Y.    639 

very  far  with  his  cross-examination  the  wit-  (1874). 

ness  has  a  bias  against  him  and  will  take  any  43.  5  Chamberlayne,  Evidence,  §  3729. 

opportunity  to  bring  in  something  to  injure  44.  State  v.  Haab,  105  La.  230,  29  So.  725 

the  side  of  the  cross-examiner.     The  wise  law-  (1901). 

yer  never  gives  the  witness  this  opportunity.  45.  Wood  v.  McGuire,  17  Ga.  303   (1855); 


§§   1178,1179  EXAMINATION  OF  WITNESSES.  9-12 

ilege  will  be  accorded  and,  if  so,  the  extent  to  which  the  examination  may  go 
is  in  each  case  a  question  for  the  presiding  judge  to  determine.  If  he  is  of 
opinion  that  no  useful  result  will  ensue  he  may  refuse  to  permit  a  recross-exam- 
ination,  or,  after  it  has  been  entered  upon,  to  allow  its  continuance.46 

An  examination  in  sufrebuttal  may  likewise  be  allowed  by  the  presiding 
judge  where  he  may  deem  it  necessary  in  the  interests  of  justice.47 

§  1178.  Recalling  of  Witnesses.48 —  Whether  a  witness,  who  has  been  exam- 
ined, may  be  recalled  is  a  matter  which  rests  largely  with  the  presiding  judge. 
If  he  deems  it  advisable,  as  an  aid  in  eliciting  the  truth  and,  therefore,  as  tend- 
ing to  the  furtherance  of  justice,  he  will  permit  such  a  course  to  be  pursued.49 

§  1179.  Privilege  as  to  Self-Incrimination.50 —  The  doctrine  which  protects  a 
witness  from  self-incrimination  permits  him  in  any  proceeding,  civil  or  crim- 
inal, to  decline  to  answer  any  question  which  would  expose  him,  or  tend  to  ex- 
pose him,  to  a  criminal  prosecution.51  It  is  not  essential,  in  order  for  a  wit- 
ness to  avail  himself  of  the  privilege,  that  the  answer  might  of  itself  be  sufficient 
to  have  this  result.  If  it  should  happen  that  the  fact  concerning  which  the 
question  relates  may  be  only  a  link  in  a  chain  of  circumstances,  or  one  of  a 
series  of  acts  which  as  a  whole,  would  produce  this  result  he  may  refuse  to 


answer. 


He  may  also  claim  the  privilege  where  the  answer  might  subject  him  to 
a  penalty  or  forfeiture 53  or,  in  some  states  might  degrade  him  54  but  not 
simply  where  the  answer  may  result  in  pecuniary  loss  55  or  civil  liability.56 
The  privilege  extends  to  writings.57 

The  court  may,58  but  need  not,59  inform  the  witness  of  his  privilege.  The 
privilege  is  personal  to  the  witness  and  can  be  invoked  only  by  him  °°  and  may 
be  terminated  by  waiver,61  as  where  the  witness  testifies,62  or  by  operation  of 

People  v.  Detroit  Post  &  T.  Co.,  54  Mich.  457,  Dec.   340    (1848).     Contra:     Waters  v.   West 

20  X.  W.  528    (1884)  ;   State  v.  Pyscher,   170  Chicago  St.  R.  Co.,  101  111.  App.  265   (1902). 
Mo.   140,  77  S.  W.  836   (1903).  55.  La  Bourgogne,   104  Fed.  823    (1900). 

46.  Com.  v.  Nelson,  180  Mass.  83,  61  N.  E.          56.  Xeally  v.  Ambrose.  21  Pick.  185  (1838). 

57.  Ballman  v.  Fogin.  200  U.  S.  186,  50  L. 

47.  Goodyear   Rubber  Co.   v.  Scott  Co.,  96      ed.  433,  26  S.  Ct.  212   (1906) 

Ala.  439,  11  So.  370   (1892).  58.  People  v.  Priori,   164  X.  Y.  459,  58  N. 

48.  5    Chamberlayne,     Evidence,    §§    3730,      E.  668   (1900). 

59.  Bolen  v.  People,  184  111.  338,  56  N.  E. 

49.  Wagner  v.  State,   119  Md.  559,  87  Atl.      408   (1900). 

60.  Moser.  In  re,  138  Mich.  302,  101  X.  W. 

50.  5    Chamberlayne,    Evidence,    §§    3732-      588,   11   Detroit  Leg.  593    (1904). 

.     61.  Evans  v.   O'Connor,   174   Mass.   287,  54 

51.  Com.  v.  Phoenix  Hotel  Co.,  157  Ky.  180,      X.  K   557.  75  Am.  St.  Rep   316   (1S99) 

162  S.  W.  823  (1014).  62.  People  v.  Roser.neimer.  209  X.  Y    115, 

52.  Ford  v.  State,  29  Ind.  541,  95  Am.  Dec.       102  X.  E.  530.  46  L.  R.  A.  (X.  S.)  977  (1913). 

When  the  defendant  takes  the  stand  the  state 

53.  Oodsden  v.   Woodward,   108  X.   Y.   242,      may  cross-examine  him  and  also  comment  on 

his  failure  to  deny  or  explain  damaging  evi- 

54.  Lohman  v.  People,  1  X.  Y.  379,  49  Am.      dence  against  him.     State  v.  Larkin,  250  Mo. 


943  SELF-!N  CRIMINATION.  §  1179 

law  as  where  prosecution  for  the  crime  is  barred  by  limitations  63  or  by  statutes 
granting  immunity  to  witnesses  from  criminal  prosecution  for  any  matter  to 
which  their  testimony  may  relate.64  The  repeal  of  such  an  immunity  statute 
does  not  deprive  him  of  the  immunity  it  afforded.65 

218,  257  S.  VV.  600,  46  L.  K.  A.    (N.  S.)    13  64.  People   v.    Court   of    General    Sessions, 

(1913).  179  X.  Y.  594,  72  X.  E.   1148    (1904). 

63.  Manchester  &  L.  R.  R.  v.  Concord  R.  R.,  65.  Cameron  v.  U.  S.,  231  U.  S.  710,  34  S. 

66  N.  H.   100,  20  Atl.  383,  49  Am.  St.  Rep.  Ct.  244,  58  L.  ed.  448   (1914). 
582,  9  L.  R.  A.  689    (1889). 


. 


CHAPTER  LXVII. 

IMPEACHMENT  OF  WITNESSES. 

Impeachment  of  witnesses;  application  of  maxim  "  falso  in  uno  falsus  in 
omnibus,"  1180. 

right  to  impeach,  1181. 
one's  own  witness,  1182. 
opponent's  witness;  character,  1183. 
bias  or  interest,  1184. 
contradictory  statements,  1185. 

§  1180.  Application  of  Maxim  "  Falsus  in  Uno,  Falsus  in  Omnibus."  l —  The 
maxim  "  falsus  in  uno,  falsus  in  omnibus  "  is  frequently  called  to  the  attention 
of  juries,  as  bearing  upon  the  weight  which  is  to  be  given  to  the  testimony  of  a 
witness  who  has  testified  falsely  in  one  or  more  particulars.2  In  some  cases 
it  is  said  that  where  such  a  situation  exists  the  testimony  should  be  rejected  as 
a  whole  and  instructions  to  this  effect  have  been  sustained.3  Such  a  doctrine, 
however,  is  not  favored,4  it  being  considered  that  the  maxim  is  to  be  applied 
by  the  jury,5  or  by  the  judge  when  acting  without  a  jury  6  according  to  the 
circumstances  of  the  case.  The  generally  accepted  view  is  that  the  mere  fact 
of  a  witness  having  sworn  falsely  in  one  respect  is  not  of  itself,  a  reason  for 
the  rejection  of  his  entire  testimony.  The  jury  may  reject  that  which  is  shown 
to  be  false  and  accept  the  remainder,  or  they  may  reject  it  all. 

§  1181.  Right  to  Impeach.7 —  After  the  examination  of  a  witness  the  adver- 
sary of  the  party  calling  him  is  entitled  to  impeach  his  credit  for  the  purpose 
of  affecting  the  weight  of  his  testimony  with  the  jury.  This  may  be  done  either 
by  the  testimony  of  other  witnesses  or  by  the  cross-examination  of  the  witness 
himself,  the  object  being  to  show  that  his  testimony  is,  either  in  part  or  in 
whole,  discredited. 

§  1182.  One's  Own  Witness.*—  It  is  stated  as  a  general  rule  that  a  party  will 
not  be  permitted  to  impeach  his  own  witness.9  The  courts  in  their  decisions 

1.  5  Chamherlayne.  Evidence.  §  3741.  5.  Galloway   v.   Com..    5    Ky.    L.    Rep.    213 

2.  \\eijrel   v.  Weigel,  60  N.  J.  Eq.  322,  47       (1883). 

Atl.  183   H900).  6.  Axiom  Min.  Co.  v.  White.  10  S.  D.   198, 

3.  Crabtree  v.  Hagenbaugh,  25  111    233,  79      72  X.  W.  462   (1897). 

Am.  Dec.  324   (1S61).  7.  5  Chamberlayne,  Evidence,  §  3742. 

4.  Coggins  v    Chicago  &   A.   R    Co.  18  111.  8.  5     Chamberlayne,     Evidence,     §§     3743- 
App     620    (1886):    McCrary    v.    Cramlall.    1       3745. 

Iowa    117    (1855);    ftigbee   v.   McMullan.    18  9.  Barker   v.   Citizens'   Mut.   Fire    Ins    Co.. 

Kan-  133-  136    Mich.    626,    99    X     W.    866     (1904).     A 

944 


945 


ClIAEACTEK. 


§     1183 


to  this  effect,  with  a  slight  difference  in  their  manner  of  stating  the  reason,  in 
substance  all  base  their  conclusion  upon  the  idea  that  the  one  who  presents  a 
witness  to  the  court  in  support  of  his  case  represents  him  as  worthy  of  belief 
and  will  not  subsequently  be  permitted  to  impeach  him  by  evidence  to  the  con- 
trary.10 

Thus  a  party  may  not  put  in  evidence  for  the  purpose  of  impeachment 
that  a  witness  has  made  contradictory  statements  n  or  is  influenced  bv  bias  12 

«.  V 

except  to  refresh  his  recollection  la  or  in  some  jurisdictions  in  case  of  sur- 
prise 14  or  in  case  of  a  witness  whom  the  party  is  obliged  to  call.15  The  party 
may  produce  other  witnesses  whose  testimony  on  material  facts  is  contradictory 
to  that  of  his  witness.10 

§  1183.  Opponent's  Witness;  Character.17 — It  is  the  general  rule  that  a  wit- 
ness may  be  impeached  only  by  evidence  of  bad  character  for  veracity  18  and 
not  of  general  bad  character  w  and  evidence  of  particular  facts  is  not  admis^ 
sible  2u  except  in  cross-examination.21  Evidence  will  be  received  of  a  prior 
conviction  for  a  crime  2'~  although  the  witness  has  been  pardoned  23  or  a  ne\y 
trial  ordered.24  The  character  evidence  should  be  of  a  time  near  the  trial  25 


prosecuting  attorney  may  not  impeach  his 
o\vn  witness  by  stating  in  the  presence  of  the 
jury  that  he  told  a  different  story  on  the 
stand  from  what  he  had  told  previously. 
Mere  failure  to  testify  does  not  give  the  right 
to  impeach  anyway  and  he  cannot  be  im- 
peached in  this  way.  Andrews  v.  State,  64 
Tex.  Crim.  Rep.  2,  141  S.  W.  220,  42  L.  R.  A. 
(X.  S.)  747  (1911). 

10.  People   v.    Skeehan/49    Barb.    (X.    Y.) 
217,  219   (1867),  per  Leonard,  P.  J. 

11.  Appeal  of  Carpenter,  74  Conn.  431,  51 
Atl.  126   (1902). 

12.  Fairly  v.  Fairly,  38  Miss.  280    (1859); 
//;   re  Melon's  E  si  ate,   56  Hun    (X.  Y.)    555, 
9  X.  Y.  Suppl.  929    (1890). 

13.  People  v.   Sherman,   133   X.  Y.   349,   31 
X.  E.  107    (1S92). 

14.  People  v.    Brocks,   131   X.   Y.   321,   325, 
30  X.  E.  189    (1S92  I. 

15.  Illinois- — Thompson   v.   Owen.    174    111. 
229.  51  X.  E.  1046,  45  L.  R.  A.  6S2    (1S98). 

16.  Ingersoll   v.   English,   66   X.  J.   L.   463, 
49  Atl.  737    (1901). 

17.  5    Chamberlayne,    Evidence,    §§    3740- 
3751.     As  to  character  evidence,  see  ante,  §§ 
1025  ct  scq. 

18.  F.  W.  Stock  &  Sons  v.  Dellapenna.  217 
.    503     (1914).      It    seems    that    in    Xew 

York  evidence  of  either  general  bad  char- 
acter or  bad  character  for  veracity  is  admis- 
sible. But  see  Wright  v.  Rage,  3  K eyes  581. 
Carlson  v.  Winterman,  10  Misc.  388.  Adams 
v.  Greenwich,  Ju*.  Co.  70  X.  Y.  388. 

19.  State  v.  King.  88  Minn.  175.  92  X.  W. 
9-65     (1903).      Contra,    State    v.    Haupt,    126 
Iowa  152,  101  X.  W.  739   (1904).     What  may 


be  asked  on  cross-examination  —  character  of 
witness,  see  note,  Bender,  ed.,  32  X.  Y.  131, 
140. 

Gambling. —  A  witness  may  be  impeached 
by  showing  that  he  lived  in  a  gambling  place 
and  asking  what  his  habits  are,  as  if  the  wit- 
ness had  been  engaged  in  any  occupation 
which  would  tend  to  impair  his  credibility  the 
jury  is  entitled  to  that  information.  State  v 
Fong  Loon,  21)  Idaho  24S,  158  Pac.  233.  L. 
R.  A.  11)1(5  F  111)8  (1916). 

20.  Stock  &  Sons  v.  Dellapenna,  217  Mass. 
503,  105  X.  E.  378   (1914). 

21.  State  v.  Chingin,   105  Iowa  169,  74  X. 
W.  !)46    (1898). 

22.  People  v.  Cascone.    185   X.  Y.  317,  78 
X     E.   2S7     (1906).     A   witness   may   be   im- 
peached  by  being  asked  whether  he  has  not 
l>een  convicted  of  larceny  and   later  paroled. 
United  Railways  v.  Phillips,  121)  Md.  328,  99 
Atl.  355,  L.  R.  A.   1917  C  384    (1916). 

23.  Curtis  v   Cochran,  50  X.  II.  242  (1S70). 
The  disqualification   of  a   witness  as  he  had 
been  convicted  of  perjury  may  be  removed  by 
the    production    of    a    pardon    properly    con- 
nected with  the  crime,  but  the  conviction  may 
be  put  in  evidence  just  the  same.     Rittenberg 
v.  Smith,  214   Mass.  343.    101   X.  E.  989,  47 
L.  R.  A.    (X.  S.)   215   (1913). 

24.  State  v    Duplechain.  52   La.   Ann.  448, 
26  So.  1000    (1S99) 

25.  Miller  v.   Assured's  Xat.  M.  F.   I.  Co, 


§§   1184,1185  IMPEACHMENT  OF  WITNESSES.  94(3 

and  of  the  place  where  his  reputation  fairly  existed  and  need  not  be  confined 
to  his  present  residence.26  . 

§  1184.  [Opponent's  Witness] ;  Bias  or  Interest.27 —  The  bias,28  or  interest  29 
of  a  witness  is  always  recognized  as  proper,  to  be  considered  by  the  jury  as 
bearing  upon  the  credit  to  be  accorded  to  his  testimony.  When  the  credit  of 
the  witness  has  been  thus  attacked  his  attitude  may  be  explained  ;!U  and  his 
position  in  the  case  as  being  interested  in  its  outcome  31  pecuniarily  or  through 
relationship  32  or  friendship  with  a  party  may  always  be  shown.  The  fact 
that  he  has  been  or  is  to  be  paid  for  his  testimony  3:5  as  in  case  of  detectives  34 
or  that  he  is  the  complaining  witness 35  or  an  accomplice  30  may  always  be 
shown. 

§  1185.  [Opponent's  Witness] ;  Contradictory  Statements.37 — A  frequent  mode 
of  impeaching  the  credit  of  a  witness  is  by  evidence  showing,  that  at  some 
other  time  or  times,  he  has  made  statements  inconsistent  with,  or  contradictory 
to,  his  present  testimony.38  This  may  be  done  in  cross-examination  3S)  when 
the  statement  is  as  to  a  material  point  in  the  case.40  A  proper  foundation  for 
this  contradiction  should  be  laid  by  calling  the  attention  of  the  witness  to  the 
alleged  contradictory  statements  and  asking  him  whether  he  has  made  them  41 
and  he  should  then  be  given  a  right  to  explain  them.42  If  the  statement  was 
not  as  to  a  material  fact  his  statement  is  conclusive  and  cannot  be  contra- 
dicted.43 That  the  witness  denies  that  he  remembers  making  the  -statement 

184  111.  App.  271,  affirmed  264  111.  380,   106  34.  State  v.  Shew,  8  Kan.  App.  679,  57  Pac. 

N.  E.  203   (1914).  137    (1899). 

26.  Lake    Lighting   Co.    v.    Lewis,    29    Ind.  35.  People   v.    Bennett,    107   Mich.   430,   65 
App.  164,  64  X.  K.  35   (1902).  X.  W.  280    (1895). 

27.  5    Chainherlayne,    Evidence,    §§    3752-  36.  People  v.   Becker,   210   N.   Y.   274,   104 
3754.  X.   E.   31)6    (1914)     (holding   that   may  com- 

28.  Ross  v.  Reynolds,  112  Me.  223,  91  Atl.  pel  production  of  immunity  agreement  when 
95j!   (1014;.  in    writing).     A   perjurer   is   not   an    accoui- 

29.  Xesbit  v.  Crosby,  74  Conn.  554,  51  Atl.  plice  of  one  accused  of  subornation  of  perjury 
550   ( 1902).  within  the  rule  that  the  evidence  of  an  accom- 

30.  People  v.  Zigouras,   163  N.  Y.  250,  57  plice   should   be  received   with   caution.     The 
X'.    E     405    (1900).     An    imputation   of   bias  crime  of  perjury   committed  was  a  separate 
against  a  witness  may  always  be  rebutted  so  and  distinct  offense  from  that  of  subornation 
where  a    witness   is  asked  whether  he  has  a  of    perjury.     State    v.    Richardson,    248    Mo. 
suit,   pending  against  the  city  and  he  replies  563,   154  S.  W.  735,  44  L.  R.  A.    (X.  S.)    307 
that   he  did   have   he   may   be   further   asked  (1913). 

whether  he  lias  not  settled  his  claim  to  show  37.  5  Chamberlayne,  Evidence,  §  3755. 

that  he  has  no  present  interest  in  the  matter.  38.  Cotton    v.     Boston     Elevated    Ry.,     191 

Louisville  v.   Ilerheman,   161   Ky.  523,   171    S.  Mass.  103,  77  X.  E.  098    (1906). 

\V.  105,  L.  R.  A.   1915  C  747    (1914).  39.  Hoye  v.  Chicago  M.  &  St.  P.   Ry.   Co., 

31.  Purclee  v.  State,   118  Oa.  798,  45  S.  E.  46  Minn.  269,  48  X.  W.   1117    (1891). 

606   <1'.H)3).  40.  Commonwealth  v.  Xelson,  180  Mass.  83, 

32.  State  v.  Lortz,  186  Mo.   122,  86  X.  YV.       61  X.  E.  802   (1901). 

!H)0   <inOo).  41.  Davison   v.   Cruse,  47   Xeb.   829,   66   N. 

33.  Southern  Ry.  Co.  v.  Crowder,  130  Ala.      W.  823   (1896). 

-56,  30  So.  592   (1901).  42.  State  v.  Reed,  62  Me.  129,  146   (1874). 


047 


CONTRADICTORY  STATEMENTS. 


1185 


has  the  same  effect  as  though  he  denied  making  it.44  Proof  that  a  prior  con- 
tradictory statement  has  been  jnade  does  not  render  the  statement  evidence  of 
the  facts  assertod.45  Where  the  contradictory  statement  has  been  shown  it 
seems  the  better  view  that  other  prior  statements  may  be  proved  consistent 
with  his  present  testimony.40 


43.  Alger  v.  Castle,  61  Vt.  53,  17  Atl.  727 
(1888). 

44.  Gregg  Township  v.  Jamison,  55  Pa.  468 
(18671. 

45.  Jensen   v.   Michigan   Cent.   R.   Co.,    102 
Mich.   176,  60  X.   W.  57    U8!)4).     Contradic- 
tory  statements   made   by   the   witness  before 
trial    can    have   no    legal    tendency   to   estab- 
lish the  truth  of  their  subject-matter.     South- 
ern K.  Co.  v.  Gray.  241   L*.  S    333,  36  S.  Ct. 
Rep.  558   (1916).     Evidence  in  a  prosecution 


for  perjury  is  insufficient  that  the  defendant 
made  contradictory  statements  although  evi- 
dence of  such  statements  is  admissible  and 
can  be  explained  by  showing. that  they  were 
made  under  duress.  People  v.  McClintic,  193 
Mich.  589,  160  N.  W.  461,  L.  R.  A.  1917  C  52 
(1916). 

46.  Burnett  v.  Wilmington  N.  &  N  Ry.  Co., 
120  X.  C.  517,  26  S.  E.  819  (1897).  See 
Rogers  v.  State,  88  Ark.  451,  115  S.  W.  156, 
41  L.  R.  A.  (N.  S.)  857  (1908). 


INDEX 


[References  are  to  Sections] 


ABBREVIATIONS 

judicial  notice  of,  358. 
opinion  as  to,  768. 
account  books,  in,  984. 

ABORTION 
dying  declarations,  900. 

ABSENCE 

judge,  from  courtroom,  76 

attorney  from  court  as  contempt,  105. 

from  locality,  presumption  of  continuance, 
422* 

husband,  of,  effect  on  presumption  of  legiti- 
macy, 448. 

seven  years,  of,  presumption  of  death.  451- 
461. 

agent,  of,  evidence  of  his  admissions,  541. 

witness,  of,  as  ground  for  continuance,  281 

witness,  of,  former  evidence.  620,  624. 

record,  of,  as  negative  fact,  667. 

business  difficulties,  of,  opinion  as  to,  717. 

marriage,  of,  shown  by  reputation,  934 

ABSENT  MINDEDNESS 
opinion  as  to,  701 

ABSTRACT  OF  TITLE 
date  of,  presumed  correct,  425. 
admissions  in,  553 

ABUSE 

upon  cross  examination,  296. 
court,  of,  as  contempt,  100. 
discretion,  of,  75 

ACADEMY 
presumption  of  knowledge  of  by-laws  of,  477. 

ACCESS 
on  question  of  legitimacy.   447. 

ACCIDENTS 
railroad,  cause  of,  export  evidence  as  to,  814. 

ACCOMPLICE 
testimony  of,   1 184 

ACCOUNT  BOOKS 
See  also.  SHOP  BOOKS. 
admissions  by,  547,  552 
entries  in  course  of  business,  923. 
government  officials,  of,  1082. 
parol  evidence  of,  152. 


ACCOUNTS 

See  also,  SHOP  BOOKS. 
books  as  evidence,  977-995. 
failure  to  object  to,  563 
statement  of,  oral  evidence  to  show,  1128. 

ACCOUNT  STATED 
admissions  in,  548. 

ACCURACY 

proof  of  other  acts  to  show,  1024. 

ACCUSATION 
ti  avail  in,  968 

ACCUSED 

See  also.  CRIMINAL  LAW. 

privilege  against   self-incrimination,  597-601. 

See  also,  CONFESSIONS. 

ACKNOWLEDGMENT 

deed,    impeachment    of,    by    parol    evidence, 
1120  n 

ACQUIESCENCE 
pedigree  statements,  in.  938 
silence  as  proof  of,  566-571 

ACTIONS  IN  REM 
burden  of  proof,  390 

ADEQUATE  KNOWLEDGE 
See  also.  STBJECTIVK  RELEVANCY. 
character,  witness  of.   1038 
declarations  as  to  public  matters,  891. 
opinions  for.  682 
opinions  of  value,  753 
shop   hook   rule,  979 
skilled   witnesses.  379. 
adjournment 

See  CONTINUANCE. 

ADJOURNMENTS 

province  of  court.  77 

to  avoid  publicity,  84 

for  judge  to  examine  law,  333 

to  meet  unanticipated  testimony,  281. 

trial,  of.  to  prevent  surprise,  276 

ADMINISTRATION 
SUBSTANTIVE  RIGHTS 
principles  of  administration,  147 
protection  of  substantive  rights,  148. 
right  to  prove  one's  case,  149. 

949 


950 


INDEX.   (References  are  to  Sections.) 


Administration  —  cont'd. 
right  to  use  secondary  evidence,  150. 
documents,  151. 
negotiable  instruments,  151. 
public  records,  151. 
deeds,    151. 
bills  of  sale,  151. 
contracts,  151. 
wills,   151 

probative  documents,   152. 
letters  as  contracts,  152. 
means  of  communication,  153. 
interpreters,  154. 
deaf  mutes,  etc.,  155. 
scope  of  right,   156. 

evidence  in  chief  or  in  rebuttal,  156. 
limited  to  proof  of  res  gestae,  157. 
order  of  stages,  158. 

right  to  open  and' close,   159. 
plaintiff  has  right,  159. 
plaintiff  as  actor,   160. 
defendant  as  actor,  161 
code  and  common  law  pleadings,  admis- 
sions, 162 

proceedings  in  rem,  163 
variations   in  order  of  evidence,   164. 
evidence  in  chief,  165. 
opening  of  case  for  limited  purpose,  165 
the    minimum    of    administrative    indul- 
gence,  105. 
the  higher  interests  of  the  furtherance  of 

justice,  165 

the  maximum  of  concession,   165. 
reason  required,   165. 
actor.   166 
nonactor,  107 
order  of  topics,  168 

bearing  not  apparent,  170 

conditional    relevancy ;     bearing    apparent, 

100. 

right  to  test  adversary's  case,  171 
cross-examination,  172. 
rebuttal.  173 

testinjr  on  rebuttal.  173. 
scope  of  rebuttal.   173. 
a  substantive  right  to  reason,  173. 
actor.  174 
use  of  experts,  175. 
anticipatory  rebuttal,   176. 
non-actor,  177 
subsequent  rebuttal,  178 
right  to  use  of  reason.  179 

should  prevent  jury  from  being  misled,  180 
guessing  not   permitted.  181 
striking  ont  prejudicial  evidence,  182. 
irn-sponsivenesK.    182 
withdrawal  of    jury,   183 
prevent  in  jr   irrational   verdicts,   184. 
actions  for  a  penalty,  184. 
directing  verdicts.  185 

relation   to  urant    of  new   trial.   186. 
relation   to   motion    in   arrest   of    judum  -\\'. 
187 


Administration  —  cont'd. 
directing  verdicts  —  cont'd. 

a  matter  of  law,  188. 

general  rules,   189. 

scintilla  of  evidence  not  sufficient,  190. 

motion    equivalent   to   a   demurrer   to   evi- 
dence, 191. 

direction  against  the  actor,  192. 

direction  in  favor  of  actor,  193. 

in  a  criminal  case,  193. 

time  for  making  motion,  194 

direction  on  opening,  195. 

party  moving  may  be  required  to  rest,  196. 

nominal  or  actual  verdicts,  197. 

effect  of  waiver,  198. 

action  of  appellate  courts,  199. 

effect  of  rulings  on  evidence,  200. 
judge  sitting  as  jury,  201. 
right  to  judgment  of  court  or  jury,  202. 
performance  of  functions  by  judge,  203. 
waiver,  204 

general  right  to  jury  trial;  witnesses  not  per- 
mitted to  reason,  205. 

a  strongly  entrenched  right,  206. 

federal  constitution,  207. 

state  constitution.  208. 

scope  of  common  law,  209. 

venue,  209. 

court  may  allow  jury  trial,  209. 

judicial  powers  reserved,  210. 

the  power  of  the  court,  210. 

the  right  of  an  appellate  court,  210. 

statutory  construction;  criminal  cases,  211 

waiver   forbidden,   212 

incidental   hearings,  213 

special  proceedings,  214 

statutory  proceedings,  215 

in  what  courts  right  can  be  claimed,  216. 

who  may  claim  right,  217. 

the  power  of  the  legislature,  217. 

reasonable  limitations  permitted;   demand, 
218 

when  one  party  seasonably  claims  a  jury 
trial,  218. 

minor  criminal   offenses,  219. 

payment  of  jury  fees,  220. 

restricted  appeals,  221. 

unreasonable    limitations    unconstitutional, 

222 
limitations  on  right  to  jury  trial,  222. 

waiver  and  estoppel,  223 
right  to  confrontation,  224. 
waiver,  225. 

ADMINISTRATION 
FURTHERANCE  OF  JUSTICE 

See  also.  COURT  AND  JURY. 
niust  accord  equal   privileges,  657. 
fnrtherance  of  justice.   226 
Completeness  demanded.  244 
iral  statements:  proponent.  245. 
admissions  and  confessions,  246. 
oral,  247 


INDEX.   (References  arc  to  Sections.) 


951 


Administration  —  cont'd. 
oral  statements  —  cont'd. 
confessions,  248. 
independent  relevancy,  249. 

res  gestae  an  exception,  250. 
oral  statements  opponent,  251. 
probative  effect,  252. 
right  of  initiative,  253. 
former  evidence.  254. 
independent  relevancy,  255. 
rules  relating  to  incorporation  by  reference, 

255. 

documents;     proponent;     independent     rele- 
vancy, 256. 
judgment,  257. 
general  practice,  258. 
depositions,  259. 
admissions,   260. 
public  records,  261 
deeds,  wills,  etc.,  261. 
executive.  202. 
legislative,  263. 
judicial,  264. 

irrelevancy,  if  separable,  rejected,  264. 
pleadings  at  law,  265. 
pleadings  in  chancery.  266. 
statutory  interrogatories,  267. 
judgments,   268. 
verdicts,  260. 
executions,  270. 
wills  and  probate  papers,  271. 

administration,  271. 
private  records.  272 
opponent;   independent  relevancy,  273. 
incorporation   by  reference.  274. 
if  a  letter  is  introduced.  274. 
obligation   to  introduce  into  evidence  result- 
ing   from    demand    and    inspection, 
275 

primary  evidence  required.  227. 
grading  of  primary  evidence.  228. 
evidence  by   perception.   229. 
written  and  oral  evidence,  230. 
not  a  question  of  probative  force.  231. 
extent  of  administrative  action,  232 
necessity   for   using  secondary   evidence,   233. 
grounds    of   necessity:    witnesses   or    docu- 
ments. 234 

difficulty  of  proof,  subject-matter,  234. 
degrees  of  secondary  evidence,  235. 
how  objection  is  taken,  236 
"  best  evidence  "  as  a  rule  of  procedure,  237 
"  best   evidence "    rule    at   the   present    time, 

238. 

present  scope  of  rule,  239. 
a  sole  survival.  240 
hearsay.  242 
a  vanishing  rule.  241. 
attesting  witnesses,  243. 
prevent  surprise.  276. 

new  trial  for  newly  discovered  evidence,  277. 
action  of  appellate  courts.  278. 
amendment  of  pleadings,  279. 


Administration  —  cont'd. 

action  of  appellate  courts  —  cont'd. 

decisions  on  dilatory  pleas,  280. 

testimony,  281. 

production  of  documents,  282. 

time  and  place  of  hearing,  283. 

surprise  must  be  prejudicial,  284. 
protection  against  unfair  treatment,  285. 

unfair  comment,  286. 

incidental  comment  permitted,  287. 
unreasonable  comment,  288. 
comments  on  law,  289. 

influence  of  spectators,  290. 

misquoting  evidence,  291. 

reprimanding  counsel,  292. 

reprimanding  a  party  or  his  witnesses,  293. 

effect  of  waiver,  294. 
protect  witnesses  from  annoyance,  295. 

cross-examination.  296. 

a  reasonable  limitation,  297. 

intimidation,  297. 

innuendo,  297. 
judge  may  interrogate  witnesses,  298. 

in  order  to  elicit  material  facts,  299. 

range  of  injury,  300. 

judge   may   call   additional   witnesses,    301. 
judge     should    hold    balance    of     indulgence 
even.   302 

uso  of  incompetent  testimony,  302. 
judge  should   require   full   disclosure,   303. 
expedite  trials.   304. 
methods   employed,    304. 

judge  should  aim  to  give  certainty  to  sub- 
stantive  law.   305 

action  of  appellate  court:    judicial  function 
of  trial  judge;  substantive  law,  306. 
findings  of  fact,  307. 

farts   conditioning   admissibility.    308. 

competency  of  witnesses,  309. 
administrative  function  of  trial  judge,  310. 
executive  function,  of  trial  judge.  311. 

all    intendmonts    made    in    favor    of    trial 
judge,   312. 

powers  of  an  appellate  court,  313. 

modification  of  action.  314. 

ADMISSIBILITY 

public  documents  of.   1049. 

ADMINISTRATIVE  BOARDS 
judicial  knowledge  of,  342. 

ADMINISTRATORS 
admissions  by.  537. 
final  settlement  of,  proof  of,  1065. 
proof  of  appointment  of,  271.  1065. 
proof  of  deed  executed  by,  1101 

See  also,  PROBATE  COURTS. 

ADMIRALTY   COURTS 
judicial  knowledge  of  lav-.  324. 
judicial   knowledge  of   seal   of.  344. 
jury  trial  in.  207,  216. 


952 


INDEX.   (References  are  to  Sections.) 


Admiralty  Courts  —  cont'd. 

presumption   from   failure  to  call   witnesses, 

486. 
presumption  from  spoliation  of  property,  439. 

ADMISSIBLE  EVIDENCE 
defined,  10. 

ADMISSIONS 
judicial 

admissions   defined,   499. 
probative  force,  500 
formal    judicial    admissions,    501. 
canons  of  construction,  501. 
levamen  probationis,  501. 
control  of  court,  501. 
limitations  upon   effect,  501. 
form  of  admissions,  502. 

pleadings;   in  same  case,  503. 
constituting  the  issue,  504. 
deliberative  facts,  505 
use  as  admissions,  506. 
administrative  details,  506 
in  other  cases:   formal  ion  of  issue,  507 
use  as  admissions,  508. 
conditions  of  admissibility,  508. 
civil  and  criminal  cases,  508. 
code   pleading,   509. 
law  and  equity,  510. 
equity   pleadings;    answer,   511. 
bill,  511. 

state  and  federal  courts,  512. 
superseded  or  abandoned ;  evidence  re- 
jected,  513 

verification  by  oath,  etc.,  513. 
minor   details,   513 
evidence  admitted,  513. 
stipulations,  514. 

informal    judicial  admissions.  515. 
probative  force.  515. 
adoption    by   party,    oral  evidence,  515 
written   statements,  515. 
depositions,   515 
form    of    admissions:    oral;    testimony    by 

party,    ">lti 
criminal   discs.   r>l(i 
committing  magistrates,   inferior   courts, 

etc..  510. 

conditions   of   admissibility.   510. 
civil    and    criminal    cases,    510. 
minor  details,  51  (i. 
how  testimony   may   be  proved.  516. 
explanation    permitted,  516. 
writings,    517. 
affidavits,  518. 
criminal    cases.   5IS. 
invalid  affidavits.  518. 
depositions.   .V_J0 

answers    to    interrogatories.    519. 
invalid  depositions.  520. 
judicial   admissions:    by   whom    made,   521. 
attorneys,  522. 

matters  of   procedure.   52:2. 


Admissions  —  cont'd. 
judicial  —  cont'd. 

acts  in  pa  is,  522. 
responsibility   for  claims,  522. 
responsibility   for   concessions,  522. 
substratum  of   fact,  522. 
probative  force,  523. 

other  cases,  523. 

formal   judicial  admissions  conclusive,  524. 
informal      judicial,   admissions     constitute 

prima  facie  case,  525. 
extra-judicial 

extra-judicial  admissions;   definition,  526. 
confession  distinguished,  583. 
declarations    against    interest    distinguished, 

882. 

effect  of  withdrawn   plea   of  guilty,   525-a. 
hearsay  as,  879. 
effect   on    presumption    of   death    after    seven 

years,  455 

evidence  of,  may  be  discussed  by  judge,  287. 
use  a   general  one,  527. 
criminal  cases,  527. 
time  of  making.  527. 
minor   details,   527. 
conditions   of  admissibility;    statement  must 

be  one  of  fact,  528. 
psychological   facts.   528. 
matter  of  law,  528. 
statement  must  be  voluntary,   529. 

criminal    cases,    529 
statement  must   be  certain,  530. 
statement    must    be    complete,    246-247,    260, 

531,  f>44 

written   declarations,   531. 
statements  on  other  occasions,  531. 
criminal  cases,  531. 

self-serving  acts,  appearances,  etc.,  531. 
self-serving  statements,  531. 
irrelevancy,  531 
weight   and   credibility,  531. 
statement  must  be  relevant,  532. 
remoteness,   532 
criminal  cases.  532. 

conditions    of    probative    relevancy;     ade- 
quate knowledge,  532. 
infants,  feeble-minded,  etc.,  532. 
deliberative     facts;      contradictory     state- 
ments, 532. 
extra-judicial    admissions:    by    whom    made; 

parties.   533. 
parties  to  the  record,  534. 

criminal   cases.   534 
co-parties;    declarant    affected    as    if    sole 

party.  535 

necessary    prejudice.   535. 
oo- party   not    affected.   536. 
exceptions  to  rule.  536. 
negotiable   instruments,   536. 
self-serving    statements,    536. 
joint   ownership,  5.3t> 
the  declarant   must  be  a  party,  536. 
rights  of  copariy.  536. 


INDEX.   (References  are  to  Sections.) 


953 


Admissions  —  cont'd. 
extra-judicial  —  cont'd. 
joint  offenses,  536. 
joint  liability,  536. 
nominal   parties,   537. 

principal  and  agent,  537. 

persons   acting   in   a    fiduciary   capacity, 

537. 

persons  beneficially  interested,  538. 
mental  states,  538. 
corroboration   and  impeachment,  538 
res  gestae,   538. 

persons  acting  in  fiduciary  capacity,  538. 
test   of   beneficial   interest,   538. 
admissions  by  privies,  539. 
claim,  539. 
disclaimer,   539. 
mental  state,  539. 
evidence  primary,  539. 
independent    relevancy;    admissions    dis- 
tinguished, 539 
mental   condition,   539. 
injured  person  in  a  criminal  proceeaing, 

539 
admissions  by  agents,  540. 

specific  authority  must  be  shown,  540. 
statement     must     be     within     scope     ot 

agency,   540. 
proof  of  agency  by  declarations  of  agent, 

540. 

the  statements  of  a  special  agent,  540. 
general  and  special   agency,   540. 
in  case  of  a  general  agency,  540. 
opinion  excluded.  540 
the  statements  of  both  general  and  spe- 
cial agents,  540 

agency  must  be  affirmatively  shown,  540 
evidence  is  primary,  541. 
res  gestae  in  this  connection,  542. 
admissions   by  conduct,   542. 
narrative  excluded,  542 
admissions    may    be    in    narrative    form, 

542 

spontaneity  required,  542. 
independent  relevancy  distinguished,  543 
probative     or     constituent     acts     of     an 

agent,  543 

impeachment,  inconsistency,  etc.,  543. 
mental  state,  543. 

statements  through  interpreter,  543. 
form  of  extra-judicial  admissions;   adoption, 

544. 

memoranda  as,  109S 
in  offers  of  compromise,  575,  578 
in  res  gestae,  963. 
completeness    will    be    required,    246,    247, 

260,  544 

evidence  is  primary,  544. 
oral,  544 

criminal  cases,  544. 
references  to  another,   545 
writing,  546 

book-entries,  547. 


Admissions  —  cont'd. 

form  of  extra-judicial  —  confd. 

admissions  of  non-owner  of  books,  547. 
loan  agencies,  railroads,  547. 
when  original   entries  need  not  be  pro- 
duced, 547. 
effect  of  agency,  547. 
independent  relevancy,  547. 
banks,  547 

partnership  books,  547. 
real  estate,  547. 
banks,  547. 

business  documents,  548. 
commercial  paper,  549. 
letters,  550. 

minor  details,  550. 

self-serving  statements  not  competent, 

550. 

completeness  required,  550. 
criminal  cases,  550. 
obituary  notices,  551 
official   papers,  552. 
professional  memoranda,  553. 
tax  lists,  554 

temporary   or   ephemeral   forms   of   writ- 
ing, 555. 

transmission  by  telephone,  556. 
scope  of  extra-judicial  admissions,  557. 
evidence  of  death,  455. 
effect  of  on  proof  of  documents,  1100. 
as  to  contents  of  documents,  1123. 
specific  as  confessions,  613. 
mental   conditions,   557. 
mental  state,  557. 

criminal  cases;   facts  of  conduct,  557. 
physical  facts,  557. 
contents  of  a  writing,  557. 
probative  force  of  extra-judicial  admissions, 

558 

judicial  estimates:  unfavorable,  558. 
question  for  the  jury,  558. 
criminal    cases,   558. 

declarant  may  explain,  supplement,  558. 
judicial  estimates;   favorable,  558. 
not   conclusive  in   the  absence  of  estoppel, 

558. 

criminal  cases,  558. 
deceased  persons,  558. 
prima  facie  quality,  558. 
impeachment,  558 
criminal  cases,  558. 

See  INTEREST,  DECLARATIONS  AGAINST. 
by  conduct 
admissions  by  conduct;   inconsistent  conduct, 

550' 

an  attempt  to  escape,  559. 
declining    to    flee,    voluntary    return,    etc., 

559 

suppressing  prosecution,   559. 
bodily  condition,   559 
order  of  acts,  559 
actor  alone  affected,  559 
flight.  559 


954 


INDEX.   (References  are  to  Sections.) 


Admissions  —  cont'd. 
by  conduct  —  cont'd. 

explanation  received,  559. 

clear   relevancy   demanded,   559. 

mental  state,  55!). 

conduct  consistent  with  adversary's  claim, 

569 

failure  to  advance  present  defense,  559 
failure  to  allege  present  claim,  55!) 
efforts  at  settlement,  559 
silence,  5tiO. 

fail  lire  to  object  to  written  statements,  561. 
party    must   be    under    a   definite   duty    to 

declare  the  truth,  561. 
obligation  of  good  faith,  561 
effect  of  denials,  561 
conditions    of    admissibility ;    party    must 

understand   the  statement,  561. 
probative   force,  562. 
active   adoption.   562. 
effect  of  partial  answers,  562. 
inference  rebuttable,  5(i2 
scope  of  inference:   book  entries,  563. 
evidence  admitted,  563 
letters,  563 

commercial  writings,  563 
legal  documents,  563. 
criminal  cases,   563. 
independent  relevancy,  564 
falsehood,   565. 
silence  as  proof  of  acquiescence,  566. 

inference  of  acquiescence  rebuttable,  566 

civil  cases,  566 

criminal   prosecution,  566 

aelf-serving   statements.  566 

conditions  of  admissibility,  567 

statement    must    have    been    understood, 

5(>S. 
understanding    assumed     from     hearing, 

.->6s 

all    attendant    subjective    facts    consid- 
ered, 568 
attention,  568 
all   attendant  objective  facts  considered, 

5U8 

denial  must  be   natural,  569 
declaration  must  invite  a  reply.  569. 
failure  to  deny  later,  569 
inducements  to  silence,  569 
husband  and  wife,  569 
time    should    be   appropriate   for   denial, 

569. 
the  declarant  must  be  entitled  to  reply, 

569 

party  expected  to  speak,  569 
silence  of  prudence,  569. 
effect  of  arrest,  569. 
duty  to  speak.  569. 
adequate  knowledge,  570 
party   must   be   physically  and  mentally 

capable  of  reply,  571 
probative  force  and  effect,  572 
statements  and  other  facts,  573. 


ADMITTANCE 
court  room,  to,  79,  80. 

ADOPTION 

admissions  made  by  another,  544. 

ADULTERY 

admissions  by  co-defendant,  536. 
presumption  of  legitimacy,  446-450. 
proof  of  character  for  chastity,  1033. 
sufficiency  of  evidence  in  divorce  case,  410. 
testimony  of  husband  or  wife,  1155. 

ADULTS 

estimate  of  age  of,  ".')(> 

ADVERSE  POSSESSION 

presumption   of   lost   grant,   472. 

ADVICE 
counsel,  of,  as  defense  to  contempt,  101. 

AFFECTION 
opinion  as  to,  711. 

AFFIDAVITS 

admissions  in,  518. 
admission  of,  1063 
hearsay,  as,  878. 

AFFILIATION 
See  BASTARDY. 

AFFIRMATIVE  DEFENCE 
burden  of  proof  of,  criminal  cases,  401. 

AGE 

See  also,  DOCUMENTS,  ANCIENT. 
ancient  documents,  of,   1103 
appearance  in  court   to  show,   1134. 
documents,  of,  opinion  as  to,  769. 
estimate  of,  736. 
evidence  of  one's  own,  940. 
infant,  of,  determined  by  inspection,  61. 
pedigree  declarations  as  to,  931,  940. 
presumption  of  capacity  for  crime,  463. 
proof  of,  by  admissions,  557. 
reputation   to  show,  934. 

AGENCY 

acquiescence  or  silence  of  agent.  566. 
admissions  by  agents,  537.  540-543. 
admissions  of  agent  bind  himself,  537. 
agreements,  best  evidence  rule,   1121. 
conclusion  of  witness  as  to,  805 
offer  of  compromise  by  agent,  576. 
parol  evidence  to  show,   1118 
presumption  of  authority  of  agent,  469. 
proof  of,  540. 

proof  of,  by  unsworn  statement,  843 
deed  executed  by  agent,  proof  of,   1101 
spontaneous  statements  by  agents,  964,  976. 
unsworn  statements  by  agents,  843. 


INDEX.   (References  are  to  Sections.) 


955 


AGREED    STATEMENTS    OF    FACTS 

use  of,  47. 

former  evidence  as  to,  036. 

AGRICULTURE 
See  also,  FARMING. 
judicial  notice  of  facts  of,  362. 
judicial  notice  of  seasons,  353  n. 
opinion  of  value  of  services,  757.. 

AIM 
judge,  of,  305. 

ALDERMEN 

judicial  knowledge  of,  341. 
presumption  of  regularity  of  acts  of,  493. 
See  also,  MUNICIPAL  CORPORATIONS. 

ALE 

judicial  notice  of,  353. 

ALIBI 

burden  of  evidence  as  to,  404. 

ALIENIST 
opinion  of,  722 

See  also,  EXPERTS. 

ALMANACS 

judicial  notice  of  facts  of,  354. 
use   of,  to  discover   matters   of   judicial   no- 
tice, 366. 

ALTERATIONS 

age  of  alterations  in  documents,  769. 
document,  in,  opinion  of,  769. 
documents,  of,  presumption  from,  442. 
instrument,    of,    parol    evidence    rule,    1108- 

1120. 
public    record,    of,    parol    evidence    to    show, 

1120  n. 
subsequent,   of   writing,    parol   evidence   rule, 

1116. 

AMBASSADORS 
exempt  from  subpoena,   1140. 

AMBIGUITY 

document,  construction  of.  57. 
parol  evidence  rule  as  to,   1115. 
term  "  expert,"  of,  676. 

AMENDMENT 

pleadings,  of,  effect  on  admissions  in,  513. 
pleadings,   of,   warrants  stav   of   proceedings, 

279. 
public  acts,  of,  judicial  knowledge  of,  331. 

AMNESTY 
judicial  knowledge  of  granting  of,  336. 

AMUSEMENTS 
judicial  notice  of,  358. 


ANCIENT  BOUNDARY 
proof  by  tradition,  876. 

ANCIENT  DOCUMENTS 
proof  of,  1102-1107. 
presumption  of  death  of  attesting  witnesses, 

474. 

See  also,  DOCUMENTS,  ANCIENT;  ANCIENT 
FACTS. 

ANCIENT  FACTS 
presumption  of  regularity  of,  490. 
proof  of,  056. 
proof  of,  by   secondary   evidence,  234. 

ANCILLARY  FACTS 
relevancy  of,  068. 

ANGER 
opinion  as  to,  711. 

ANIMALS 

bloodhounds  tracking  criminal,  797. 
character  of,   1042,   1046. 
conduct  of,  694. 
diseases  of,  opinions,  722. 
estimate  of  age  of,  736. 
estimate  of  speed  of,  740. 
evidence  of  appearance  of,  692. 
habits  of,  skilled  witness  as  to,  389. 
identification  of,  696. 
judicial  notice  of,  358,  362. 
mental   states  of,   711 
opinions  as  to,  718. 
opinion  of  cause  of  act  of,  739. 
opinion  as  to  change  of  value,  749. 
opinion  of  identification,  695. 
other  acts  to  show  knowledge,  1012. 
pedigree  of,  939. 
production  in  court,  1133. 
transportation  of,  opinion  as  to,  732. 
use  of,  account  books  to  show,  990. 

ANNOYANCE 

protection  of  witnesses  from.  295. 
unsworn  statements  to  show,  847. 

ANNULMENT 
judgment,  of,  sufficiency  of  evidence,  411. 

ANSWERS 

admissions  by,  503-506.  511. 
burden  of  proof  on  plea  in,  398. 
interrogatories,  to,  admissions  by,  519. 
special  interrogatories,  to,  52. 

ANTI-NUPTIAL  CONTRACT 
sufficiency   of   evidence  for   specific   perform- 
ance of,  411. 

APPEAL 
right  of,  from  jury  decision,  221. 


956 


INDEX.   (References  are  to  Sections.} 


APPEARANCE 

accused,   of,   as   innocent,  531. 
failure  to  appear,  presumption  as  to,  436. 
opinions  as  to,  093 

APPELLATE  COURTS 

action  of,  75,  80,  1:53,  134-145,  154,  190,  199, 
200.  278-284,  300-314,  343,  687, 
755,  1132. 

APPENDIX 

state  document,  to,  1057. 

APPLAUSE 
prevention  of,  in  court  room,  290. 

APPLIANCES 
railroad,  expert  evidence  as  to,  814. 

APPLICATION 

for  jury  trial,  218. 

insurance  policy,  for,  admissions  in,  548. 

insurance  policies,  for,  proof  of,   1099. 

APPOINTMENT 

administrator,  of,  pi  oof  of,  271,   1065. 
interpreters,  of,  154. 

judicial  knowledge  of,  334 

APPRAISALS 
admission  of,   1082. 
estate,  of,  proof  of,  1065. 

APPRAISER 
opinion  of  value  by,  753. 

APTITUDES 
presumption   of  continuance  of,   421. 

ARBITRATION 

admissions  on,  529 

ARCHITECTS 

experts,  as,  716,  811. 
opirion  by,  716. 

AREA 

opinion  as  to,  740. 

ARGUMENT 
matters  of,  53. 
by  witnesses,  53. 

judge  not  m|   :n-d  to  listen  to,  116. 
restricting  length  of,  304. 
withdrawal  of  jury  during,  183. 

ARMY 

opinion  of  officers  of,  728. 
records  of,  admission  of,  1082. 

ARREST 

effect  of.  on  acquiescence  by  silence,  ;"i(i!l. 
witnesses,  of,  as  contempt  of  court,  109. 
effect  of,   on  confession,   593. 


ARSON 

character  evidence  in,  1033. 
other  offenses  as  res  gestae,  839. 
sufficiency  of  evidence  to  show,  in  civil  case, 
410. 


ART 


evidence  as,  22. 


ARTS 

judicial   notice  of,   358. 
mechanic,  judicial  notice  of,  358,  362. 
state  of,  skilled  witness,  383. 

ASSAULT 

character  evidence  in,   1030,   1033. 

dying  declarations,  !>00. 

on  officer  serving  process  as  contempt,   108. 

other  offenses,  proof  of,  839. 

res  gestae  in,  839. 

ASSENT 
unsworn  statements  to  show,  847. 

ASSESSMENT 
best  evidence  rule,  1121. 
damages,  of,  jury  trial  in,  215. 
property  for  taxes,  of,  judicial  knowledge  as 

*  to,  335. 
taxes  of,  regularity  of,  493. 

ASSESSMENT  ROLL 
record  of,  1083. 

ASSESSORS 
opinion  of  value,  753. 

presumption  of  regularity  of  acts  of,  493. 
records  of,   1083. 

ASSIGNMENTS 

copies  of  foreign  records,  1090. 
parol    evidence   to   show    nature    of    transac- 
tion, 1118  n. 

parol  evidence  rule,  1108. 
proof  of,   1099. 


ASSIZE 


trial  by,  120. 


ASSOCIATIONS 

unincorporated,  contempt   of  court  by',   103. 
records  of  secret  societies,   1096. 

ASSUMPTIONS 

See  also,  PRESUMPTIONS. 
procedure,  of,  444 

ASSUMPTION 
facts,  of,  by  judge,  126. 

ATHEIST 
witness,  as,   1148,   1153. 


IXDEX.    (References  are  to  Sections.) 


957 


ATTACHMENT 

attendance  of  witnesses,  for,  1141. 
record  to  show,  1082. 

ATTACKS 

on  court  officers  as  contempt  of  court,  106. 
See   also,    ASSAULT. 

ATTENDANCE 

witnesses,  compelled  by  court.   103. 
preventing  attendance  of,  as  contempt,  109. 

ATTENDANTS 
court,  contempt  of  court   by,   103. 

ATTORNEY-GENERAL 
judicial  notice  of,  343. 

ATTESTATION 
judicial  records,  of.  1074. 
See  also,  AUTHENTICATION  :   DOCUMENTABY 

EVIDENCE 

ATTESTING  WITNESSES 
proof  of  document  by.   1 100. 
as  a  best  evidence  rule,  243. 

See  also.    WITNESSES. 

ATTORNEYS 

See  also,  POWEH  OF  ATTORNEY. 
action  of  judge  in  reprimanding,  292 
admission  by,   521,   522. 
aiding   violation   of   order    for    separation   of 

witnesses,  03. 

comment   upon  evidence,  by,  297. 
consultation  with  witness,  87. 
contempt  of  court.   101,   102,   105. 
insulting  witnesses.   205. 
judicial  notice  of.  343 
offensive   treatment   of   witnesses   upon   cross 

examination.  206. 
misquotation   of  evidence  by,   201. 
mistake  of,  corrected  by  judge,   131. 
obstructing   justice,    104. 
opinion  of  value  of  services  of,  759. 
presumption  of  knowledge  of  law,  477. 
presumption  of  regularity  of  acts  of.  493. 
privileged    communication    to,    11(10-1164. 
restricting   length  of  argument  of,  304. 
restricting  number  of.  304. 
stipulations  as  admissions,  514 
subject  to  order  of  court,   102,   105. 
suggestions  by   judge  to,   200  n. 
sufficiency  of  evidence  in  disbarment  of,  410. 
testimony  of   law   in   foreign   state,   386. 
witnesses,  as,   1154 

AUCTIONEER 
opinion  of  value  by,  753. 

AUCTIONS 
"basis  for  opinion  of  value,   763. 


AUTHENTICATION 
certificate  of  death,  of,  455. 
copies  of  judicial  records,   1059,  1066-1079. 
copy  of  records,   1085. 
map,  of,  10S2. 
ordinances,  of,  1056 
private  documents,  of,   1099. 
proof  of  documents,   1123. 
public  documents,   1053,  1054. 
records  of  private  corporations,   1092. 

AUTOMOBILES 

estimate  of  speed  of,  740. 

AUTOPSY 
expert  evidence  as  to.  727. 

AUTHORITY 

agent,  of,  presumption  of,  460. 
agent,  of,  to  make  admissions,  540. 
burden  of  evidence  of  want  of,  406. 
signing   of   instrument,    parol   evidence  rule, 
1110. 

AVOIDANCE 
danger,  of,  presumption  of,  424. 

AWARDS 
best  evidence  rule,  1121. 


B 


BAD  FAITH 

other  acts  to  show,   1014. 
unsworn  statements  to  show,  847,  852. 

BAILMENT 
proof  of,  by  unsworn  statement,  843. 

BALLOTS 

best  evidence  rule,  1121. 

BANK  BOOKS 
admissions  in,  547 

BANKING 

admissions  in  books  of,  547. 
judicial  notice  of,  3(i2. 
laws  judicially  known,  326. 

BANK-NOTES 
identification  of,  4(i6,  607. 

BANK  OFFICER 
opinion  on  handwriting  by,  768. 

BANKRUPTCY 

admissions  made  in  proceeding  of,  516,  529. 
admissions  in  records  of,   552 

BARGAIN  WITNESSES 
proof  by,   120. 


958 


INDEX.    (References  are  to  Sections.) 


BASTARDY 

accusation  in  travail,  968. 
character  evidence  in,  1030. 
presumption   of   legitimacy,   446-450. 
resemblance  as  evidence  of  paternity,   1135. 
sufficiency  of  evidence  in  civil  case,  410. 

BATTLE 
trial  by,  120. 

BEER 

judicial  notice  of,  353. 

BELIEF 

as  a  subject  of  admissions,  528. 
dying  declarant,  of,  908. 
opinion  as  to,  711. 
unsworn  statement  to  show,  847. 
witness  stating,  673,  711. 

BEST   AND   SECONDARY   EVIDENCE 
distinction  between,   11. 

BEST  EVIDENCE 

See  also,  ADMINISTRATION-.   PRIMARY  EVI- 
DENCE; SECONDARY  EVIDENCE. 
in  general 

attesting   witnesses,   243. 
a  vanishing  rule,  241. 
classes  of  primary  evidence,  231. 
denned,   11. 

degrees  of  secondary  evidence,  235. 
inability  to  procure  witnesses,  234. 
manner  of  taking  objection,  236. 
necessity  for  use  of  secondary  evidence,  234 
present  scope  of  rule,  23!) 
proof  of  ancient  facts,  234. 
right  to  produce-  secondary,   150. 
rule  at  present  time,  238,  242 
rule  of,  considered,  227-243. 
rule  of  procedure  as  a,  237. 
spoliation    of   primary   evidence,   use   of   sec- 
ondary, 440. 

application  to  documents 
writing  executed  in  duplicate,   1122. 
when  proof  other  than  by  original  allowed; 

administrative  requirements,    1123 
may  be  authenticated  as  genuine,   1123. 
admissions  relating  to  contents,    1123. 
loss  or  destruction  of  original,   1124. 
amount  of  proof  required,  1124 
evidence  to  establish,   1124. 
province  of  the  jury,   1124 
a  question  for  the  presiding  judge,  1124 
diligence  required  in  search,  1125 

a  question  for  the  presiding  judge,  1125. 
public  records:  official  and  judicial,  112(J 
voluminous     facts     in     different     writings, 

1127. 

writing  collateral  to  issues,   1128 
writing  in  control  of  adverse  party,  1129. 
requirements  as  to  notice,  1129. 
notice  to  produce:   necessity  of,  1129 
writing    in    possession    or    control    of    third 
party;   out  of  jurisdiction.   1130 


BEST  OF  JUDGMENT 
witnesses  stating  matter  to,  673. 

BIAS 

declarations,  892. 

medical  witness,  of,  726. 

witnesses,  of,    11S4. 

witnesses,  of,  instructions  as  to,  131. 

BIBLE 

entries  in,  936 
evidence,  as,  940. 

BIGAMY 

presumptions  in,  498. 

presumption  of  death,  after  absence  for  seven 

years,  451-461. 
testimony  of  wife,  1155. 

BILLIARD    ROOM    PROPRIETOR 

account  book  of,   992. 

BILL  OF  DISCOVERY 
admissions  in  answer  to,  511 

BILLS  AND  NOTES 

See  NEGOTIABLE  INSTRUMENTS. 

BILLS  OF  EXCEPTIONS 
admission  of.   1063 
former  evidence  as,  636. 

BILLS  OF  LADING 
proof  of,  1099. 

BILLS  OF  SALE 
best  evidence  rule,   1121. 
copy  of  record,  1089. 
corporate,  proof  of,  1101. 
parol  evidence  of,   151,  1108. 
parol   evidence,   interpretation  of,    1115. 
parol    evidence    to    show    nature   of    transac- 
tion,  1118n. 
proof  of,  1099. 

BIRTH  RECORDS 
proof  of.  1082. 

BIRTHS 

church  records  of,  admission  of,  1094. 

copy  of  foreign  records  of,  1091 

pedigree  declarations  as  to,  930,  931,  941. 

See  also,  PEDIGREE. 

presumption  of  child  bearing  capacity,  423. 
proof  of  record,  262 
reputation  to  show,  934 

BITTERS 

judicial  knowledge  as  to,  353  n. 

BLASTING 

opinion  as  to,  719  n 


IXDEX.   (References  are  to  Sections.) 


959 


BLOCKADE 

evidence  of  existence  of,   1057. 

BLOCKS 

municipal    corporations,    in,    judicial    notice 
of,  355. 

BLOODHOUNDS 

tracking  criminals,  797. 

BLOTTER 
admissions  in,  547. 

BOARD 

charges  for,  account  books,  990. 

BOARD   OF  ALDERMEN 

See  ALDERMEN. 

BOARD  OF  HEALTH 

proof  of  results  of,  1082. 

BOAT  LANDING 
opinion  of  safety  of,  699. 

BODY 

deceased,  of,  inspection  of,  by  jury,  1137. 

BONA  FIDES 
See  Goon  FAITH. 

BONDS 

parol  evidence  rule,  1108. 
best  evidence  rule,  1121. 
for  appearance  of   witnesses.    1144. 

BOND  REGISTER 

admission  of,  1082 

BOOK  ENTRIES 

admissions  by,  547 
failure  to  object  to,  563. 

See  SHOP  BOOKS. 

BOOKKEEPERS 

footings  of,  admissions  by,  555. 

BOOKKEEPING 

See  SHOP  BOOKS. 

BOOKS 

See  also,  PUBLIC  DOCUMENTS. 
absence  of,  as  negative  fact,  667. 
conclusions  from,  799 
entries   in   course   of   business.   914-924. 
hearsay,  as,  S77. 
opinion  as  to  keeping.  717 
shop  books  as  evidence,  977-995 
use  by  expert.   S29. 

use   of.   for   matters   of    judicial   notice,   366, 
368.   369. 


BOUNDARIES 

declarations  as  to,  891,  894. 

foreign  government,  of,  judicial  knowledge 
as  to,  330. 

judicial  districts,  of,  judicial  knowledge  as 
to,  342. 

judicial  notice  of,  355. 

proof  of,  by  unsworn  statement,  843. 

reputation  to  show,  874. 

states  and  municipalities,  of,  judicial  knowl- 
edge of,  338. 

BRANDY 

judicial  notice  of,  353. 

BREACH  OF  PROMISE 

character  evidence  in,  1035. 

BREADTH 

opinion  aa  to,  740 

BREEDERS 

pedigree  books,  939. 

BRIBERY 

court  officers,  of,  as  contempt  of  court,  106. 
inference  from  bribery  of  witnesses,  433. 
jury,  as  contempt  of  court,  106. 
witnesses,   of,   as   contempt,   109. 

BRIDGE 
opinion  of  safety  of,  699. 

BRIEFS  OF  EVIDENCE 

former  evidence  as,  636. 

BROKER 
opinion  of  value  by,  753. 

BUILDERS 

opinion  by,  716. 

BUILDING 

opinion   as  to,   759. 

skilled  witness  as  to  matters  of,  385. 

BULL 

proof  of  character  of.   1046. 

BURDEN  OF  EVIDENCE 

burden  of  evidence.  402 
ancillary  facts,  670. 
position  of  burden  of  evidence,  403. 
criminal  cases,  404. 
contrary  views.  404 
self-defence,   404. 
presumption  of  sanity,  404. 
continuance  of  mental  state,  404. 
alibi.  404 
intoxication.  404. 
insanity.   404 

facts  known  to  adverse  party,  405. 
negative   facts.  406 


960 


INDEX.   (References  are  to  Sections.} 


Burden  of  Evidence  —  cont'd. 
position  of  burden  of  evidence  —  cont'd. 
the  sounder  view,  40G. 
burden  of  evidence  not  shifted,  406. 
quantum  of  evidence  required,  406 
methods  of  proving  a  negative,  406. 
modern  instances,  406. 
scope  of  burden  of  evidence,  407. 
media  of  proof,  407. 

quantum  of  proof  required;  number  of  wit- 
nesses, 40!S. 
prima   facie  case,  40!), 

psychological  constituents,  409. 
criminal  capacity,  409. 
scope  of  requirement,  409. 
quantum    in   civil   and   criminal   cases 

contrasted,  40!). 
grade  of  offense,  40!) . 
definition  of  "  reasonable  doubt,"  409. 
"  beyond  a  reasonable  doubt,"  409. 
identity  of  accused,  409. 
not  a  question  of  evidence,  409. 
statutory  requirement,  409. 
inertia  of  court,  409. 
"  by  a   fair   preponderance  of  the  evi- 
dence," 409. 
special  inertia  of  the  court;   civil  cases, 

410. 

suits  for  penalties,  410. 
allegations  of  crime,  410. 
documents,  411. 
fraud,  411. 

substitutes  for  documents,  411. 
specific   performance,   411. 
modification,   411. 
impeachment,   411. 
reformation  of  absolute  deed  into  trust 

or  mortgage,  411 
equitable  relief,  411. 
same;   intension  of  evidence,  411. 
parol  proof  of  contents  of  documents; 

extention   of   evidence,   411. 
waiver  of  fights  under  a  valid  instru- 
ment, 411. 

reformation  of  instrument,  411. 
criminal  cases.  412. 

grades  of  ofl'enses.  412. 
effect  of   presumptions,  413. 
burden  of  evidence,  413 
burden  of   proof.  413. 

BURDEN  OF  PROOF 

preliminaries  to  a  trial  by  jury,  392. 
burden  of  proof  has  a  double  meaning,  393. 
position  of  burden  of  proof:   who  would  fail 
if    no    further   evidence   were   intro- 
duced, 394. 
never  shifts,   395. 
common  law  pleading,  396. 
negative   allegations,   3^96. 
burden  on  defendant,  396. 
burden  on  plaintiff,   396. 
what  defenses  are  affirmative,  396. 


Burden  of  Proof  —  cont'd. 

position  of  burden  of  proof  —  cont'd. 

replication,  396. 
equity  pleading,  397. 
statutory  pleading,  398. 

counterclaim  or  set-off,  398. 
actions  in  rem,  etc.,  399. 
criminal  cases:  burden  on  prosecution,  400. 

offense  not  outlawed,  etc.,  400. 

venue,  400. 

negative  allegations,  400. 

corpus  delicti,  400. 

presumption   of  innocence,   400. 

competency   of   evidence,   400. 

affirmative  defences,  401. 

insanity,  401. 

BUREAUS 
government,  judicial  knowledge  as  to,  334. 

BURGLARY 

character  evidence   in,   1033. 
other  offenses  as  res  gestae,  839. 

BUSINESS 

common  knowledge  as  to,.  359. 
documents,  admissions,   548. 
entries  in  course  of,  !)  14-924. 
judicial  notice  of  customary  methods  of  do- 
ing, 350. 

judicial  notice  of  matters  of,  360. 
presumptions  as  to,  425. 
regularity   of,   425,    1007. 
relations,   presumption  of  continuance,  422. 
^killed  witness  as  to  affairs  of,  384. 
>killed  witness  as  to  management  of,  388. 
opinions  as  to,  717. 

BUSINESS  DOCUMENTS 
admissions  in,  548 
failure  to  object  to  entries  in,  563. 

BY-LAWS 

corporate,  shown  by  its  records,  1092. 
judicial  knowledge'of,  329. 
labor   union,   of,  judicial   knowledge  of,   329. 
presumption  of  knowledge  of,  477. 

BYSTANDER 

sta'ement  of,  independent  relevancy  of,  843. 


CABINET  OFFICERS 

judicial  knowledge  as  to,  334. 

judicial  knowledge  of  signatures  of,  340. 

CALCULATION 

damages,  statement  of  judge  as  to,  128. 
mathematical,  admissions  by,  555 

CALENDARS 
use  of,  to  discover  matters  of  judicial  notice, 
366 


LXDEX.    (References  are  to  Sections.} 


961 


CANCELLATION 
instrument,  of,  sufficiency  of  evidence,  411. 

CANONS  OF  ADMINISTRATION 
See  ADMINISTRATION 

CAPABILITY 

commission   of   crime,   of,   opinion   of   physi- 
cian as  to,  709 
estimate  of,  737. 
other  occurrences  to  show,   1006. 

CAPACITY 

accused,  of,  quantum  of  evidence,  409. 
child  bearing,  for,  presumption  as  to,  423. 
presumption  of,   in  criminal  cases,  463. 

CAPTAIN 

vessel,  of,  skilled  witness  as  to  duties,  387. 

CAR 

opinion   of    suitability   of,   699. 

CARBON  COPIES 
admission  of,   1122. 

CAREFULNESS 
presumption  of,  424. 

CARPENTERING 
expert  opinion  as  to,  811. 

CARRIERS 

presumption   of  negligence  of,   469. 

See  also,  RAILROADS;   STREET  RAILWAYS. 

CATTLE 
condition  of,  693 

CAUSATION 

opinion  as  to,  739. 

other  occurrences,   1005. 

railroad  accidents,  of,  expert  evidence  as  to, 

814. 

CAUSE 

death,  of,  opinion  as  to,  722. 
reasonable,  in  case  of  malicious  prosecution, 

56. 

CAUSE  AND  EFFECT 
See  CAUSATION. 

CAUTION 
witnesses,  of,  673. 

CENSUS 

judicial  notice  of,  354,  359. 
proof  of,  1057 

CERTAINTY 
admissions,  of,  530 
confession,  of,  5S3 
law,  of,  rulings  on   facts.  60. 
substantive  law,  to,  305. 


CERTIFICATES 
by  public  officers,  1081. 

CERTIFIED  COPIES 

ancient  documents,  of,   1104. 
public  documents,  of,  1069. 
records,  of,  1086. 

CHANCERY 

admissions  in   pleadings,  510. 
bill  in,  completeness  of  proof  of,  266. 
See  also,  EQUITY. 

CHANGE 

in  health,  opinioi)  as  to,  693. 
mental,  opinion  as  to,  701. 
presumption  against,  416. 
proof  of  other  acts  to  show,  1024. 
testimony  of  witness,  in,  as  surprise,  281. 
value,   in,  opinion  as  to,  749. 
value,  in,  other  occurrences  to  show,  1006. 

CHARACTER 

dying  declarant,  of,  911. 
opinion  of,   711. 

presumption  of  continuance  of,  421. 
presumption  of  good,  476,  495. 
relaxation  in  proof  of,  656. 
witnesses,  of,   1183. 

inference  of  conduct  from  character,  1025. 
necessity,  1026. 
relevancy,    1027. 
rule  stated;  civil  cases,  1028. 
criminal  cases,   1029. 
quasi-criminal    cases,    1030. 
administrative  details,   1031. 

physical   or   mental   impairment,   1032. 
trait  must  be  relevant,   1033. 
inferences    other    than    conduct;    independent 

relevancy,   1034. 

character  a  constituent  fact,  1035 
character  a   probative  fact,   1036. 
proof  of  character ;    reputation   is  character, 

1037. 
what     witnesses     are    qualified;     adequate 

knowledge.    1038. 

knowledge  of   the  community,   1039. 
remoteness   in   time.   1040. 
absence    of    controlling    motive    to    mis- 
represent,  1041 
animals.   1042. 

probative  force:    reputation,   1043. 
proof  other  than  by  reputation,  1044. 
particular   facts,    1045. 
animals;    illustrative    occurrences,    1046. 
use  of  to  impeach  witness,   1183 
weight,  1047 

See  SIMILARITY  MORAL. 

CHARACTERISTICS 
farm  animals,  of,  judicial  notice  of,  362. 


902 


IXDKX.    (References  are  to  tied  ions.) 


CHASTITY 

breach    of    promise, 


character 


in    actions   of 

evidence   in.    1035 
presumption  of,  470  n. 
proof  of,  by  reputation,  656. 
proof  of  character  for,  1033 
want  of,  continuance  presumed,  421. 

CHATTEL  MORTGAGES 
copy  of  record,  1089. 

CHECKS 
identity  of,  697. 

CHECK  STUBS 
receipt  of,  982. 

CHEMISTRY 
See  also,  SCIENCE. 
opinions  as  to,  718. 
skilled  witness  as  to,  385. 

CHIEF  MAGISTRATE 
state,  of,  judicial  knowledge  as  to,  337. 

CHILD  BEARING 
presumption  of  capacity  for,  423. 

CHILDREN 

admissions  by,  532. 
confessions  of,  585 
development  of,  opinion  of,  693. 
dying  declarations  of,  901. 
estimate  of  age  of,  736. 
leading  questions  to,  1172. 
presumption  of  capacity  for  crime,  463. 
presumption  of  legitimacy,  446-450. 
proof  of  marriage  by  fact  of,  943. 
spontaneous  statements  by,  976. 
witnesses,  as,  97,  1149. 

CHINESE 
witnesses,  as,  1159. 

CHURCHES 
See  also,  ECCLESIASTIC  MATTERS. 

CHURCH  RECORDS 
admission  of,  1094. 

CHURCH  REGISTERS 
admission  of,   1004 

CHURCH  SESSION 
privileged  communications  to,  1165  n. 

CIGARS 

judicial  notice  of.  358  n. 

CIRCUMSTANTIAL  EVIDENCE 
defined.    14 

direct  evidence  is  primary  as  compared  with 
22S 


Circumstantial  Evidence  —  cont'd. 

direct  contrasted,   14. 

importance  of,    14  n. 

declarations  as  to  public  matters,  893. 

handwriting,  of,  705 

inference  from,  697. 

pedjgree,   937,    940. 

wider  range  of  proof,  055. 

CITATION 

See  PROCESS. 

CITIES 

ordnances  of,  see  ORDINANCES. 
judicial  knowledge  of  aldermen,  341. 
judicial  notice  of  growth  of,  359. 
proof  of  ordinances,  1056. 
right  to  jury  trial,  217. 

CITIZEN 
corporation  as,  471. 

CITIZENSHIP 

presumption   of  continuance,  419. 
proof  by  reputation,  948. 

CITY  CLERK 
copies  of  ordinances,  10SS. 
record  of,  proof  of  ordinance  from,   1056. 

CITY  COURTS 
judicial  knowledge  of  law,  330. 

See  also,  INFERIOR  COUBTS. 

CIVIL  CASES 

acquiescence  by  silence  in,  566. 

character  evidence  in,   102S. 

conflict  of  presumptions  in,  496. 

dying  declarations  not  received  in,  900. 

hearsay   rule   in,   868. 

judicial  admissions  in,  508 

presumption  of  innocence  in,  478. 

presumptions  of  law,  445. 

proof  of  documentary  evidence  in,  1099. 

Milliciency  of  evidence,  410 

CIVIL  CONTEMPTS 
defined,  101 

See  also,  Coi'BT  AND  JURY. 
defined,  111. 

CIVIL  ENGINEERING 
See  also,  ENGINEERING. 
opinions  as  to,  718. 

CIVIL  LAW 

hearsay  in.  807 

presumption   of  survivorship  in,  485. 

CIVIL  SERVICE  COMMISSIONERS 
presumption  of  regularity  in  acts  of,  493. 

CIVIL  WAR 
judicial   notice   of.   3f,!>. 
judicial   notice  of  historv  of.  359. 


.   (References  are  to  Sections.\ 


963 


CLAIM 

against  decedent's   estate,  proof  of,   1065. 
other  acts  to  show,  1014. 
proof  of,  by  unsworn  statement,  843. 
property,  to,  proof  of,  539. 

CLERGYMEN 
privileged  communications  to,  1165. 

CLERKS 

court,  judicial  notice  of,  343. 
of  court,  contempt  of  court  by,  103. 
presumption  of  regularity  of  acts  of,  493. 
records  of,  1082. 

See  also,  COUNTY   CLERKS. 

CLERKS 
shop  book  rule,  977-995 

CLOSING 

See  OPENING  AND  CLOSING. 

CLOTHING 

judicial  notice  of,  358. 
real  evidence  as,  1136,  1137. 

CO-DEFENDANTS 

cross  examination  of  witnesses  by,  172. 
right  to  open  and  close,  160  n. 

CODE  PLEADING 
admissions  in  pleadings.  509 
right  to  open  and  close  under,  162. 

COERCION 

presumption   of,   462. 

See  DURESS. 

COGNIZANCE 

See  KNOWLEDGE. 

COHABITATION 

continuance  presumed,  422. 
marriage  proved  by,  943. 
presumption  of  marriage,  446. 

COINS 

identification   of,   466. 
identity  of,  697 

COKE 

maxim  of,  considered,  44. 

COLLATERAL  MATTERS 
elimination  for  expedition   of  trial,   304. 

COLLECTION  REGISTERS 
receipt  of,  982. 

COLLECTORS 
See  TAX  COLLECTORS. 

presumption  of  regularity  of  acts  of,  493. 
records  of.   1083. 


COLONIES 

judicial  knowledge  as  to,  336. 

%      COLOR 

evidence  of,  691. 

person,    of,    appearance    in    court    to    show, 
1134. 

COMBUSTION 

judicial  notice  of  laws  of,  353. 

COMMENTS 

by  judge  as  to  propriety  of  law,  289. 
incidental,  by  judge,  permitted,  287. 
on  facts  by  judge,  122. 
unfair,  by  judge,  286. 

COMMERCE 
judicial  notice  of  development  of,  359. 

COMMERCIAL  AGENCY 

record  of,   1093. 

COMMERCIAL  CENTERS 
judicial  knowledge  of,  355. 

COMMERCIAL  EMPLOYMENT 

value  of  services  in,  759 

COMMERCIAL  MATTERS 

expert  evidence  in,  811. 

COMMERCIAL  PAPER 

as  admissions,  549. 

See  NEGOTIABLE  INSTRUMENTS. 

COMMON  CARRIERS 

judicial  knowledge  as  to,  332,  362. 

See  also,  CARRIERS-.    RAILROADS;    STREET- 
RAILWAYS. 

COMMON  KNOWLEDGE 
distinguished  from  judicial,  317. 
defined,  345. 

See  KNOWLEDGE,  COMMON. 

COMMON  LAW 

discretion  in,  75  n. 

judicial   knowledge  of,   322,   323. 

presumption  of  similarity,   494. 

COMMON  PURPOSE 
See  PURPOSE. 

COMMISSIONS 
proof  of,  1082. 

COMMITTEE 

proof  of  appointment  of.   1065. 

COMPARISON  OF  HANDS 

evidence  of,  775-7S7 

See  HANDWRITING. 


964 


INDEX.   (References  are  to  Sections.} 


COMMITMENT 
prisoner,  of,  record  of,  1083. 

COMPETENCY, 
witnesses,  of,  action  of  appellate  courts,  309. 

COMPETENT  EVIDENCE 
defined,   12. 

COMPLAINANT 

burden  of  proof  on.  398. 
declarations  of,  in  rape,  969. 
testimony  of,    1 184. 

COMPLAINT 

admissions  by,  503-500 
enforcement  of  contempt,   110. 

COMPLETENESS 

admissions,  of,  531,  544,  550. 
confession,  of,  246,  248,  583. 
demanded   in   administration,   244. 
dying  declarations,  of,  899 
letters,  of,  550. 

COMPONENT  FACTS 

Sec  also,  FACTS. 
defined,  29. 

COMPOUND  FACTS 

See  also,  FACTS. 
simple   contrasted,   27. 

COMPOUNDING  FELONY 
evidence  of  attempts,  559 

COMPROMISE 

efforts  at,  559. 

COMPROMISE.  OFFERS  OF 
offers  of  compromise:   rule  of  exclusion,  574. 

collateral   purposes,  574. 

concessions  of  liability  received;  accepted  of- 
fers, 575 

incidental  admissions  of  liability,  575. 
liability  assumed,   575 
by    whom    compromise   offer    may   be   made; 

plaintiff,  570 
defendant.  576. 
agent.  570 

independent  relevancy,  577 
specific    admissions,    57S 

connection    with    compromise    negotiations, 

578 

what  offers  ate  for  peace,  579. 
function  of  the  court,  579. 
determining  factors;  amount  suggested, 

579. 

time,  579. 

subse<|iien1    to  negotiations,  579. 
prior    to   negotiations.    579 
without  prejudice;   English  practice,  580. 
reasons  for  the  rule;  value  of  peace.  581. 


COMPURGATION 
trial  by,  120. 

COMPUTATION 

interest,  of,  on  a  note,  admissions  by,  555. 

CONCEALMENT 

documents,   of,   presumption    from,   442. 
witnesses,     of,     presumption     against     party, 
437. 

CONCLUSION  FROM  OBSERVATION 
fact 
conclusions  from  observation,  79-2. 

administrative      requirements:       necessity, 
793. 

relevancy,   preliminary  detail  of  facts.  794. 
conclusions  of  fact:   when  admitted,   795. 

sufficiency,  796. 

bloodhounds  tracking  criminal,  797. 

utility.    79S. 

voluminous  data,  799. 
when   rejected:   conduct,  800. 

inferences.  801. 

suppositions,  HI2. 
law 

conclusions  of  law.  80,3. 
legal   reasoning,   804. 
when  admitted.  805 
intrusion    upon    the    function    of    the    court, 

806. 
when  conclusion  is  received,  807. 

CONCLUSIONS 

witnesses,  of,  672-087. 

See   also,    WITNESSES. 
admissions,  as,  52* 
dying  declarations,   in,   908. 
found  by  jury,  52. 

CONCLUSIVE  EVIDENCE 

defined.   13. 

CONCLUSIVE  PRESUMPTIONS 

nature  of,  469,  470. 

CONDEMNATION 
jury  trial  in  proceedings  of,  215. 
burden   of  proof,   399 

CONDITIONAL  DELIVERY 
parol  evidence  to  show,   1111. 

CONDITIONS 

animals,  of,  693. 

CONDUCT 

admissions  by,  559-573. 
agent,   of,   admissions   by,   542. 
conclusions  from,  800 
inference  of,  from  character,  1025. 
judicial    notice    of    standards    of    reasonable, 
357. 


INDEX.   (References  are  to  Sections.) 


965 


Conduct  —  cont'd. 
opinion  as  to  matters  of,  694 
presumption    of    intention    of    consequences, 
475. 

CONFEDERACY 

proof  of  official  papers  of,  1057. 

CONFESSION  OF  JUDGMENT 

admission,  as,  502 

CONFESSIONS 

completeness  of,  246,  248. 
confessions,  582 

requisites  of  admissibility,  583. 
misleading  inducements,   584 

hope  and  fear;  how  mental  state  is  estab- 
lished; subjective  considerations, 
585 

objective  considerations;    hope,  586. 
assumption  of  continuance,  587. 
physical  or  mental  discomfort,  588. 
pain,  580 
threats,  590 
moral  or  religious,  591. 

fear  of  death,  591 

who  are  persons  in  authority,  592. 
effect  of  arrest,  593 
effect   of  suspicion,  594 
deception,  595. 
illegality,   506 

self  inci  imination;   history  of  doctrine,  597. 
"  nemo  tenetur  se  ipsum  accusare  ";  present 

rule  stated,  598 
procedure  and   reason,  599. 
knowledge  and  yvaiver,  600. 
preliminary   hearings,   601 
duress,  002 
form  of  confessions,  603. 

completeness  required,  24(5-248 
independent  relevancy.  604 
introduction    of   confession    in   the   evidence; 

hearing  on  voir  dire,  605. 
hearing  of  the  jury.  606. 
leaving  question  to  the  jury,  607 
probative    force;    infirmative    considerations, 

60S 

judicial  confessions,  609. 
corroboration   required.    610. 
a  que>tion  for  the  jury,  611 
judicial  views,  612 
specilic  admissions,  613. 
to    whom    extrajudicial    confession    is    made, 

614. 

administrative  detail.  615 
the  evolution  of  reason,   616 

CONFIRMATION 
See  CORROBORATION. 

CONFLICT 

presumptions,  of.  496 


CONFLICTING  EVIDENCF 
does  not  authorize   inference   of  fabrication, 
433. 

CONFRONTATIO 

right  of,  224. 

dying  declarations,  913. 

waiver  of  right  of,  225. 

CONFUSION 

goods,  of,   presumption   against  wrong  doer, 
430. 

CONGRESS 

judicial  kmnvledge  of,  341 

CONJECTURE 

admissions  in  form  of,  530. 

does  not  constitute  reasonable  doubt,  409. 

excluded,  802. 

CONNOISSEUR 

opinion  of  value  by,  759. 

CONSCIOUSNESS 
opinion  of,  701. 

CONSENT 

other  acts  to  show,   1014. 
shown  by  silence,  566. 

CONSEQUENCES 
presumption  of  intention  of.  475. 

CONSIDERATION 

lack  of,  burden  of  proof,  396. 
parol  evidence  rule.    1100 

CONSISTENCY 
admissions,  of.  530. 
parties,   in,  compelled.   78. 

CONSISTENT  FACTS 

probative  relevancy  of.  665 

CONSPIRACY 
other  acts  to  show,   1016 
proof  of,  by  unsworn  statement,  843. 

CONSTABLES 
contempt  of  court  by,  103. 
judicial  knowledge  of,  343. 
presumption  of  regularity  of  acts  of,  493. 
report  of,  922 

CONSTITUENT  FACTS 

See  also,  FACTS. 

administrative  powers  of  court,  52. 
application  of  law  to.  42. 
compound    and    component    facts    contrasted, 

32 

determination  of,  42 
judicial  notice  of,  351. 


966 


INDEX.   (References  are  to  Sections.) 


CONSTITUTION 
judicial  knowledge  of,  320 

CONSTITUTIONAL  LAW 

power  of  federal  judge  to  punish  for  con- 
tempt, 99. 

federal   right   to   jury    trial,   207 

limitation  on  right  to  jury  trial,  222 

exclusion  of  public  from  court  room,  83  n. 

extension  of   right  of  jury   trial,   217. 

interrogation   of   witnesses   by   judge,   298. 

infringement  on  presumption  of  innocence, 
479. 

presumption  of  constitutionality  of  statute, 
429 

right  of  cross  examination  of  witnesses,  172. 

rule  as  to  dying  declarations,  913. 

statute  creating  presumptions,   462 

statute  declaring  effect  of  facts,  37. 

statutes,  of,  making  certain  facts  prima 
facie  evidence,  of  others,  409. 

CONSTRUCTION    (INTERPRETATION) 

See  also,  PAROL  EVIDENCE;   DOCUMENTARY 

EVIDENCE, 

contracts,  of,  witness  not  to  state,  806. 

documents,  as  question  of  law,  57 

judicial  admissions,  of,  501. 

law,  of,  presumption  of  knowledge  of,  477. 

parol  evidence  rule  for,   1115. 

presumption  of  similarity,  494. 

words,  of,  evidence  as  to.  55 

CONSTRUCTION  (MECHANICAL) 

firearms,  of,  opinion  as  to,  719. 
mines,  of,  skilled  witnesses  as  to.  389 
railroads,  of,  expert  evidence  as  to,  814. 
railroads,  of,  opinion  as  to.  731. 
street  railways,  expert  evidence  as  to,  815. 
street  railways,  of,  opinion  as  to,  732. 
telegraph  lines,  of,  opinions  as  to,  733. 
street    railways   of,    skilled   witnesses    as   to, 

matters,  of,  391 
vessels,  of,  opinion  as  to,  718. 

CONSTRUCTIVE  CONTEMPT 
defined,  112. 

CONSTRUCTIVE  PRESENCE 
of  judge,   113. 

CONSULS 

judicial  knowledge  of  signatures  and  seals 
of,  340  n. 

CONSULTATION 

attorney  and  witnesses,  87. 

CONTEMPT 

See  also,  COURT  AND  JURY. 
civil   and   criminal.    101,    111 
constructive  presence  of  judge,  113. 
direct  and  constructive,   112. 


Contempt  —  cont'd. 

failure  of  witness  to  appear,  1147. 

jury  trial  in  proceedings,  214. 

orders  enforced  by,   110-113. 

power  of  appellate  courts  in  matters  of,  313. 

sulliciency  of  evidence  in  cases  of,  410. 

violation   order   for    separation   of   witnesses, 

92,   93. 
power  of  federal  judge  to  punish,  99. 

CONTINUANCE 

life,  presumption  of.  451-461,  496 
assumption    of    continuance   of    life    or    fear, 

587. 

mental  state,  of,  presumption  of,  404. 
presumption  of,  416-422. 

CONTINUANCE    (ADJOURNMENT) 

See  also,    ADJOURNMENTS. 
for  judge  to  examine  law,  333. 
to  meet  unanticipated  testimony,  281. 
surprise  as  ground  for,  276. 

CONTRACTS 
See  also,   DOCUMENTS. 

account  books,  to  show,  991. 

admissions  in,  548. 

admissions  by  party  jointly  responsible,  536. 

best  evidence  rule,   1121. 

executed  under  power  of  attorney,  proof  of, 
1101. 

letters  as,  152. 

oral,  construction  of,   as  a  question   of   law, 
57,  58 

oral  evidence  to  show  delivery  of,   1128. 

parol  evidence,  interpretation  of,   1115. 

parol  evidence  of,  151,   1108. 

proof  of,  by  unsworn  statement,  843. 

sufficiency   of   evidence   for   specific    perform- 
ance of,  411. 

sufficiency  of  evidence  of,  cancellation  of,  411. 

witness  not  to  state  legal  effect  of,  806. 

CONTRADICTION 
other  offenses  as,  839. 
proof  of  acts  for,  1021. 
writings,  of,  parol  evidence  rule,  1108-1120 

CONTRADICTORY  STATEMENTS 
prior,  of  witness,   1185. 

.  CONVERSION 
character  evidence  in  action  of,   1030. 

CONVEYANCER 
opinions  of,  721. 

CONVEYANCES 
admission  of  records,  1084. 
admissions  in,  553 
best  evidence  rule,  1121 
copies  of  records  of,  1089. 
executed   under  power  of  attorney,  proof  of, 

1101. 
parol  evidence  rule,  1108. 


INDEX.   (References  are  to  Sections.) 


967 


CONVICT 

See  also,   CRIMINAL   LAW. 
competency  as  witnesses,  1156. 
dying  declarations  of,  901. 
former  evidence  of,  625. 
records  as  to,   1083 

CO-OWNER 

admissions  of,  536 

CO-PARTY 

admissions  of,  535,  536 

COPIES 

ancient  documents,  of,  1104. 

public  documents,  of,  1051,  1066-1079,  1085- 

1091. 

See  also,   PUBLIC  DOCUMENTS. 
records,  of,   1085- 1091. 

CORONERS 

See  also,  INQUESTS. 
contempt  of  court  by,  106. 
presumption  of  regularity  of  acts  of,  493 
verdict  of,  evidence  of,  1059  n 
depositions  on  inquest  as  hearsay,  866. 

CORPORATE  OFFICERS 

proof  of,  1101 

presumption  of  continuance  of  tenure,  419. 

CORPORATE  SEAL 
records  of  private  corporations,   1092. 
See  also,  SEAL 

CORPORATIONS 

act  creating,  as  public  or  private,  332. 

admissions  by  officers,  540 

books  and  documents  of,   1092. 

citizenship  of,  471 

duration  of  existence,  judicially  known,  332 

exclusion   of  officers  from   court  room,   90. 

judicial  knowledge  of  by-laws,  329. 

obedience  to  court  orders,  103. 

oral  evidence  to  show  officers  of,   1128. 

presumptions   against   illegality   of,   495. 

presumption  of  knowledge  of  by  laws,  477. 

presumption  of  continuance  of  incorpora- 
tion, 419 

piesumption  of  continuance  of  tenure  of  of- 
fice, 419 

presumption  of  correctness  of  return,  425 

proof  of  deed  executed  by,  1101. 

pi  oof  of  records  of,  272 

reputation  to  show  existence,  948 

seal  of,  presumption  of  authority  to  affix, 
425 

subscriptions  for  stock,  parol  evidence  rule, 
1108 

CORPUS  DELICTI 

acquiescence  from  silence  to  show,  566 
burden  of  proof,  400. 
c'onfession>  as  proof  of,  610. 


CORRECTNESS 

presumption  of,  425 

CORRESPONDENCE 

admissions  in,  550. 
opinion  of,  695. 

public  officers,  of,  judicial  knowledge  as  to, 
335. 

CORROBORATION 

account  books,  of,  983 

ancient  documents,  of,  474 

burden  of  proof  as  to,  400. 

confessions,  of,  610. 

hearsay  for,  858. 

of  presumption  of  larceny  from  possession  of 
goods,  464. 

other  offenses  as,  839,  1022 

presumption  of  identity,  of,  488 

presumption  of  receipt  of  mail  from  mail- 
ing, 427. 

reputation  as,  874. 

unsworn  statements  to  show,  852. 

COST 

basis  of  opinion  of  value,  763. 

COTTON 

judicial  notice  of  value  of,  351  n. 

COUNSEL 
See  ATTORNEYS. 
advice  of,  as  defense  to  contempt,  101. 

COUNTERCLAIM 
burden  of  proof  on,  398 

COUNTIES 

boundaries  of,    judicial   knowledge  of,   338. 
judicial  notice  as  to,  355 
judicial  notice  of  history  of,  359. 
ordinances  of.     See  ORDINANCES. 
lecords,  1082 

COUNTY  AUDITOR 

presumption  of  regularity  of  acts  of,  493. 

COUNTY  CLERKS 
judicial   knowledge  of  seals  of.  340. 
presumption   of  regularity  of  acts  of,  493 
records  of.   1059-1065,   1082 

See  also,   PUBLIC   DOCUMENTS. 

COUNTY  COMMISSIONERS 
judicial  knowledge  as  to.  342 
judicial   knowledge  of  regulations  of,  329. 
presumption  of  regularity  of  acts  of,  493 
records  of,  1082. 

COUNTY  COURTS 
judicial  knowledge  as  to.  342 
presumption  of  regularity  of  acts  of,  492. 


968 


INDEX.   (References  are  to  Sections.} 


COUNTY  JUDGES 
presumption  of  regulation  of  acts  of,  493 

COUNTY  OFFICERS 
judicial  know  lodge  as  to,  337. 
judicial  knowledge  of  signatures  and  seals  of, 

340 
presumption  of  regularity  of  acts  of,  493 

COUNTY  RECORDS 
admission  of.  10S2. 

COUNTY  TREASURERS 
presumption  of  regularity  of  acts  of,  493. 
records  of,  1082. 

COURT  AND  JURY 
in  general 

a  divided  tribunal,  39 
experiments  by,  out  of  court,   1003. 
judge  or  juryman  as  witness,   1158. 
proof  of  loss  of  document,  1124. 
view  by  jury,  1139. 
who  should  apply  the  law,  40 
law  defined,  39. 
advantages  to  be  expected,  48. 
administration  by  the  court,  52. 
judge  authoritatively  announces  rule  of  law, 
41. 

differing  views,  41. 

public  policy,  41 

confusion  of  law,  41. 

criminal  cases,  41. 

double  jeopardy,  41 

civil  cases,  41 

jury  ascertain  constituent  facts,  42. 
agreed  statements  of  fact,  47. 

power  to  draw  inferences;  express  author- 
ity needed,  47. 

effect  of  agreement,  47 

a  different  view,  47 

application  of  law  to  constituent  facts,  43 
certainty  of  law:   rulings  on  facts,  60 
Coke's  maxim  considered,  44 

ad  quaestionem  juris  non  respondent  jura- 
tores —  The  second  division  of  the 
rule,  44 

preliminary  facts  conditioning  admissibil- 
ity,  44 

collateral   rulings,  44 

incidental  findings,  44. 

function  of  the  jury,  44 

"  ad  quaestionem  facti  non  respondent 
judices,"  44. 

COURT 

declarations,  902. 
comparison  of  handwriting,  789. 
construction  of  documents,  57. 
construction  of  oral  contracts,  58. 
inferences  of  fact,   46 
trial  by  inspection,  61 
demurrers  to  evidence,  59 


Court  —  cont'd. 

matters  of   argument,   opinion   or   judgment, 

53. 

matter  of  law,  54. 
conclusions  of  law,  806. 
matter    of    law    for    the    jury    an    incidental 

power,  45 

meaning  of  words,  55. 
more  rational  expedients,  46. 
special   interrogatories;    common   law,  50. 
special  interrogatories:  statutory,  51 
object  of  special  findings,  51. 
criminal  cases  excluded,  51. 
the  use  of  reason,  50. 
general  verdicts,  45. 
special  verdicts;  statutory,  49. 
court 

court  and  jury;  court,  62. 
functions  of  the  judicial  office,  63. 
judicial,  64. 

procedure  defined,  65 

rights  relating  tp  matters  of  procedure, 

66 

substantive  law  may  prescribe  the  rem- 
edy, 67. 
verbal  metabolism,  68. 

exclusive  mode  of  proof,  68. 
conclusive  presumptions,  68. 
statute  of  limitations,  68. 
distinction   not   important,  69 

the  true  distinction,  69 
promote  justice,  70. 
apply  practice,  71 

a  rule  of  court,  71. 
administrative,   72. 

field  of  administration,  73. 

reason  characteristic  of  administration,  74. 

discretion,  75. 

abuse  of  discretion,  75. 

action  of  appellate  courts  as  to  matters 

of  discretion,  25. 
absence  of  judge  from  court  room,  76. 

adjournments,  77. 

compelling  consistency  in  parties,  78. 
exclusion  of  persons  from  the  courtroom,  79. 
grounds  for  admitting  public,  80 
the  power  for  good  in  this  connection,  80. 
persistence  of  conditions,  81. 
furnish  proof  or  contradiction,  82. 
grounds  for  exclusion,  83. 
protect  public  morals,  83. 
fear  of  violence,  83. 

adjournments  to  avoid  unwise  publicity,  84. 
other  causes  for  adjournments,  84. 
separation  of  witnesses,  85. 
order  not  matter  of  right,  86. 
the  right  to  demand  a  separation  may  be 

conferred  by  statute,  86. 
what  constitutes  violation  of  order,  87. 
time  of  motion  for  order,  88. 
by  whom  motion  is  made,  89 
to  whom  the  order  applies,  90. 
in  criminal  cases,  90. 


INDEX.   (References  are  to  Sections.) 


969 


Court  —  cont'd. 

separation  of  witnesses  —  cont'd. 

corporations  as  parties,  90. 

court   officers,   jurors,    and    parties,   90. 

enforcement  of  the  order,  91. 

consequences  of  disobedience,  92. 

party's  relation  to  violation,  93. 

proceedings,  against  offending  witness,  94. 

direct  punishment  of  conniving  party,   94. 

swearing  of  witnesses,  95. 

method  of  inquiry,  96. 

children  as  witnesses;    insane   persons,   97. 

feeble-minded  and  insane  persons,  97. 

foVm  of  oath,  98. 

telephone  administration,  98. 
executive,  99. 

federal  courts,  99. 

protected  by  constitution,  99. 
require  order  and  decorum,  100. 
compel   obedience   to   directions;    administra- 
tive orders,  101. 

jurisdiction,  101. 

impossibility   of   performance,    101. 

notice  necessary,  101. 

civil  contempts,  101. 

criminal  contempts,  101. 

advice  of  counsel,  101. 

enforcement  of  rights,   101 

attorneys,  102. 

advice  given  in  good  faith,  102. 

others  subject  to  directions,  103. 
compelling  production   of   public   documents, 

1058. 
protect  the  course  of  justice,  104. 

intent  not  material,   104 

attorneys,  105 

court  officers,   106. 

newspapers;    embarrassing  the  administra- 
tion of  justice,  107. 

service  of  process,   108 

witnesses,   100. 
enforcement  by  contempt  proceedings,   110. 

civil  and  criminal  cases,   111. 

criminal  contempts,   111 

direct  and  constructive,  112 

constructive  contempts,   112 

constructive  presence  of  judge,  113. 
judge  sitting  as  a  jury,   114 

rulings  of  law,   1 15. 
administrative  questions,   110 
evidence  as  a  matter  of  administration,   117. 
stare   decisis   as   applied   to   the    law   of   evi- 
dence, 118. 

blending  substantive  law  with  administra 

tion,  118. 

recapitulation,  119. 
jury 

the  growth  of  the  jury  system,  120. 
function   of   the   jury;    jury   confined   to   the 

issue,  121 
comment  on  facts,  122. 

English  and  federal  courts,  123. 

federal  courts,  123 


Court  —  cont'd. 

comment  on  facts  —  cont'd. 

the   American   minority,    124. 

American  majority,   125 

assumption  of   facts,    126 

refusal  of  assumptive  instructions,   127. 

uncontroverted   facts,   128. 

the  elements  of  damage,   128. 

weight   and  credibility,   129. 

when  comment  is  permitted,   130. 

customary  cautions,  131. 
subordination  of  judge  to  jury,  132. 
granting  of  new  trials;   verdicts  against  rea- 
son or  weight  of  evidence,   133 

action   of   appellate   courts;    palpable  con- 
fusion, 134. 

technical  errors  as  to  evidence,  135. 

substantive  law,   136. 

English  rule;   harmless  error,  137. 

American  majority,  138. 

federal  courts,  139. 

criminal  cases,  140. 

a  purely  voluntary  situation,  141. 

futile  legislation,   142. 

technical   inerrancy  required,   143. 

American   minority,    144. 

prejudice  from  error,  145. 
taking  jury's  opinion,   146. 

COURT  CLERKS 

admission  of  records  kept  by,  1082. 
contempt  of  court  by,  103. 
judicial  notice  as  to,  343. 
piesumption  of  regularity  of  acts  of,  493. 
judicial  records  of,  admission  of,   1059. 

COTTUT  OFFICERS 

attack  on,  as  contempt  of  court,  100. 
contempt  of  court  by,  103,  106. 
judicial  knowledge  of,  343. 
not  excluded  from  court  room,  90. 

COURT  RECORDS 

judicial   knowledge  of,  344. 

COURTROOM 

absence  of  judge  from,  76. 
adjournment  to  place  outside  of,  84. 
exclusion  from,  79. 

COURT  RULES 
judicial  knowledge  of,  343. 
matter  of   procedure.   71 

COURTS 
See  also.  FEDERAL  COURTS;  FOREIGN  COURTS; 

STATE  COURTS. 

assumption  of  regularity  of  acts  of,  492. 
competency  of  children  as  witnesses,   1149. 
judicial  knowledge  of  length  of  sessions,  342. 
judicial    knowledge   of   organi/.ation    of,    342. 
spoliation  as  an  insult  to.  432. 
judicial    records,    evidence    of,    1059-1065. 

COURTS  MARTIAL 
jury  trial  in,  216 


070 


INDEX.   (References  are  to  Sections.) 


COURT  TERMS 
judicial  knowledge  of,  342. 

COVERTURE 

admissions  during,  534. 
parol  evidence  to  invalidate  writing,  1114. 
presumption   of   continuance,   419. 
presumption  of  coverture,  462. 
presumption  of  legitimacy  of  children,  446- 
450. 

CREDIBILITY 

admissions,  of,  531 

medical  witnesses,  of,  726. 

witnesses,  of,  comment  by  judge,  129. 

CREMATORIES 

judicial  notice  of  operation  of,  360  n. 

CREW 

skilled  witnesses  of  duties  of,  387. 

CRIMINAL  CONTEMPTS 

defined,   111 

civil  contempts  contrasted,  101. 

CRIMINAL  LAW 
accusation  in  travail,  968. 
;ir<|iiiescenee  from  silence,  566. 
action  by  accused  as  innocent,  531. 
admissions  in,  516,  527,  529,  557. 
admissions  in  letters,  550 
admissions    over   telephone   556. 
admissions    by    others    as    to   commission    of 

offence,  534. 
amendment   of    pleadings    in,    as   ground    for 

continuance,  279. 
burden  of  evidence,  404. 
burden  of  proof,  400. 
character  evidence,  in,   1029. 
comparison   of  handwriting,   786. 
compelling   attendance   of   witnesses,    1145. 
competency  of  convict  as  witness,  1156. 
completeness  of  admissions,  531. 
conflict  of   presumptions,  497. 
cross  examination   of   witnesses,    172. 
declarations  of  complainant  in  rape,  969. 
declarations    of    owner     upon    discovery    of 

crime.  973 

determination  of   law,  41. 
direction  of  verdict,   193. 
dying  declarations,   895-913. 
expert  evidence,  H08 

failure  of  accused  to  answer  letter,  563. 
former  evidence  in,  620. 
general  verdict   in,  45. 
hearsay,  rule  of,  868. 
identity  of  arru>«].  sufficiency  of  evidence  of, 

409 

judicial  admissions,  508. 
new   trial   140 

other  offences.     See  I!KS  INTER  ALIOS. 
plea  of  guilty  as  admission,  502. 


Criminal  Law  —  cont'd. 
plea  of  guilty  withdrawn,  525-a. 
preponderance  of  evidence,  408. 
presumption    against   accused    for   failure   to 

testify,  436. 

presumption  against  wrongdoing,  495. 
presumption  of  innocence,  478-484. 
presumption   from   failure   to   call    witnesses, 

435. 

presumption  from  forgery  of  document,  434. 
presumption  from  spoliation,  431. 
presumption  of  capacity  for  crime,  463. 
presumption  of  coercion,  462. 
presumption  of  good  character,  470. 
presumptions  of  law,  444. 
presumptions  of  law,  462-468. 
presumption    of    regularity    of    official    acts, 

493. 
privilege  of  freedom  from  self-incrimination, 

597-601. 

probative  force  of  admissions,  558. 
proof  of  documentary   evidence,    1099. 
proof  of  marriage  by  reputation,  943. 
punishment    prescribed    by    substantive    law, 

67. 

real  evidence  in,   1137. 
relevancy  of  admissions,  532. 
res  gestae  in,  839 
right  to  jury   trial,  211,  219. 
spontaneous  statements  in,  967. 
tracking  criminals  by  bloodhounds,   797. 
scope  of  burden  of  evidence,  412. 
scope  of  extra-judicial  admissions,  557. 
separation   of   witnesses,   90. 
shifting  of  burden  of  proof,  395. 
special  interrogatories,  51. 
suppression     of     evidence     in,     presumptions 

from,  435. 

use  of  admissions  in  affidavit,  518. 
use  of  corporate  records,  1092. 
waiver  of  jury   trial,  212. 
sufficiency  of  evidence  to  show  in  civil  case, 

410. 
other    acts,    to    show    capability    of    accused, 

1023. 

CROPS 

opinion  of  values  of,  759,  760,  Sll. 

CROSS  EXAMINATION 

See  also,   WITNESSES. 
a  matter  of  procedure,  71. 
handwriting  expert,  78o,  791. 
offensive  treatment   of  witnesses  upon,  296 
opinion  witnesses,  of,  827. 
reasoning  tested  on,   830 
right  of,  171,  172,  1174,   1175. 

CROSSING 

opinion  of  safety  of,  699. 


IXDEX.   (References  are  to  Sections.) 


971 


CUMULATIVE  EVIDENCE 
newly  discovered,   not  ground  for  new  trial, 

277. 
restricted  for  expedition  of  trial,  304. 

CUSTODY 
of  ancient  documents,   1103. 

CUSTOM 

account  books  to  show,  !J90. 
business,  judicial   notice  of,  358. 
business,  skilled  witness  as  to,  384. 
parol  evidence  of,  1115. 
presumption  of  following,  425. 
reputation  to  show,  874. 

CUSTOM  HOUSE 

appraisals  made  by  officials  of,  admission  of, 
1082. 


DAMAGES 

account  book  to  show,  991. 
comment  by  judge  on  elements  of,  128. 
multiplied,    sufficiency    of    evidence    in    case 

of,   410. 

prescriped  by  substantive  law,  67. 
presumption    against    party    removing    proof 

of,  430. 

DANGER 
definitions,  of,   1. 
manufacturing,    of,    skilled    witnesses    as    to, 

388. 

mines,  of.  opinion  as  to.  729. 
presumption  of  avoidance  of,  424. 
railroad  operations,  of,  expert  evidence  as  to, 

814. 

DATE 

document,  of,  presumed  correct,  425. 
family  events,  of,  reputation  to  show,  934. 
identification  of,  unsworn  statement  for.  852. 
letter,    of,    date    of    mailing    not    presumed 

from.  426 
ratification    of    treaty,   of,   judicially   known, 

327 
unsworn  -.tatement  to  show,  846 

DAY  BOOK 

See  SHOP  BOOKS. 

DEAF 

mute  as  witness,   153,  155. 
witnesses,   1148. 

DEAF  MUTE 
not  presumed  to  be  idiot.  424. 

DEATH 

See  also.   DYIXG   DECLARATIONS. 
agent   of    effect  on  bis  admissions.  541. 


Death  —  cont'd. 

as    justification    for    receipt    of    declaration, 

883. 

attesting  witnesses,  of,   presumption  of.  474. 
cause  of,  opinion  as  to,  722. 
••hurch   records   of,  admission  of,    1094. 
copy  of  foreign  record  of,  1091. 
determined  by  inspection,  61. 
expert  evidence  as  to,  812. 
fear  of,  as  inducement  to  confession,  591. 
husband  or  wife,  of,  effect  of  on  competency, 

1155 

pedigree  declarations  as  to,  931,  942. 
presumption  of,  after  absence  for  seven  years, 

451-401. 

leputation  to  show,  934. 
testator  of,  proof  of,  1065. 
tradition  to  show,  935. 
witness,  of,  former  evidence,  622. 
witness,  of,  introduction  of  former  evidence, 

619. 
witness,  of,  justifies  secondary  evidence,  234. 

DEATH  CERTIFICATE 

authentication  of,  455. 

DEATH  RECORDS. 

proof  of.   1082. 

See  also,  VITAL  STATISTICS. 

DECEDENT 

See  also.  DEATH  •.  PROBATE. 
entries  in  course  of  business  by,  914-924. 
statements  of,  861. 

DECEDENT'S  ESTATE 
proof  of  matters  concerning,   1065. 

DECEPTION 

confession  induced  by.  595. 

DECISION 

dilatory   pleas,  on.   as  surprise,  280. 

DECLARATIONS 

See  also.  ADMISSIONS.   DYINO,  DECLARATIONS. 
admissions  distinguished.  882 
against   interest.   S81-88S. 
agent,  of.  to  show  agency    540. 
entries   in   course  of  business.   914-924. 
matters   of   public   or   general    interest,   889- 

894. 
pedigree,   of,   925-948. 

See  also.  PEDIGREE. 
spontaneous,  949-976 

See  also,  RES  GESTAE. 

DEDICATION 
evidence   of,   1082. 
proof   of.  by   unsworn   statements,   843. 

DEEDS 

See  also.  DOCUMENTARY  EVIDENCE. 
ancient  documents,  as.   1106. 


972 


INDEX.   (References  are  to  Sections.) 


Deeds  —  cont'd. 

ancient,  proof  of,  474. 

best  evidence  rule,  1121. 

copies  of  foreign   records  of,   1090. 

copies  of  records  of,  1089. 

declarations    of    public    or    general    interest, 

893. 

executed  under  power,  proof  of,  1101. 
parol  evidence,  interpretation  of,  1115. 
parol  evidence  rule,  151,  1108. 
parol     evidence     to     apply     description     in, 


parol    evidence   to    show   nature   of   transac- 

tion, 1118  n. 
proof  by  copy,  261. 
record  of,  1084. 
sufficiency  of  evidence,  cancellation  of,  411. 

DEFINITENESS 

admissions,  of,  530. 
evidence,  of,  required,  658. 

DEFINITIONS 

in  general,  1 
admissible  evidence,    10. 
admissions,  499. 
circumstantial   evidence,   14. 
civil  contempts.   101,   111. 
common   knowledge,  345. 
competent  evidence,  12. 
component  facts.  29. 
composite  hearsay,  872. 
compound  facts,  28. 
conclusive  evidence.  13. 
constituent    facts,   32. 
constructive  contempts.    112. 
criminal  contempts.  111. 
danger  of,  1. 
demurrer  to  evidence,  59. 
deliberative  facts,  34. 
direct   contempts,    112 
direct  evidence,   14. 
documentary   evidence,   16. 
documents,  16 
event,   35. 
evidence,  4,  7,  8. 

"  evidence.''  secondary  meanings  of,  22. 

expert,   070,   800. 

extra-judicial  admissions,  526. 

extra-judicial   evidence,  4,  5. 

fact,  23. 

indefinite  hearsay,  872. 

judicial  evidence,  (i 

judicial  knowledge,  315. 

law,  38 

law  of  evidence,  2. 

logic,  fi44 

logical  relevancy.  36. 

market  value,  743. 

material  evidence,   15. 

matter  of  fact,  24. 

matter  of  law,  25. 

matter  of  opinion,  20.  072. 


Definitions  —  cont'd. 

negative  evidence,  20. 

negative  facts,  33. 

opinion,  26,  672. 

oral  evidence,  16. 

personal  evidence,  21. 

physical  facts,  27. 

positive  evidence,  20. 

positive  facts,  33. 

practice,  71. 

presumption  of  law,  444,  445. 

prima  facie  cases,  409. 

principal   facts,  34. 

probative  facts,  30,  34. 

procedure,  65. 

proof,   7. 

psychological  facts,  27. 

public  documents,   1048. 

public  statutes,  332. 

real  evidence,  21,  1131. 

relevancy,  3(5,  640-642. 

reasonable  doubt,  409. 

reputation,  1037. 

res  gestae,  31,  838. 

rules  of  evidence,  2. 

simple   facts,   28. 

skilled  witness,  713. 

special   knowledge,   375. 

state  of  tilings,  35. 

subjective  relevancy,  36. 

subscribing  witnesses,  1100. 

suppletory  oath,  981. 

testimony,  8. 

value,  741. 

words,  of,  as  question  of  fact,  55. 

DELAY 

justice,   of,   304. 

DELIBERATIVE  FACTS 
defined,  34 

judicial  evidence  in  domain  of,  6. 
pleadings  as  evidence  of,  505. 

DEFENSES 

affirmative,  burden  of  proof,  396. 
right  to  show,  148. 

DEFENDANT 
burden  of  proof  on,  396. 
offer  of  compromise  by,  576. 
right  to  open  and  close,   161. 

DELIVERY 

contracts,  of,  oral  evidence  to  show,   1128. 
goods,  of,  account  books  to  show,  990. 
instrument,  of.  parol  evidence  as  to,  1111. 
mail,  of,  not  presumed  from  post  mark,  426. 

DEMAND 
for  jury  trial,  218 
for   production   of  documents,   441. 
proof  of.  by  unsworn  statements,  843 
receipt  of  written,  f>(>4. 


I.XDEX.   (References  are  to  Sections.} 


973 


DEMURRER  TO  EVIDENCE 
defined,  59. 
motion  for  new  trial  equivalent  to,  191. 

DENIAL 
proof  of,  by  unsworn  statements,  843. 

DEPARTMENT  REPORTS 
judicial  knowledge  as  to,  335. 

DEPARTMENTS 

of  government,  judicial  knowledge  as  to, 
334,  337. 

DEPOSIT 
payment  of  jury  fees,  for,  220. 

DEPOSITIONS 

admissions  by,  515,  520 
admission  of,  1063. 
completeness  of,   not  necessary,  259. 
former  evidence,  as,  636. 
hearsay,  as,  858,  866. 

DEPRECIATION 

aflVcting  opinion  of  value,  763. 

DEPUTIES 

attorney-general,  judicial  notice  of,  343. 

authentication  of  public  documents  by.  See 
PUBLIC  DOCUMENTS. 

county  officials,  of,  judicial  knowledge  as  to, 
337 

county  officers,  of,  judicial  knowledge  of  sig- 
natures and  seals  of,  340. 

in  departments  of  government,  judicial 
knowledge  as  to,  334,  337. 

DEPUTY  CLERKS 
judicial  notice  of,  343 
presumption  of  regularity  of  acts  of,  493. 

DESIGN 
other  acts  to  show  unity  of,  1016. 

DESTITUTION 
opinion  of  witness  as  to,  691. 

DESTRUCTION 

See  also.  SPOLIATION. 
documents,  of,  parol  evidence,   151. 
documents,  of,  presumption  arising  from,  431, 

439 
original  document,  of,  1124. 

DETECTIVES 
testimony  of,  1184. 

DEVELOPMENT 

child,  of,  opinion  of,  693. 


DIARY 


receipt  of,  982 


DICTIONARY 

use  of,  369. 

DIMENSIONS 

opinion,  as  to,  740. 

DILATORY  PLEAS 
decision  on,  as  surprise,  280. 

DILIGENCE 
search  for  lost  document,  1125. 

DIRECT  CONTEMPT 
denned,  112. 

DIRECT  EVIDENCE 
defined,   14. 

circumstantial  contrasted,  14. 
primary  as  compared  to  circumstantial,  228. 
similarity   of   positive   evidence,   20. 

DIRECT  EXAMINATION 

facts  proved  on,  156. 
witnesses,  of,  1172-1173. 

DIRECTION 

blow,  of,  opinion  as  to,  722. 

opinion  as  to,  740. 

verdict,  of,  184 

verdict,  of,  may  be  discussed  by  judge,  287. 

DISBARMENT 
sufficiency  of  evidence  in.  410. 

DISCHARGE 

prisoner,  of,  record  of,   1083. 
proof  of,  1082. 

DISCLAIMER 

See  CLAIM 
proof  of,  by  unsworn  statement,  843. 

DISCRETION 
abuse  of,  75 
appellate  courts,  of,  75. 
judge,  of.  75 
judge,  of,  in  taking  judicial  notice  of  facts, 

364 

punishment  for  contempt  of  court,  110. 
separation  of  witnesses,  86 
use  and  abuse  of.  75. 

See  ADMINISTRATION 

DISEASES 

animals,  of,  opinions  as  to,  718. 
expert  evidence  as  to,  812. 
judicial  notice  of.  358. 
opinion  as  to  permanence  of,  722. 
symptoms  of,  skilled  witness  as  to,  390. 

DISGUST 
unsworn   statements  to  show,  847 


974 


IX I) EX.   (References  fire  to  Sections.) 


DISOBEDIENCE 

contempt  order,  excuse  for,  101. 

order  for  separation  of  witnesses,  92. 

1 

DISORDER 

exclusion  from  courtroom  to  prevent,  83. 

DISORDERLY  CONDUCT 

contempt  of  court,  100. 

DISORDERLY  HOUSE 

prosecution  for,  reputation  in,  855. 

DISPOSITION 
opinion  as  to,  711. 

DISQUALIFICATION 
presumption  of  continuance,   419. 
See  also,  QUALIFICATIONS. 

DISSENT 

unsworn  statements  to  show,  847. 

DISSIMILARITY 
relevancy  of,   1005,   1017,   1018. 
See  also,    RES    INTER   ALIOS;    SIMILARITY. 

DISTANCES 

geographical,  judicial  notice  of.  355. 
instructions  as  to  use  of  photographs,  131. 
opinion  as  to,  740 

DISTILLED  LIQUORS 
judicial  notice  as  to,  353. 

See  also,  INTOXICATING  LIQUOBS. 

DISTRIBUTION 

wealth,  of,  judicial  notice  of,  358. 

DISTRICT  ATTORNEY 
confession  induced  by,  502. 
judicial  notice  of,  343 

DISTRICT  COURTS 
See  also,  IXFKRIOR  COURTS. 
presumption  of  regularity  of  acts  of,  492. 

DIVORCE 

admissions  of  co-party,  536. 
use  of  admissions  in  case  of,  510,  5-27. 
removal   of  disability   to  testify,    1155. 
sufficiency  of  evidence,  410 

DIVORCE  COURTS 
jury  trial  in,  216. 

DOCKET 

judicial  knowledge  of,   344. 
justice  of  the  peace  of.   1064,  1070. 
rearrangement    of    cases    on,    as    ground    for 

continuance,  283 
records  of,  admission  of,   1083 


DOCUMENTS 
in  general 

absence  of,  as  negative  fact,  6G7. 
admissions  by,  515,  531,  54G-555. 
authenticity  of,   1099. 
alteration  of,  presumption  from,  442. 
as  judicial  evidence,  6. 
best  evidence  rule  as  applied  to,  1121. 
burden  of  evidence  as  to  validity  of,  407. 
burden  of  evidence  as  to,  411. 
cancellation    of,    sufficiency    of    evidence    of, 

411. 

conclusions  from,  799. 
confession,  603 

See  also,  CONFESSIONS. 
construction  of,  as  question  of  law,  57. 
copies  of  public  documents,   106ti-1079. 

See  also,  PUBLIC  DOCUMENTS. 
court,  judicial  knowledge  of,  344. 
date  of,   presumed  correct,   425. 
declarations  as  to  public  matters,  893. 
defined,    16. 

destruction  of,  presumption,  439 
documentary   evidence,    16-19. 
dying  declarations  in  form  of,  905. 
entries  in  course  of  business,  914-924. 
failure  to  object  to  entries  in,  563 
failure  to  produce,  presumption  from,  440. 
forged.     See  FORGERY. 
handwriting  of.     See  HANDWRITING. 
hearsay,  as,  878. 
identity   of,   697 

impeachment  of,  sufficiency  of  evidence,  411. 
incorporation  by  reference,  255,  274. 
instructions  as  to  value  of,  131. 
intention  of  writer  as  question  of  fact,  57. 
judicial,   1059-1065 

loss  of,  justifies   secondary  evidence,  234. 
mutilation,  442. 

oral  evidence  distinguished,   16. 
order  for  production  of,  441 
parol  evidence  rule,  1108-1120. 

See  also,  PAROL  EVIDENCE  RULE. 
pedigree  declarations,   929,  933 

See  also,   PKDKJREE. 
phenomena   of,   767-7t>9 
prepared  for  offer  of  compromise,  574. 
presumption   from   fabrication   of.   434 
presumption   from    spoliation    of,   439,   442. 
presumption  of  death   of  attesting  witnesses, 

474 
presumption    of    intent     from    execution     of, 

475. 
prevention   of  surprise  from   introduction  of, 

282 

primary   as  compared   with  oral,  230. 
privileged,    lloO 
production   of,    112!) 
production  of.  compelled.   103 
public   documents      See    PURLIC    DOCUMENTS. 
public  records,  completeness  demanded,  261. 
refusal  to  produce.   441 


INDEX.   (References  are  to  Sections.) 


975 


Documents  —  cont"  d. 

removal  of,  presumption  from,  442. 

right  of  opponent  to  read  balance,  273. 

secondary  evidence  of,   151. 

shop  books  as  evidence,  977-995. 

showing  death,  455. 

sufficiency  of  evidence  of  alteration,  411. 

to  prove  former  evidence,  637. 

trial  by  inspection,  01. 

use,  of  to  discover  matters  of  judicial  notice, 

366,  369. 

witness  not  to  state  legal  effect  of,  806. 
private    documents    and    writings;     corpora- 
tion  records;    photographs,   1092. 
photographs  or   x-ray  pictures,    1092. 
in  what  proceedings  admissible,  1092 
how  proof  may  be  made,   1092. 
commercial  agencies'  records,   1093. 
ecclesiastical  records,   1094. 
memoranda.    1098. 

to  refresh  memory :   present  memory,  1098. 
independent  relevancy :   res  gestae,   1098. 
time  of  making,   1098. 
as  primary  evidence:  admissions,  1098 
admissibility   independent   of,   1098. 
probative   relevancy,    1098. 
nautical  records,   109.5. 
secret   society   records,   1096. 
compelling  adversary  to  produce,  1097. 

Sec  Pi  BI.IC  DOCUMENTS. 
proof  of  original 
private    documents    and    writings;    proof    of 

original,   1099. 

best    evidence  of  duplicate,    1122. 
best  evidence  rule  applied  to,   1121. 
completeness,  256-272. 
secondary  evidence  of,  151,   152. 
identification    otherwise   than   by    proof   of 

execution.    1099. 

mode    of    proof:    evidence    to    show    execu- 
tion.   1099. 

attested   writings:   general  rule,  1100. 
number  required,   1100. 
sufficiency   of   proof,    1100. 
subscribing   witness;    defined,    1100. 
effect  of  admissions,   1100. 
instruments     executed    under     a     power, 

1101. 

by  trustee,   1101. 
under  power  of  attorney,  1101. 
corporation  deeds  and  writings.  1101 
official   sale  under  authority  of  decree 

and   execution,    1101. 
exceptions  to  rule.   1102. 

where     attesting     witness     unavailable, 

1102. 

mode  of  proof,  1 102. 
signature  of  maker,  1102. 
ancient  documents,   1102. 
ancient 
proof  of,  1102. 

ancient  documents:   admissible  without  proof 
of  execution,   1103. 


Documents  —  cont'd. 
ancient  —  cont'd. 

death  of  attesting  witness  to  ancient,  474. 
administrative     requirements;     absence    of 

suspicion,  1103. 
proof  of  age,  1103. 
must    have    come    from    proper    custody, 

1103. 

writings  within  rule;   copies,  1104. 
private  writings,   1105. 

necessity   of   corroborative   proof;    evidence 

of  possession,  1105. 

evidence  other  than  of  possession,   1105. 
effect  of  irregularities  in  execution  or  re- 
cording, 1105. 
deeds,  1106. 

executed  under  a  power,  1106. 
public  documents,   1107. 

DOGS 

animals 

See   also,    BLOODHOUNDS. 
i>e  of  in  tracing  criminal.   797. 
proof  of  character  of.  1046. 

DOMESTIC  LAW 

as  matter  of  fact,  25. 

DOUBLE  JEOPARDY 
considered,  41. 

DRUGS 

effect  on  competency  of  witne>s,   1152. 
evidence    that    person    is    under    influence    of, 
693. 

DRUNKENNESS 
See  INTOXICATION. 
opinion  of  ordinary  observer,  698. 
presumption  of  continuance  of  habit  of,  417. 


DUMB 


witnesses,   1148. 


DUPLICATE 
writings,   1122. 

DURATION 

corporate  existence,  of,  judicially  known,  332. 

DURESS 

confession  induced  by.  602. 
inducement  for  confession,  as  a.  588. 
parol  evidence  to  show,   1112. 
presumption  of,  4(>'2. 
unsworn   statements   to   show,   847. 

DUTIES 

officers  of  vessel,  skilled  witnesses  as  to,  387. 
presumption  of  due  performance  of,  493. 
public  officers,  of,  judicially  known,  332,  335. 
railroad  officers,   of,   skilled   witnesses   as  to, 

391 
street    railway   officers,   of,    skilled   witnesses 

as  to,  391 


976 


INDEX.   (References  are  to  Sections.) 


DYING  DECLARATIONS 

hearsay      as      secondary      evidence;      dying 
declarations,    895. 

presence  of  accused,  895. 
administrative   requirements;    necessity,   896. 

relevancy,  897. 

subjective  relevancy,  898. 

completeness   demanded,   899. 

rule  strictly  construed,  900. 

who  are  competent  as  declarants,  901 

function  of  the  court,  902. 
expectation  of  death,  903. 

modes  of  proof,  904. 
form  of  declaration,  90"). 
number   of  dying  declarations,   906. 
privilege  of  husband  and  wife,  907. 
scope  of  declaration,   90S. 
weight  for  the  jury,  909. 

a   discredited   rule,   910. 

impeachment,  911. 

mental   state  of  declarant,   912. 
rule  constitutional,  913. 


EARNING  CAPACITY 
evidence  of  reduction  of,  693. 

ECCLESIASTICAL  LAW 
hearsay  in,  867. 

ECCLESIASTICAL  MATTERS 

skilled  witness  as  to,  385. 
admission   of  records,    1094. 

EDUCATION 
judicial  notice  of,  362. 

EFFECT 
testimony  as  to  effect  of  evidence,  53. 

ELECTION  CERTIFICATES 
admission  of,   10S-J 

ELECTIONS 

judge,  of,  judicial  knowledge  as  to,  342. 
judicial   notice  of  results  of,  359. 
local  option,    judicial  knowledge  as  to,  332 
ollices,  presumption  of  regularity,  493. 
records   of.    1082. 

school  districts,  of.  records  of,  1083. 
time  of  holding,  judicially  known,  :>:!!. 

ELECTRICAL  ENGINEERING 

Sec  a  No,   K\(,iM-:r.ui.\(i. 
opinions  as  to.  "is. 

ELECTRICAL  WIRING 
opinion  as  to,  719  n. 

ELECTRICITY 

judicial  notice  of  danger  of.  357  n. 
opinions  as  to  use  of,  732,  733. 


EMBEZZLEMENT 

other  acts  to  show  knowledge,  1012. 
other  offences  as  part  of  res  gestae,  839. 

EMINENT  DOMAIN 
See  CONDEMNATION. 

EMOTIONS 

dying  declarant,  of,  908. 

EMPLOYMENT 
presumption  as  to,  469. 

ENACTMENT 

statute,    of,    presumption    of    regularity    of, 
429. 

ENCYCLOPEDIAS 

examination  by  jury.  367. 

use  of,  for  matters  of  judicial  notice,  366 

ENDORSEMENTS 
entries  in  course  of  business,  923. 

ENFORCEMENT 

contempt  proceedings,    110 

order  for  separation  of  witnesses,  91. 

orders,  of,  appellate  courts,  314. 

ENGINEER 
expert  evidence,  SI  I. 

ENGINEERING 
opinions  as  to,  718. 
skilled  witness  as  to  matters  of,  385. 

ENGINEERING  TABLES 
judicial  notice  of,  354  n. 

ENGLAND 

judicial  knowledge  of  common  law  of,  322. 
trial  by  jury,  123. 

ENLISTMENT 
proof  of,  1082. 

ENTRIES 

absence  of,  as  negative  fact,  667. 
books,  in,  admissions  by,  547. 

ENTRIES  IN  COURSE  OF  BUSINESS 
declarations  in  course  of  business,  914. 

relevancy   of    regularity,    914. 
English  rule.  91."). 
American  rule,  916. 

administrative  requirements;  necessity,  917. 
subjective   relevancv ;    adequate   knowledge, 

91S 

absence  of  controlling  motive  to  misrepre- 
sent, 919 

contemporaneousness  required,  920. 
regularity,  921 
form  of  statement,  922. 

written,  923 
nature  of  occupation,  924. 

See  SHOP  HOOKS. 


INDEX.   (References  are  to  Sections.} 


977 


EQUALIZATION  BOARDS 

presumption  of  regularity  in  acts  of,  493. 

EQUIPMENT 

farm,  of,  opinion  of  value  of,  757. 
mines,  of,  opinion  as  to,  729. 
railroads,  of,  expert  evidence  as  to,  814. 
railroads,  of,  opinion  as  to,   731. 
railroads,  of,  skilled  witnesses  as  to,  391. 
street    railways,    of,    expert    evidence    as    to, 

815.  " 

street  railways,  of,  opinion  as  to,  732. 
street   railways    of,    skilled    witnesses   as   to, 

391. 

telegraph  lines,  of,  opinions. as  to,  733. 
vessels,  of,  opinion  as  to,  718. 

EQUAL  PRIVILEGES 

allowed  parties,  657. 

EQUITY 

admissions  by  co-party   in,  536. 
admissions  in   pleadings,  510. 
burden  of  proof,  397. 
burden  of  evidence  as  to,  411. 
completeness   of    proof   of   pleadings   in,   265, 

200. 

discretion  in,  75  n. 
judicial    knowledge     of    state .  common     law 

courts,   323. 
judicial  knowledge  of  rules  and  principles  of, 

322. 

jury  trial  in,  207,  216. 
parol  evidence  to  show  mistake,  1117. 
presumption   from   failure   to   call   witnesses, 

435. 
sufficiency,  of  evidence  in,  41. 

ERROR 

granting  new  trials,  134. 

ESCAPE 

attempts  to,  559. 

jail,  ffom,  by  accused,  557. 

ESTIMATES 
estimates,  734. 

administrate  e   requirements,    735. 
age,  730. 

capabilities:   animate  objects,  737. 
mechanical,  73S. 
causation,  739 

dimensions,    speed,   weight,   etc.,   740. 
of   value,   748. 

See  EXPERTS. 

ESTOPPEL 

claim  to  jury  trial,  of.  223. 
claim  of  death  after  absence,  455. 

EVENTS 

states  distinguished.  35 
order  of.  presumption  of  regularity  of.  491. 


EVIDENCE 

admission  of  may  be  discussed  by  judge,  287. 

burden  of.     See  BURDEN  or  EVIDENCE. 

defined,  4-8. 

detiniteness  required,  658. 

demurrer  to,  58. 

elicited  by  judge,  298. 

explanation   of,  by  judge,   131. 

illegally  obtained,  226  n. 

hearsay,  as,  866. 

improper  latitude  in  meeting,  302. 

judicial  and  extra-judicial,  4,  5,  6. 

law  of,  defined,  2. 

matter   of   administration,  as,   117. 

new  trial  for  newly  discovered,  277. 

perception,  by,  229. 

preponderance  of,  308. 

proof   contrasted,   7. 

right  to  produce,  148  et  al. 

See  also,  ADMINISTRATION.       • 
restricted  to  expedite  trial,  304. 
scope  of  law  of,  3. 
secondary  waivings  of,   22. 
subdivisions  of  evidence,  9. 
admissible  evidence,  10. 
competent  evidence,   12. 
best  and  secondary  evidence,  11. 
conclusive  evidence,  13. 
direct    and    circiunstantial     evidence,     14, 

655 

material  evidence,   15. 
oral  and  documentary  evidence:   document 

defined,  16 

difficulty  of  removal,  17. 
symbolical    representations    of    thought, 

18. 
proper    scope    of    documentary    evidence, 

19. 

positive  and   negative  evidence,  20. 
real  and   personal   evidence,   21. 
testimony  distinguished,  8. 
variations  in  order  of,   164. 
See  FACTS. 

EVIDENTIARY  FACTS 

principal  facts  distinguished,  34. 

EXAMINATION 

parties,   of,   compulsory.    1134. 
restricting  length   of,   304. 
witnesses,  of,   1171-1179. 

See  also,   WITNESSES. 

EXAMINED  COPIES 

public  documents,  of,  1068. 
ancient  documents,  of,   1104. 

EXCEPTIONS 
See  BILLS  OF  EXCEPTIONS. 

EXCLUSION 
persons  from  courtroom.  79-83. 


INDEX.   (References  are  to  Sections.) 


EXCUSE 
disobedience  of  contempt  order,  101. 

EXECUTION 
documents,   of,   presumption   of   intent  from, 

475. 

documents,  of,  proof  of,  1099. 
ancient  document,  of,  proof  of,  474. 
lost  document,  of,  proof  of,   151. 

EXECUTION  BOOK 
admission  of,  1083. 

EXECUTIONS 

admissions  in  returns  upon,  552. 
admission  of,  1063. 
deed  under,  proof  of,   1101. 
proof  of,  270. 

EXECUTIVE 
documents,  completeness  required  in  proof  of, 

2(52. 

presumption  of  regularity  of  acts  of,  493. 
executive  function  of  court,  99-113. 
judicial  knowledge  of  acts  of,  336-340. 
powers  of  judge,  99. 
state,  of,  :udicial  knowledge  as  to,  337. 

EXECUTORS 
admissions  by,  537. 
proof  of  acts  of,   1065. 
proof  of  deed  executed  by,  1101. 

EXEMPLIFICATIONS 
proof  of  public  documents  by,   1067. 

EXHAUSTION 
evidence  of,  693. 

EXISTENCE 

corporate,  reputation  to  show,  948. 
law,  of,  judicial  knowledge  of,  326. 
martial  law,  of,  judicial  knowledge  of,  336. 
record,   of,  determined   by   inspection,   61. 

EXPECTATION 

witness  stating,  liT.'!. 


EXPEDITION 


trials,  of,  304. 


EXPENSE 
opinion  as  to,  740. 

EXPERIENCE 

judicial  notice  of  buman,  356 
witnesses,  of,  instructions  as  to,   131. 

EXPERIMENTS 
evidence  of,   1003.    113S. 

EXPERTS 
in  general 
general   position   of  skilled  witness,  713 


Experts  —  confd. 
ambiguity  of  terms,  676. 
conclusions  and  judgment  of,  685. 
fees,    1146. 
use  of,   175. 

reasoning  by  skilled  witness,  684. 
who  are  skilled  witnesses,  684. 
witnesses    not,  382. 
proof  of  laws  of  nature,  353. 
proof  of  matters   judicially  known,  370. 
use  of,  on  rebuttal,  175. 

ordinary    and    skilled    observers;    differentia- 
tion by  subject-matter;   what  topics 
are  technical,  714. 
necessity   and  relevancy,   715. 
architects  and  builders,  716. 
business  affairs,  717. 
technical  matters.  718. 
mechanic  arts,   71!) 
linger  prints  and  tracks,  720. 
handwriting,   on.     See  HANDWRITING. 
title  to  real  estate,  721 
medical    inferences,   722 
basis  of  inference.   722. 
qualifications    of    witnesses,    723. 
detail  of  constituting  facts,   724. 
who   is  qualified,   725 
probative   weight,    726. 

province  of  the  jury,  726. 
results   of   autopsy,    727. 

ordinary  observers.   727. 
military  affairs,   728 
mining   matters.    720. 
photographic  art,   730. 
railroad    matters;    qualifications,   731. 
protecting  the  jury,  731. 
special  training,  731. 
preliminary    detail    of    constituting    facts, 

731. 

street  railways,  732 
telegraphing,    733. 
value,  740,   753-755.  750-763. 
judgments  of 
judgments,   808. 
criminal    cases,    808. 
an   obvious   administrative   danger  —  field   of 

the  expert,  809. 
admissihility    a    question    of    administration, 

810. 

illustrative  instances  of  judgments,  811. 
to   show   common   knowledge,   361,   370. 
medicine,   H12. 
as  to  insanity,   709 
mining  matters,  813 
railroad  matters,  814 
trolley  and  street  railways,  815. 
hypothetical  questions 
the   hypothetical    (uiestion.    816 
conclusion   and    judsment,  817. 
form   of  question,   818 
substantial   correctness  required.   818. 
must  include  all  facts  essential  to  some  rele- 
vant hypothesis,  S10. 


INDEX.   (References  are  to  Sections.) 


Experts  —  cont'd. 

must  include  all  undisputed   material   facts, 

820. 

facts  must  be  plausibly  proved,  821. 
general  assumptions,   822. 
administrative  details.  823. 

EXPIRATION 

agency,  of,  admissions  by  agent,  540. 

EXPLANATION 

admissions,  of,  516.  558. 

failure  to  c-all  witnesses,  of.  435. 

flight  of  accused,  of,  550. 

parol   evidence   rule   for.    1115. 

possession  of  stolen  goods,  of,  465. 

proof  of  other  acts  for,   1022. 

spoliation,  of,  439. 

EXPLANATORY  FACTS 

relevancy   of,   666. 

EXPRESS  COMPANIES 
judicial  notice  as  to,  362. 

EXPRESS  MALICE 

See  MALICE. 

EXTRAJUDICIAL  ADMISSIONS 
See  ADMISSIONS. 

EXTRAJUDICIAL  EVIDENCE 

defined,  4.  5. 

distinguished   from   judicial   evidence,  4. 


FACTS 

See  also,  COURT  AND  JURY. 
admissible.  664-671. 
admissions  of,  528. 
assumption  of,   126 
comment  on,  by  judge.  122,  128. 
conclusions  of,   705-802 
constitutionality    of    statute   declaring    effect 

of  certain  facts,  37. 
defined.  23 
uniformity.    1024 
common      knowledge      of      See      KNOWLEDGE, 

COMMON 

matter  of  fact.  24 
matter  of  law,  25, 
matter  of  opinion,  26. 

classification    of    facts,    physical    or    psycho- 
logical, 27 

simple  and   compound.  28 

component    facts.   20. 

component    and    probative.    30 

res  gestae  and   constituent.  31 

com  pound,  component,  and  constituent,  32. 

positive  and   negative.   33. 

principal  and  probative,  34 

states  and  events,  35. 


Facts  —  cont'd. 

anomaly  of  code  pleading,  34. 

probative  or  evidentiary  fact   (factum  pro- 
bans),  30. 

standpoint  of  the  law  of  evidence,  35. 
relevancy,  36. 
uncontroverted,   128. 

FAILURE 

to  call  witnesses,  presumption  from,  435. 
to    produce    documents,    presumption    from, 

440. 
to  see  or  hear  as  negative  evidence,  667. 

FALSEHOOD 
admissions  by  making,  565. 

FALSE  PRETENSES 
other  acts  to  show  knowledge,  1012. 
other  offences  as  part  of  res  gestae,  839. 

FALSE  SWEARING 
See  PERJURY. 

FAMILY 

pedigree    statements    of    members    of,    925- 
948 

FARMING 

equipment,  opinion  of  value  of,  757. 
expert  evidence  in,  811. 
opinions  as  to,  718. 
skilled  witness  as  to  matters  of,  385. 

FARMS 
judicial  notice  of  matters  of,  362. 

FEAR 

inducement  to  confession,  as  an,  585. 
opinion  as  to,  711. 
unsworn  statements  to  show,  847. 

FEDERAL  COMMISSIONERS 
judicial  knowledge  as  to.  342 

FEDERAL  COURTS 
admissions   in   pleadings  used   in,  512. 
comment  by  judge  on  evidence,  123. 
granting  new  trial,   130. 

judicial  knowledge  as  to  jurisdiction  of,  342. 
judicial  knowledge  of  law,  322. 
judicial  knowledge  of  seal  of,  344. 
judicial   knowledge  of  messages  of  governor, 

337 

judicial  knowledge  of  signatures  by,  340 
judicial   knowledge  of   signature  and   seal  of 

state  courts.   344 

judicial  knowledge  of  written  laws.  326. 
judicial    knowledge   ,>f  written   law,   328. 
officials  of.  judicial  knowledge  of,  343. 
proof  of  records  of,  1072 
power  to  punish  for  contempt.  00. 
FEDERAL  OFFICERS 

judicial   knowledge  as  to.   334 

presumption   of  continuance  of  tenure,   419. 

presumption  of  regularity  of  acts  of,  493. 


980 


INDEX.   (References  are  to  Sections.) 


FEDERAL  RECORDS 
admission  of,   1082. 

FEEBLE-MINDED 

confessions  of,  585. 

opinion  of  ordinary  observer  as  to.  702., 

persons  as  witnesses,  97. 

FEES 

expert  witnesses,   11415 
county  clerk  of,  record  to  show,   1082 
payment  of  jury,  deposit,  220. 
witness,   1146. 

FELLOW  SERVANT 

other    acts    to    show    knowledge    of    incom 
petency,    1012. 

FELONY 

See  COMPOUNDING  FELONY. 
FERMENTED  LIQUORS 

judicial  notice  of.  353. 

See  also,  INTOXICATING  LIQUORS. 

FIDUCIARIES 

admissions  by,  537.  538. 
account  books  of,  992 
wrongdoing  not   presumed,  495. 

FIELD  NOTES 

declarations    of    public    or    general    interest, 
893 

FIGURES 

evidence  of  meaning  of,  807 
opinion  of  genuineness  of.   764. 

FILES 

justice  of  the  peace,  of,  1064 

FILIATION 

character  evidence  in,  1030. 

See  also,   BASTARDY. 

FINANCIAL  CONDITIONS 

evidence  of.  <!'.)! 
reputation  to  show,  874. 

FINDINGS 

judge  sitting  »s    i'H'.v,    114. 
special,  51. 

FINDINGS  OF  FACT 
action  of  appellate  courts,  as  to,  307. 

FINE  ARTS 
judicial  notice  of.  35* 

FINGER  PRINTS 
opinion  as  to,  7-2<>. 

FIREARMS      . 
experiments  us  to     ><•  of.  113S 
use  of,  skilled   witnesses  as  to,  388. 
See  also,  WEAPONS. 


FIRE  INSURANCE 

expert  evidence  as  to,  811. 

See  also,  INSURANCE. 

FLAG 

foreign   countries,   of,  judicial  knowledge  as 
to,  336. 

FLIGHT 

accused,  of,  557,  559. 

FOETUS 
opinion  as  to  indications  of,  692. 

FOOD 

expert  evidence  as  to,  812. 
judicial  notice  of,  358. 

FOOTINGS 

bookkeepers,  of,  admissions  by,  555. 

FOOTPRINTS 

identification  of,  095,  697. 

FORCE 

blow,  of,  opinion  as  to,  722. 
judicial  notice  of  la\\s  of,  353. 
opinion  of  effect  of,  731). 

FOREIGN  CITIES 
judicial  notice,  of,  355. 

FOREIGN  CORPORATIONS 

presumptions  against   illegality   of,  495. 

FOREIGN  COUNTRIES 
copies  of  records  of,   1091. 
judicial  knowledge  as  to,  336. 
judicial  knowledge  of   laws  of,  323,  329. 
judicial  knowledge  of  treaties  with,  327. 
skilled  witness  as  to  law  of,  386. 

FOREIGN  COURTS 
judicial  knowledge  as  to.  342 
proof  of  record  of,   1079. 

FOREIGNER 
as  witness,   153. 

FOREIGN  GOVERNMENTS 
judicial   knowledge   of   recognition   of,   336. 

FOREIGN  LANGUAGE 
document   in,   57. 

FOREIGN  LAW 
completeness  of  proof  of,  263. 
evidence  of.  1055. 

judge  acquiring  knowledge  of,  333. 
presumption    against   charge,   419. 
presumption  of  knowledge  of,  477. 
presumption     of     similarity     with     domestic, 

494 

proof  of.   lil 
f|iicstion  of  fact,  25 
skilled  witness  as  to,  386. 


LNDEX.   (References  are  to  Sections.) 


981 


FOREIGN  MINISTERS 
judicial  knowledge  as  to,   334. 

FOREIGN  RECORDS 

copies  of,  1091. 

FOREIGN  STATES 

evidence  of  statutes  of,  1055. 

judges  of,  judicial  knowledge  as  to,  342. 

judicial  knowledge  of  courts  of,  342. 

judicial  knowledge  of  statutes  of,  329. 

proof  of  judgment  of,  01 

proof  of  judicial  records  of,   1073. 

records  of,  copies,   1090. 

skilled  witness  as  to  law  of,  386. 

FOREIGN  STATUTES 

judicial  knowledge  as  to,  332. 
judicial    knowledge   of   federal   courts  as   to, 
328. 
See  also,  FOREIGN  LAW. 

FORFEITURE 

privilege  as  to  self-iiKTimination,   1179. 
sufficiency  of  evidence   in  actions  for,  410. 

FORGERY 
See  also,  SPOLIATION. 
other  acts  to  show  knowledge,   1012. 
other  offences  as  res  gestae,  .839. 
presumption  from,  434 

FORM 

confessions,  of.  003. 

declaration  as   to  matters   of  public   or  gen- 
eral interest,  8!)3. 
dying  declaration,  of,  905. 
hearsay,  composite  of,  870. 
hypothetical  question,  of,   818. 
judicial  admissions,   of,  502. 
oath,  of.  1»8. 

object,  of.  description  of  by  witness,  691. 
pedigree  declaration,  of,  933. 
spontaneous  declaration,  of.  959. 
unsworn  statement,  of,  853. 

FORMER  EVIDENCE 

former  evidence,  017. 

administrate   attitude   of  the  court,   618 

adequate  necessity,  619 

failure  to  summon,  619. 

absence  from  jurisdiction,  620. 

claim    of    privilege    against    self-incrimina- 
tion,  621. 

death,  022 

imprisonment,  623 

inability  to  find,  624. 

infamy,  625. 

interest,  626 

mental  incapacity,  627. 

official  duty,  628". 

physical   incapacity,  629 
former  trial.  030. 


Former  Evidence  —  cont'd. 
the  hearsay  rule,  631 
identity  of  the  issue,  632. 
identity  of  the  parties,  633. 
scope  of  proof;   extension,  634. 

intension ;    precision  in  recollection,  635. 
media  of  proof;   official  documents,  636. 

unofficial  documents;    memoranda,   637. 

stenographers,  638 

witnesses ;   independent  relevancy,  639. 
completeness,  254. 
admissions  by,  516. 

FORMER  JEOPARDY 
See  DOUBLE  JEOPABDY. 

FOX'S  LIBEL  ACT 
authorizing  general  verdicts,  45. 

FRATERNAL  SOCIETIES 

records  of,   1096 

FRAUD 

character  evidence  in,   1033. 
effect  of,  on  confession,  595. 
opinion  as  to,  712 
other  acts  to  show  intent,  1011. 
parol  evidence  to  show,   1112. 
presumption  against.  495 
presumption   against   spoliator,   430-443. 
presumption    from    suppression    of    evidence, 

435-443 

spoliation  of  goods  stolen.  465. 
sufficiency  of  evidence,  411. 

FRAUDULENT  REPRESENTATIONS 

parol  evidence  to  show,  1112. 

FREIGHT 

carriage  of,  skilled  witnesses  as  to,  391. 
judicial  notice  as  to,  362 

FRIENDS 

party,  of,  admissions  by,  540. 
pedigree  statements  by.  !V2S 

FRIENDSHIP 

unsworn  statements  to  show.  Sol. 

FRIGHT 
horse,  of,  opinion  as  to.  694,  711,  739  n. 

FUNCTIONS 
judicial  office,  of,  03-113 

G 

GAMING 
judicial  notice  of,  358 

GAS 

•udicial  notice  of  characteristics  of,  353. 


982 


INDEX.   (References  are  to  Sections.} 


GAZETTE 
judicial  knowledge  of,  335. 

GENEALOGY 

declarations  as  to,  925-948. 
reputation  to  show,  934. 
tradition  to  show,  935. 

See  also,  PEDIGREE. 

GENERAL  AGENCY 
See  AGENCY. 

GENERAL  GUARDIAN 
admissions  by,  537. 

GENERAL  VERDICTS 

See  VERDICTS. 

GENTLENESS 

animals,  of,  opinions  of,  711. 
horse,  of,  proof  of,  1046. 

GENUINENESS 

documents,  of,  burden  of  evidence  of,  407. 
map,  of,  1082. 

public  documents,  of,  1053,  1054. 
signature,  of,  presumption  of,  425. 

GEOGRAPHY 

judicial  notice  of  facts  of,  354,  355 
use  of,  books  of,  369. 

GIN 

judicial  notice  of,  353. 

GLOSSARIES 
use  of,  369. 

GOOD  FAITH 
assumption  of,  478. 
offer  of  compromise  to  show,  577. 
opinion  as  to,  712 
other  acts  to  show,  1014. 
reputation   of  defendant   in   malicious  prose- 
cution, 1036. 
unsworn   statements  to  show,   847,  852 

GOODS 
identification  of,  (i!>7. 

GOVERNOR       • 

judicial   knowledge  as  to,  337. 
judicial  knowledge  of  appointment  by,  334. 
judicial  kno-.vledge  of  seal  of,  340. 
messages  of.   judicial  knowledge  as  to.  :537. 
presumption  of  regularity  in  acts  of,  493. 
proclamations    of,    judicial    knowledge   as    to, 
337. 

GRADE 

offense,   of,   sufficiency   of  evidence,  409. 
opinion  as  to,  740. 


GRAMMARS 


use  of.  369 


GRAND  ASSIZE 
trial  by,  120. 

GRAND  JURORS 

competency  as  witness,  1158. 

judicial  knowledge  as  to,  342. 

judicial  knowledge  of  time  of  meeting,  342. 

privilege  of  testimony  before,   1168:  • 

GRAND  JURY  CLERK 
presumption  of  regularity  of  acts  of,  493. 

GRANTOR 

admissions  by,  539. 

GRANTS 

records  of,  1082,  1087. 
lost,  472. 

See  also,  DEEDS. 

GRAVESTONES 
proof  of  death  by,  942  n. 

GRAVITATION 

judicial  notice  of  laws  of,  353. 

GRIEF 

opinion  as  to,  711. 

GUARDIAN 

proof  of  acts  of,  1005. 

proof  cf  deed  executed  by,  1101. 

GUARDIAN  AD  LITEM 
admissions  by,  537. 

GUESS 

witness  stating,  673. 
not  permitted,  181. 
when  permitted,  658 

GUILTY 
effect  of  withdrawn  plea  of,  525-a. 

GUNS 

See   WEAPONS. 


H 

HABEAS  CORPUS 

for  production  of  witness,  1143. 

HABITS 

account  books  to  show,  990. 
animals,  of.  skilled  witness  as  to,  389. 
opinion  of,  6!)4 
presumption  as  to.  424. 
presumption  of  continuance,  417. 
presumption  of  following,  425. 
proof  of,   1007. 
reputation  to  show.  $~4. 


INDEX.   (References  are  to  Sections.) 


983 


HANDWRITING 
proof  by  direct  evidence,  764. 
proof  by  secondary  evidence;   circumstantial, 

765. 

characteristics  of  handwriting,   766. 
phenomena  of  documents,   767. 
preliminary  detail  of  fact,  767. 
typewriting,  767. 

who  are  qualified  as  witnesses,  768. 
age  of  alterations,  769. 
inference   from  observation,   770. 
ordinary  observer;  qualifications;  seeing  per- 
son write,  771. 

adoption  in  course  of  business,  772. 
special   experience,   773. 

skilled  observer;  qualifications  required,  774. 
comparison  of  hands,  775. 

qualifications  must  be  affirmatively  proved, 

770. 

requirements,  777. 
English  rule,  778. 
American  rule,  779. 

witness  to  comparison  rejected,  780. 
witness  to  comparison  accepted,  781. 
statutory  modifications,  782. 
irrelevant  document,  782. 
proof  of  standard,  783. 
proof,  784. 

testing  on  cross-examination,  785. 
proof  in  criminal  cases,  786. 
standardizing  document,   787. 
probative  weight  of  the  inference,   788. 
function  of  the  court,  789. 
inference  a  reasoned  one,  790, 
tests   furnished   by   cross-examination,   791. 

HATRED 

unsworn  statements  to  show,  847. 

HEALTH 

See  also,  PUBLIC  HEALTH. 
evidence  of,  691,  693. 
opinion  as  to  effect  of  acts,  700. 

HEARING 

failure  to  hear  as  negative  evidence,  667. 
loss  of,  by  witness,  former  evidence,  629. 
time  and  place  of,  as  surprise,  283. 

HEARSAY 
hearsay  rule  as  a  distinctive  anomaly;   scope 

of  the  anomaly,  837. 
account  books,  977-995. 

See  also,  SHOP  BOOKS. 
affected  by  best  evidence  rule,  242. 
character,'  1025-1047. 

See  also,  CHARACTER. 
declarations   against   interest,   880-888 
declarations  as  to  matters  of  public  or  gen- 
eral interest,  889-894. 
definition  of,  872. 

entries  in  course  of  business,  914-924. 
former   evidence  as  exception   to,   617-630. 


Hearsay  —  cont'd. 
form  of  hearsay,  872. 
individual  hearsay,  872. 
com  posite^  hear  say,  872,  873. 
reputation,  874. 
rumor,  875. 
tradition,  876. 
printed,  877. 
written,  878 

official  statements;   admissions,  879. 
withdrawn  plea  of  guilty,  525-a. 
hearsay   rule  stated,  859. 
understanding,  859. 
opinion,  859. 

telephone  communications,  859. 
official  duty,  859. 

a  controlling  rule;  an  absolute  bar,  860. 
statutory  exceptions,  861. 
hearsay     memoranda     refreshing     memory, 

862. 

implied  hearsay,  863. 
knowledge  based  on   reputation,   864. 
testimony  based  on  hearsay,  865. 

joint   knowledge,  865. 
latitude  of  party  in  meeting,  302. 
market  value,  as  to,  744. 
pedigree  declarations,  925-948. 

See  also,  PEDIGREE. 
proof  of  value  by,  744. 
reasons  for  hearsay  rule;   inherent  weakness, 

866. 
distrust    of    the    jury;    hearsay    in    other 

judicial   systems,   867. 
relevancy  of  hearsay,  869. 
objective  relevancy,  870. 
subjective  relevancy,  871. 
res  gestae  statements.     See  RES  GESTAE. 
scope  of  hearsay  rule,  868. 
shop  books,  977-995. 
spontaneous  exclamations,  949-976. 

See  also,   RES  GESTAE. 
unsworn  statements :   hearsay,  857. 

independently  relevant  statements  and 
hearsay  declarations  contrasted. 
857. 

antiquity  of  rule,  858. 
corroboration,  858. 
depositions,  858. 

See    also,    DECLARATION'S;    DYING    DECLABA- 
TIOXS;  FORMER  EVIDENCE. 


HEAVENLY  BODIES 

judicial  notice  of  movements  of,  354. 


HEIGHT 


opinion  as  to,  740. 


HIGHWAY 

opinion  of  safety  of.  099. 
presumption  of  continuance  of,  418. 


984 


INDEX.   (References  are  to  Sections.) 


HISTORIES 

examination  by  jury,  367. 
use  of,  360,  369. 

HISTORY 

See  also,  NATURAL  HiSTOBr. 
family,  See  PEDIGREE. 
jury  system,  of,  120. 
judicial  notice  of,  359. 
self-incrimination,    597. 

HOMICIDE 

character  evidence  in,   1029,   1033. 
dying  declarations  in,  895-913. 
other  acts  to  show  intent,  1011. 
other  offenses,  evidence  of,  839. 
presumption  of  malice,  46S. 
reputation  of  deceased,  103G. 
spontaneous  statements  in,  967. 

HONESTY 

proof  of  character  for,  1033. 

HOPE 

inducement  to  confession,  as  a,  585. 

HORSES 

conditions  of,  (593. 

fright  of,  opinion  as  to,  694,  739  n. 

opinion  of  value  of,  760. 

proof  of  gentleness  of,  1046. 

HOURS 
judicial  notice  as  to,  353. 

HUSBAND  AND  WIFE 
See  also,  DIVORCE  COURTS. 
d\ing  declarations,  907. 
pedigree  statements  by,  925—948. 
presumption  of  access,  447. 
presumption  of  coercion,  462. 
presumption   of  continuance  of  relation,  419. 
presumption  of  legality  of  marriage,  446. 
presumption  of  legitimacy  of  children,  446- 

450. 

privileged   communications  between,   1160. 
statements   of   wife   in    presence   of   husband, 

569. 
witnesses,  as,  1155. 

HUMAN  EXPERIENCE 
judicial  notice  of,  356. 

HYDRAULIC  ENGINEERING 

See    JI|M>.    K  N(  I  MI.  KING, 
opinions  as  to,  718. 

HYPOTHETICAL  QUESTIONS 
See  EXPERTS. 


IDENTIFICATION 

crime,  of,  confession,  583. 

documents,  of,   1099. 

dying  declarations  to  show,  908. 

opinion   of,  0!)6. 

parties,  of,  parol  evidence  rule,   1118. 

proof  of  other  acts  for,   1023. 

speaker,  of.  over  telephone,  556. 

stolen  goods,  of,  466. 

unsworn  statements  to  show,  846,  852. 

IDENTITY 

accused,  of,  sufficiency  of  evidence,  409. 
account  book,  of,  987. 
actor,  of,  1023. 

appearance  in  court  to  show,  1134. 
articles,  of,   1137. 
opinion  as  to,  695,  740. 

parol  evidence  of  identity  of  parties  to  docu- 
ments, 1118. 

pedigree  declarations  as  to,  931. 
person  making  admissions,  of,  530. 
person   talking  over   telephone,   656. 
presumption  of,  from  similarity  of  name,  488. 
proof  of,  656. 
res  gestae,  846. 

IDIOCY 

See  also,   INSANITY. 
competency   of   witnesses,    1150. 
determined  by  inspection,  61. 
shown  by  inspection,  1134. 
deaf  mute  not  presumed  to  be  idiot,  424. 

IGNORANCE 
fact  of,  as  evidence  of  non  existence,  667. 

ILLEGALITY 

effect  of,  on  confession,  59(5. 
evidence   obtained    illegally,    226  n. 
presumption  against,  495. 
parol  evidence  to  show,   1113. 

IMBECILITY 
presumption  of  continuance,  421. 

IMMORALITY 
presumption   against,   4!)5. 

IMPEACHMENT 
dying  declarants,  of,  911. 
formal    instruments,    of,  •  sufficiency    of    evi- 
dence, 411. 

former  evidence,  of,  (US. 
judicial  proceedings,  492. 
of  agent  by  evidence  of  his  statements,  543. 
other  offenses  as.  ^'39. 
witnesses,  of.  1180-11*5. 

See   also,    WITNESSES. 
unsworn  statements  to  show,  852. 


INDEX.   (References  are  to  Sections.) 


985 


IMPOSSIBILITY 

See  also,  POSSIBILITY. 

performance  of  order  as  excuse  for  contempt, 
101. 

IMPOTENCY 
rebuttal  of  presumption  of  legitimacy,  448  n. 

IMPRESSION 

witness  stating,  673. 

unsworn  statements  to  show,  847. 

IMPRISONMENT 
witness  of,  former  evidence  of,  623. 

IMPROPER  EVIDENCE 

right   to   offer,    when    other    party   has   done 
so,  657. 

INCAPACITY 

party  to  contract,  of,  parol  evidence  to  show, 
1114. 

witnesses,  of,   1149,   1150. 

INCIDENTAL  HEARINGS 
jury  trial  in,  213. 

INCOME 
opinion  of  amount  of,  691. 

INCOMPETENCY 
proof  of,  to  invalidate  writing,   1114. 

INCOMPETENT  EVIDENCE 
latitude  by  party  in  meeting,  302. 

INCONSISTENCY 

conduct,  of,  admissions  by,  554. 

INCONSISTENT  FACTS 
probative  relevancy  of,   665. 

INCORPORATION 

municipalities,  of,  declarants  as  to,  S94. 
presumption  of   continuance,   419. 

INCORPORATION  BY   REFERENCE 

completeness,  255,  274. 

INDEBTEDNESS 

school  districts   of,   records  of,    1083. 
conclusion  of  witness  as  to,  805. 
oral  evidence  to  show,  1128. 

INDEFINITE  HEARSAY 

definition  of,  872. 

INDEPENDENT  RELEVANCY 

admissions  by  agent,  543. 

book  entries,  of,  547. 

confessions,  604. 

declarations   of   complainant   in   rape,   971. 

evidence  of  character,  1034. 

evidence  of  silence,  564. 


Independent  Relevancy  —  Cont'd. 
offers  of  compromise,  577. 
private  writings,  of,  1098. 
proof  of  documents,  273. 

See  also,  ADMINISTRATION. 
unsworn   statements,   of,   838-856. 

INDIANA 

special  interrogatories  in,  50,  51. 

INDIANS 

judicial  knowledge  of  treaties,  327. 
witnesses,  as,  1159. 

INFAMY 

witness,    disqualified    for,    former    evidence, 
625. 

INFANCY 

parol  evidence  rule,  1114. 

INFANTS 

See  also,  CHILDREN. 
admissions  by,  532. 
age  of,  determined  by  inspection,  61. 
dying  declaration  of,  901. 
witnesses,  as,  97,   1149. 
presumption  of  capacity  for  crime,  463. 

INFERENCE   FROM   SENSATION;    ORDI- 
NARY OBSERVER 
inference  from  sensation;   ordinary  observer; 

familiar    physical    objects,    688. 
negative   inferences,   689. 
instinctive  inferences,  690. 
leasoned   inferences,   691. 
conditions  of  admissibility  of  inferencea  from 

observation,  692. 
physical  inferences;   body,  693. 
conduct,   694. 
identities  and  correspondences,  695. 

how  far   reasoned  inference   is  essential, 

696. 

circumstantial   evidence,   697. 
other  tracks,  697. 
other  correspondences,  697. 
footprints,  697. 
intoxication,    698. 
physical    condition    of    inanimate    objects, 

699. 

suitability,   699. 
soundness,  699. 
safety  of  public  places,  699. 
physiological   inferences,   700. 
psychological   inferences,   701. 
insanity;   ordinary  observer  rejected;  Massa- 
chusetts rule,   702. 
rule  in  Xew  York,   703. 
ordinary  observer  admitted,   704. 

qualification  of  abilil^v  to  state  details  of 

phenomena,   705. 

qualification     of     suitable     opportunities 
for  observation,  706. 


986 


INDEX.   (References  are  to  Sections.) 


Inference    from    Sensation:     Ordinary    Ob- 
server —  cont'd. 

insanity;  ordinary  observer  rejected  —  cont'd. 
qualification     of     ability     to     coordinate 

phenomena,   707. 
judicial  estimates  as  to  probative  force, 

708. 
skilled  observer,   70!). 

inferences  of  sanity,  709. 
subscribing  witness,  710. 

an   anomalous    position,   710. 
marked  administrative  indulgence,  710. 
probative  force,   710. 
objective  mental   states,   711. 

administrative    requirements,   711. 

intuitive  and  reasoned  inferences,  711. 

animals,  711. 

self -regarding  states,  711. 

psychological  states  regarding  others,  711. 

disposition,  711. 

inference  rejected,  712 

psychological  states  not  subject  to  direct 

observation,  712. 
subjective  relevancy,  712. 
lack  of  objective  relevancy,  712. 
facts    may    be    placed    before    the    jury, 
712.  ' 

INFERENCES 

drawn  from  existence  of  document,  57. 
witnesses,  of,   672-687. 

See  also,  WITNESSES. 

INFERIOR  COURTS 
attorneys  of,  judicial  notice  as  to,  343. 
clerks  of,  judicial   knowledge  of,  343. 
contempt  of  court,    103. 
judicial  knowledge  as  to,  342. 
judicial  knowledge  of,  330. 
judicial   knowledge  of  practice  of,  343. 
presumption  of  regularity  of  acts  of,  492,  493. 

INFLUENCE 
See  UNDUE  INFLUENCE. 

INITIALS 
presumption  of  identity  from  similarity,  488. 

INJURIES 

animals,  of,  opinions  as  to,  718. 
appearance  of.   693. 
cause  of,  opinion  as  to,  ~'1'1.  739. 
declarations  upon    receiving,  974. 
experiment  as  to  extent  of,  1138. 
expert  evidence  as  to,  812. 
inspection  to  show,   1134. 
results,  of,  (593. 

INKS 
opinion  as  to,  7(59. 

INNOCENCE 
presumption  of,  400,  478^84,  498. 


INNUENDO 

counsel,  of,   restricted,  297. 

INQUESTS 

judicial  knowledge  as  to  courts  of,  342. 
See  also,  CORONERS. 


INQUISITION 


trial  by,  120. 


INSANITY 

admissions  by  insane  party,  532,  534. 
accused  of,  burden  of  proof  of,  400,  401. 
burden  of  evidence  as  to,  404. 
competency  of  witnesses,  97,   1 150. 
confessions  of  insane  persons,  585. 
dying  declarations  of  incompetents,  901. 
evidence  of,  declarations  of  family,  656. 
expert  evidence  as  to,  812. 
inspection  to  show,  1134. 
opinion  of  ordinary  observer  as  to,  702. 
opinion  of  physician  as  to,  709,  722. 
presumption  of  capacity  for  crime,  463. 
presumption  of  continuance,  404,  421. 
presumption  of  mental  condition,  421. 
skilled  witness  as  to,  709. 
spontaneous    declarations    of    insane    person, 

976. 

swearing   insane  witness,    97. 
unsworn  statements  to  show,  847. 
witness,  of,  former  evidence,  627 
witness,  of,  introduction  of,  former  evidence, 

til!). 

witness,  of,  introduction  of,  former  evidence, 

INSOLVENCY 
conclusion  as  to,   795. 
opinion  as  to,  691. 
presumption  of  continuance,  416,  422. 

INSPECTION 

See  also,  PERCEPTION,  EVIDENCE  BY. 
trial  by,  61. 

INSTRUCTIONS 
See  COURT  AND  JUBT. 

INSULTING  LANGUAGE 
contempt  of  court,   100. 
to  witnesses,  as  contempt,  109. 
witnesses  by  counsel,  of,  prevention  of,  295. 

INSURANCE 

admissions  in  application  for,  548. 
expert  evidence  as  to,  811. 
judicial  notice  of,  362. 
opinion  as  to  matters  of,  718. 
policies,  proof  of,  1099. 
skilled  witness  as  to  matters  of,  385. 

INTELLIGENCE 
determined  by  inspection,   1134. 


IXDEX.   (References  are  to  Sections.) 


987 


INTENT 

criminal  cases,  burden  of  proof  as  to,  400. 
admissions  by  agent  to  show,  543. 
as  res  gestae,  848. 
evidence  of  reputation,    1036. 
obstruction  of  justice,   104. 
other  acts  to  show,  1011. 
presumption  of  continuance  of,  421. 
proof  of  by  admissions,  557. 
proof  of,  559. 

INTENTION 

admission  by  agent  to  show,  543. 
consequences,  presumption   of,  475. 
presumption   of   continuance   of,   421. 
proof  of,   559. 

testimony  of  person  as  to,  (>56. 
unsworn  statements  to  show,  848. 
writer  of  document,  as  question  of  fact,  57. 

INTEREST   (ON  MONEY) 

presumption  of  rate  in  foreign   state,   61. 
computation   of,    on    a   note,    admissions    by, 
555. 

INTEREST   (OF  PERSONS) 

disqualification  of  witness.  626,  1157. 
declarations   against,   880-888. 
unsworn  statements  to  show,  848 

INTEREST 

witnesses,  of,  1184. 

INTERNAL  REVENUE 

judicial  knowledge   of   regulations  of  bureau 
of,  339  n 

INTERNATIONAL  LAW 
judicial  knowledge  of,  324. 

INTERPRETATION 

contracts,  of,  witness  not  to  state,  806. 
documents,  as  question  of  law,  57. 
words,   of,    evidence   as   to,   55. 
writing,  of,  parol  evidence  rule  for,  1115. 

INTERPRETER 
admissions  through,  543. 
qualifications  of,   154. 
use  of,  153,  154,  1148. 

INTERROGATION 

witnesses,  of,  by  judge,  298. 

INTERROGATORIES 

admissions  in  answers,  519. 

special,  50,  51. 

statutory,  completeness  of  proof  of,  266,  267. 

INTERSTATE    COMMERCE    COMMISSION 
judicial  knowledge  as  to,  339  n. 


INTIMIDATION 

witness,  of,  as  contempt  of  court,  109. 
witnesses,  of,  when  proper,  297. 

INTOXICATING  LIQUORS 

burden  of  evidence  as  to  want  of  license,  406. 
character  evidence  of  peacefulness  of  accused, 

1033. 

judicial  knowledge  of  characteristics  of,  353. 
jury  trial   in  proceedings  for  destruction  of, 

215. 
other  offenses  to  show  knowledge  of  illegal 

sale  of,   1012. 
statutes  as  public  or  private,  332. 

INTOXICATION 

as  contempt  of  court,  100. 
burden  of  evidence  as  to,  404. 
confession  of  persons  under,  585. 
opinion  of  ordinary  observer,  698. 
presumption  of  continuance,  416. 
presumption  of  continuance  of  habit  of,  417. 
proof  of,  to  invalidate  writing,  1114. 
that  person  is  customarily,  694. 
witness,  of,  1151. 

INVENTORIES 
admissions  in,  552. 
estate  of,  proof  of,  1065,  1082. 

INVOLUNTARY  CONFESSIONS 

See  CONFESSIONS. 

INVOLUTION 
reasoning  by  witnesses,  of,  676. 

IRRESFONSIVENESS 
striking  out  answer,  for,  182. 

ISSUE 
for  jury,  121. 


JEOPARDY 

double,  41. 

JOINT  ENTERPRISE 
admissions  of  co-party  engaged,  536. 

JOURNALS 

legislative,  judicial   knowledge  of,   341. 
JOINT  OWNERS 

admissions  by,  536. 

JUDGE 

calling  of  additional  witnesses  by,  301. 

certificate  of,  to  authenticate  records,   1075. 

discretion    as    to    taking    judicial    notice    of 
alleged  facts,  365. 

experiments  by,   1003. 

function    of,    to    prevent    reasoning    by    wit- 
nesses,  680. 

functions  of,  as  to  opinion  evidence,  680,  686. 


988 


INDEX.   (References  are  to  Sections.} 


JUDGES 

judicial  knowledge  as  to,  :(42 

judicial  knowledge  of.     !See  KNOWLEDGE. 

minutes  of,  admission  of,   1057 

personal   knowledge  of,   318. 

prt'.-iimption  of  regularity  of  acts  of,  493. 

right  to  interrogate  witnesses,  298,  300. 

sitting  as  jury  —  new  trial,  201. 

testimony  of,  as  to  confession,  614. 

testimony   of,  as   to   records,    1059. 

unfair   comment  by,   280 

witness,   as.  31!>,    1158. 

See  also,  COURT  AND  JUBY. 

JUDGMENT 

annulment  of,  sufficiency  of  evidence,  411. 
characteristic  of  administration,  74: 
completeness  of  proof  of,  257. 
completeness  of  proof  of  record  of,  268. 
conclusions  distinguished,   792. 
confession  of,  as  an  admission,  502. 
foreign  state,  of,  proof  by  inspection,  6J 
matters  of,  question  for  jury,  53. 
motion  in  arrest  of,  187 
proof  of,  by  copies,  1066. 
right  of   litigant  to,   202. 
witnesses,  of,  672-687. 

See  also,  WITNESSES. 
witness  stating,  673. 

JUDICIAL  ADMISSIONS 

See  .ADMISSIONS. 

JUDICIAL  COMMITTEES 
presumption  of  regularity  of  act  of,  493 

JUDICIAL  DISCRETION 

See   DISCRETION. 

JUDICIAL  DISTRICTS 
judicial  knowledge  of,  342. 

JUDICIAL  EVIDENCE 

defined,  6. 

extrajudicial  distinguished,  4. 

JUDICIAL  KNOWLEDGE 

See  KXOWI.KIK.K;   JUDICIAL. 

JUDICIAL  NOTICE 

See   KNowi.Kixii-;. 

JUDICIAL  OFFICE 
See  COURT  AND  JURY. 

JUDICIAL  RECORDS 
copies  of,  1066-1079 

Sec   Prune  DOCUMENTS. 

JURISDICTION 
burden  of  evidence  as  to,  407. 
contempt,  for,  101. 
courts,  of,  judicial  knowledge  of,  342. 


JURY 

attacks  on,  as  contempt  of  court,  106. 

communications   to    privileged,    1168,    1169. 

contempt  of  court   by,    103,   106. 

deposit  for  payment  of   fees,  220. 

distrust  of,  867. 

examination  of  reference  books,  367. 

function  of,  as  to  confessions,  606,  607. 

function  of,  as  to  opinions  of  value,  762. 

history  of,  120. 

impeachment  of  verdict,  1169. 

not  excluded  from  court  room,  90. 

preliminaries  to  trial  by,   392. 

prevention   from  being  mislead,   180. 

pr  bative  force  of  confessions,  611: 

protection  of,  6(iO,  731. 

province  of,  as  to  medical  witnesses,  726. 

question  of  weight  of  opinion  evidence,  833. 

right  to,   205-223. 

use  of  individual   knowledge,  320. 

withdrawal  of.  during  -argument,   183. 

witnesses,  as.  320,   1158. 

See  also,  COURT  AND  JURY. 

JURY  COMMISSIONERS 
presumption  of  regularity  of  acts  of,  493. 

JUSTICE 

not  to  be  delayed,  304. 
promotion  of,  as  a  judicial  function,  70. 
protected  by  judge,   104-109. 
furtherance   of,   226-314. 

See  ADMINISTRATION. 

JUSTICE'S  COURTS 

hearsay  in,  866. 
record  of,  1070. 

JUSTICES  OF  PEACE 
judicial  knowledge  as  to,  342. 
presumption  of  regularity  of  acts  of,  492,  493. 
proof  of  records  of,  1076. 
records  kept  by,  1064. 

JUSTIFICATION 

criminal   cases,    in,    burden    of   proof    as   to, 
401. 


KINDNESS 
animals,  of,  opinions  of,  711. 

KNOWLEDGE 
in  general 

admission  by  agent  to  show,  543. 
book  entries  to  show,  547 
criminal  cases,  in,  burden  of  proof,  400. 
language,  of,  presumption  of,  477. 
law,  presumption  of,  477. 
opinion  as  to,  711. 

other  acts  to  show,  1011,  1012,  1023. 
proof  of,  by  admissions,  557. 


IXDEX.   (References  are  to  Sections.) 


989. 


Knowledge  —  cont'd.    • 

proof  of.   550. 

unsworn  statements  to  show,  850. 

.See  also,  ADKQTATE  KNOWLEDGE. 
common 
common  knowledge,  345,  679. 

administrative  advantages,   340. 
what   knowledge   is   rommon,    347. 

knowledge  as  affected  by  jurisdiction,  348. 
restrict^  communities,   349. 
potential   knowledge,   .'550. 
general   notoriety:    classes   of  facts  so  estab- 
lished:   res  gestse.  351. 
what  facts  are  covered  by  the  rule,  352. 
nature.  353 
science,   354. 
facts  of  geography,  355. 
facts  of  human  experience,  356. 

standards  of  reasonable  conduct,  357. 
facts  of  social  life,  358. 
facts  of  history,   350 
facts  of  business,   3(50. 

evidence  of  skilled  witness  not  required, 

301 

various  matters  covered,  3(52. 
how  actual  knowledge  may  be  acquired,  363. 
judge  may  decline  to  know  fact,  364. 
may  require  aid  of  parties.  365. 
examination  by  judge.  360. 
function  of  the  jury,  307. 
books   not   evidence.   308 
standard  treatises.  360. 
testimony   of   skilled    witnesses,   370. 
how  far  knowledge  is  binding,  371. 
matter  of  fact.  .'i72. 
matter  of  law,  373. 

cognizance  as  affected  by  action  of  the  par- 
ties;   waiver,  374. 
judicial 
knowledge,  315 

knowledge  of  law:    in  general,  43.  64,  316. 
common  and  judicial  knowledge,  317. 
judicial  vs.  personal  knowledge:   judge,  318. 
judge  as  witness.  310. 
jury,  320 

scope  of  judicial  knowledge  of  law,  321. 
judicial  knowledge  of  common  law:   national 

courts.  322. 

state  and  provincial  courts,  323. 
judicial  knowledge  of  international  law.  324. 
judicial   knowledge  of  law  merchant.  325. 
judicial  knowledge  of  written  law;  extension 

and  intension.  326. 
treaties.  327. 
national  courts.  32S. 
state  and  provincial  courts,  329. 
local   courts.   330. 
amendment   and  repeal.  331. 
what  statutes  are  public,  332. 
mercantile  corporations :    telegraph  compa- 
nies, 332. 

private  acts  made  public.  332. 
statutes  of  sister  state,  332. 


Knowledge  —  cont'd. 

how   judicial   knowledge   of   law   is   acquired, 

333. 

foreign  law,  333 
judicial    knowledge    of    the    results    of    law, 

334. 

de  facto  and  de  jure  officers,  334. 
tenure  under  local  ordinances,  334. 
tenure  of  minor  offices,  334. 
governmental  assumptions,  334. 
official  position.  334. 
official   proceedings.  335 
correspondence,  335. 
publications,  335. 
executive  department;  nation,  336. 

proclamations  and  other  executive  acts, 

336. 

state,   337. 
county,  337. 
municipal.  337. 
proclamations  and  other  executive  acts, 

337. 

public    surveys,    338. 
rules  and  regulations:   nation,  339. 
administrative  boards,  339. 
state,  330. 

signatures  and  seals:   national,  340. 
executive       magistrates       of       foreign 

states,  340. 

cities,  towns,  etc.,  340. 
state,  340 
county,  340. 

legislative  department;   general  facts,  341. 
journals,  341. 
municipalities,  341 
legislative   proceedings,   341. 
direct   results  of  legislation,  341. 
judicial  department :  general  facts,  342. 
special  tribunals.  342. 
federal  courts.  342 
inferior  courts.  342. 
administrative  boards,  342. 
sessions :  length  of  actual  sitting,  342. 
terms.  342 
districts,  342. 
foreign  courts,  342. 
other  sfates,  342 
inferior  courts,  342. 
length  of  terms,  342. 
judges   and   magistrates,   342. 
attorneys  and  counsel,  343. 
practice.  343. 
clerks,  343 

sheriffs,  constables,  etc  .  343. 
court  officers  and  officials.  343. 
signatures  and   seals,   343. 
court  records,  papers,  etc.,  344. 
signatures  and  seals.  344. 
other  courts.  344. 
own  court :  same  case.  344. 
own  court;  other  cases,  344. 
special 
special  knowledge,  375.  670. 


990 


INDEX.   (References  are  to  Sections.} 


Knowledge  —  cont'd. 
special  —  cont'd. 

reason  for  excluding  knowledge  in  general 
376. 

administrative  action  of  judge,  377. 
necessity  of  relevancy,  378. 
adequate  knowledge,  379. 
technical  or  scientific  facts,  380. 

administrative  considerations,  381. 

scope,  382. 

witnesses  not  "  experts,"  382. 

no  moral  requirement,  382. 

properties  of  matter,  383. 

state  of  the  art,  383. 

business  affairs,  384 

various  matters,  385 

interstate  or  foreign  law,  386. 

the  written  law.  3S(i 

maritime  affairs.  387 

mechanic  arts,  388. 

mining,  natural  history,  389. 

professional   facts:   medicine,  390. 

railroad  facts;  rules,  391. 


LABOR  UNIONS 
judicial  knowledge  of  laws  of,  329. 

LACHES 

bar  to  enforcement  of  contempt,  110. 
offer  of  compromise  as  explanation  of,  577. 

LAGER  BEER 
judicial  notice  of,  353. 

LAND 

See  REAL  ESTATE. 

LAND  GRANT 
cancellation  of,  sufficiency  of  evidence  of,  411. 

LAND  OFFICE 

judicial  knowledge  of  matters  of,  335. 
judicial  knowledge  of  rules  of,  339  n. 
presumption  of  regularity  in  acts  of,  493. 
records  of,  1082. 
records  of,  1087. 

LAND  RECORDS 
records  of,  1082. 

LAND  TITLES 
judicial  notice  of  history  of,  359. 

LANGUAGE 

See  FOREIGN  LANGUAGE. 
admissions,  of,  530. 
evidence  of  meaning  of,  807. 
insulting,  as  a  contempt  of  court,  100. 
insulting,  to  witnesses,  as  contempt  of  court 

109. 
judicial  notice  of,  358. 


Language  —  cont'd. 

parol  evidence  for  interpretation  of,  1115. 
presumption  of  knowledge  of,  477. 
witness  not  to  state  legal  effect  of,  806. 

LARCENY 

See  also,   RKCEIVIXG   STOLEN   GOODS. 
declarations  of  owner  upon  discovery  of,  973. 
other  offenses  as  part  of  res  gestae,  839 
other  offenses  to  show  knowledge  of,  1012. 
presumption    of.    from    possession    of    stolen 

goods.  4ft4-4(i7. 
spontaneous  statements  in,  967. 

LAW 

See  also,  COMMON  LAW;  DOMESTIC  LAW; 
FOREIGN  LAW.  INTERNATIONAL  LAW;  LAW 
MERCHANTS-.  MUNICIPAL  LAW;  STATUTES. 

admissions  as  to  matters  of,  528. 

applied   by   whom,   40,   41. 

certainty  of,  rulings  on  facts,  60. 

common  knowledge  of,  373. 

conclusions  of,  803-807, 

See  also,  CONCLUSIONS. 

denned,  25,  38 

evidence  of,  1055. 

judicial  knowledge  of,  316 

judicial  knowledge  of  results  of,  334. 

matter  of,  25. 

matter  of,  decided  by  judge,  54. 

of  evidence  defined,  2. 

of  evidence,  scope  of,  3 

presumption  of  knowledge  of,  477,  497. 

presumptions  of.     See  PRESUMPTIONS,  LAW. 

propriety  of  comments  by  judge  on,  289. 

regularity  of.    1007. 

special  knowledge  as  to,  386 

substantive,  in  law  of  evidence,  22. 

LAW  BOOK 

admission  of,  1095. 

LAW  MERCHANT 
judicially  known,   325. 


use  of,  369 


LAW  REPORTS 

LAWYER 

See  ATTORNEY. 


LAY-OUT 

opinion  as  to,  729. 

LEADING  QUESTIONS 
admission  of.   1172. 
asked  by  judge,  300. 

LEASES 
parol  evidence  rule,   1108,   1118  n,   1121. 

LEDGERS 
See  SHOP  BOOKS. 


INDEX.   (References  are  to  Sections.) 


991 


LEGAL  DOCUMENTS 
admissions  in,  553. 
failure  to  object  to  statements  in,  563. 

LEGALITY 

assumption  in  favor  of.  478. 

Sec  also,  ILLEGALITY. 

LEGAL  PROBLEMS 
expert  evidence  as  to,  811. 

LEGAL  RELEVANCY 
nature  of,  30. 

See  also,    RELEVANCY. 

LEGAL  TERMS 
explanation  of,  by  judge,  131. 

LEGISLATIVE  JOURNALS 

judicial  knowledge  as  to,  341. 
proof  of,   1057. 

LEGISLATURE 

See    also,    CO.NSTITI  TIONALITY;    STATUTES. 
judicial  knowledge   of,   341. 
evidence  of  acts  of,   1055. 
messages  of,  judicial  knowledge  of,  337. 
judicial    knowledge  of   proceedings  of,   341. 
presumption     of     legality     of     enactment    of 

statutes,  42!). 

presumption  of  regularity  of  acts  of,  493. 
records,  of,  completeness  of  record,  263. 

LEGITIMACY 
accusation  in  travail,  968. 
evidence  as  to,  940 

person  making  pedigree  declarations,  926. 
presumption  of,  446-450. 

LENGTH 
opinion  as  to,  740. 

LETTERS 

See  also.    DOCUMENTS. 
admission  by,  517.  550. 
as  unsworn  statements,  843. 
attorney   and   client,    between,    1162. 
best  evidence  rule,   1121. 
copies  of  official,  1087 
date  of.  presumed  correct,  425. 
failure  to  object   to  statements  in,  563. 
government  officials,  from  admission  of,  1082. 
hearsay,  as,  878. 

parol  evidence,  interpretation  of,   1115. 
parol  evidence  of,   152,   1108. 
presumption  of  receipt.  426. 
public   officers,   of.    judicial   knowledge  as  to, 

335. 

receipt  of  reply  letter.  274. 
written   to  judge  as  contempt   of  court,    100, 
secondary   evidence  of,    11 29 

LETTERS  OF  GUARDIANSHIP 

proof  of,  1065. 


LIBEL 

evidence  of  reputation  in,  855,   1033 
presumption  of  malice   in,  473. 
unsworn  statement   to  proof,   843. 

LICENSE 
burden  of  evidence  as  to  lack  of,  406. 

LIFE 

See   also,   DEATH. 
judicial  notice  of,  358. 
presumption    of   continuance,   417,   420,   451- 

401,  498. 
presumption  of  death  after  absence  of  seven 

years,  451-401. 

LIFE  INSURANCE 
See   also,    INSURANCE. 
expert  evidence  as  to,  811. 

LIGHT 

conclusion  as  to  sufficiency  of,  796. 

LIGHT  HOUSE  BOARD 

judicial  knowledge  of  rules  of,  339. 

LIMITATIONS  OF  ACTIONS 

nature  of,  68. 

presumption  of  lost  grant,  472. 
presumption  of  payment  from  lapse  of  time, 
469. 

LIQUIDS 
judicial  notice  of  characteristics  of,  353 

LIQUOR  NUISANCE 

reputation  to  show,  874. 

LIQUORS 

judicial  notice  of  character  of,  353. 

LITERARY  SERVICES 

account  books  to  .-how,  990. 

LITERATURE 
judicial  notice  of  allusion^  to,  358. 

LITIGANTS 

See  PARTIES. 
admissions  by,  533 
offer  of  compromise  by.  576. 
presumption   from  failure  to  testify,  4.36. 

LOAN  AGENCIES 
admissions  in  books  of.  547. 

LOANS 

account  books  to  show,  990. 

LOCAL  COURTS 
judicial    knowledge   of,    330. 

See  also,  INFERIOR  COURTS. 

LOCAL  OPTION 

statutes  as  public  or  private,  332. 


992 


INDEX.   (References  are  to  Sections.} 


LOCATION 

evidence  of,   691. 

judicial  districts,  of,  judicial  knowledge  as 

to,  342. 

opinion  as  to,  740. 
wounds  of,  693. 

LOGIC,  INCORPORATION  OF 

incorporation    of    logic,   643. 
logic  defined,   644. 
propositions,  645. 
mental  operations,  646. 
intuitions,  647. 
deductive  operations,  648. 
inductive  reasoning,   649. 
inference   from   experience,   650. 
deduction  the  basis  of  induction,  651. 
mental  certainty,  C>~r2. 
hypothesis,  653. 

testimony  as  to  rules  of  reasoning,  53. 
See  REASONING. 


LOGICAL  RELEVANCY 
See   also,   RELEVANCY. 


defined,  36. 


LOSS 


document,  of,  parol  evidence  of,  151,  234. 
original  document,  of,  1124. 

LOST  GRANT 
presumption  of,  472 

LOVE 

unsworn  statements  to  show,  851. 

LOYALTY 

proof  of,  by  reputation,  656. 
proof  of  good  character  for,  1033. 

LUMBER 

estimate  of  quantity  of.  740. 
judicial  notice  of  business  of  selling,  361. 

LUNATIC 

opinion  of  ordinary  observer  as  to,  702 
See  also,  INSANITY. 


MACHINERY 

capability  of,  opinion  as  to,  738. 
experiment  to  show  working  of,   1137. 
opinion  as  to,  71  s. 
opinion  of  suitability  of,  699. 
real  evidence,  as,   1136, 

MAGAZINES 
hearsay,  as,  877. 

MAGISTRATES 
See  CHIEF  MAGISTRATE. 
assumption  of  validity  of  acts  of,  492. 
confession  induced  by,  592. 


Magistrates  —  cont'd. 
judicial  knowledge  as  to,  342. 
presumption  of  regularity  of  acts  of,  492,  493. 
testimony  of,  as  to  confession,  614. 

MAIL 

judicial  notice  as  to  transportation  of,  362. 
record  of,   108:5. 

presumption  of  regularity  of  service,  426. 
rebuttal  of  inference  from  mailing,  427,  428. 

MALICE 

burden  of  proof  as  to,  468. 
libel,   ih,  presumption   of,  473. 
other  acts  to  show,  1013. 
presumption  of,  in  homicide,  468. 
unsworn  statements  to  show,  851. 

MALICIOUS  PROSECUTION 

evidence  of  reputation  in,  855,   1035,  1036. 
reasonable  cause  as  question  of  law,  56. 

MALT  LIQUORS 
judicial  notice  of,  353. 

MANAGEMENT 

business,  of,  skilled  witnesses  as  to,  388. 
vessels,  of,  opinion  as  to,  718. 

MANDATE,  WRIT  OF 
jury  trial  in,  214. 

MANSLAUGHTER 
dying  declarations,   895-913. 
presumption  of  malice,  468. 

MANUALS 
See  TRADE  MANUALS. 

MANUFACTURING 
See  also,  MECHANIC  AKTS. 
expert  evidence  as  to,  811. 
opinion  as  to,  718.      . 
skilled  witnesses  as  to  matters  of,  388. 

MAPS 

admission  of,   1082. 
copies  of,   1087 
proof  of  plots  of  lots,  262. 
use  of,  369. 

MARINE  INSURANCE 
See  also,  INSURANCE. 
expert  evidence  as  to,  811. 

MARITIME 
regulations  judicially  known,  324. 

MARITIME  MATTERS 
expert  matters  as  to,  811 
opinion  as  to,  718. 
skilled  witness  as  to,  387. 
records,  1095. 


(References  are  to  Sections.) 


993 


MARKET  REPORTS 
use  for  opinion  on  value,  744. 
use  of,  369. 

MARKET  VALUE 

proof  of,  743-747. 

See  VALUE. 

MARRIAGE 

church  records  of,  admission  of,  1094. 

continuance  of,  presumed,  422. 

copy  of  foreign   record  of,   1091. 

reputation  to  show,  034. 

tradition  to  show,  935 

pedigree   declarations   as   to,   931,   943. 

presumption   of   legality.  446. 

presumption   of   legitimacy  of  children,  446- 

450. 

proof  of  by  admissions,  557. 
proof  of  record,  2(52. 
proved  by  cohabitation,  943. 

MARRIAGE  REGISTER 
admission  of,  1082. 

MARRIED  WOMEN 

See  COVERTURE;    HUSBAND  AND  WIFE;   MAR- 
RIAGE. 

admissions  by,  534. 
dying  declarations  of,   907. 

MARTIAL  LAW 

judicial  knowledge  of  existence  of,  336. 

MATERIAL  EVIDENCE 
denned,  15. 

MATHEMATICS 

judicial  notice  of.  354 
use  of  calculations.  3(19. 

MATRIMONY 
See   MARRIAGE. 

MATTER 

judicial   notice  of  characteristics  of,   353. 
properties  of,  skilled  witness,  383. 
strength  of,  skilled  \vitness  as  to,  388. 


defined,  24. 


defined,  25. 


MATTER  OF  FACT 


MATTER  OF  LAW 


MATTER  OF  OPINION 
defined,  26. 

MAXIMS 
Cokes,  44. 
falsus  in  uno,  falsus  in  omnibus,  1180. 

MAYHEM 
determination  by  inspection,  61. 


MAYOR 

presumption  of  regularity  of  acts  of,  493. 
See  also,  OFFICERS. 

MEANING 
words,  of,  evidence  as  to,  55. 

MEASUREMENTS 
judicial  notice  of,  354. 

MECHANIC 

account  book  of,  993. 

MECHANIC  ARTS 
expert  evidence  as  to,  811. 
judicial  notice  of,  358.  362. 
opinion  as  to,  719. 
skilled  witnesses  as  to,  388. 
estimates  of  capabilities,  737-739. 

MEDICAL  BOOKS 

hearsay,  as,  877. 

MEDICAL  FACTS 
opinions  as  to,  722. 

MEDICINE 

burden  of  evidence  as  to  want  of  license  to 

practice,  406. 

expert  evidence  as  to,  722,  812. 
judicial  notice  of,  353,  358. 
judicial  notice  of  medical  terms,  362. 
opinions  as  to,  722. 
skilled  witnesses  as  to  matters  of,  390. 

MELANCHOLY 
opinion  as  to,  711. 

MEMORANDA 

absence  of,  as  negative  fact,  667. 
admissions  in,  533. 
admission  of,  1098. 
former  evidence,  of,  637. 
hearsay,  as,  878. 
kept  in  course  of  duty,  921. 
refreshing    memoranda    of    witness    by,    862, 
1098,   1173. 

MEMORY 

dying  declarant,  of.  912. 
refreshing,  862,  1098,  1173. 

MENTAL  ANGUISH 
opinion  as  to,  711. 

MENTAL  ATTITUDE 
instructions  as  to,   131. 

MENTAL  CAPACITY 
one  making  confession,  of,  585. 
opinion  of  ordinary  observer,  701. 
proof  of,  by  admissions,  557. 


994 


IXDEX.   (References  are  to  Sections.) 


MENTAL  CONDITION 
dying  declarant,  of,  912. 
See  also,  INSANITY;  (SANITY;  MENTAL  STATE 
expert  evidence  as  to,  812. 
inspection  as  evidence,   1134. 
judicial  notice  of,  358. 
opinion  of  ordinary  observer  as  to,  702. 
opinion  of  physician  as  to,  709,  722. 
party  may  testify  as  to  his  own,  656. 
presumption  as  to  sanity,  424. 
presumption  of  continuance  of,  421. 
proof  of.  to  invalidate  writing,  1114. 
proved  by  admissions.  557. 
reputation  to  show,  874. 
unsworn  statements  to  show,  847. 
witnesses  of,  1148. 

MENTAL  INCAPACITY 
witness,  of,  former  evidence,  627. 

.      MENTAL  STATE 
admission  by  agent  to  show.  543. 

See  also,  MENTAL  CONDITION. 
dying  declarant,  of.  912. 
evidence  of,  691 

otter  of  compromise  to  show,  577. 
opinion  as  to,  711. 
other  acts  to  show,   1011.  1014. 
party  may  testify  as  to  his  own,  656. 
presumption  of  capacity  for  crime.  463. 
presumption  of  continuance  of,  404,  421. 
proof  of,  559 
proof  of,  by  admissions,  557. 

MERCANTILE  AGENCIES 
judicial  notice  of,  362. 

MERCANTILE  GOODS 
opinion  of  value  of,  757. 

MERCANTILE  PAPERS 
failure  to  object  to  entries  in,  563. 

MERCHANTS 
account  books  of,  977,  995. 

MERIDIAN  LINES 
judicial  knowledge  of,  338. 

MESSAGES 
governor  of,  judicial  knowledge  as  to,  337. 

MESSENGER 
of  court,  delaying  as  contempt,  108. 


METABOLISM 


verbal,  68. 


MILITARY 
officers,  presumption  of  regularity  of  acts  of, 

493. 

affairs,  opinion  as  to,  728, 
records,  admission  of,   1082. 


MILLWRIGHT'S  TABLES 

judicial  notice  of,  354  n. 

MIND 

opinion  as  to  conditions  of,  701. 

See  also,   MKNTAL  CONDITION. 

MINING 

expert  evidence  as  to,  729,  812,  813. 
judicial  notice  of.  362. 
judicial  notice  of  history  of,  359  . 
jury   trial   in   ascertainment   of  extra   lateral 

rights,  215. 
opinion  as  to,  729. 
skilled  witnesses  as  to  matters  of,  385,  389. 

MINING  ENGINEERING 
See  also,  ENGINEERING. 

MINISTERS 
privileged  communications  to,  1165. 

MINORS 

See  also,  CHILDREN.  . 
estimate  of  age  of,  736. 
witnesses,  as,  1149. 

MINUTES 

for  judicial  records,  admission  of,  1061. 
judicial  notice  as  to,  ;{.};}. 

MISDEMEANORS 
right  to  jury  trial  in  prosecution  for,  219. 

MISREPRESENTATIONS 
parol  evidence  to  show,  1112. 

MISTAKE 

account  books,  in,  994. 
attorney,  of,  corrected  by  judge,  131. 
parol  evidence  to  show.   1117. 
sufficiency  of  evidence  of  mutual,  411. 

MITIGATING  EVIDENCE 
criminal  cases,  in,  burden  of  proof  as  to,  401. 

MODELS 

real  evidence,  as,  1136. 

MODIFICATION 
instrument  of,  sufficiency  of  evidence,  411. 
subsequent,   of   writing, 'parol   evidence   rule, 
1116. 

MOMENTUM 
judicial  notice  of  laws  of,  353. 

MONEY 
identification  of,  466. 
oral  evidence  to  show  payment  of,  1*128. 

MORALITY 

presumption  as  to,  424. 


INDEX.   (References  are  to  Sections.) 


995 


MORAL  NATURE 
judicial  notice  of,  358. 

MORAL  QUALITIES 
relaxation  in  proof  of,  65U. 

MORALS 

exclusion  from  courtroom  for  protection  of,  S3. 
reputation  to  show,  874. 

MORAL  UNIFORMITY 

relevancy  of,  100S-1024. 

See  also,  CHARACTER:   RKS  INTER  ALICS. 

MORPHINE 

evidence  that  person  is  under  influence  of,  G93. 

MORTALITY  TABLES 

judicial  notice  of,  3f>4. 
received,  042  n. 
use  by  expert,  829. 
use  of,  369. 

MORTGAGES 

copies  of  foreign  records  of,  1090. 

copies  of  record,  1080. 

parol  evidence,  interpretation  of,  1115. 

parol  evidence  rule,  11  OS. 

parol  evidence  to  apply  description  in,  1118n. 

parol  evidence  to  show  nature  of  transaction, 

lllSn. 
records  of,  10*4. 

MOTION 

directed  verdict,  for.  time  for  making,  194. 
for  order  for  separation  of  witnesses,  88-90. 
jury  trial  in,  213. 

MOTIVE 

admission  by  agent  to  >how,  ,>43. 
evidence  of  reputation,   1036. 
other  acts  to  show,   1015 
proof  of,  559. 
testimony  of  person  as  to,  656 

MOTOR  VEHICLES 
See  AUTOMOBILES 

MOVEMENTS 
heavenly  bodies,  of,  judicial  notice  of,  354 

MUNICIPAL  CORPORATIONS 
boundaries  of,  judicial  notice  as  to.  355. 
boundaries  of,  declarations  as  to,  894. 
contempt  of  court  by,   103 
copies  of  ordinances,   1088. 
incorporation  of.  declarations  as  to,   894. 
judicial  knowledge  of  legislative  branch,  341. 
judicial   knowledge  of  seal  of,  340. 
judicial  knowledge  of  what  are,  341. 
judicial  notice  as  to,  355. 
judicial  notice  of  growth  of,  359. 
presumptions   against   illegality   of,   495. 


Municipal  Corporations  —  cont'd. 
presumption     of     knowledge     of     ordinances, 

477. 

proof  of  ordinances,  1056. 
ordinances  of,  see  ORDINANCES. 
leputation  to  show,  874. 
right  to  jury  trial,  217 

statutes  creating  as  public  or  private,  332. 
vital   statistics  of,   262 

MUNICIPAL  COUNCILS 
presumption  of  regularity  of  acts  of,  493. 

MUNICIPAL  COURTS 

judicial  knowledge  as  to,  342. 
judicial  knowledge  of  laws,  330. 

MUNICIPAL  LAW 
as  a  fact,  25. 

MUNICIPAL  OFFICERS 
judicial  knowledge  of,  337,  359. 
judicial    knowledge    of    signatures    and    seals 

of,  340. 
presumption  of  regularity  of  acts  of,  493. 

MUNICIPAL  ORDINANCES 
See  ORDINANCES. 

MUNICIPAL  RECORDS 

proof  of,   1082. 

See  PUBLIC  DOCUMENTS. 

MURDER 

dying  declarations,  895-913. 
presumption  of  malice,  468. 

MUTE 

deaf,  as  witness,  153,   155. 
deaf,  not  presumed  an   idiot,  424. 
witness,  as,   1148 

MUTILATION 

documents,   of,   presumption   from,   442. 
real  evidence,  of,  presumption  from,  443. 


N 


NAMES 

corporations,   of,    judicially   known,   332. 
foreign   governments,   of,   judicial   knowledge 

as  to,  336 

pedigree  declarations  as  to,  932,  944. 
similarity  of,  488. 

NARRATIVE 
See  also,  RES  GEST.E. 
admissions  by  agent,  542. 
res  gestae,  as,  963. 

NATIONALITY 
pedigree  declarations  as  to,  932. 


996 


INDEX.    (References  are  to  Sections.) 


NATURAL  HISTORY 

>killod  witness  as  to,  38'J. 

NATURE 

extrajudicial  evidence  as  part  of,  5. 
judicial  notice  of  facts  of,  353. 
uniformity  of,  996-1007. 

See  also,  Ht.s  IXTEK  ALIOS. 
wounds,  of,  093. 

NAUTICAL  MATTERS 
skilled  witness  as  to,  387. 

NAUTICAL  RECORDS 

admission  of,  10!).5. 

NAVIGATION 
skilled  witnesses  as  to  matters  of,  387. 

NAVY 

opinion  of  members  of,  728. 
records,  of,  admission  of,  10M2. 

NAVY  DEPARTMENT 
judicial   knowledge  of   regulations  of,   339. 

NECESSITY 

as  ground  for  admission  of  dying  declara- 
tions, S!l(i 

conclusion  as  to,  ~!)5. 

conclusions   from   observations,   793 

declarations  as  to  matters  of  public  or  gen- 
eral interest,  890. 

entries  in  course  of  business,  917. 

expert  opinion,  715. 

of  introduction  of  former  evidence,  618. 

opinion  evidence  of,  677 

opinion  of  value,  751. 

pedigree  declarations,   027. 

proof  of  character.   1020. 

receipt  of  estimates.  735. 

res  inter  alios.  909,  1009. 

secondary  evidence,  for,   150. 

shopbooks.  978 

use  of  declarations  against  interest,   883. 

use  of  secondary  evidence,  233. 

NEGATIVE  ALLEGATIONS 
burden  of  proof,  3!)6 
burden  of  proof  in  criminal  cases,  400. 

NEGATIVE  EVIDENCE 
positive  evidence  distinguished,  20. 
instructions  as  to,  131. 

NEGATIVE  FACTS 
burden  of  evidence  as  to,  406. 
conclusions  as  to,  795. 
evidence  of,  689. 
method   of  proof,  400. 
positive  facts  contrasted,  33. 

See  also,   FACTS. 
relevancy  of,  667. 


NEGLIGENCE 

carriers,  of,  presumption  of,  469. 
evidence  of  reputation,   1036. 
other  acts  of,  KKIS. 

other  acts   to   show   knowledge,    1012. 
les    i]>sa   loquitor,   415. 

NEGOTIABLE  INSTRUMENTS 
admissions  in,  549 
admissions  by  joint  parties,  53(5. 
laws  of,  judicially  known,  325. 
parol  evidence  of,   151. 
presumption  from  possession  by  maker,  425. 

NEGOTIATIONS 

offers   of   compromise,    see    COMPROMISE,   OF- 
FERS OF. 

NEGROES 

witnesses,  as,  1159. 

NERVOUSNESS 
evidence  of,  693. 

NEWLY  DISCOVERED  EVIDENCE 
new  trial   for,  277. 

NEWSPAPERS 
See  also,  LIBKL,  473. 
admissions  in,  555. 
attacks    on    jurymen    as    contempt    of    court, 

106 

hearsay,  as,  877. 

pi  oof  of  ordinance  printed  in,   1056. 
publication  as  contempt  of  court,   107. 
unsworn  statement  in,  853. 

NEW  TRIAL 
error  in  law,  134-145. 
for  newly  discovered  evidence,  277. 
granting  of,   133. 
granting  of,  relation  to  directed  verdict,  186. 

NEXT  FRIEND 
admissions  by,  537. 

NOISE 

identification   from,   (i!)7. 

NOLO  CONTENDERE 

plea  of,  as  an  admission,  508. 

NOMINAL  PARTIES 
admissions  by,  537. 

NON-ACCESS 
evidence  of,  on  question  of   legitimacy,  449. 

NON-AGE 
See  AGE. 

NONFEASANCE 
attorney,  of,  as  contempt  of  court,   105. 


IXDEX.   (References  are  to  Sections.) 


997 


NON-RESIDENCE 
presumption  of  continuance,   422. 
witness,  of,  justifies  secondary  evidence,  234. 

NONSUIT 
direction  of,   197. 
propriety  of,  may  be  discussed  by  judge,  287. 

NOTARY  PUBLIC 
judicial  knowledge  of  signature  and  seal  of, 

344. 
judicially    known    as    existing   under    law   of 

nations,  324. 
presumption  of  regularity  of  acts  of,  493. 

NOTE 

See  also,   NEGOTIABLE   PAPERS. 
best    evidence   rule,    1121. 
endorsements  on,  923. 
unsworn  statement  in,  853. 

NOTICE 

See  KNOWLEDGE. 

issuance  of  contempt  order,  of,   101. 
opinion  as  to,  712. 

presumption  of  regularity  of  giving,  493. 
production  of  documents,  for,   1129. 
receipt  of  writing,  564. 

NOTORIOUS  FACTS 
See   KNOWLEDGE,  COMMON. 

NUL  TIEL  RECORD 
determination  of  plea  of,   61. 

NUMBER 
opinion  as  to,  740. 
witnesses,  of,  elimination  of,  304. 

NURSES 
opinions  of,  722. 

opinion  of  value  of  services  of,  757. 
qualification  of,  to  give  opinion,  725. 
skilled  witnesses,  as,  390. 

0 

OATH 

form  of,  98. 
nature  of,  1148. 
pleadings,  to,  effect  of,  513. 
witnesses,   of,  compelled,    103 
witnesses  to,  95,  96. 

See  WITNESSES. 

OBEDIENCE 
orders  of  judge,  to,  101. 

OBITUARY    NOTICES 

admissions  in,  551. 


OBJECTION 

former  evidence,  to,  618. 
manner    of    taking,    to    secondary    evidence, 
236. 

OBJECTIVE  RELEVANCY 

See  also,   RELEVANCY. 
evidence  of,   870. 

extrajudicial  evidence  as  field  of,  5. 
opinions,  of,  681. 

opinion  of  ordinary  observer,  712. 
unsworn  statement,  of,  843. 

OBJECTS 

description  of  by  witness,  691. 
estimate  of  age  of,   736. 

OBSERVANCE 
procedure,  of,  rights  of  parties,  66. 

OBSERVER. 
See  ORDINARY  OBSERVER;  WITNESSES. 

OBSTRUCTIONS 
stream,  in,  judicial  notice  of  effect  of,  353  n. 

ODOR 

ability  to  smell,  opinion  as  to,  737. 
evidence  of,  795. 
identification  from,  697. 

OFFERS  OF  COMPROMISE 

See  COMPROMISE,  OFFERS  OF. 

OFFICE 

tenure  of,  presumed.  419. 
attorney -general,  judicial   notice  of,  343. 
judge,  of,  judicial  knowledge  as  to,  342. 
prosecuting  attorneys,  judicial  notice  of,  343. 

OFFICERS 

See  also.  PUBLIC  OFFICERS. 
admissions  by,  540. 

corporate,  obedience  to  court  orders,   103. 
hearsay  by,  859. 

municipal,   judicial   knowledge   of,   337. 
presumptions  as  to,  419. 
presumption  of  regularity  of  acts  of,  490. 
regularity  of  officers,  returns,  425. 
serving  process,  assault  on,  as  contempt,  108. 
railroad,   of.   skilled   witnesses,   as   to   duties, 

391 
state,   of,   judicial   knowledge   as   to   acts   of, 

337 
street  railways,  skilled  witnesses  as  to  duties 

of,  291 
United  States,  of,  judicial  knowledge  as  to, 

334. 
vessel,  of,  skilled  witnesses  as  to  duties,  387. 

OFFICIAL  GAZETTE 

evidence  of.   1057 

-. 


998 


IXDEX.   (References  are  to  Sections.) 


OFFICIAL  PAPER 
admissions  in,  552. 

OFFICIAL  RECORDS 

former  evidence  as,  036. 

OFFICIAL  STATEMENTS 
hearsay,  as,  878,  87!>. 

OPENING 

cases,  to  receive  new  evidence,  165. 
direction  of  verdict  on,  195. 

OPENING  AND  CLOSING 
right  of,  159-163. 

OPERATION 

mine,  of,  opinion  as  to,  729. 
mines,  of,  skilled  witnesses  as  to,  389. 
railroads,  of,  expert  evidence  as  to,  814, 
railroad,  of,  judicial  notice  of,  362. 
railroads,  of,  opinion  as  to,   731. 
railroad,  of,  skilled   witnesses  as  to  matters 

of,  391. 
street    railways,    of,    expert    evidence    as    to, 

815. 

street  railways,  of,  opinion  as  to,  732. 
form,  of,  expert  evidence  as  to,  811. 

OPINIONS 

See  also,  INFERENCE  FROM  SENSATION;  EX- 
PERTS; HANDWRITING;  WITNESSES; 
CONCLUSIONS;  ESTIMATES;  VALUE. 

admissions  by  agent  in  form  of,  540. 

conclusion  of   witness,  see  CONCLUSIONS. 

experts,  see  EXPERTS. 

handwriting,  on,  see  HANDWRITING. 

hearsay  in  form  of.  859 

hypothetical  questions,  see  EXPERTS. 

judgments  of  experts,  see  EXPERTS. 

judge,  of,  not  to  be  stated  on  facts,  286. 

matter  of,  defined,  26,  i>~-2. 

matter  of,  672-687 ;  see  also,  WITNESSES, 
REASONING  BY. 

matters  of,  question  for  jury,  53. 

subject  of  admissions,  as,  528. 

value,  of,  see  VALVE. 

effect  on  competency  of  witness,   1152. 

OPPORTUNITY 

conclusion  as  to  sufficiency  of,  796. 
cross  examination,   for,   172. 
proof  of  other  acts  to  show,   1023. 

ORAL  CONTRACTS 
construction  of,  as  question  of  law    58. 

ORAL  EVIDENCE 
admissions,  as,  515. 
documents   distinguished,    16. 
instructions  as  to  value  of,  131. 
written  is  primary  as  compared  with,  230. 
See  also,  PABOL  EVIDENCE  RULE. 


ORAL  STATEMENTS 
completeness,  245-255. 


trial  by,  120. 


ORDEAL 


ORDER 


events,  of,  presumption  of  regularity  of,  491. 
evidence,  of,  variations  in,   164. 
maintenance  of,  in  courtroom,  99. 

ORDERS 

notice  of  issuance  of  contempt,   101. 

for  production  of  document,  441. 

of  court  to  be  obeyed,    101. 

procurement  of,  for  separation  of  witnesses, 

88. 
trial    judge,    of,    modification    by    Appellate 

Courts,   314. 

ORDINANCES 

copies  of,  1088. 

judicial  knowledge  of,  326,  329. 

judicial  knowledge  of,  in  local  courts,  330. 

judicial  knowledge  of  results  of,  334. 

See  also,  KNOWLEDGE. 
presumption  of  knowledge  of,  477. 
proof  of,   1056. 
proof  of  passage  of,   1082. 

ORDINARY  OBSERVER 

opinions   by,   683. 

opinions  from  sensation,  688-712. 

See  also,  INFERENCE  FROM  SENSATION. 

ORGANIZATION 

courts,  of,  judicial  knowledge  of,  342. 
corporate,  records  to  show,   1092. 

OTHER  COUNTRIES 

See  FOREIGN  COUNTRIES. 

OTHER  OFFENSES 
See  RES  INTER  ALIOS. 

OTHER  STATES 
See  FOREIGN  STATES. 

OVERSEERS  OF  POOR 
records  of,  1083. 

OWNER 

declarations  of,  on  discovery  of  larceny,  973. 
opinion  of  value  by,  758. 

OWNERSHIP 

conclusion  of  witness  as  to,  805. 
presumption   from  possession,   489. 
presumption  of,  469. 
presumption  of  continuance,  418. 
property,  of,  proof  of,  by  oral  evidence,  1128. 


INDEX.    (References  are  to  Sections.) 


999 


PAIN 

effect  on  confession,  589. 
evidence  of,  691. 
opinion  of  location  of,  700. 
statements  to  physician  as  to,  974. 
unsworn  statements  showing,  845. 

PAMPHLETS 
government   officials,   of,   admission   of,    1082. 

PAPERS 

See  DOCUMENTS-.   NEWSPAPERS. 
court,  judicial  knowledge  of,  344. 

PAROL  EVIDENCE  RTTLE 

See  also.  ADMINISTRATION. 

parol    evidence    rule,    general    statement    of, 

1108. 
private  documents,   1109. 

not  conclusive  against   strangers,   1109. 
consideration:     when    evidence    admissible 

to  show,   1109. 
receipts,   1109. 

exceptions:     collateral     agreements;      instru- 
ment incomplete,  1110. 
delivery   incomplete   or   conditional,    1111. 
duress,    fraud   or   fraudulent   representations, 

1112. 

illegality,   1113. 
incapacity,   1114. 
interpretation      and      explanation;      evidence 

admissible  for  purposes  of,   1115. 
words  of  doubtful  meaning,   1115 
what   evidence  is  admissible,    1115. 
usage,   1115. 

modification   or  rescission  subsequent  to  exe- 
cution,  1116. 
mistake,  1117. 
parties:   identification  of,  1118.    - 

real   transaction  may   be  shown,   1118. 
subject     matter     not     clear;     evidence    for 

purpose  of   identification,    1118. 
unauthorized   signing,    1119. 
public  records,   1120. 
documents,   151. 

PARDON 

hope  of,  as  inducement  for  confession,  587. 
judicial  knowledge  as  to  procedure  of,  339  n. 
judicial  knowledge  of  granting  of,  336. 

PARENTAGE 

See  also.  LEGITIMACY. 
evidence  as  to,  946. 
reputation  to  show,  935. 

PARISHES 

See    also,    COUNTIES:     MUNICIPAL    CORPORA- 
TIONS. 
judicial  knowledge  of  magistrates  of,   342. 


PAROL  CONTRACTS 
construction  of,  as  question  of  law,  58. 
sufficiency    of    evidence    of    specific    perform- 
ance of,  411. 

PARTIES 

admissions  by,  533. 

aiding  violation   of   order   for   separation  of 

witnesses,   92. 

consistency  in,  compelled,  78. 
exclusion  from  courtroom,  90. 
offer  of  compromise  by,  576. 
presumption  from  failure  to  testify,  436. 

PARTNERSHIP 
admissions  in  books  of,  547. 
laws  of,  judicially   known,  325. 
presumption  of   continuance,   422. 
parol  evidence  rule  as  to  agreement,   1108. 

PASSAGE 

statute,    of,    regularity    of,    presumption    of, 
429. 

PASSENGERS 
carriage,  of,  skilled  witnesses  as  to  matters 

of,    391. 
judicial  notice  as  to,  302. 

PATENT  OFFICE 
judicial  knowledge  of  practice  of,  339  n. 

PATENTS 
judicial  knowledge  of  practice  of  numbering, 

339  n. 

records  of,   1082,   1087. 
sufficiency  of  evidence  of  cancellation  of,  411. 

PATERNITY 

resemblance  as  evidence  of,  1135. 
See  also  PEDIGREE. 

PAUPER 
pedigree  declarations  of,  930. 

PAYMENTS 

oral  evidence  to  show,   1 128. 
presumption  of,  from   lapse  of  time,  469. 
recital   of,   in   writing,   parol   evidence,    1109. 
unsworn  statement  to  show  time  of,  84fi. 

PEACE 
judicial   knowledge   of  declaration  of,   336. 

PEACEFTTLNESS 
proof  of  character  for,  1033. 

PEDIGREE 

The  pedigree  exception,  925. 

rule  stated:   unsworn  statements  as  to  pedi- 
gree, 926. 

necessity   that   the   relationship   of   declar- 
ant be  legitimate,  926. 

administrative  requirements:   necessity;   gen- 
eral and  special,  927. 


1000 


IXDEX.   (References  are  to  Sections.) 


Pedigree  —  cont'd. 

administrative  requirements  —  cont'd. 

relevancy,  1)28. 

relevancy  of  family  history,  656. 

validity 'of  document  not  demanded,  929. 

issue  must  be  one  of  genealogy,  930. 
scope  of  rule;   facts  directly  asserted,  931. 

facts    incidentally    asserted;     relationship, 

932. 
form  of  statement,  933. 

composite;   reputation,  934. 
tradition,  035. 

individual,   936. 

circumstantial   proof  of  pedigree,  937. 
proof    by    acquiescence    in    case    of    pedigree, 

938. 

animal  pedigree,  939. 

scope  of  circumstantial  evidence  in  case  of 
pedigree,  940. 

birth,  941. 

death,  942. 

marriage,  943. 

names,  944. 

race,  945. 

relationship,  946. 

residence,  947. 

status,  948. 

PEDIGREE  BOOKS 

admission  of,  360,  939. 

PENALTIES 

actions  for,  character  evidence  in,  1029. 
direction  of  verdicts  in  actions  for,  184. 
sufficiency  of  evidence  in  suits  for,  410. 

PENS 
opinion  as  to,   70!). 

PERCEPTION,  EVIDENCE  BY 

evidence  by,  229 

evidence    by    perception ;    meaning    of    term, 

1131. 
administrative  power  of  court,   1132. 

review  by  Appellate  Court,  1132. 
subjects  of;   animals,   1133. 

persons:   facts  to  be  proved;   age,   1134. 
physical  injuries,  1134. 
exercise    of    power    by    presiding    judge, 

1134. 

color,  race,  etc,  1134. 
identity,    1134. 
compulsory    submission    to    examination,- 

1134. 
mental    condition,    insanity,    intelligence, 

etc.,  1134 

resemblance,  paternity,  etc,   1135. 
things;  in  civil  actions,  1136. 
in  criminal  cases,   1137. 

body  of  deceased  or  parts  thereof,   1137. 
clothes  and  other  personal  articles,  1137. 
identification  of  articles,  1137. 
experiments,   1138. 
view,  1139. 


PERFORMANCE 

See  SPECIFIC  PERFORMANCE. 

PERIODICALS 

hearsay,  as,  877. 

PERJURY 

as  contempt  of  court,  109. 
evidence  of  reputation.  1033. 

PERMANENCY 
injury,  of,  statement  of  witness  as  to,  691. 

PERSONAL  EVIDENCE 
real  evidence  distinguished,  21. 

PERSONAL  INJURIES 
declarations  upon  receiving,  974. 

PERSONAL  PROPERTY 

opinion  of  value  of,  757. 

opinion  as  to  change  of  value,  749. 

PHENOMENA 
opinion  of  effect  of,  739. 

PHOTOGRAPHY 

instructions  as  to  misleading  nature  of  pho- 
tographs,   131. 
judicial  notice  of,  354. 
opinions  as  to,  730. 
proof  of  photographs,   1092. 
x-ray  pictures,   1092. 

PHRASES 

evidence  of  meaning  of,   807. 

judicial  notice  as  to  meaning  of,  358,  362. 

parol  evidence  for  interpretation  of,   1115. 

PHYSICAL  CONDITIONS 

conclusion  as  to,  795. 
opinions  as  to,  693. 

PHYSICAL  EXAMINATION 
party,  of,  presumption  from   failure  to  sub- 
mit to,  436. 

PHYSICAL  FACTS 

expert  evidence  as  to,  812. 

opinions  as  to,  693. 

psychological  facts  distinguished,  27. 

See   also,    FACTS. 
scope  of  extrajudicial  admissions,  557. 

PHYSICAL  INCAPACITY 

witness,  of,  former  evidence,  629. 

PHYSICAL  POWERS 
presumptions  as  to,  423. 

PHYSICIAN 

burden  of  proof  as  to  absence  of  license,  406. 
opinions  of,  709,  722. 
opinion  of,  as  to  sanity,  709. 


IjSTDEX.    (References  are  to  Sections.) 


1001 


Physician  —  cont'd. 

opinion  of  value  of  services  of,  759. 

privileged  communications  to,   1167. 

record  of,  982  n. 

skilled  witness,  as  a,  390. 

skill  of,  reputation  to  show,  874. 

statements  of  sick  to,  974. 

witness  fees  of,  1146. 

PLACE 

birth,  of,  pedigree  statements,  941. 
hearing  of,  as  surprise,  283. 

PLAINTIFF 

burden  of  proof  on,  396. 
offer  of  compromise  by,  576. 
right  to  open  and  close,  159. 

PLANS 
declarations,  as,  893. 

PLEA 

guilty,  of,  as  a  confession,  603. 
guilty,   of,   as   admission,   502. 
guiltv,  of,  power  of  court  to  receive,  210. 
See   also,    PLEADINGS. 

PLEADINGS 

admissions  by,  503-514. 
admission  of,  1063. 
amendment  of,  as  surprise,  279. 
effect  of  allegations  in,  on  witnesses,  1150. 
effect  of,  on  burden  of  proof,  396-399. 
effect  of  on  right  to  open  and  close,  162 
foreign  statute,  necessity  of,  329. 
hearsay,  as,  878. 
proof  of,  1063. 

proof  of,  completeness  of,  265,   26(i. 
right  of  opponent   to  read  balance,   273. 
signatures  of  attorneys  to,  judicial  notice  as 
to,   343 

PLEADINGS  CRIMINAL 

effect  of  withdrawn  plea  of  guilty,  525  A. 

PLOTS  OF  LOTS 

proof  of  record  of,  262. 

PNEUMONIA 
judicial  notice  of,  358  n. 

POISONING 

spontaneous   statements   in   cases   of.   967. 

POLICE  OFFICERS 

presumption  of  regularity  of  acts  of,  493. 
judicial  knowledge  of  salary  of,  334. 


judge,  of,  99. 


POLICE  POWERS 

POLICIES 

See  INSURANCE. 


POLITICAL  HISTORY 

judicial  notice  of,  359. 

POLITICAL  OPINIONS 

unsworn  statements  to  show,  851. 

POLITICAL  PARTIES 
judicial  notice  of  history  of,  359. 

POLITICS 

judicial  notice  of,  358. 

POLL  BOOK 

admission  of,  1082. 

POLYGAMY 

testimony  of  wife,  1155. 

POPULATION 

census,  proof  of,  1057. 
judicial  notice  of,  359. 

POSITION 

municipal    divisions,    of,    judicial   knowledge 
of,  338. 

POSITIVE  EVIDENCE 

negative   evidence  distinguished,  20. 
instructions  as  to,   131. 

POSITIVE  FACTS 
negative  facts  distinguished,   33. 
See  also  FACTS. 

POSSESSION 

conclusion  of  witness  as  to,  805. 
of  note  by  maker,  presumptions  from,  425. 
presumption  of  continuance,  418. 
presumption  of  ownership  from,  489. 
stolen    goods,    of,    presumption    of    larceny, 
464-467. 

POSSIBILITIES 

conclusions  as  to,  795. 

railroads,  of,   skilled  witnesses  as  to,  391. 

POSTMARKS 

presumptions  from,  426 

POST  OFFICE 
admission    of    registry    kept    by    postmaster, 

1083 
presumption   of  knowledge  of  regulations  of, 

477. 
presumption    of    regularity    of    mail    service, 

426 
records  of,   1083. 

POST  OFFICE  DEPARTMENT 

judicial  knowledge  of  regulations  of  depart- 
ments, 339. 


1002 


INDEX.   (References  are  to  Sections.) 


POWER  OF  ATTORNEY 

copy  of  foreign  record,   1090. 
date  of,  presumed  correct,  425. 
proof  of,  1099. 
proof  of  deed  executed  under,  1101. 

POWERS 

corporations,   of,   judicially   known,   332. 
courts,   of,   judicial   knowledge   of,   342. 
deeds  executed  under,  as  ancient  deeds,  1106. 
instruments  executed   under,   proof   of,   1101. 
of  judge.     See  COURT  AND  JURY. 
procreation,  of,  assumed,  423. 


PRACTICE 


denned,  65,  71- 


See  PROCEDURE. 

PRAYER 
confession  in  form  of.  (>.  . 

PRELIMINARY  FACTS 
conditioning  admissibility,  44. 
relevancy,  of,  668. 

PREMEDITATION 
presumption  of  malice  from,  468. 

PREPONDERANCE 
evidence,  of,  408. 

PRESENCE 
of  judge,   constructive,   113. 

PRESIDENT 

judicial  knowledge  as  to,  334,  336. 
judicial  knowledge  of  message  of,  336. 
judicial  knowledge  of  signature  of,  340. 
presumption  of  regularity  in  acts  of,  493. 

PRESIDING  JUDGE 
See  COT-RT  AMI  JURY. 

PRESS 

See  KKWSPAPEBS. 

PRESUMPTIONS 
Administrative. 

administrative  assumptions,  486 
presumptions  of  law  contrasted,  487. 
effect  of  on  burden  of  evidence,  413. 
identity  of  person   from   similarity  of  name, 
48S. 

corroborative,  488. 

inferences  of  fact,  488. 

initials,  488 

infirmative,  488. 

extrinsic,  488. 

dissimilarity,   488 

assumption   displaced,   488. 
property  from   possession,  489. 
regularity,  490 

ancient  facts,  490 


Presumptions  —  cont'd. 
no  probative  force,  490. 
order  of  events,  491. 
judicial  proceedings,  492. 

inferior  or  foreign  tribunals,  492. 
courts  of  record,  492. 
public  officers,  493. 
clerks,  493. 

performance  of  conditions,  493 
judicial;   judges,  493. 
attorneys,   493. 

sheriffs  and  other  officers,  493. 
municipal,  493. 
county,  493 
legislative,  493. 

executive;   national  or  state,   493. 
relation  between  foreign  and  domestic  law, 

494. 

rate  of  interest  in  foreign  state,  61. 
common    law,   494. 
common  law  of  the  forum,  494. 
construction,    494. 

foreign  law  assumed  to  be  the  same  as 
that  of  the  forum;  common  law, 
494. 

inertia  of  the  court,  4!)4. 
civil  law  assumed  to  govern,  494. 
foreign  law  not  assumed  to  be  the  same 

as  that  of  the  forum,   494. 
statutory  law,  4!)4. 
when  foreign  law  is  statutory,  494 
wrongdoing  not  assumed,  495. 
fraud,  495. 

professional  duty,  495 
corporations,  495. 
fiduciary  conduct,  495. 
no  probative  force,  495. 
illegality,  495. 
good  character,  495,  855. 
conflict   of  presumptions;    civil   cases,   496. 

a  contrary  view,  496. 
criminal  cases ;   knowledge  of  law,  497. 
presumption   of   innocence,   498. 
no  presumption  in  the  matter,   498. 
bigamy,  498. 

continuance  of   life,   498. 
Presumption  of  Law. 
assumptions  of  procedure,  444. 
conclusive,  68. 
conclusive  evidence  as,  13. 
presumptions  of  law,  445. 
a  limited  number,  445. 
civil  cases,  445. 

presumption   of   legitimacy  —  marriages,  446. 
marriage,   446. 

"  inter   quatuor   maria,"   446. 
proof  under  the  modern  use  of  reason,  446. 
proof  of  access,  447. 
rebuttal  of  presumption,  448. 
limitation   unon  scope  of  evidence,  449. 
inferences  of  fact,  450. 

presumption  of  death;   continuance  of  life, 
451. 


INDEX.   (References  are  to  Sections.) 


1003 


Presumptions  —  cont'd. 
presumption  of  legitimacy  —  cont'd. 

inference  of  continuance  of  life  rebuttable, 

451. 
an    inference    of    varying    probative    force, 

452. 

adoption  of  rule  in  America,  453. 
statutory  modifications,  454. 

absence  from  jurisdiction,  454. 
proof  of  death  by  inferences  of  fact,  455. 
relevancy,  455. 
documents,  455. 
admissions,  455. 
proof  must  be  competent,  455. 
failure  to  hear,  456., 

actual   receipt  of  tidings,  456. 
probability   of   information,   456. 
infirmative   considerations,   456. 
shorter  periods,  456. 
absence   of   tidings   is   important   only 
when    it   exists  at  absentee's   home, 
456. 
subjective   facts,   457 

peculiar   inducements  to  communicate, 

457. 
unavailing  search,  458. 

administrative  details,  458. 
what  constitutes,  458. 

computation  of  the  seven  year  period,  459. 
time   of   actual  death ;    no-  presumption   of 

life  during  seven  years,  460. 
burden  of  evidence,  460. 
death  at  the  end  of  seven  years,  460. 
no  assumption  of  time   of   death  during 

the  seven  years,  460. 
death   at   end   of  a   considerable   period, 

460. 

death  at  beginning  of  period,  460. 
life  during  entire  period,  460. 
presumption  rebuttable,  461. 

motive    not    to    return    or    communicate, 

461 

hiding,  461. 

affirmative  evidence  of  life,  461. 
criminal  cases,  462. 

presumption   of   coercion,  462. 
capacity  for  crime,  463. 

fourteen  to  twenty-one,   463. 
seven    to    fourteen,   463. 
under  seven,  463. 
rape,  463. 

procedural   assumptions,   463. 
proof  of  mental  state  or  condition,  463. 
presumption  of  larceny  from  recent  unex- 
plained possession  of  stolen  goods,  464. 
limited    to    use    of    circumstantial    evi- 
dence, 464. 

statutory   modifications,   464. 
presumption  of  law  denied,  44. 
administrative   details,    464. 
"  a  question  of  fact  for  the  jury,"  464. 
corroboration   required,   464. 


Presumptions  —  cont'd. 
criminal  cases  —  cont'd. 

jury    may    act    in    accordance    with    the 

inference,  464 

a  prima  facie  inference  of  fact,  464. 
prima  facie  value  denied,  464. 
a   presumption   of   law,   464. 
inference  not  conclusive,  464. 
explanation,  465. 
rebuttal,  465. 

reasonable  doubt  alone  required,  465. 
spoliation,  465. 

opportunity  at  trial,  465. 
spontaniety,  465. 
place  and  cause  of  finding,  466. 
proof  of  possession,  467. 
presumption  of  malice  in  homicide,  468. 

a  discredited  rule,  468. 
Inferences  of  Fact, 
presumptions;    classification   of,   414. 
inferences  of  fact;  res  ipsa  loquitur,  415. 
"  no  presumption  on  a  presumption,"  415. 
inferences  are  rebuttable,  415 
inference  of  continuance,  416. 
administrative  assumptions,  416. 
length  of  time,  416. 
nature  of  subject  matter,  417. 
bodily   states  or  conditions,  417. 
habits,  417. 

of  continuance  of  hope  or  fear  in  confes- 
sion, 587. 
legal  results,  418. 
legal  status  and   standing,  419. 

qualification  or  disqualification,  419. 
official    and    other     fiduciary    relations, 

419. 

foreign  regulations,  419. 
foreign  law,  419. 
life,  420. 
mental  conditions,   404,  421. 

mental  or  moral  character,   421. 
mental   states,  421. 
personal  or  business  relations,  422. 
relations    to    creditors,   422. 
relations  to  localities,  422. 
inferences     or     regularity ;     human     attri- 
butes ;   physical,  423. 
power  of  procreation.  423. 
capacity   for  child-bearing,  423. 
mental  or  moral,  424. 

instinct  of  self-preservation,  424. 
moral  attributes,  424. 
business  affairs,  425. 
minor  instances,  425. 
corporation  business,  425. 
dates  and  actual  time,  425. 
usual  methods  followed,  425. 
officer's   returns,   425. 
official  business:    mail   service,  426. 
date,  426. 

"  due  course  of  mail,"  426. 
postmarks,  426. 


1004 


INDEX.   (References  are  to  Sections.) 


Presumptions  —  cont'd. 
inference  of  continuance  —  cont'd. 
receiving  postmark,  426. 
postage  must  be  prepaid,  426. 
deposit  in  the  mail,  426. 
when  mailing  is  complete,.  426. 
necessary  conditions  on  inference  of  re- 
ceipt from  mailing;   proper  address, 
426. 

rebuttal  of  inference  of  receipt  from  mail- 
ing, 427. 

corroboration,  427. 

same;  probative  force  of  inference  of 
receipt  from  mailing;  request  for 
return,  427. 

presumption  of  law,  427. 
presumption  of  law  denied,  427. 
inference  rebuttable,  428. 
jms  —  statutes,   429. 

ojii.-in  contra  spoliatorem,  430. 
confusion,  430. 
damages,  430. 
value  and  damages,  430. 
secret  offenses,  430. 
rebuttable,  430. 
spoliation   a  deliberative  fact,  431. 

modifying  circumstances,   431. 

criminal  cases,  431. 

subjective  relevancy,  431. 
spoliation  as  an  insult  to  the  court,  432. 
fabrication,  witnesses,  433. 

bribery,   433. 

writings,   434. 

criminal  cases,  434. 

suppression,     witnesses ;     failure    to     call, 
435. 

equity  causes,  435 

equal  availability,  435 

effect  of  knowledge,  435. 

explanation  permitted,  435. 

criminal  cases,  435. 

failure  to  testify,  436. 

effect   of   inference,  436. 

criminal  cases,  43(5 

removal  or  concealment,  437. 

other  modes  of  suppression,  437. 

probative   force  of   inference,  438. 

statutory   regulation,  43S. 

strength  of  inducement  to  speak,  438. 

writings,  destruction,  430 

explanation  permitted,  43!) 

administrative  punishment  and  indul- 
gence, 430. 

admiralty,  439. 

failure  or  refusal  to  produce,  440. 

use  of  secondary  evidence ;  ( 1 )  spoliat- 
ing party,  440. 

use  of  secondary  evidence;  (2)  non- 
spoliating  parly,  440. 

refusal  to  produce  on  demand,  441. 

summons,  order  of  court,  etc  ,  441. 

social   consequences  of   suppression,   441. 


Presumptions  —  cont'd. 
suppression  —  cont'd. 

mutilation,  alteration,  etc.,  442. 
real  evidence,  443. 
mutilation,  443. 
Pseudo-Presumptions, 
pseudo-presumptions,  469. 
conclusive  presumptions,  68,  470. 

scope  of  presumptions  of  this  class-fictions, 

471. 
lost  grant,  472. 

inference  of  fact,  472. 
when  conclusive,  472. 
presumption  of  malice  in  libel,  473. 

express  malice,.  473. 

death   of  attesting   witness   in   case  of  an- 
cient  writings,  474. 
need  of  corroboration,  474. 
effect  of  circumstances  of  suspicion,  474. 
consequences  of  conduct,  475 

presumption   of   law    repudiated,   475. 
good  character,  476. 
knowledge  of  law,  477. 
knowledge  of  law  by  judge,  333. 
instances   of   application,   477. 
absence    of    probative    force    demonstrated, 

477. 

no  inference  of  fact,  477 
real  nature  of  presumption,  477. 
presumption    of    innocence,   400,   478. 
general  relations,  478. 
an   overstated   rule,   479. 
constitutional   right,  479. 
an  anomolous  survival  from  an  earlier  age, 

479. 

time  covered  by  presumption,  479. 
meaning  of  phrase,  480.  v 

no  inference  of  fact,  480. 
no  inference  of  innocence,  480. 
a  double  aspect,  480. 
Scottish  law,   4SU. 
what    inertia    is   reasonable,   480. 
valueless   as   affirmative   proof,   481. 
treatment  of   prisoners   in   judicial  admin- 
istration, 482. 
weighing    the    presumption    of    innocence, 

483. 

other   views,  484. 
presumption  of  survivorship,  485. 
distribution  of  funds,  etc.,  485. 
probative  facts,  485 
civil  law,  485. 
deliberative    facts,    485. 
no  presumption  of  law,  485. 

PREVENTION 
surprise,  of,  276. 

witness,  of,  from  attendance,  as  contempt  of 
court,   109. 

PRICE  LISTS 
use  for  opinion  of  value,  744. 


I^vDEX.   (References  are  to  Sections.} 


1005 


PRIEST 

privileged  communication  to,    1165. 

PRIMA    FACIE    CASE 
denned,  409. 

PRIMARY  EVIDENCE 

See  also,  ADMINISTRATION;    BEST  EVIDENCE; 

FORMER    EVIDENCE:    PAROL    EVIDENCE. 
admissions  by  agents,  541. 
adoption   of  another's  admission,  544. 
best  evidence  rule   as  applied  to  documents, 

1121-1130. 

evidence  by  perception,  229. 
grades  of,  228. 

other  primary  evidence  more  probative,  231. 
preferred  to  secondary,  227. 
required,  227-243. 

PRINCIPAL  AND  AGENT 
See  AGENCY 

PRINCIPAL  FACTS 
evidentiary    facts    distinguished,    34. 

PRINCIPLES  OF  ADMINISTRATION 

See    ADMINISTRATION. 

PRISONERS 

See  CRIMINAL  LAW. 

PRISON  RECORDS 
admission  of,  1083. 

PRIVATE  DOCUMENTS 
See  DOCUMENTARY  EVIDENCE 
parol  evidence  rule,  1109. 

PRIVATE  RECORDS 
proof  of,  272. 

PRIVATE  STATUTES 
public    statutes    distinguished,    332. 
evidence    of,     1055. 

PRIVIES 

admissions  by,  539. 

PRIVILEGE 

self-incrimination,    against,    1179. 

PRIVILEGED  COMMUNICATIONS 

privileged  communications,   1160. 

as   to   self-incrimination,    1179. 

claims  of  privilege  against  self-incrimination 

in  former  evidence,  621. 

attorney  and  client;  general  rule,  1161.     See 
1154. 

when  applied.   1162. 

exceptions,   1163. 

waiver  by  client  of  privilege,   1164. 
clergymen,  1165. 
husband  and  wife:   general  rule,   1155,   1166. 


Privileged  Communications  —  cont'd. 
physician  and  patient;  privilege  is  of  statu- 
tory origin,  1167. 
public  justice;   grand  jurors,   1158,   1168. 

petty  or  traverse  jurors,   1158,   1169. 
secrets  of  state,  1170. 

PRIZE  COURTS 

judicial  knowledge  of  law,  324. 

PROBABILITIES 

railroads,  of,  skilled  witnesses  as  to,  391. 

PROBATE  COURTS 
admission  in  records  of,  552. 
admissions,   proof   of,   527. 
completeness  of  proof  of   papers  of,  271. 
documents  in,  admission  of,  1063. 
judicial  knowledge  as  to,  342. 
jury  trial  in,  216. 

presumption  of  regularity  of  acts  of,  493. 
presumption  of  validity  of  acts  of,  492. 
probate   of   will,  burden   of   proof  on,   399. 
proof  of  appointment  of  administrator,   271. 
proof  of   record   of,    1071. 
proof  of  records  of,   1077. 
records   of,    1065. 

PROBATIVE  FACTS 

See  also,  FACTS. 
character  as,  1036. 
component   contrasted,    30. 
principal  facts  distinguished,  34. 
proof  of  other  acts  to  show,   1024. 

PROBATIVE  FORCE 

account  books,  of,  995. 

admissions    by    silence,    of,    562. 

admissions,    of,    531. 

admissions  of  by  conduct,  of,  572. 

character   evidence,  of,   1043,   1047. 

confessions,  of,  608. 

dying  declarations,  of,  909. 

evidence,  of,  comment  by  judge,   129. 

extra-judicial  admissions,  of,  523.  558. 

inference   from   non-entry,   of,   667. 

informal  judicial  admissions,  of,  515. 

instructions   as   to,    131. 

judicial  admissions,  of.  500. 

medical  opinion,  of,-  726. 

opinion  of  ordinary  observer  as  to,  708. 

opinion  of  subscribing  witness,  of,  710. 

opinion  of  value,  of,   761. 

opinions,  of,  824-836. 

presumptions   against   wrong   doing,   of,   495. 

presumption   from   spoliation,   of,  438. 

presumption  of  death  after  absence  for  seven 

years,    of,    452. 
presumptions  of  fact,  of,  415. 
presumption  of  regularity,  of.  490. 
primary   evidence   not   the   question   of,   231. 
reasoning  by  witnesses,  of,  824-836. 
spontaneous    statements,    of,    975. 


1006 


INDEX.   (References  are  to  Sections.) 


Probative  Facts  —  cont'd. 
presumption   of   receipt   of   mail    from   mail- 
ing, of,  427. 

PROBATIVE  RELEVANCY 
See   RELEVANCY. 

PROCEDURE 

applied  by  judge,   64,   71. 

assumptions   of,   444. 

assumption   of   regularity   in,   492. 

best  evidence  as  a  rule  of,  237. 

defined,  Go. 

enforcement  of  order  for  separation  of  wit- 
nesses, 91. 

introduction  of  confession,  605. 

judicial  knowledge  as  to,  343. 

rights  of  parties  to  observance  <  of,  66. 

substantive   law  distinguished,   69. 

violation  order  for  separation  of  witnesses, 
94. 

rights  relating  to,  66. 

PROCEEDINGS 

See  SPECIAL  PROCEEDINGS. 
legislative,   judicial   knowledge  of,   341. 

PROCESS 

obstruction  of  service  of,  as  contempt,  107. 
presumption  of  regularity  of  service,  493. 

PROCLAMATION 
evidence  of,   1057. 
governor   of,   judicial   knowledge   as   to,   337. 

PROCREATION 

judicial   knowledge  of,   336. 
power  presumed,  423 

PRODUCTION 

documentary  evidence,  of,  103.  441,  1058, 
1097,  1129 

PRODUCTS 

farms,  of,  judicial   notice  of,   362. 

PROFESSION 

judicial  notice  of,  362. 

PROFESSIONAL  FACTS 

skilled   witnesses   as   to,  ,390. 

PROGNOSIS 

opinion?  as  to,  722. 

PROMISSORY    NOTE 

See  NEGOTIAHI.I;  INSTRUMENTS. 

PROMOTION 

justice,  of,  as  function  of  judicial  office,   70. 

PROOF  • 

defined,  7. 

evidence   contrasted,    7. 

right  to  produce,  148  et  al. 


PROPERTIES 

matter,  of,  other  occurrences  to  show,  1006. 
matter,  of,  skilled  witness,  383. 

PROPERTY 

judicial  notice  of  value  of,  358. 

PROSECUTING  ATTORNEY 

judicial  notice  of,  343. 
testimony  of,  as  to  confession,  614. 
See  also  DISTRICT  ATTORNEY. 

PROSECUTION 

See  MALICIOUS   PROSECUTION. 
burden  of  proof  on,  400. 

PROSECUTOR 

admissions   by,   538. 

PROTECTION 

witnesses,  of,  109,  295. 
jury,    of,    660. 

PROTOCOLS 

attached    to    treaty,    judicial    knowledge    of, 
327. 

PROVOCATION 

absence  of,  dying  declarations  as"  to,  908. 
unsworn  statements  to  show,  851. 

PRUDENCE 

conduct,  of,  conclusion  as  to,  800. 

PSYCHOLOGICAL  CONDITIONS 

expert  evidence  as  to,  812. 

PSYCHOLOGICAL  FACTS 

dying  declarations  to  show,  908. 
opinion  as  to,  701,  711. 
physical  facts  distinguished,  27. 
proof  of,   656 
subject  of  admissions,  528. 

PSYCHOLOGY 

induction,  1018. 

PUBLIC 

admittance  to  court   room,  79,  80. 

PUBLICATIONS 

Sec  also,  LIRKI.  :  NEWSPAPERS. 
official,   judicial   knowk-d'-e  as   to,   335. 


IXDEX.    (References  are  to  Sections.) 


1007 


PUBLIC  DOCUMENTS 

See  also   DOCUMENTS. 
in  general 

public  documents;    definition  of,   1048. 
ancient,  1107. 

construction  of,  as  question  of  law,  57. 
judicial  knowledge  of  court  records,  etc.,  344. 
parol  evidence  as  to,   1120. 
principle    controlling    admissibility,    1049. 
objection   that   they   should   not  be   removed, 

1050. 

equally  admissible  as  copies,   1051. 
where  not  kept  in  strict  conformity  to  statu- 
tory   requirements,    1052. 
authentication:   necessity  of,  1053. 

execution   denied,    1053. 
mode   of,   1054 
legislative  acts;   domestic,   1055. 

sister  state,  1055. 

foreign.   1055. 
ordinances,   1056. 

statutes:    requiring    keeping    of   record    or 
journal,  1056. 

necessity  of  authentication,  1056. 

as  to  admission  in  evidence  of  bound  vol- 
umes, 1056. 
papers  and   documents  relating  to  affairs  of 

state,  1057 

compelling  production  of,   1058. 
official  registers,  papers  and  writings 
public    documents :    official    registers,    papers 

and   writings,    1080. 
certificates  by   public  officers,   1081. 
particular  documents,   1082. 

land  records  of  grants  and  patents,  1082. 

official  maps,    1082. 

inventories,   1082. 

military  and  naval  records,   1082. 

municipal  records,   1082. 

election     certificates,     registry     lists,     etc., 
1082. 

bond  registers,   1082. 

birth,  death  and  marriage  registers,   1082. 

letters  of  an  official  character,  1082. 

county  records,  1082. 

federal  official  records,   1082. 

clerks  of  courts;  records  kept  by,  1082. 

school  records,  1083. 

prison  records,   1083. 

town  officials'  records,  1083. 

weather  records,  1083. 

tax   books,  etc.,   1083. 

state  officials'  records,    1083. 

surveyors'  records,   1083. 

sheriff's  books  and  records,  1083. 
private  writings  of  record;  conveyances,  1084 
copies  and  transcripts 

copies     and     transcripts:     official     registers, 
papers   and  writings,   1085 

mode  of  proof:   statutory  provisions,  1085. 
mode  of  proof;   certified   copies,   1086. 

limitations  on  power,   1086. 


Public  Documents  —  cont'd. 
mode  of  proof  —  cont'd. 

mode    and     sufficiency    of    authentication, 
1086. 

who  may  certify,  1086. 
land  office  records,   1087. 

official  letters,  1087. 

administrative  requirements,  1087. 
ordinances,  1088. 
records  of  private  writings,   1089. 

early    established    rules    in    New    England 
states,  1089. 

statutory  regulation,    1089. 

administrative  requirements,  1089. 
records  of  other  states,  1090. 

records  of  private  writings,  1090. 
foreign  records,  1091. 
copies  and  transcripts;   judicial  records 
copies     and     transcripts;     judicial     records, 

1066. 

exemplifications,  1067. 
examined  or  sworn  copies,  1068. 
office  or  certified  copies,  1069. 

authentication,  1069. 

justice's  courts,  1070. 

probate  courts,  1071. 
federal  courts,   1072. 
of  other  states,  1073. 

attestation  of  the  clerk,  1074. 

certificate  of  the  judge,  1075. 

justices  of  the  peace,  1076. 

probate  courts,   1077. 
state  courts  in  federal  courts,  1078. 
foreign  courts,  1079. 
judicial 

judicial      records:      administrative      require- 
ments, 1059. 

in  same  court  and  in  another  court,   1060. 
minutes    or    memoranda;     when    admissible, 
1061. 

when  not  admissible,  1061. 
judicial  records:   effect  when  perfected,  1062. 

extent  to  which  admissible,  1063. 

matters  not  properly   part  of,   1063. 

pleadings.  1063. 

incidental  matters,   1063. 

executions  and  returns,  1063. 

justices  of  the  peace,   1064 

administrative  requirements,   1064. 

duty  imposed   by   statute,   1064. 

probate  courts,   1065. 
copies  of,  1066-1079. 

See  COPIES. 

PUBLIC  HEALTH 

judicial  notice  of  facts  of,  354. 
PUBLIC  LANDS 
declarations  as  to,  894. 

PUBLIC  MATTERS 
declarations  as  to 

declarations    as    to    matters    of    public    and 
general   interest,   889. 


1008 


INDEX.   (References  are  to  Sections.} 


Public  Matters  —  cont'd. 

administrative   requirements;    necessity,   890. 
subjective   relevancy;    adequate   knowledge, 

Mil. 

absence  of  controlling  motive  to  misrepre- 
sent,  S!)2. 

form  of  declaration,  S'.):>. 
scope  of  rule;  boundaries,  etc.,  894. 

PUBLIC  OFFICERS 

acts  of,   judicial   knowledge  as  to,  335. 
hearsay  by,  >>">!>. 

papers  of,  see  PUBLIC  DOCUMENTS. 
presumption  of  regularity  in  acts  of,  493. 
reports  of,   1003. 
returns  of,  admissions  in,  .~>f>2. 
separation  of  witnesses,  90. 
statutes  creating  are  public,  332. 

PUBLIC  PROSECUTOR 

confession   induced  by,  592. 
presumption  of  regularity  of  acts  of,  493. 
See  also,  DISTRICT  ATTORNEYS. 

PUBLIC  RECORDS 

admissions  in,  '•>'>'!. 

completeness  demanded,  261-271. 

parol  evidence  of,   151. 

right  of  opponent  to  read  parts,  273. 

PUBLIC  STATUTES 

defined,  332. 
evidence  of,  103.). 
private  statutes  contrasted,  332. 
See  also,   STATUTES. 

PUBLIC  SURVEYS 

Sec  SURVEYS. 

PUNISHMENT 

for  crime  prescribed -by  substantive  law,  67. 
failure  of  witness  to  appear,  1147. 

PURPOSE 
opinion  as  to,  712 
other  acts  to  show,  1014. 
testimony  of  person  as  to,  656. 


QUALIFICATIONS 

character   witness,  of.    lO.'JS. 
handwriting  opinion,  770. 
interpreters,  of.    151. 
judge,  of,  judicial  knowledge  of,  342. 
medical    witnesses,   of,    72.'!. 
opinion  of  value,  for,  74ti,  753. 
opinion   witnesses,  of,  S24,  *2t!. 
presumption  of  continuance,  419. 

QUALITY 

land,  of,  opinion  as  to,  718. 
opinion  as  to,  740. 


QUARANTINE 
judicial  knowledge  as  to  regulations  for,  339. 

QUESTIONS 

restricting  repetition  of,  304. 

QUO  WARRANTO 
jury  trial  in,  214. 


RACE 

appearance    in    court    to    show,    1134. 
competency  of  witnesses,   1158. 
opinion  as  to,  693. 
proof  of,  945. 
proof  of,  by  admissions,  557. 

RAILROAD  PLATFORM 

opinion  of  safety  of,  699. 

RAILROADS 

See  also,  STREET  RAILWAYS. 
admissions  in  books  of,  547. 
estimate  of  speed  of  cars,  740. 
expert  evidence  as  to,  814. 
judicial  knowledge  of,  355. 
judicial  knowledge  of  reports  of,  335. 
judicial  knowledge  of  statute  organizing,  332. 
judicial  notice  of  history  of,  359. 
judicial  notice  of  operation  of,  362. 
opinions  as  to  matters  of,  731. 
res  ipsa  loquitur,  415 
skilled  witnesses  as  to  matters  of,  391. 

RAINS 
judicial  notice  of  seasons,  353. 

RANGE  LINES 
judicial  knowledge  of,  338. 

RAPE 

complaint  in,  976 
declarations  of  complainant,  969. 
evidence   of   reputation    in,    1033. 
other  offenses,  evidence  of,  839. 
presumption  of  capacity  of  children,  463. 

RATIFICATION 

treaty,  of,  judicially  known,  327. 

REAL  ESTATE 

admissions  in  books  of  agent,  547. 
admissions  by   privies,  53!). 
judicial  notice  as  to.  362. 
opinion  as  to  change  in  value,  749. 
opinion  of  value  of,  757,  760 
[•roof    of    ownership    of,    bv    oral    evidence, 

1128. 

proof  of  plots  of  lots,  262. 
quality  of,  opinion  as  to,  718. 
title  to,  opinion  as  to,  721. 


IXDEX.   (References  are  to  Sections.) 


1009 


REAL  EVIDENCE 

admission  of,   1131-1139. 

See  also,  PEKCEPTION,  EVIDENCE  BY. 
evidence  by  perception,   229 
personal  evidence  distinguished,  21. 
spoliation  of,  presumption  from,  443. 
trial  by  inspection,  61. 

REARRANGEMENT 

cases  on  docket,  of,   as  grounds  of  continu- 
ance, 283. 

REASON 

hearsay  rule,  for,  8(56,  867. 
right  of  litigant  to,  179. 
unsworn  statements  to  show,  851. 

REASONABLE  CAUSE 
malicious  prosecution,  in,  56. 

REASONABLE  DOUBT 

defined,  409. 

proof  in  criminal  cases,  beyond,  409. 

REASONABLE  TIME 
as  question  of  law,  56. 

REASONING 

considered,  643-653. 
characteristic   of  administration,   74. 
use  of,  by  jury,  56. 
use  of  in  order  of  evidence,   165. 
rules  of,  testimony  as  to,  53. 
element  of  observation,  824. 
mental  powers,  824. 
adequate  knowledge,  824. 
how  weight  is  tested;  detail  of  preliminary 

facts,  S25 

qualifications  of  witness,  826. 
inferences  tested;  when  tests  are  applied,  827. 
probative    force   of    inferences   from   observa- 
tion ;   stage  of  rebuttal,  828. 
probative  force  of  judgments;  how  enhanced; 

use  of  text-books.   829. 
how  tested  on  cross-examination,  830. 
stage  of  rebuttal,  831. 
use  of  standard  treatises ;  deliberative  effect, 

832. 
weight  of  inferences;  a  question  for  the  jury, 

833 

reason  essential  and  sufficient,  834. 
comparison  between  inferences  from  obser- 
vation and  reasoning  from  assump- 
tions, 835. 
weight  of  judgments;    a  field  of  conjecture, 

836. 
witnesses,  by,  672-687. 

See  also  WITNESSES. 
See  LOGIC. 


REBUTTAL 
evidence  in,  156. 
exclusion  of  anticipatory,  176. 
explanation  of  possession  of  stolen  goods,  of, 

465. 

inferences  from  silence,  562. 
inferences  of  acquiescence  from  silence,  566. 
inferences  on,  828,  831. 

See  WITNESSES. 
presumptions,  of,  415. 

from  spoliation,  430. 

coercion,  of,  462. 

death,  of,  461. 

death  after  absence  of  seven  years,  of,  451. 

identity  from  similarity  of  name,  of,  488. 

larceny  from  possession  of  stolen  goods,  of, 
*464. 

legitimacy,  of,  448. 

malice  from  homicide,  of,  468. 

ownership  from  possession,  of,  489. 

receipt  of  mail   matter   from   mailing,  of, 
427. 

receipt  of  telegrams,  of,  429. 

regularity,  of,  428. 
right  of,  173. 
subsequent,    178. 
use  of  experts  in,  175. 

RECALLING 

witnesses,  of,  1178,  1179. 

RECEIPT 

telegrams,  of,  presumption  of,  429. 

RECEIPTS 

absence  of,  as  negative  evidence,  667. 
government   officials,  by,  admission  of,   1082. 
parol  evidence  rule,   1109. 
proof  of,  1099. 

sufficiency   of   evidence   to    control   effect   ol, 
411 

RECEIVING  STOLEN  GOODS 
evidence  of  reputation  in,  1033. 
other  offenses  as  part  of  res  gestce,  839. 
other  offenses  to  show,   1012. 
other  offenses  to  show  knowledge,   1011. 

RECISSION 

written    instrument,    of,    sufficiency    of    evi- 
dence of,  411. 

RECITALS 
ancient  deeds,  in,   1103n. 

RECOGNITION 

foreign  governments,   of,   judicial   knowledge 
of,  336 

RECOGNIZANCE 
for  appearance  of  witness,  1144. 

RECORDER  OF  DEEDS 

judicial  knowledge  of  signature  and  seal  of, 
340. 


1010 


l.NDKX.    differences  are  to  Sections.) 


RECORDS 

See  also,  DOCUMENTARY  EVIDENCE;  PUBLIC 
Doer. MEMS;  PAROL  EVIDENCE  RULE. 

absence  of,  as  negative  fact,  (i(i7. 

commercial  agencies,   1093. 

corporations,  10'.)2. 

court,   judicial  knowledge  of,  344. 

ecclesiastical,   1094. 

existence  of,  determined  by  inspection,  61. 

family,  940. 

family,  to  prove  manager,  943. 

nautical,   lil'.io. 

secret  society,  10!l6. 

use  of,  to  discover  matters  of  judicial  no- 
tice, 360 

REDEMPTION 
from  tax  sale,  record  of,  1083 

REDIRECT  EXAMINATION 

right  of.  1177. 

REFEREES 
presumption  of  regularity  of  acts  of,  493. 

REFORMATION 

instrument  of,  sufficiency  of  evidence  for,  411 
writing,  of,  parol   evidence  rule,   1117. 

REFUSAL 

to  produce  documents,  presumption  from, 
440. 

REGISTERED  LETTERS 

record  of,  10S:i 

REFRESHING  MEMORY 
private  memoranda  for,  1098. 
unsworn  statements  for,  852. 
use  of  memoranda,  1173. 
with  hearsay  memoranda,  862. 

REGISTERS  t 

deeds,   of,   presumption  of   regularity  of  acts 

of,  4!i:3. 
judicial  knowledge  of  signatures  and  seals  of, 

340. 

probate,  of,  certificate  of,  271. 
probate,  of, 'presumption  of  regularity  of  acts 

of.  4!)3. 
pedigree,  of,  proof  of,  309. 

REGISTRY  LISTS 
admission  of,  1082. 

REGULARITY 

entries  in  course  of  business,  9fcl. 
presumptions  of,  423-429. 
presumptions  of,  490-493. 
relevancy  of,  914,   921. 
relevancy  of,  shop  books,  977-995. 


REGULATIONS 

goveinment  departments,  of,  339. 
post  oflice,  of,  presumption  of  knowledge  of, 
477. 

REJOINDER 

burden  of  proof  on  plea  in,  398. 

RELATIONSHIP 

See  also,  PEDIGREE. 
pedigree  statements  as  to,  946. 
proof  of,  946 
reputation  to  show,  934. 
tradition  to  show,  935. 

RELATIVES 

party,  of,  admissions  by,  540. 

RELAXATION 

canons,  of,  654-6->6. 

RELEASES 

parol  evidence  rule,  1108. 
sufficiency  of  evidence  of,  cancellation  of,  411. 

RELEVANCY 
in  general 

admissions,  of,  531,  532 
character  evidence,  of,    1027. 
conclusions  from  observations,  of,  793. 
dying  declarations,  of,  897. 
expert  opinion,  of,  715. 
hearsay,  evidence,  of,  870,  871. 
logical,  denned,  3(i. 
opinions,  of.  073,  681. 
opinion  of  value,  of,  752. 
pedigree  declarations,  of,  928. 
regularity,  of,  shop  books,  977-995. 
relevancy,  640. 

underlying  conception,  640. 

meaning  of  terms,  640. 
res  inter  alius,  1000,  1001. 
similarity,  of,  996-1024. 

.See  also,  KES  INTER  ALIOS. 
spontaneous  declarations,  950. 
Stephen's  definition,  641. 
Stephen's  definition  considered,  642. 
subjective,  denned,  30. 
relevancy,  probative 
canons  of  relaxation;  claim  of. the  crux,  654. 

direct  and  circumstantial  evidence,  655. 

inherent  difficulty  of  proof,  656. 

moral  qualities,  656. 

mental  state,  656. 

value,  6.10 

"  state  of  the  case,"  656. 

facts  of  family  history,  656. 

mental  condition,  656. 

ancient  facts,  656. 

identity,  656. 

canons    of    requirement;    must    accord    equal 
privileges,  057. 

definiteness  demanded,  658 


IXDEX.   (References  are  to  Sections.) 


1011 


Relevancy  —  cont'd. 
canons  of  requirements  —  cont'd. 
time  must  be  economized,  65!). 
jury  must  be  protected,  600. 
fact  must  not  be  remote,  661. 
time,  662. 
proving  the  res  gestse,  663. 

action  of  Appellate  Courts,  663. 
optional  admissibility,  664. 

antecedent    or    subsequent    facts;     ante- 
cedent, 664. 
subsequent,   664. 

consistent  and  inconsistent  facts,  665. 
explanatory  or  supplementary  facts,  666. 
negative  facts,  667. 

failure,  to  see,  hear,  etc.,  667. 
ignorance  of  alleged  fact,  667. 
absence  of  entry,  record,  etc.,  667. 
preliminary    facts,    66X. 
probative   relevancy;    objective   and   sub- 
jective, 669. 
independent    sufficiency    not    required, 

669. 

court  and  jury,  669. 
ignorance  and  other  subjective  impair- 
ment, t>6!». 
objective;  ancillary  facts,  670. 

corroboration  and  impairment,  670. 
burden  on  proponent,  670. 
effect  of  substantive  law,  670. 
subjective,  671. 

RELIGION 

dying  declarant,  of,  'Jll. 

judicial  notice  of,  358. 

judicial  notice  of  history  of,  359. 

REM 

actions  in,  burden  of  proof,  399. 

REMEDIES 
See   PROCEDI  RE. 
prescribed  by  substantive  law,  67. 

REMOTENESS 
admissions,  of,  532. 
facts  excluded  on  ground  of,  661. 
spontaneous  statements,  of,  1)65. 

REMOVAL 

documents,  of,  presumption  from,  442. 
witnesses,  of,  presumption  against  party,  437. 

RENTAL  VALUE 

.See  VAI.TE. 
basis  for  opinion  of  value,  763. 

REPAIR 

machinery  of,  opinion  as  to,  718. 

REPEAL 
statute,  of,  judicially  known,  331. 

REPETITION 
questions,  of,  restricting,  304. 


REPLICATION 
burden  of  proof  as  to,  346. 
REPLY 

letter  received,  274. 

See  also,  REPLICATION. 

REPORTS 

See  also,  MARKET  REPORTS. 
admissions  in,  548. 
commercial  agencies,  of,  1093. 
constable,  of,  922. 

department,  judicial  knowledge  as  to,  335.' 
public  officials,  of,  1063,   1082. 
railroad  company,  of,  admissions  in,  547. 
surveyors,  of,  1063. 

REPRESENTATIONS 
unsworn  statements  to  show,  843. 

REPRIMANDS 
of  counsel,  by  judge,  292. 
witnesses,  of,  293. 

REPUTATION 

as  character,  656,  1037. 

See  also,  CHARACTER. 
as  proof  of  sanity,  709. 
corporate  existence,  948. 
death  proved  by,  942. 
evidence  of,  854,  N74. 
good,  presumed,  855. . 
insanity,  of,  656 

matters  of  public  or  general  interest,  893. 
marriage  proved  by,  943. 
parentage,  of,  946. 
pedigree  of  animal,  938. 
pedigree  proved  by,  934. 
proof  of  names  by,  944. 
proof  of  residence,  947. 
proof  of  status  by,  948. 
relevancy,  1043. 
testimony  based  on,  864. 

RESCISSION 

subsequent,   of   writing,    parol   evidence   rule, 

1116. 
writing,  of,  parol  evidence  rule,  1117. 

RESEMBLANCE 
opinions  as  to,  740. 
proof  of  parentage  by,  1135. 

RES  GEST.E 
in  general 
completeness,  250. 
evidence  limited  to,  157. 

independent     relevancy     of     unsworn     state 

ments:   meaning  of  the  res  gesta%  838. 

contiguity,  intimate  relation,  etc.,  excused, 

838. 

constituent  facts  contrasted,  31. 
facts,  3.1. 

no  implication  of  action,  838. 
contemporaneousness  not  demanded,  838. 


1012 


INDEX.   (References  are  to  Sections.} 


Res  Gestae  —  jont'd. 
facts  —  cont'd. 

distinct  criminal  offenses,  839. 
dissimilar  offenses,  839. 
larceny,  839. 
homicide,  839. 
assault,  839. 
extra-judicial    statements    part    of    the    res 

gestip,   840. 

constituent  facts,  840. 
existence  of  the  statement  itself,  841. 
evidence  is  primary,  S42. 
forms  of  statements,  843. 
extra-judicial  statements  as  probative  facts, 

844. 
bodily  sensation,  845. 

who  may  testify  as  to  statements,  845. 
a  matter  of  necessity,  845. 
identification,  846. 
mental  condition,  847. 
intent  and  intention,  848. 

illustrative  instances,  849. 
knowledge,  850. 

statements  by  A.,  850. 
statement  to  A.,  850. 
illustrations,  851. 
extra-judicial      statements     as     deliberative 

facts,  852. 

form  of  statement ;   oral,  853. 
reputation,  854. 
libel,  etc.,  855. 
administrative  details,  856. 
admissions,  538,  542. 
judicial  notice  of,  351 
private  writings  as,  1098. 
proof  by  dying  declarations,  908. 
proving,  003. 

stolen  goods,  statements  as  to,  465. 
spontaneity 

hearsay  as  primary  evidence,  949. 
relevancy  of  spontaneity,  950 
declarations  part  of  a  fact  in  the  res  gestae, 

951. 

relevancy  to  fact,  asserted,  952. 
statement  must  be  contemporaneous,  953. 
the  principle  of  the  res  gestae,  954. 

relation  to  the  rule  against  hearsay,  955. 
the  modern  view,  95(5. 

considerations      determining      spontaneity, 

957. 

elapsed  time.  958. 
form  of  statement.  959. 
consciousness  and  lack  of  motive  to  mis- 
state, 960. 

permanence  of  impression,  961. 
physical  state  or  condition,  962. 
narrative  excluded:  admissions,  963. 
spontaneous  statements  by  agents,  964. 
remoteness,  965. 
range   of   spontaneous   statements;    probative 

facts  preceding  the  res  gests,  966. 
probative  facts  subsequent  to  the  res  gestae, 
967. 


Kes  Gestae  —  cont'd. 

range  of  spontaneous  statements  —  cont'd. 
accusation  in  travail,  968. 
declarations  of  complainant  in  rape,  969. 
American  rule,  970. 

independent    relevancy;    failure   to   com- 
plain, 971. 

the   element   of   time;    independent   rele- 
vancy, 972. 

declarations   of   owner   on   discovering   lar- 
ceny, etc  ,  973. 
personal  injuries,  974. 
probative  weight  of  spontaneous  statements, 

975. 
who  are  competent  declarants,  976. 

RESIDENCE 
evidence  as  to,  947.     . 

pedigree  declarations  as  to,  930,  932,  947. 
presumption  of  continuance,  422. 

RES  INTER  ALIOS 
in  general 
other  offenses,  part  of  res  gestae,  839. 

.See  also,  RES  GESTAE. 
relevancy  of  similar  occurrences;   uniformity 

of  nature,  996. 

preliminary  observations;  rule  an  assignment 
of  irrelevancy;  true  ground  of  rejec- 
tion, 997. 
rule  stated,  998. 

administrative  requirements;  necessity,  999. 
relevancy,  1000. 
relevancy  of  similarity,  1001. 
essentially  similar  occurrences,  1002. 
experiments,  1003. 
varying  phenomena,  1004. 
relevancy  of  dissimilarity,  1005. 

replies  of  opponent,  1005. 
inferences    other    than    similar    occurrences, 

1006. 

other  uniformities  than  that  of  physical  na- 
ture; regularity  of  law  or  business; 
habits,  1007. 
moral  uniformity 
res  inter  alios,  1008 
administrative  requirements,  1009. 
relevancy  of  similarity,  1010 
proof  of  mental  state,   1011. 
knowledge,  1012. 
malice,  1013. 

other  mental  states,  1014. 
motive,  1015. 
unity  of  design,  1016. 
relevancy  of  dissimilarity,   1017. 
psychological  induction,   1018. 
inferences  other  than  conduct,  1019. 
constituent  facts,   1020 
contradiction.   1021. 
corroboration  or  explanation,  1022. 
identification  of  doer  of  act;  essential  con- 
ditions for  conduct,  1023. 
probative  facts,  1024. 

See  CHARACTER. 


INDEX.   (References  are  to  Sections.) 


1013 


RES  IPSA  LOQUITUR 
as  a  presumption,  415. 

RESOLUTIONS 
legislative,  of,  judicial  knowledge  of,  329 

RESPONSIVENESS 
See  IRRESPONSIVENESS. 

RESULTS 

law,  of,  judicial  knowledge  of,  334,  337. 
law,   of,   judicial   knowledge  of   state  affairs, 

337. 
legislatures,  of,  judicial  knowledge  of,  341. 

RE-SURREBUTTAL 

right  of,  17*. 

RETURNS 
officer,  of,  admissions  in,  552. 

REVOCATION 

agency,  of,  admissions  by  agent,  540. 
unsworn  statements  to  proof,  843. 

RIVERS 
judicial  knowledge  of,  355 

ROADBED 

railroad,  of,  skilled  witnesses  as  to  facts  con- 
cerning, 391. 

ROBBERY 

other  acts  to  show  intent,  1011. 
other  offenses  as  res  gest<r,  839. 

RULES 

court,  of,  as  matter  of  procedure,  71. 
government  departments,  of,  judicial  knowl- 
edge of.  338. 
practice,  of,  judicial  knowledge  of,  343. 

RULINGS 
of  law,  judge  sitting  as  jury,  115. 

RUMOR 

evidence  of.   875. 
to  show  good  character,  1037. 


SAFETY 

animals,  of,  opinion  of,  711. 
mining,  of,  experience  as  to,  813. 
opinion  as  to,  699. 

SALARIES 

judges,  of,  judicial  knowledge  of,  342. 
municipal  officers,  of.  judicial  knowledge  of, 

337. 
policemen,  judicial  knowledge  of,  334. 


SALES 

See  also,  BILLS  OF  SALE. 
account  books  to  show,  990. 
lumber,  of,  judicial  notice  of,  361. 
proof  of,  by  oral  evidence,  1128. 
,secondary  evidence  of,  151 
unsworn  statements  to  show,  843. 

SANITY 

See  also,  INSANITY. 
accused  of,  burden  of  proof  of,  400. 
dying  declarant,  of,  912. 
general  reputation,  as  proof  of,  709. 
opinion  of  ordinary  observer  as  to,  702. 
opinion  of  physician  as  to,  709,  722. 
opinion  of  physician,  722. 
presumption  of,  404,  424. 
presumption  of,  424. 
presumption  of  capacity  for  crime,  463. 
presumption   of  continuance,  421. 
unsworn  statements  to  show,  847. 

SCHEDULES 
admissions  in,  552. 
attached  to  treaty,  judicial  knowledge  of,  327. 

SCHOOL  RECORDS 

admission  of,  1083. 

SCIENCE 

books  as  hearsay,  877. 

common  knowledge  as  to,  354. 

evidence  as,  22. 

explanation  of  terms,  by  judge,  131. 

judicial  knowledge  of  facts  of,  354. 

special  knowledge  as  to,  380-391. 

testimony  as  to  facts  of,  380. 

SCINTILLA 
evidence,  of,  not  sufficient,  190. 

SCOPE 

dying  declaration,  of,  908. 
hearsay  rule  of,  868 
of  law  of  evidence,  3. 

SEAL 

admiraltv   courts,   of,   judicial   knowledge  of, 

344. 

admissions  in  instruments  under.  549. 
authentication  of  record  under,  1069. 
corporate,  affixed  to  instrument,  1101 
corporate,   presumption  of  authority  to  affix, 

425. 

copy  of  ordinance  attested  by,  1088 
document,  on,  determination  by  inspection,  61. 
federal  courts,  of.  judicial  knowledge  of.  344. 
national,  judicial  knowledge  of.  340 
notary,  of,  judicially  known,  324,  344. 

SEALED  INSTRUMENT 
cancellation  of,  sufficiency  of  evidence  of,  411. 


INDEX,    (llep-n-nrcx  arc  to  tedious.) 


SEARCH 
lost  document,  for,  1125. 

SEASONS 
judicial  notice  of,  353. 

SECONDARY  EVIDENCE 
See    FORMER    EVIDENCE;    HEARSAY;     PABOL 

EVIDENCE   Rri.i:;   BEST  EVIDENCE. 
best  evidence   rule  as  applied  to  documents, 

1121-1130. 
defined,  11. 
decrees  of,  235. 
handwriting,  of,  7G5-770. 
hearsay,  as,  880. 
necessity  for  use  of,  233,  234. 
right  to  produce,  150-152. 
use  of,  upon  spoliation  of  primary  evidence, 

440. 

SECRECY 

in  commission  of  civil  wrong,  430. 

SECRETARY  OF  STATE 
presumption  of  regularity  in  acts  of,  493. 
proof  of  public  documents  of,  1057. 

SECRET  SOCIETIES 
records  of,  1006. 


SECTA 


witnesses,  120. 


SECTION  LINES 

judicial  knowledge  of,  338. 

SEDUCTION 

character  evidence  in,   1035. 
evidence  of  reputation  in,  1033,  1035. 
presumption  of  chastity,  476  n. 
resemblance  as  evidence  of  paternity,  1135. 
Kiiih'cien  -y  of  evidence  in  civil  case,  410. 

SEIZIN 
presumption  of  continuance,  418. 

SELECTMEN 

records  of,  1083. 

SELF-DEFENSE 
burden  of  evidence  as  to,  404. 

SELF-INCRIMINATION 

comparison  of  handwriting,  786. 

former  evidence  of  witness  claiming,  621. 

privilege  of,  597-601,  1178. 

See  also,  CONFESSIONS. 

SELF-PRESERVATION 

presumption  of  instinct  of,  424. 


SELF-SERVING  DECLARATIONS 

See  also,  DECLARATIONS. 

declarations  as  to  matters  of  public  or  gen- 
eral interest,  892. 
entries  in  course  of  tmsiness,  919. 
letters,  in,  550. 
part  of  admission,  531. 
proof  of,  566. 
spontaneous  declarations,   see   RES   GEST^E. 

SEPARATION 

witnesses,  of,  85,  103. 

SERVICE 

process,  of,  obstruction  as  contempt,  107,  108. 

SERVICES 

account  books  to  show,  990 
opinion  of  value  of,  757,  760. 

SESSIONS 
court,  of,  judicial  knowledge  of,  342. 

legislative,  judicial  knowledge  of,  341. 

-i 

SET  OFF 

burden  of  proof  on,  398. 

SETTLEMENT 

account  of,  oral  evidence  to  show,   1128. 
admissions  in,  548. 
efforts  at,  559. 
offer  of,  see  Coil  PROMISE,  OFFERS  OF. 

SETTLEMENT  CASES 
pedigree  declarations  in,  930 

SEXUAL  OFFENSES 

exclusion  from  court  room  at  trial  of,  83. 
other  acts  to  show  intent,  1011. 

See  also,  RAPE:  SEDUCTION. 

SHERIFF 

deed  of,  proof  of,  1101. 

enforcement  of  order  for  separation  of  wit- 
nesses, ill. 

judicial  knowledge  of,  337,  343. 

judicial  knowledge  of  signature  and  seal  of, 
340. 

judicial  notice  of,  343. 

presumption  of  regularity  of  acts  of,  493. 

record  to  show  execution  of  bond  by,  1082 

records  of,  admission  of,  1083. 

SHIFTING 

burden  of  proof,  395 


SHINGLE 


account  on,  988. 


SHIPS 

opinion  as  to,  718. 

skilled  witnesses  as  to,  387. 


INDEX.   (References  are  to  Sections.) 


101 


SHOP  BOOKS 

shop  book  rule,  977. 

administrative   requirements;    necessity,   978. 

relevancy;  adequate  knowledge,  979. 

absence  of  controlling  motive  to  misrepresent, 
980. 

parol  evidence  of,   152. 

presumption  of  genuineness,  425. 

failure  to  object  to  entries,  563. 

admissions  in,  547. 

suppletory  oath,  981. 

books  must  be  those  of  original  entry,  982. 

corroboration  aliunde,  983. 

entry  must  be  intelligible,  984. 

entry  on  book  account  must  have  been  a  rou- 
tine one,  985. 

facts  creating  suspicion,  986. 

identity  of  book  must  be  established,  987. 

material  used,  9S8. 

original  must  be  produced,  989. 

scope  of  evidence,  990. 

nature  of  charges:  special  contract,  991. 
other  matters,  992 

nature  of  occupation,  993. 

who  may  be  charged,  994. 

weight,  995. 

See  also,   ENTRIES  ix   COURSE  OF  BUSINESS. 

SHORTHAND 

entries  in  account  books  in,  984. 

SICK  BENEFITS 

receipt  of,  as  evidence  of  sickness,  559. 

SICKNESS 
adjournments  to  another  place  on  account  of, 

S4. 

evidence  of,  693. 
exemption  from  court  attendance  on  account 

of,  1140. 

opinion  of  cause  of,  739. 
witness  of,  former  evidence,  019,  629. 
witness,  of,  justifies  secondary  evidence,  234 

SIDEWALK 
opinion  of  safety  of,  699. 

SIGHT 

ability  of,  opinion  as  to,  737. 
failure  to  see,  as  negative  evidence,  667. 
loss  of,  by  witness,  former  evidence,  629. 
presumption  as  to,  423. 

SIGNATURES 

See  also.  HANDWRITING. 
attorneys,  of,  judicial  notice  of,  343. 
documents,  to.  proof  of.  1099. 
judicial  knowledge  of.  340. 
letter,  on,  presumptions  of  irenuineness,  425. 
notary  public,  of.  judicial  knowledge  of,  344. 


SIGNS 

dying  declarations  in  form  of,  905. 
evidence  by,  1148. 
opinion  of  genuineness  of,  764. 

SILENCE 

admissions  by,  500-564,  566,  571. 
admission  by  agent  by,  542. 
confession,  as  a,  003. 

SIMILARITY 

name,  of,  presumption  of  identity,  488. 
relevancy  of,  996-1024. 

See  also,  RES  INTER  ALIOS. 

SIMILAR  OCCURRENCES 
See  RES  INTER  ALIOS. 

SIMPLE  FACTS 

See  also,   FACTS. 
compound  contrasted,  27. 

SIZE 

municipal  divisions,  of,  judicial  knowledge  ol 
338. 

SKILL 

capacity,  proof  of  other  acts  to  show,  1023. 
conclusion  of  witness  as  to,  800. 
opinion  that  workman  habitually  uses,  694. 
physician  of,  reputation  to  show,  874. 

SKILLED  WITNESS 
See  EXPERTS;  KNOWLEDGE;  WITNESSES. 

SLANDER 

character  evidence  in,  1030. 
evidence  of,  reputation  in,  S55,  1035. 

SMELL 

See  also,  ODOR. 
ability  to,  opinion  as  to,  737. 

SOCIAL  LIFE 

judicial  notice  of  facts  of,  358. 

SODOMY 

declarations  of  complainant  in,  969  n. 

SOLVENCY 

conclusion  as  to,  795. 
opinion  as  to,  691 

presumption  of  continuance  of.  422. 
See  also,  INSOLVENCY. 

SOUND 

estimate  of,  740 

ability  to  hear,  opinion  as  to.  737. 

firearms,  of,  opinion  as  to,  719. 

SOUNDNESS 
opinion  as  to,  699 

SPACE 

conclusion  as  to  sufficiencv  of,  796. 


1016 


INDEX.   (References  are  to  Sections.} 


SPECIAL  AGENCY 
See  AGENCY. 

SPECIAL  FINDINGS 

See  FINDINGS. 

SPECIAL  INTERROGATORIES 

See  INTERROGATORIES. 

SPECIAL  KNOWLEDGE 

See  KNOWLEDGE;  SPECIAL. 

SPECIAL  PROCEEDINGS 
jury  trial  in,  214. 

SPECIAL  TERMS 
presumption  of  validity  of  acts  of,  492. 

SPECIAL  VERDICTS 
See  VERDICTS. 

SPECTATORS 

applause  of,  prevented,  200. 
exclusion  from  courtroom,  83. 

SPECULATION 
excluded,  802. 

SPEED 
estimate  of,  740. 

SPENDTHRIFT 
admissions  by,  534. 

SPOLIATION 
presumption  from,  430,  439. 

SPONTANEOUS  DECLARATIONS 

See  RES  GEST.«. 

STANDARDS 
measurement,  judicial  notice  of,  354. 

STANDARD  TREATISES 
use  of,  369. 
hearsay,  as,  877. 

STARE  DECISIS 
application  to  law  of  evidence,  118. 

STATE  COURTS 

judicial  knowledge  as  to  written  laws,  329. 
judicial  knowledge  of  common  law,  323. 
judicial  knowledge  of  treaties,  327. 

STATE  DEPARTMENTS 
judicial  knowledge  of  regulations  of,  339. 

STATE  OFFICERS 
judicial  knowledge  as  to,  334. 
presumption  of  regularity  of  acts  of,  493. 
records  of,  admission,  1083. 


STATE  PAPERS 
proof  of,  1057. 

STATES 

boundaries  of,  judicial  knowledge  of,  338,  355. 
events  distinguished,  35. 
judicial  knowledge  as  to  officials  of,  237. 
judicial  knowledge  of  seal  of,  340. 
judicial  notice  as  to,  355. 
right  to  jury  trial,  217. 

STATE  SECRETS 
privileged,  1170. 

STATISTICS 

census,  of,  judicial  notice  of,  354. 

See  also,  VITAL  STATISTICS. 

STATUS 
proof  by  reputation,  948. 

STATUTE  OF  LIMITATIONS 

See  LIMITATIONS  OF  ACTIONS. 

STATUTES 
judicial  knowledge  of,  see  also  KNOWLEDGE, 

JUDICIAL;  FOREIGN  LAW. 
construction  of,  as  question  of  law,  57. 
evidence  of,  1055. 

foreign,  skilled  witness  as  to,  386. 
making   certain    facts   prima    facie   evidence, 

409. 

presumption  of  knowledge  of,  477. 
presumption  of  legality  of  passage,  429. 
private  and  public  distinguished,  332. 
presumption  of  similarity,  494 

STENOGRAPHY 
notes  as  a  document,  16. 
former  evidence  of  notes,  638. 

STIPULATIONS 

admissions  by,  502,  514. 

STOCK 

expert  evidence  as  to,  811. 

judicial  notice  of  raising,  362, 

raising,  skilled  witness  as  to  matters  of,  385. 

transactions  in,  judicial  notice  of,  362. 

STOCK  BOOK 

private  corporation,  of,  1092. 

STOCKHOLDERS 

judicial  knowledge  as  to,  332. 

STOCK  OF  GOODS 

identification  of,  697. 
opinion  of  value  of,  757. 

STOCK  RAISING 
opinion  as  to,  718. 


IXDEX.   (References  are  to  Sections.) 


1017 


STOLEN  GOODS 
See  RECEIVING  STOLEN  GOODS. 
possession  of,   presumption  of   larceny,  464- 
467. 

STREAMS 
judicial  notice  of  action  of  water,  353. 

STREET  RAILWAYS 

See  also,  RAILBOADS. 
estimate  of  speed  of  cars,  740. 
expert  evidence  as  to,  815. 
judicial  knowledge  of  incorporation,  332. 
opinions  as  to  matters  of,  733. 
res  ipsa  loquitor,  415. 
skilled  witnesses  as  to  matters  of,  391. 

STREETS 

judicial  notice  of,  355. 

line  of.  evidence  of,  1082. 

opinion  of  safety  of,  609. 

other  accidents  to  show  knowledge  of  defects, 

1012. 
proof  of  location  of,  1082. 

STRENGTH 
evidence  of,  691. 
materials  of,  skilled  witnesses  as  to,  388. 

STRUCTURE 
opinion  of  safety  of,  699. 

SUBJECTIVE  RELEVANCY 

See  also,  RELEVANCY. 
declarations  against  interest,  884. 
declarations  as  to  matters  of  public  or  gen- 

eral interest,  891. 
defined,  36. 

dying  declarations,  898. 
entries  in  course  of  business,  918. 
hearsay,  evidence  of,  870. 
judicial  evidence  in  domain  of,  6. 
opinions,  of,  681. 

of  ordinary  observer,  712. 


SUBORDINATION 
inferences  from,  433. 

SUBPOENA 
attendance  of  witnesses,  for,  1141. 

SUBPOENA  DUCES  TECUM 
production  of  documents,  for,  1142 

SUBSCRIBING  WITNESS 
See  ATTESTING  WITNESSES. 

SUBSCRIPTION 
parol  evidence  rule,  1108. 

SUBSTANTIVE  LAW 
announced  by  judge,  64. 
judge  should  aim  to  give  certainty  to,  305. 


Substantive  Law  —  cont'd. 
position  of,  in  law  of  evidence,  22. 
procedure  distinguished,  69. 
remedies  prescribed  by,  67. 
ruling  of  judge,  as  to  appeal,  306. 

SUBSTANTIVE  RIGHTS 
protection  of,  148-225. 

See  also,  ADMINISTRATION. 

SUCCESSION 
seasons  of,  judicial  nature  of,  353. 

SUFFERING 
evidence  of,  693. 

statements  to  physician  as  to,  974. 
unsworn  statements  showing,  845. 

SUFFICIENCY 
conclusion  as  to,  796. 

SUICIDE 
presumption  against,  424. 

SUI  JURIS 
presumption  of,  424. 

SUITABILITY 
opinion  of,  699. 

SULKINESS 
animals,  of,  opinions  of,  711. 

SUMMONS 

See  PROCESS. 
for  production  of  document,  441. 

SUPERVISORS 

judicial  knowledge  of,  342. 

presumption  of  regularity  of  acts  of,  493. 

records  of,  1082. 

SUPPLEMENTARY  FACTS 
relevancy  of,  666. 

SUPPOSITIONS 

excluded,  802. 
witness  stating,  673. 

SUPPRESSION 
See  also,  SPOLIATION. 
documents,  of,  consequences  of,  441. 
document's,  of,  presumption  against,  431. 
evidence,  of,  presumption  from.  435. 
prosecution,  of,  efforts  at,  559. 

SUPREMACY 
jury,  of,  132. 

SURETYSHIP 
parol  evidence  rule,  1108. 

SURGEONS 
See  also,  PHYSICIANS. 
opinions  of,  722. 


1018 


INDEX.   (References  are  to  Sections.) 


SURGERY 

skilled  witness  as  to,  3!)0. 

SURMISES 
do  not  constitute  reasonable  doubt,  409. 

SURPRISE 

as  ground  for  adjournment,  77. 
prevention  of,  276-303. 

See  also,  ADMINISTRATION. 

SURREBUTTAL 
right  of,  177. 

SURROGATE  COURTS 
See  PROBATE  COURTS 

SURVEYING 

judicial  notice  of,  338,  3G2. 
copies  of  surveys,  1087. 

declarations  of  surveyor  as  to  boundaries,  891. 
opinions  as  to,  718. 
presumption  of  correctness  of,  495. 
report  of  surveyor,  1063,  1083. 
surveyor's  notes,  as  declarations  of  public  or 
general  interest,  893. 

SURVEYOR-GENERAL 
presumption  of  regularity  in  acts  of,  49 

SURVIVOR 

as  witness,  1 157. 

SURVIVORSHIP 

presumption  of,  485. 

SWEARING 

witnesses,  of,  !)f),  !)6. 
witnesses,  of,  compelled,  103. 

SWORN  COPIES 

public  documents,  of,  10(i8. 

SYMPTOMS 

disease,  of,  skilled  witness  as  to,  390. 

evidence  of,  601. 

expert  evidence  as  to,  812. 

T 

TASTES 
presumption  of  continuance  of,  421. 

TAX  BOOKS 

admission  of,  1083. 
admissions  in,  555 
proof  of,  262. 

TAX  COLLECTORS 
judicial  knowledge  of,  337. 
judicial  knowledge  of  signature  and  seals  cf, 

340. 
records  of,  1083. 


proof  of,  1101. 


TAX  DEED 


TAXES 


judicial  knowledge  of  assessments,  335. 
judicial  notice  of  payment,  358. 
oral  evidence  to  show  payment  of,   1128. 
presumption  as  to  assessment  of,  493. 

TAX  SALES 
records  of,  1083. 

TECHNICAL  FACTS 

expert  opinion  on,  see  EXPERTS. 
testimony  as  to,  380. 

TECHNICAL  LANGUAGE 

construction  of,  57 
skilled  witness  as  to,  384. 

TELEGRAMS 

as  unsworn  statements,  843. 
hearsay,  as,  878. 
presumption  of  receipt,  429. 
secondary  evidence  of,  1129. 

TELEGRAPH  COMPANIES 

judicial  knowledge  as  to,  332. 

TELEGRAPHING 

judicial  notice  of,  362 
opinions  as  to,  733. 

TELEPHONE 
admissions  over,  556. 
hearsay  over,  J-5!). 
judicial  notice  of  history  of,  359. 
presumption  of  authority   of  one  answering, 
425. 

TEMPERATURE 

swearing  witness  over,  98. 
estimate  of,  740. 

TENANTS  IN  COMMON 
admissions  by,  536. 

TENURE 

office,  of,  presumed,  41!) 
office,  of,  judicial  knowledge  as  to,  334. 

TERMS 

court,  judicial  knowledge  of  length  of,  342 

judicial  notice  of  medical,  362. 

municipal  ollicers,  of,  judicial  knowledge  of, 
337. 

ollice  of  judges,  of,  judicial  knowledge  of,  342 

office  of  prosecuting  attorneys,  of,  judicial  no- 
tice of,  343 

sheriffs  and  constables,  of,  judicial  knowledge 
as  to,  343. 

TERRITORIES 
judicial  knowledge  of  seal  of,  340. 


INDEX.   (References  are  to  Sections.) 


101 


TESTATOR 
death  of,  proof  of,  1065. 

TESTIMONY 

See  also,  FOKMEB  TESTIMONY. 
admission  by,  516. 
as  judicial  evidence,  6. 
defined,  S 

evidence  contrasted,  8. 
restricting  repetition  of,  304. 

TEXT-BOOKS 

as  evidence  of  common  knowledge,  369. 
reference  to  legal,  by  judge,  333. 
use  by  expert,  829,  832. 

THEFT 

declarations  of  owner  upon  discovery  of,  973. 
presumption  from  possession  of  stolen  goods, 
464-467. 

THICKNESS 
opinion  as  to,  740. 

THREATS 

as  inducement  for  confession,  589,  590. 
effect  of,  on  admissions,  529. 

TIDE  TABLES 
judicial  notice  of,  354  n. 

TIME 

biivh,  of,  pedigree  statements,  941. 
conclusion  as  to  sufficiency  of,  796. 
economizing  of,  (>59,  662. 
elections,  of,  judicial  knowledge  as  to,  334. 
estimate  of,  740 
hearing,  of,  surprise  as  to,  283. 
judicial  notice  of  divisions  of,  353. 
lapse  of,  presumption  of  payment,  469 
making,  of,  admissions,  527 
reasonable,  as  question  of  law,  56. 
unsworn  statement  to  show,  846. 


TIME  BOOKS 


receipt  of,  982 


TITLE 

See  also,  ABSTBACT  OF  TITLE. 
expert  evidence  af,  721 

TITLE  DEEDS 
copies  of  records,  1089 

TOBACCO 

judicial  notice  of  use  of.  358. 

TOOLS 

experiment  as  to  use  of,  1138. 
opinion  as  to,  718. 


TOWN  CLERKS 

copies  of  ordinances,  1088. 

presumption  of  regularity  of  acts  of,  493. 

records  of,  1083. 

record  of,  proof  of  ordinance,  1056. 

TOWN  COMMISSIONERS 

records  of,  1083. 

TOWN  OFFICIALS 
records  of,  1083. 
presumption  of  regularity  of  acts  of,  493. 

TOWN  RECORDS 

proof  of,  1083. 

TOWNS 

See  MUNICIPAL  CORPOBATIONS. 
judicial  notice  of,  355. 
judicial  knowledge  of  boundaries  of,  338. 
judicial  notice  of  growth  of,  359. 
right  to  jury  trial,  217. 

TOWNSHIP  COMMITTEES 
presumption  of  regularity  of  acts  of,  493. 

TOWNSHIPS 
See  TOWNS. 

TOWN  TREASURERS 
presumption  of  regularity  of  acts  of,  493. 
records  of,  1083 

TOWN  TRUSTEES 

deed  of,  proof  of,  1101. 

presumption  of  regularity  of  acts  of,  493. 

TRACK 

opinion  of  safety  of,  699. 

TRACKING 

by  bloodhounds,  797. 

TRACKS 

horses,  of,  opinion  as  to,  696. 

opinion  of  ordinary  observer,  695,  697. 

opinion  as  to,  720. 

TRADE  CIRCULARS 
use  for  opinion  of  value.  744. 

TRADE  MANUALS 

use  of,  369 

TRADESMEN 

account  books  of,  993. 

TRADE  TABLES 
judicial  notice  of.  354. 

TRADING 

judicial  notice  of,  362. 

TRADITION 

evidence  of,  876 
matters  of  pedigree,  935. 


1020 


INDEX.   (References  are  to  Sections.) 


TRAINED  NUKSE 
See  NUBSE. 

TRAITS 

See  CHARACTER. 

TRANSCRIPTS 
public  documents,  of,  1060-1079. 

See  also,  PUBLIC  DOCUMENTS. 
records  of,  1085-1091. 

TRANSLATION 

documents  in  foreign  language,   153. 

TRANSMISSION 
See  TRANSPORTATION. 

TRANSPORTATION 

See  also,  RAILROADS  :  STREET  RAILWAYS. 
judicial  notice  as  to,  362. 
mail,  of,  presumption  of  regularity,  426, 
skilled  witnesses  as  to  matters  of,  391. 

TRAVAIL 

accusation  in,  968. 

TREASURY  DEPARTMENT 
judi^l  knowledge  of  regulations  of,  339. 

TREATIES 
judicial  knowledge  of,  327. 

TREATISES 
use  by  expert,  829. 
use  of,  in  matters  of  judicial  notice,  369. 

TREATMENT 
disease,  of,  skilled  witness  as  to,  390. 

TRIALS 

See  also,  NEW  TRIALS. 
early  forms  of,   120 
expedition  of,  304. 
inspection,  by,  61 
right  of  party  to  jury,  205. 
witnesses,  by,  120. 

TROLLEYS 

See  STREKT  RAILWAYS. 

TRUSTEES 

admissions  by,  f>.'!7 

deeds  of,  proof  of,   1 101 

presumption  of  continuance  of  tenure,  419. 

TRUTH 
reputation  for,  1033. 

TYPEWRITING 
opinion  identifying,  767 

U 

UNCONSCIOUSNESS 
opinion  of,  701. 


UNCONTROVERTED  FACT 

comment  by  judge  on,  128. 

UNDERSTANDING 

opinion  as  to,  711 
witness's,  not  received,  859. 
witness  stating  his,  673. 

UNDERTAKERS 

skilled  witnesses,  as,  390. 

UNDUE  INFLUENCE 
opinion  as  to,  712. 
unsworn  statements  to  show,  851. 

UNIFORMITY 
moral,   1008-1024. 

See  also  RES  INTER  ALIOS. 
moral,  character,  1026-1047. 

UNIMPORTANT  EVIDENCE 
exclusion  of,  059. 

UNINCORPORATED  ASSOCIATIONS 

contempt  of  court  by,  103. 

UNITED  STATES 
judicial  knowledge-  of  seal  of,  340. 

UNSOUNDNESS 
See  also,  SOUNDNESS. 

USAGES 

navigation,  of,  skilled  witnesses  as  to,  387. 
parol  evidence  rule,   1115. 

USE 

reason,  of,  right  of  litigant  to,  179. 
firearms,  of,  opinion  as  to,  719. 

USEFULNESS 
conclusion  as  to,   798. 

USURY 
parol  evidence  to  show,  1113. 

UTILITY 

conclusion  as  to,  798. 


VALIDITY 

documents,  of,  burden  of  evidence  of,  407. 

VALUE 

value,  741. 

various  methods  of  proof,  742. 
market  value.  743. 

absence  of  market  value,  743. 
hearsay.  744 
individual,  745. 
printed  hearsay,  745. 
qualifications.  746. 
the  proper  market,  747. 


INDEX.   (References  are  to  Sections.} 


1021 


Value  —  cont'd. 

proof  by  estimate;  time  of  estimate,  740,  748 

change  in  value,  749. 

other  occurrences  to  show,   1006. 
relative  value,  750. 

administrative  requirements;   necessity,  751. 
relevancy  demanded,  752. 
qualifications  of   witness;   adequate  knowl- 
edge, 753. 

claim  of  knowledge,  754. 
action  of  appellate  courts,  755. 
preliminary  statement  of  fact,  756. 
ordinary  observer:  personal  property,  real  es- 
tate and  services,  757. 
owner  as  witness,  758. 
skilled  observer  as  witness,  759. 
skilled  witness  testifying  as  an  expert,  760. 
materials,  of,  skilled  witnesses  as  to,  388. 
probative  force  of  the  judgment :   how  tested, 

701 

function  of  the  jury,  762. 

constituents  for  the  expert's  judgment;    fac- 
tors controlling  it,  763. 
cotton,  of,  judicial  notice  of,  351  n. 
estate  of,  proof  of,  1065 
judicial  notice  of,  354. 
property,  judicial  notice  of,  358. 
railroad  appliances,  of,  expert  evidence  as  to, 

814. 

relaxation  in  proof  of,  656. 
relevancy  of,  656. 

VARIANCE 
writings,  of,  parol  evidence  rule,  1108. 

VARIATIONS 
order  of  evidence,  in,  164. 

VEGETABLES 

judicial  notice  of,  358. 

VENUE 

burden  of  proof  of,  400. 
trial  by  jury,  of,  209. 

VERACITY 

proof  of,  by  reputation,  G56. 

VERDICTS 

completeness  of  proof  of  record  of,  269. 

direction  for  in  criminal  cases,   193. 

direction  of,  184-200. 

direction  of  may  be  discussed  by  judge,  287. 

direction  on  opening  trial,  195. 

general,  45. 

granting  new  trial,  133 

irrational,  184. 

judge  sitting  as  a  jury,  114. 

nominal,    197. 

special,  49 

time  for  making,  motion  for  directed,  194. 

VERIFICATION 

pleadings,  of,  effect  of,  513 


VESSELS 
skilled  witnesses  as  to  matters  of,  387. 

VETERINARY  SURGERY 

skilled  witnesses  as  to,  390. 

VICIOUSNESS 
animal  of,  proof  of,  1046. 

VIEW 

jury,  by,  1139. 

VILLAGES 

judicial  notice  of,  355. 
ordinances  of,  see  ORDINANCES. 
presumption  of  regularity  of  acts  of  officers 
of,  493. 

VIOLATION 

order  for  separation  of  witnesses,  92. 

VIOLENCE 

exclusion  from  court  room  to  prevent,  83. 

VITAL  STATISTICS 

admission  of,  1082. 
copies  of  foreign  records,  1091. 
judicial  notice  of,  354  n. 
proof  of,  262. 

VOICE 

identification  from,  697. 

loss  of,  by  witness,  former  evidence,  629. 

VOLUNTARY  CONFESSIONS 

See  CONFESSIONS. 

W 

WAGER 

trial  by,  120. 

WAIVER 

right  of  confrontation,  of,  225. 

right  of  litigant  to  performance  of  functions 
by  judge,  of,  204. 

judicial  knowledge  of  facts,  374. 

jury  trial,  of,  218,  223. 

jury  trial,  of,  in  criminal  cases,  212. 

offer  of  compromise  to  show,  577. 

privilege  as  to  self-incrimination,  of,  600. 

privileged    communication    to    attorney,    of, 
1164. 

right  to  open  and  close,  of,  159. 

other  acts  to  show,  1014. 

right  to  direct  verdict,  of,  198. 

rights    under    written    instrument,    of,    suffi- 
ciency of  evidence  to  show,  411. 

WALK 
identification  from,  697. 

WAR 

judicial  knowledge  of  declaration  of,  336. 
judicial  notice  of.  359. 
opinion  as  to  matters  of,  728. 


1022 


.INDEX.   (References  are  to  Sections.) 


WAR  DEPARTMENT 
judicial  knowledge  of  regulations  of,  339. 

WARDS 

See  GUARDIANS. 

/ 

WATER 
judicial  notice  of  action  of,  353. 

WAVES 
skilled  witnesses  as  to  force  of,  387. 

WAY-BILLS 
press  copies  of,  152  n. 

WEALTH 
judicial  notice  of  distribution  of,  358. 

WEAPONS 

carrying,  as  contempt  of  court,  100. 

concealed,  proof  of  character,  1033. 

deadly,  inference  of  malice  from  use  of,  468., 

experiments  as  to  use  of,  1138. 

opinion  as  to,  719. 

use  of,  skilled  witnesses  as  to,  388. 

WEATHER 

judicial  notice  as  to,  353. 
records,  1083. 

WEATHER  BUREAU 
records  of,   1083. 

WEIGHT 
estimate  of,  740. 

judicial  notice  of  standards  of,  354. 
materials,  of,  skilled  witnesses  as  to,  388. 
of  evidence,  comment  by  judge,   121). 
presumption  of  innocence,  483. 

WEIGHT  OF  EVIDENCE 

See  PROBATIVE  FORCE. 
judge  sitting  as  a  jury,   1 1U. 

WHISKEY 
judicial  notice  of,  353 

WILL  POWER 
opinion  of  extent  of,  712. 

WILLS 

s<-c  also,   i'iu)i:.\TK  COURTS. 
ancient,  proof  of,  474 
best  evidence  rule,   1121 
completeness  of  proof  of,  271. 
copies  of,   1071. 
identity  of.  (i!)7. 
parol   evidence   of.    151. 

presumption  from  prima  facie  proof  of,  469. 
probate  of.  burden  of  proof,  399. 
proof  by  copy.  261. 
proof  of,   10!)9 
sufficiency  of  evidence  of  nuncupative,  1411. 


WINDS 

skilled  witnesses  as  to  force  of,  upon  vessels, 
387. 

WINES 
judicial  notice  of,  3.53. 

WIRES 

judicial  notice  of  running  of,  361. 
opinion  as  to  wiring,  719  n. 

WITHDRAWAL 

jury,  of,  during  argument,  183. 

WITHOUT  PREJUDICE 

offers  of  compromise,  580. 

WITNESSES 

in  general 

additional,  called  by  judge,  301. 

attendance  of,  compelled,   103. 

attesting,  243. 

attesting,  presumption  of  death  of,  474. 

bargain,  120. 

bias,  of,  instructions  as  to,  131. 

business  of,  introduction  of  former  evidence, 
619. 

change  in  testimony  of.  as  surprise,  281. 

character,  to,   103S-1041. 

claiming  privilege  against  self-incrimination, 
former  evidence  of,  621. 

competency  of,  action  of  Appellate  Courts, 
309. 

compulsory  submission  of  party  to  examina- 
tion, 1134. 

conclusions  of.  see  CONCLUSIONS. 

conflicting,  does  not  authorize  inference  of 
fabrication,  433. 

consultation  by  attorney  with,  87. 

contradiction  of,  proof  of  other  acts,  for, 
1021. 

corroboration  of,  proof  of  other  acts,  1022. 

credibility  of,  comment  by  judge,   129. 

deaf  mutes,  155. 

dying  declarant*,  see  DYIM;  DECLARATIONS. 

elimination  of  number  of,  304. 

exclusions  from  court,  79-84. 

experiments  by  judge  as  to  accuracy  of,  1003. 

expert,  see  KXPKRTS. 

fabrication,  433. 

form  of  oath,  9S. 

impeachment  of  former  evidence,  618. 

impeachment  of  unsworn  statement  of,  852. 

inability  to  procure,  justifies  secondary  evi- 
dence. 234. 

inference  from  bribery  of,  433. 

interfering  with,   109. 

instructions  as  to  experience  of,  131. 

intelligence  of,  determined  by  inspection, 
1134. 

interpreters,   154. 

interrogation  of  by  judge,  298. 

judge  as,  319. 


INDEX.   (References  are  to  Sections.) 


1023 


Witnesses  —  cont'd. 

judgment  of  experts,  see  EXPERTS. 

juryman  as,  320. 

medical,  qualifications  of,  723. 

number  of,  instructions  as  to,  131. 

number   of   as   affecting   burden   of   evidence, 

40S. 

oath  to,  compelled,  103. 

offensive   treatment   of,    upon    cross-examina- 
tion, 296. 

opinion  on  value,  see  VALUE. 
preponderance  of,  408. 
presumption  from  failure  to  call,  435. 
presumption   of   fabrication  of  evidence,  433. 
private    memoranda    for    refreshing    memory, 

]  (MIS. 

privileged  communications  to,  1160. 
probative  force  of  opinions  of,   824-836. 
protection  from  annoyance,  295. 
protection  of,  by  court,   109. 
qualification  as  to  character,  1038. 
refreshing  memory  with  hearsay  memoranda, 

862. 
removal     or     concealment     of,     presumption 

against  party,  437. 
reprimands,  of,  by  judge,  293. 
restricting  length  of  testimony  of,  304. 
restricting  repetition  of  testimony  of,  304. 
right  of  cross-examination  of,  171,   172. 
right  of  litigant  to  confront,  224. 
separation  of,  85-94. 
separation  of,  compelled,   103. 
sick,  adjournments  to  place  other  than  court 

room  on  account  of,  84. 
skilled,  see  also,  KNOWLEDGE,  SPECIAL. 
skilled  and  unskilled,  688-733. 
statement  by  judge  as  to  bias  of,   improper, 

288. 

subscribing,  see  ATTESTING  WITNESSES. 
s-iib>cribing,  opinion  of,  710. 
subscribing,  to  documents,  1100. 
suppression  of,  435-438. 
swearing  of,  95,  96. 
swearing  over  telephone,  98. 
tampering  of,  55!). 

testimony  as  to  rules  of  reasoning,  53. 
use  of  former  evidence,  617-639. 

See   FOKMEIJ  EVIDENCE. 
veracity,  of,  proof  of  by  reputation,  656. 
waiver  of  right  of  confrontation,  225. 
when  intimidation  of,  permitted,  297. 
attendance  of 
attendance  of  witnesses :  power  of  court  as  to, 

1140- 
persons  exempt  or  excused  from  attendance, 

1140. 

mode  of  procuring;  subpoena,  1141. 
attachment,  1141. 
service  of  subpoena,  1141. 
subpoena   duces  tecum,   1142. 
duty  of  witness,   1142. 
statutes,  1142. 
application  for,  1142. 


Witnesses  —  cont'd. 

requirement  as  to  certainty  of  description 

of  writings,  1 142. 
as    an    unreasonable    search    and    seizure, 

1142. 

habeas  corpus  ad  testificandum,  1143. 
recognizance,  1144. 

compulsory   process;    not   a   taking   of   prop- 
erty;  duty  to  testify,  1145. 
in  criminal  cases,  1145. 

granting  of  matter  of  discretion,  1145. 
payment  for  attendance,  1146. 

experts:  services  performed  by,  1146. 
opinions  of;  extra  compensation,  1146. 
statutes,  1146. 

punishment  for  contempt,  1147. 
examination  of 

examination  of  witnesses,   1171. 
direct   examination;    leading  questions,   1172. 
judge  may  interrogate,  298-300. 

use  of  memoranda  to  refresh  memory,  1098, 

1173. 
cross-examination,  1174. 

scope  of,   1175. 

annoyance  in  cross-examination,  296. 
intimidation,  297. 
innuendo  against,  297. 
protection  from  annoyance,  295-297. 
redirect  examination,  1176. 
examination   subsequent   to   redirect,    1177. 

an  examination  in  surrebuttal,   1177. 
recalling  of  witnesses,  1178. 
privilege  as  to  self-incrimination,   1179. 
reprimanding,  293. 

See  HYPOTHETICAL  QUESTIONS. 
impeachment  of 

impeachment    of    witnesses;     application    of 
maxim  "  falso  in  uno  falsus  in  om- 
nibus," 1180. 
right  to  impeach,  1181. 
one's  own  witness,  1182. 
opponent's  witness:   character,   1183. 
bias  or  interest,   1184. 
contradictory  statements,   1185. 
incompetency  of;  mental  incompetency 
incompetency    of    witnesses;     nature    of    an 

oath,   1148. 
qualifications  of,  826. 
mental  incapacity;  deaf  and  dumb  persons, 

1148. 
means  of  conveying  information   to  court, 

1148. 

immaturity  of  children's  minds,  97,   1149. 
a  question  for  the  presiding  judge,  1149. 
general  rule,   1 149. 
instruction  of  child,   1149. 
time  to  which  inquiry  relates,  1149. 
insanity,  idiocy,  etc.,  1150. 
a   question  for  the  presiding  judge,   1150. 
incapacity  of  time  of  occurrence  of  trans- 
action, 1150. 

effect  of  allegations  in  pleadings,  1150. 
intoxication,  1151. 


1024 


INDEX.   (References  are  to  Sections.) 


Witnesses  —  confd. 
victims  of  drug  habits,  1152. 
incompetency  of;  policy  of  the  law 
incompetency  of  witnesses ;  policy  of  the  law ; 
atheism  and  other  disbelief  in  God, 
1153. 

attorneys,  1154. 

husband  and  wife;  general  rule,  1155. 
statutes,   1155. 
exceptions,  1155. 

does  death  or  divorce  remove  incompe- 
tency? 1155. 

tendency  to  remove  restrictions,  1155. 
injuries  to  husband  or  wife,  1155. 
unlawful  cohabitation,  1155. 
infamous  crimes;  common  law  rule,  1156. 
disqualification    ensues    on    the    judgment 

upon  the  conviction,  1156. 
growth  of  belief  that  rule  too  strict,  1156. 
legislative  provisions,  1156. 
when  competency  restored,  1156. 
conviction   in   foreign  jurisdiction,   1156. 
interest,  etc.,  1157. 

survivors,  1157. 
judge  and  jurors,  1158. 
judge,  319. 

incompetency  of  witnesses;  race,  1159. 
reasoning  by 

not  permitted  to  reason,  205. 
"matters  of  opinion;  "  an  ambiguous  phrase, 

672. 
irrelevancy    as   true   ground   for   rejection, 

673. 

inference  by  witnesses:   use  of  reason  a  mat- 
ter of  right,  674. 
entire    elimination    of    inference    impossible, 

675. 

involution  of  reasoning,  676. 
judgment,  676. 

ambiguity  of  the  term  export,  676. 
conclusion,  676. 
credibility  of  intuition,  676. 
canons  of  administration,  676. 
inference,  676. 

conditions  of  admissibility,  677. 
necessity,  677. 

necessity;  inability  of  witness  to  state  pre- 
cise mental  effect  of  observation, 
678. 

detailed  statement  of  salient  facts,   678. 
inability   of   jury   to   coordinate   the   sense 

impressions  of  the  observers,  679. 
common  knowledge,  670. 
jury's  lack  of  knowledge,  679. 
instructing  the  jury,  679. 


Witnesses  —  cont'd. 

special  knowledge,  679. 
functions  of  the  judge,  680. 
relevancy ;   objective  and  subjective,  681. 
adequate  knowledge,  682. 
position  of  the  witness,  682. 
observation  and  inference,  682. 
ordinary  observer,  683. 
special  facilities  for  observation,  683. 
skilled  witness,  684. 
who  are  skilled  witnesses,  684. 
conclusions    and    judgment    of    skilled 

witness,  685. 

judge  as  tribunal  of  fact,  686. 
action  of  appellate  courts,  687. 


WOOD 


account  on, 


WORDS 

parol  evidence  for  interpretation  of,  1115. 
judicial  notice  of  meaning  of,  358. 
meaning  of,  evidence  as  to,  55,  807. 

WOUNDS 

evidence  as  to,  693. 
opinion  as  to,  719. 
possibility  of  instrument  making,  738. 

WRITINGS 

See  DOCUMENTS. 
admissions  by,  517,  546-555. 
completeness  of  admissions,  531. 
declarations  as  to  public  matters,  893. 
documentary  evidence,  433. 
dying  declarations  in  form  of,  905. 
hearsay,  as,  878. 
parol  evidence  rule,   1108-1120. 

WRITS 

admissions  in  returns  upon,  552. 
record  to  show,  1082. 

WRITTEN  LAWS 
See  STATUTES;    CONSTITUTION;    ORDINANCES. 

WRONG  DOING 

presumption  against,  495. 


X-RAY 

machines,  judicial  notice  of,  354  n. 
pictures,  proof  of,  1092. 


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